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CNN Burden of Proof

McVeigh Lawyers Seek Stay of Execution

Aired June 06, 2001 - 12:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
(BEGIN VIDEO CLIP)

ROBERT NIGH, MCVEIGH ATTORNEY: Mr. McVeigh has given us permission to seek a stay of execution on his behalf.

UNIDENTIFIED FEMALE: It was just horrible noise, the roar of the whole building crumbling.

UNIDENTIFIED MALE: About a third of the building has been blown away, and you can see...

JOHN ASHCROFT, ATTORNEY GENERAL: On June the 2nd, 1997, a jury convicted Mr. Timothy McVeigh of the April 19, 1995 bombing.

WILLIAM J. CLINTON, PRESIDENT OF THE UNITED STATES: It was an act of cowardice.

UNIDENTIFIED FEMALE: We are seeing injured people everywhere!

CLINTON: And it was evil.

UNIDENTIFIED MALE: They are on what they call a "code black" right now, a disaster mode.

ASHCROFT: This brutal act of terrorism killed 168 innocent people...

JANET RENO, ATTORNEY GENERAL: The death penalty is available, and we will seek it.

UNIDENTIFIED MALE: Bomb experts say the destruction appears to indicate a car bomb loaded with more than a thousand pounds of explosives.

UNIDENTIFIED FEMALE: Unfortunately, there are still people trapped.

UNIDENTIFIED MALE: We are getting reports of -- of numerous fatalities.

ASHCROFT: This cowardly crime against our nation was the largest terrorist attack ever within the United States of America.

(END VIDEO CLIP) ROGER COSSACK, CO-HOST: Hello, and welcome to BURDEN OF PROOF.

At this hour, lawyers for Timothy McVeigh and the Justice Department are making their case in federal court. We have just learned, however, that they have finished making their case and that there will be a recess. The judge is taking a recess and should return to the bench in a couple hours, hopefully with a decision.

Now, McVeigh is scheduled to be executed in five days and is seeking a stay. His lawyers want more time to sift through more than 4,000 pages of documents released from the FBI just a few weeks ago, documents which should have been handed over during his federal trial in 1997.

His attorney during that trial was Stephen Jones, who joins us today from Oklahoma City. And from Chicago, we're joined by Scott Mendeloff, a prosecutor in the government's federal case against McVeigh. On Capitol Hill, Republican congressman Bob Barr of Georgia, and here in our studio, Maria Nahara (ph), Elizabeth Volk (ph) and Brandon Powell. (ph) And in the back, Logan Barclift (ph) and Jennifer McKay (ph).

We are awaiting Susan Candiotti to join us from the courtroom. First now, let's go -- let's go to -- we do have Susan Candiotti, I think I'm told, on the telephone.

Susan, are you there?

SUSAN CANDIOTTI, CNN CORRESPONDENT: Yes, I am on the telephone. That's right.

COSSACK: Oh, great. Susan, tell us what happened. I know you just walked out of the courtroom. Tell us about the arguments. In particular, how was Judge Matsch? Did he ask a lot of questions?

CANDIOTTI: He did ask a lot of questions, Roger, a lot of very pointed questions. In fact, he said, "Let me tell you that when I received a letter from the government that, in fact, all of these documents had been discovered just a few days before the execution," he said, "I'm glad that I was in my chambers," he said -- paraphrasing here -- "because I lost my judicial demeanor," as he put it. And he said it with a bit of irony in his voice and acknowledged that he was -- he was "shocked," in his words, that this information had come to light.

But he also asked some very pointed questions of both the government and the defense. The defense, for example, in terms of the case that they're trying to make that the government committed intentional fraud. He said, "Are you trying to say that, in fact, the director of the FBI or some agent in some office around the country intentionally was withholding documents?" And of course, it was left hanging there, the answer more or less.

But he also wanted to know of the government, "Now, how is it possible that this kind of thing could happen," acknowledging that, of course, they need to get to the bottom of all of this. He decided to take a 20-minute recess, and that's what's happening now. Court will reconvene 10 minutes before the top of the hour, and we have every indication that he will make a decision of some kind at that time.

Roger?

COSSACK: Susan, did he ever get to the point with the defense where he said, "What exactly is it that you're looking for? Are you looking for simply a delay of the execution, or are you here today to make your point that there's been a fraud on the court? Or are you saying you need more time to make that case?"

