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FBI Documents Could Impact McVeigh, Nichols Cases

Aired May 11, 2001 - 12:03   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.
LEON HARRIS, CNN ANCHOR: CNN has learned there is a strong possibility that Attorney General John Ashcroft will announce a delay this afternoon. Now this follows Thursday's discovery of more than 3,000 pages of documents apparently withheld by the FBI, documents that should have been handed over to defense attorneys during the discovery phase of McVeigh's trial.

McVeigh's lawyers are right now poring over the materials and they are pondering their next move. Our coverage begins at the Justice Department with CNN's Kelli Arena -- Kelli.

KELLI ARENA, CNN CORRESPONDENT: Leon, Attorney General John Ashcroft is returning from an early event with the Drug Enforcement Administration today. His aides and counselors are busy inside trying to figure out exactly where to go with this. As you said, we have been be told by a Justice Department spokesperson that there is a strong possibility that Justice will seek a delay, that it will order a delay in the execution.

That delay, we are told, could be as long as 30 days. That would give all the interested parties enough time to go over, peruse all of the 3,000 pages that they had just recently uncovered. We have been told that that conference will happen later on this afternoon. The attorney general may even take some questions from reporters. And of course we will be bringing that to you later on.

The Bureau of Prisons which the Justice Department oversees is going on business as usual, Leon. We spoke to a spokesperson there. They said they haven't gotten any official word, that they are still planning for an execution on Wednesday. Now here's the way this works. The Justice Department oversees the Bureau of Prisons. Once Timothy McVeigh was sentenced to death, the court tells the Justice Department to set an execution date. That is totally within the Justice Department's jurisdiction to do.

So if the attorney general comes out today and says, we are putting in a delay -- and I'm just told that -- we've confirmed that we will here that announcement at 1 o'clock from Attorney General John Ashcroft about exactly what the Justice Department has decided to do. But if they do decide to issue a delay, they do not have to go. The department doesn't have to go through the courts.

They have unilateral jurisdiction to do that. And we are told that if that delay is put in place that it would likely be about 30 days which they think is a fair amount of time for not only the defense attorneys but also the judge who heard the case back in 1997, Leon.

HARRIS: All right, good deal. Thank you, Kelli Arena at the Justice Department, once again confirming for us that the announcement was expected to come at from Attorney General John Ashcroft at 1:00 p.m. We'll have live coverage right here -- Daryn.

DARYN KAGAN, CNN ANCHOR: Once again this execution was set to happen on Wednesday in Terre Haute, Indiana. That's where we find our Keith Oppenheim -- Keith.

KEITH OPPENHEIM, CNN CORRESPONDENT: Hi, Daryn. In may be a formality to mention, but despite all that Kelli mentioned about what we are expecting to hear from the Justice Department, officials from the Bureau of Prisons here, in Terre Haute, are saying that as far as Wednesday's scheduled execution goes, everything is to go as planned until they directly hear otherwise.

As far as Timothy McVeigh goes, he is planning on meeting with his attorneys, or so we believe, here at the prison. And one of those attorneys from Denver, Nathan Chambers, said that the previously unreleased documents he believes would certain be strong grounds for a stay of execution.

(BEGIN VIDEO CLIP)

NATHAN CHAMBERS, MCVEIGH ATTORNEY: It is troubling that at this late date, a full six years after the bombing and less than a week before Mr. McVeigh's scheduled execution, that these documents would be produced. That's a cause for great concern.

(END VIDEO CLIP)

OPPENHEIM: Now another attorney who is representing Timothy McVeigh, Robert Nye, we believe that he will be here today too. He's from Tulsa, Oklahoma and the question is whether or not Timothy McVeigh might decide that he wants his execution to go as planned. To just reemphasize what Kelli had reported before, that if McVeigh were to decide that, and we don't know that he will, if he were, that would be a factor for the Justice Department to consider. It would not be a deciding factor. The Justice Department would decide when the execution is to take place.

McVeigh, by the way, has been scheduled for a Wednesday morning execution. He was to be put in what's called an execution facility holding cell, possibly as early as Monday. Also school is now scheduled not to take place, that's public school, not to take place here on Wednesday in Terra Haute. So all those things are still scheduled to happen. The question is, after the news that we hear possibly in about an hour from now: Is that all to change. We'll find out. Now back to you.

KAGAN: So, Keith, logistically, at least for now, everything stays the same. They're going to wait for an announcement, I guess from Justice, and also an announcement from McVeigh's attorneys as to what they plan to do. And then I would imagine that would change the logistics in the plans in Terra Haute.