CANDIOTTI: Well, all of those things, actually. As a matter of fact, I think, Roger, this would have been my headline if we didn't get into the questions right away. And that is, for the first time the defense acknowledged before the court that it is not challenging Mr. McVeigh's conviction, but they are challenging the death sentence. And they told the court that, indeed, they want more time to prove their charge that the FBI intentionally withheld documents, saying, in effect, that they think that, in Mr. Nigh's words, quote, "a reasoned, moral judgment can have no integrity if the jury was denied information that could have led to a punishment other than death.

Roger?

COSSACK: All right, Susan, please stay with us. We're going to try and bring you up on camera just as soon as we can.

Let me go right now to Stephen Jones, Timothy McVeigh's lawyer, in Oklahoma City.

Stephen, you've heard the same report I've heard from Susan Candiotti, who was in the courtroom. It's always tough to read tea leaves, but what can you read from this?

STEPHEN JONES, FORMER ATTORNEY FOR TIMOTHY MCVEIGH: Nothing that surprises me. I had little doubt that Judge Matsch would have been very angry at the news that some 4,000 pages had been withheld after his repeated careful inquiries of the government to make certain that everything that was supposed to have been turned over had been turned over. Then he moves on to the heart of it, and that is, "But does any of this really and truly make a difference?" And the government's answer is no.

Then he says to the government, "But how do we know that we have everything, and what are the circumstances?" That would tend to indicate that his thinking is towards granting some stay, some extension of time. But I think that it could easily go the other way.

COSSACK: Stephen, wouldn't you be -- I, frankly -- I'll tell you, I would be surprised if a stay is not granted because I think the defense is in a particularly good position to say, you know, "Look, we were -- we did everything we were supposed to do, and now 4,000 pages come out that we didn't know about. Now, maybe they don't amount to anything, but it's going to take us some time to review those 4,000 pages." The prosecutor's in that terrible position of saying, "Well, Judge, you know, a mess-up happened. We're sorry, but don't worry about those 4,000 pages."

I mean, wouldn't you think that, just to be judicially conservative in this situation -- we are talking about a death penalty, to be sure -- that the -- that it's -- that there's very little down side for the court to say, "You know what? I'm going to give you another 60 days" or 45 days, "and then come back here and tell me if you have anything at all"?

JONES: Well, as I listened to Susan's report, I think that the -- that's probably his thinking. But let's remember a couple of things. First of all, we wouldn't even be having the argument about the stay if Tim McVeigh had followed his lawyers' advice, kept his mouth shut and not dismissed his appeals. So he's trying to get back in through a door that he himself shut.

Now, his defense lawyers, obligated as they are to try to accommodate his wishes, are not suggesting that he's innocent. They're suggesting that this relates to the death penalty. The problem with that, of course, is that Tim McVeigh doesn't want to spend the rest of his life in prison. So the possibility of renewed conflict with his lawyers is very great.

But you have put your finger on it. Judge Matsch doesn't operate on somebody else's clock.

COSSACK: Right.

JONES: As Scott will recall, the first thing that he did when he got this case was he dissolved the trial date that had been set by another judge. So he wouldn't have any problem dissolving the execution date set by the attorney general, if he thinks he needs it. And probably, being the cautious, conservative just that he is, and angry at the government's -- or at least the bureau's, at best, negligence, that leans towards a short extension for Mr. McVeigh. Whether it can go anywhere, ultimately, remains to be seen.

COSSACK: Scott, let's take it from the prosecution's standpoint. I mean, it's a tough argument. If the defense goes in and simply says, "You know, Judge, 4,000 pages just takes longer than 30 days. And we have leads we have to check out, and we have things we have to go -- and plus," you know, "we're alleging that we believe the FBI has more evidence than they've turned over" -- now, you know, all of that may not turn out to be true, but you, as the -- now standing up there as part of the United States -- in front of the judge, having to admit that your agents, you know, negligently let you down, how do you counter that argument?

SCOTT MENDELOFF, FORMER FEDERAL PROSECUTOR: Well, you know, one of the interesting parts of this is that you've got an attorney general who's absolutely determined to have this death sentence go forward as soon as possible, it looks like, irrespective of what kind of image it creates with the rest of the country.

And I think that the government did their very best in their brief, which I have to say I -- I have a very high regard for Sean Connelly. I worked with him for a long time. He's a friend. But this was the best brief I've ever seen him write. He really put together a very strong argument that the court doesn't have jurisdiction to do anything here. To be able to grant the stay under the law the government cited, the defendants would have to show that there is a substantial reason...

COSSACK: But suppose...

MENDELOFF: ... to believe...

COSSACK: ... they come in and say, "Listen, we don't know if there's a substantial reason because we got these 4,000 pages that we didn't even know existed, and we need another 45 days to be able to tell you if there's a substantial reason"? Now what does Judge Matsch do?

MENDELOFF: Well, the problem is that the -- they're trying, as Stephen said, to go through a door that they already shut. They're using a -- misdirection, really, by citing a rule from the civil rules that really isn't available here. And the judge has to be -- has to decide he's going to ignore all that and do what he thinks is right in his gut.

I agree with Stephen. I think he's going to do that. I don't think he's going to be listening to the letter -- following the letter of the law here, but trying to do justice. And I expect that he will grant a stay, although a more limited one than maybe the defense would request.

COSSACK: Sure. OK. Look, let's take a break now. We're awaiting word from Judge Matsch's courtroom on the McVeigh petition. They are in recess right now. The judge has gone back to reconsider or to consider his decision. He will return, we think, within a couple of hours, and he may announce his decision yet. Let's talk more about this.

Don't go away.

(BEGIN VIDEO CLIP, BURDEN OF PROOF, JUNE 1, 2001)

ABNER MIKVA, FORMER FEDERAL JUDGE: If I were the judge, I would be -- have a great deal of angst, and there'd be a great deal of anguish, and I would listen to what the lawyers for McVeigh had to say because the fact of the matter is, when you're talking about a death sentence, you want to make absolutely certain that you have done everything that the law and the Constitution require.

(END VIDEO CLIP)

(BEGIN LEGAL BRIEF)

A Justice Department report shows that no intentional racial or ethnic bias was found in an examination of federal prosecutors' handling of death penalty cases. The report rejects arguments by death penalty opponents that sentences are racially biased. (END LEGAL BRIEF)

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP, MAY 24, 2001)

JOHN ASHCROFT, ATTORNEY GENERAL: I delayed this execution by a month to give McVeigh's lawyers sufficient time to exercise his legal rights. I will not delay the sentence of a confessed mass murderer. I will not delay his sentence further, based on documents which cast no doubt about the surety of his guilt.

(END VIDEO CLIP)

COSSACK: And welcome back.

Now, during the break, we have found out that we -- that we have confirmed that Judge Richard Matsch is expected to return to the bench at 12:50 Eastern time. That's just about five or six minutes away -- and announce his decision in this case -- so please stay with BURDEN OF PROOF. We will give you the immediate decision, and then I will follow with all the legal analysis.

But first now I want to go to Congressman Bob Barr.

Congressman Barr, you are on the judicial committee, and I want to talk to you about your feelings regarding, first of all, what the FBI has done. Second of all, I know you are a strong supporter of law and order, but this puts even supporters of law and order, conservatives, in a very difficult position, doesn't it.

REP. BOB BARR (R), GEORGIA: Well, all of us -- and I'm sure everybody on this program -- is strongly supportive of law enforcement. There's a very legitimate role for the FBI and for federal officials to help ensure the domestic security of our nation and its citizens. But that does not mean that we should stand back and say whatever the government wants to do, no matter how much power it wants to accrue, no matter how little accountability it wants, it ought to do whatever it wants to do.

And I'm concerned that we're fast getting to that point, if not already arrived there, where we have an agency -- and it isn't just the FBI, but the FBI in this case -- that has accrued far too much power with virtually no oversight whatsoever within the executive branch or by Congress. And that, indeed, is frightening, and that's really what's at stake here, far beyond just this case.

COSSACK: Congressman Barr, what should be done? What could -- what should Congress do?

BARR: One thing that Congress needs to do is roll up its sleeve, devote some serious attention to federal law enforcement, and in particular, the FBI, hold some very serious and continuing oversight hearings, not just one day, but a series of hearings, make recommendations and enact legislation to help get a handle on this. The attorney general needs to do the same thing from the executive branch standpoint.

COSSACK: Congressman Barr, traditionally, the FBI has had a very centralized leadership. You know, we always think of J. Edgar Hoover, and even now Louis Freeh. Would you be in favor of having the leader of the -- leadership of the FBI perhaps being not quite as powerful as they have been?

BARR: I think that the oversight that I believe ought to occur in both the legislative branch and the executive branch ought to operate from no presumptions. Everything ought to be on the table.