OPPENHEIM: That's right. And I think it's just important to keep in mind what a procedural thing this is. When they get ready for an execution at any state prison and now for the first time in a long time at this federal facility, it's a process that they go through that's very well planned out. So if there's to be a change, well, they have to wait for the orders before they can stop all the things that they are doing. And it's a great deal of setup for this one.

KAGAN: Keith Oppenheim in Terra Haute, Indiana. Thank you -- Leon.

HARRIS: All right, let's go to Denver now where CNN's Gina London is standing by there. Denver is the site where this trial that convicted McVeigh was actually held -- Gina.

GINA LONDON, CNN CORRESPONDENT: That's right, Leon. Right now we're kind of in a legal holding pattern, if you will, because as you mentioned, this federal court was where the actual trial was held, and the building behind me was where Judge Richard Matsch has his chambers. Now he is the judge who was the presiding judge during this trial, and he was notified yesterday, we understand, that there might be a motion pending.

Now I just spoke recently to the spokesman for the court here and he says that it their understanding, this somewhat echoes what Kelli Arena just said, but it is the understanding in the court here in Denver that the Department of Justice does have the final word. If it decides that it wants to delay the execution, it may do so, Leon, without conferring with this court.

However, it's important to note that Nathan Chambers, the defense attorney for McVeigh, does have all the documents, the copies of the documents, here in his office where he received them yesterday. he's still going over them and trying to consider what if any legal opportunities or possibilities they may have.

We've got a little bit of legal protocol going, on if you will, right now as we wait to find out what the official announcement will be from the attorney general -- Leon.

HARRIS: Gina, do you know whether or not the defense attorney's announced or planned to make an announcement of their own today at all?

LONDON: Well, it's interesting no note, as a matter of fact, just beyond me, there's what's kind of called a bullpen for the press. It's just now being set up by the district court building itself. And so that could be an indication that someone may come to podium. It wasn't set up earlier. It's typically set up when there is going to be some sort of a press release.

Could that be a press conference from the folks in the court or could it be from the defense attorneys themselves? We don't know, but we are standing by and we'll give you that information just as soon as we get it. HARRIS: Understood. Gina London, standing by for us there in Denver -- Daryn.

KAGAN: All morning long we've been following the story through the eyes of the government and through attorneys, but also through the eyes of survivors, and also of victims, family members who lost people in the Oklahoma City bombing.

We have with us on the phone right now, Roy Cells. He is a husband of a bombing victim. Mr. Cells, I understand you lost your wife in the bombing.

ROY SELLS, HUSBAND OF BOMBING VICTIM: Yes, that's true.

KAGAN: And what's your reaction to what appears will be a delay in the execution of Timothy McVeigh?

SELLS: Well, I'm a little bit frustrated and disappointed in what's going on. I thought that all of this paperwork was behind us. You know by now, six years later, disappointed that the government finally comes up with this. I'm hoping there's nothing in that paperwork that changes the guilt or innocent of McVeigh. I was at the courthouse every day that the courtroom was open during his trial and so I truly believe that he is guilty, He has admitted that he is guilty, so I don't hardly see that there could be anything in this paperwork that would show that he was an innocent player in this crime.

KAGAN: You mentioned you attended the trial. Had you been planning on witnessing the execution as well?

SELLS: Yes, Ma'am. I really wanted to go to Terre Haute but my name wasn't drawn. So I'm going to witness it at the center here in Oklahoma City.

KAGAN: And I would imagine that would change -- right now it looks like your plans are going to have to change for Wednesday.

SELLS: Yeah. A lot of things are going to have to change. It just seems like we've take a couple of steps backwards in this ordeal. So I guess that we'll just back up a couple of steps and see what's going to happen down the road.

KAGAN: Did this only add to your frustration? Yet another development, yet another event that you and other victims, other family members have not control over?

SELLS: It surely does. I'm really disappointed that we can't go home with this execution as scheduled because, you know, you prepare yourself mentally and physically for this. And now it's a big letdown to think it may not happen. Yeah, it is. It's hurt us a bunch.

KAGAN: Roy Sells, thank you for sharing your perspective, sir. We appreciate it.

SELLS: You bet. KAGAN: Leon.

HARRIS: Let's check in now with out legal analyst, Greta Van Susteren, who's standing by in our Washington bureau -- Greta.