COSSACK: All right, let's take a break. We're expecting the ruling of Judge Richard Matsch momentarily as to whether or not Timothy McVeigh's execution will be stayed on Monday. We should know perhaps within the next few minutes. So stay with us, and we'll talk more about this when we come back.

(COMMERCIAL BREAK)

COSSACK: We're back, and we've been discussing the stay of the execution of Timothy McVeigh. We expect a ruling from Judge Richard Matsch momentarily. And when it comes down, we, of course, at BURDEN OF PROOF will bring it to you, and we'll have all the legal analysis that goes along with it.

Stephen Jones, let's assume now, for example, a decision is made one way or the other. Will there be appeals?

JONES: Yes. But the history before the 10th Circuit with Judge Matsch has been that the 10th Circuit has upheld every decision that he's made. It would be very unusual for them, particularly under these circumstances, if he grants the stay, for them to overturn it. If he denies the stay, I don't see Mr. McVeigh getting any relief before the 10th Circuit or the U.S. Supreme Court.

COSSACK: Scott, your feeling on that? Do you agree with Stephen Jones? I -- I'm -- to get myself in the mix here and leave the supposedly neutral person that I am, I feel fairly strongly that he will get at least 30 or 45 days, just based, if nothing more, on the government's inability to come back and say, you know, "We enter this fight with clean hands."

MENDELOFF: No, I agree with that. I'd be very surprised, knowing Judge Matsch and how careful he is and the fact that this is an execution to see him not grant some sort of a stay. I agree with you also I don't think it's going to be that long.

I think it's up in the air, and I don't have any background information on this, but I think it's up in the air whether the government would appeal that stay. I -- they've just got to be aware that appealing the stay does not -- would not look good in light of what's happened here.

COSSACK: Congressman Barr...

MENDELOFF: It would look like a... COSSACK: I'm sorry. Go ahead. Finish up, Scott. Go ahead.

MENDELOFF: No, I was just going to say it would look like a rush to judgment, when the defense is saying the issue is still unclear.

COSSACK: Congressman Barr, in terms of, you know -- you support constituents, and obviously, they're your -- you know, your voters. What do you feel your constituents feel in this matter, in terms of how they would react to a stay of execution for Timothy McVeigh?

BARR: Well, to be honest with you, I held several town hall meetings during the last week, when we were in the district, and this frankly didn't come up at all. People are concerned about taxes and federal spending and Mr. Jeffords and so forth. The feeling, though, generally, in my district, and it's probably the same elsewhere in the country, and that is that there's concern about what happened in this case with regard to the evidence that was not disclosed. People are very concerned about that sort of thing happening.

And while they do believe that Mr. McVeigh is absolutely guilty and ought to be put to death and that the process has worked fully the way it ought to, except for this latest problem, I don't think that there'd be any great outcry if the judge decided to allow some additional time just to make sure that there is, in fact, nothing in these documents -- and there appears not to be -- that would materially affect the case.

COSSACK: Congressman, you know, historically, it's been tough to exercise oversight over the FBI for many reasons. You know, when Hoover was alive, he ran the organization with an iron fist, and there were allegations that he kept files on people. And the FBI has been one of those organizations that seem to have escaped the eye of congressmen -- do you think -- Congress. Do you think it will be difficult now to begin what you have suggested, which is a series of hearings, those that don't last one day, those have -- those have -- you know, serious and important hearings to rethink and review the way the FBI works in this country?

BARR: Yes, it will be difficult because there will be -- there's always in the Congress a great hesitancy to move off the status quo, to upset what is actually in place. But I'm very fearful that if we don't get a handle on it, then we, as a nation, are going to suffer and the FBI ultimately is going to suffer.

COSSACK: Stephen Jones, in terms of the appeal for Timothy McVeigh, what will he have to show -- let's assume, hypothetically, that 30 days go down and -- or that he's been given an extension of 30 days, and the judge says, "OK, in 30 days, I want you to come back now and convince me of everything you're going to convince me of, that there was a fraud on the court, that, in fact, this new evidence, if you were given a different sentencing hearing, the sentencing may come out different," whatever he may conceivably be asking for. How -- how high a burden does he have to go?

JONES: Pretty high. McVeigh's got to do three things. First, he's got to get the stay. That we'll know about today. Then he's got to convince the judge to let him reopen the door to go back to what might be called "stage three," which is the 22-55 or the post- conviction relief. And then he's got to persuade the judge, once he's back there, that he's entitled to the relief that he seeks, which apparently, based upon the comments this morning, will only be a resentencing proceeding.

Now, that's a little less difficult than getting a new trial on guilt or innocence, but it's still a tough road to climb, all the more so because of Mr. McVeigh's disregard of his lawyers' advice and going public, so to speak.

COSSACK: Now, Stephen, he changed his story now than what -- what it was when he first met you. And I understand that he's waived his attorney-client privilege by writing that book. But it's my -- it's been reported that initially he told you that there were others involved, and then in the latest version of this story, he said, no, he was solely responsible. Is that not true?

JONES: That is true, that in the early conversations over the first couple of months, before he got access to discovery, he gave us information that clearly indicated the presence of others and the involvement of others. Then later, when he realized that -- what he had done, he changed it and tried to explain that away. All along, he wanted to take the primary responsibility and credit for it.

COSSACK: Now, what did he say about Nichols?

JONES: Well, Mr. Nichols has, of course, state criminal proceedings pending here, so I want to be careful about that. Let me just say that I'm not aware of anything that would exculpate Mr. Nichols or cause a change in the federal jury conviction that he had, federal criminal trial.

COSSACK: And by "exculpate," you mean any evidence that would show that he is not guilty.

JONES: That is correct.

COSSACK: All right, Scott, let me go to you now. In a sense, the argument is, of course, that, you know, "Judge, we may not be able to show that our client is not guilty, but we may be able to show that things have been mitigated and that therefore he wouldn't get the death penalty." How would they go about trying to do that?

MENDELOFF: Well, that's going to be difficult because the standard is, at this stage, they have to show, to get any relief, actual innocence. And as the government's brief points out, trying to go halfway and just get a new sentencing hearing is not an open option at this stage in the -- in the act that is in place, which is the Anti-Terrorism and Effective Death Penalty Act that Congress passed in 1996.

So it would be very, very difficult. I think it's going to be even more difficult because Judge Matsch saw the evidence in this case and saw the reaction of the jury. And I think that Judge Matsch is going to be very aware that the evidence was clear that McVeigh delivered this bomb. And irrespective of who else the defense may conjure up as being involved here, the fact is going to remain that he is the one who, in effect, pulled the trigger on all of these lives and injured all of these people. And I think it's going to be a very tough row to hoe for the defense to be able to convince Judge Matsch that McVeigh would have gotten some different sentence.

COSSACK: Do they have to convince Judge Matsch? Does the burden of proof require them to -- to convince him that they would have gotten a different sentence? Or what if they can come up with new evidence that said, "You know, Judge, it's clear there was about five or six other guys that were involved in this. Yes, McVeigh did what he did, but perhaps the jury would want to spread a little of this guilt out and maybe give him life"? Is that enough?

MENDELOFF: I don't think it's going to be enough. Again, the standard is fairly clear, as set forth in the government's brief. But even apart from what the standard is, we have to remember that McVeigh, unlike Nichols -- McVeigh is the one who actually delivered the bomb, and that is going to be the central fact that it's going to be in the judge's mind, I would think.

And also, the very substantial evidence that we had during the case that it was McVeigh and Nichols, and McVeigh and Nichols alone, who were going around the country, gathering bomb components. And so to the extent that the defense might be able to conjure up some specter of somebody else being involved, it would definitely be somebody at the periphery.

COSSACK: But what about this "John Doe" figure that we've heard about from day one, that, in fact, many people still believe do exist. The government says no, it's not true. I mean, what if suddenly these -- there are some reports that some of this evidence indicates, talking about interviewing individuals who said, "You know, I saw some other person."

MENDELOFF: Well, you know, it's interesting that you'd say that, and I think Stephen will agree with me. The John Doe 2 figure, specific figure, I think was very substantially rebutted in a hearing before the trial. We put on the individual who was the source of the sketch for John Doe 2, and he provided a very substantial statement that he had been in error.

In fact, the problem was that the sketch only reflected his description of the man's face. But he also provided a physical description of the man, including a tattoo sticking out from beneath his left sleeve a quarter of an inch. And sure enough, the individual that the FBI found who had come into the room -- excuse me -- come into the dealership the day before, Todd Bunting, matched Joe Doe 2 exactly, right down to that tattoo.

COSSACK: All right, Scott, I'm afraid I got to interrupt you. Give you the last word for now.

That's all the time we have today. Thanks to our guests, and thank you for watching.

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