GRETA VAN SUSTEREN, CNN LEGAL ANALYST: Leon, the big news, at least from my end, is I've spoken to Bill McVeigh, the father of Timothy McVeigh, and I've had a lot of conversations with him since -- in the last six weeks or so. But what he said was is that he does not know what Timothy wants. I had posed the question to him whether or not he thought that Timothy McVeigh would ask that the execution day go forward on Wednesday as planned.

He also said, when I asked him how he was doing, because obviously this is a very difficult time for the father of someone who is scheduled to be executed on Wednesday. And he said, "I'll handle it one day at the time. That's all I can do."

Now, if the justice department, if the attorney general does come out this afternoon, does postpone this for 30 days, the execution, it does not necessarily mean that the execution will go forward in 30 days. There are certainly a lot of balls in the air, a lot of variables.

For instance, suppose there's something in those documents the defense thinks warrants filing a motion with the federal judge. They will then file that motion, the judge has to hold a hearing and make a decision. And every time a judge holds a hearing, the party that us dissatisfied with the decision made by a judge may have the right to go to the court of appeals. And if you lose in the court of appeals, you may have a chance to at least seek review to ask the Supreme Court to step in and to make a decision.

So by virtue of the fact that this wrench has been thrown into the works, it may be a far greater delay than anyone truly anticipates. Because remember, a defense lawyer's job is to keep a client alive. And so the defense attorney will do everything aggressively and vigorously to do that, to make sure there's a fair trial.

On the flip side, the government has an obligation to make sure that someone is legally guilty, meaning that someone is convicted fairly, which means complying with all the rules and all the rules of evidence. And they were required, of course, to turn these documents over. They didn't, so the government sounds like it's just trying to make sure that they do this right.

HARRIS: All right. Thank you, Greta. Van Susteren, in our Washington bureau.

I believe we are still having the "BURDEN OF PROOF." I'm not sure. Are we going to go to go to morning coverage throughout the afternoon? Not getting an answer on that.

KAGAN: OK.

HARRIS: Well have -- yes, OK. We will. All right, good deal.

KAGAN: All right, we surely will learn a lot more about 45 minutes from now. That's when Attorney General John Ashcroft will hold a news conference. Of course you will see that news conference live here on CNN about 45 minutes from now.

HARRIS: We'll take a break right now.

(COMMERCIAL BREAK)

KAGAN: We continue our coverage of this breaking news story concerning Timothy McVeigh and what will look like will be a delay of his execution. But it turns out the missing documents that suddenly turned up this week are having an affect on other defendants in this case.

With more on that, here's Jeanne Meserve with our Charles Bierbauer -- Jeanne.

JEANNE MESERVE, CNN CORRESPONDENT: Daryn, specifically they are having an effect on the case of Terry Nichols. He is the convicted co-conspirator in the Oklahoma City bombing. Charles Bierbauer, senior Washington correspondent, joins me. What's the headline?

CHARLES BIERBAUER, CNN CORRESPONDENT: Well, the headline is that attorneys for Terry Nichols will file an appeal with the U.S. Supreme Court by midnight tonight. That's a deadline they have to meet. And they're going to ask the Supreme Court to ask the solicitor general to look into this and get an explanation as to what these documents are all about.

Now, the reason for doing this is that Terry Nichols, who is serving life sentence, he was convicted of conspiracy and involuntary manslaughter -- he had already appealed for new trial, was turned down by Judge Matsch. He had appealed to the 10th Circuit Court of Appeals, and then subsequently to the Supreme Court, was turned down again, just on April 16.

So he has a narrow window in which to refile. That's what he's going to do. Why is this important? It's because in good measure, this is material that was not available to them. It's called "Gradyx" material, based on an earlier precedential case -- withheld material that his defense attorneys should have had. They're are particularly concerned about the so-called John Doe 2, the person we have only seen as a sketch, that we do not know if there is a John Doe 2. But if there were, that would suggest this was a broader conspiracy than just Timothy McVeigh acting alone. And as an attorney for Terry Nichols told me just a moment ago, talking to Mike Tigar, he said this is more significant for Terry than it is for Tim.

MESERVE: And these documents came to light in the nick of time for him?

BIERBAUER: In the nick of time for Terry Nichols, absolutely. Yes, because that window of would have closed at midnight tonight, since he'd already been denied once by the U.S. Supreme Court. MESERVE: OK, let's about the McVeigh case and possible things his attorneys could do as a result of a revelation about these documents.

BIERBAUER: Timothy McVeigh's attorneys, as I understand it, are limited by what Timothy McVeigh wants to do. They cannot act independently. They would have to prove that he was incompetent to act on his own behalf, and that does not appear to be an option at hand.

So it depends on whether McVeigh himself will say, all right, let's go ahead. Let's file an appeal. Maybe this changes things. Maybe he has a different view of what his outcome might be.

MESERVE: Could a third party intervene?

BIERBAUER: Very limited. Very limited circumstances. One legal expert I talked to said someone could act in the role of close friend, best friend -- someone, perhaps, like Timothy McVeigh's father. But not just some random group, even if they were opposed to the death penalty. They'd have to have standing, and that would not be available to them since McVeigh is capable of acting on his own behalf.

MESERVE: We've just been talking a little bit about time deadlines, the attorney general expected to speak in a little bit more than half hour. Is he under any sort of time pressure to decide whether or not to announce a delay in this execution -- except of course, the obvious deadline, Wednesday.

BIERBAUER: The obvious deadline is Wednesday morning, and he could do something up to the very last minute. But it's clear now that Attorney General Ashcroft has within his power, as the attorney general, as the overseer for the Bureau of Prisons, to say we're going to slow this down. We're going to wait. We're going to see what develops.

A delay, not a legal stay. We haven't reached that point yet. That's what we are expecting, or we're anticipating the attorney general will tell us what he's going to do.

MESERVE: Charles Bierbauer, senior Washington correspondent, thanks so much. And so, Daryn, we all wait. We'll give you more analysis when we know what action the Justice Department is going to take. Back to you.

KAGAN: Thanks to both of you. Very informative segment there. We are also getting word that former attorney for Terry Nichols, Michael Tiger, will be joining "BURDEN OF PROOF" at the bottom of the hour. He should be able to provide some insight on what possible plans and options Terry Nichols has at this point -- Leon.

HARRIS: Well, this decision by the Justice Department is having an impact on lives across the country. One of those lives is that of Kathleen Trader. She joins us now from Oklahoma City. Now, Miss Trainer lost her daughter, Ashley, in that explosion, as well as her in-laws. And we'd like to know what your thoughts are. We've been talking with quite a few family members and some survivors this morning, getting their thoughts on what's going through their minds right now (UNINTELLIGIBLE). What is exactly going through your mind right now?

KATHLEEN TREANOR, MOTHER OF BOMBING VICTIM: I'm understandably angry. I just don't understand what has happened here. I didn't get much sleep last night after I heard that this has happened. And, you know, this has been an emotional roller coaster for all of us, and the fact that everyone who was involved with this case knew how important it was to not make any errors. And now, six years later, we're finding out there were errors made. And basically, this is -- this is wrong. This is just wrong. And somebody needs to pay for this.

HARRIS: You feel like this is just basically dragging out the pain that you're suffering?

TREANOR: Oh, absolutely. There's a lot of emotional preparation that goes into preparing for what we were going to do next Wednesday. And now it looks as if that's going to be delayed. And God only knows when that's going to be. I really don't worry about the execution going through. I really think that that's going to happen no matter what.

Even if McVeigh manages to get through -- get away from the death penalty on the federal charges, we've still got a legal right to him in here in Oklahoma. So I'm not worried too much about that. But it could draw this out for years, if necessary. So it's just a mistake that should never have been made.

HARRIS: Well, what were your plans for next Wednesday? I should say what are your plans until this announcement is made? What are your plans for next Wednesday? Are you going to be going to witness the execution or watch on the closed circuit?

TREANOR: My plans were to watch it on closed circuit, but now we don't know what the plans are. So we're waiting to hear from Attorney General Ashcroft as to what his decision is on regarding these documents. And once we know that, then we'll know how to plan for future. But, see, that's another thing, I mean, everything has been totally disrupted for the next, God only knows how long.

You know, I think probably the thing that makes me more angry about this is I can see McVeigh sitting there in his cage, and he's laughing himself to death. Because he -- this is the kind of stuff he just revels in, and I think that probably just goes all over me worse than anything else. This should never have happened. And I'm -- I really see this as giving him a little more power, too, to determine when it is that he's going to die. And I just hate that.

HARRIS: Kathleen Treanor, we thank you very much for your thoughts, and I hope you understand how many of us feel for you and are sorry about your loss. Take care. Good luck to you.

TREANOR: Appreciate that.

KAGAN: You've got to feel for the families. The frustration and the difficulty goes on for them.

HARRIS: Well, you have to understand. If nothing else, you have to understand what they must be feeling.

KAGAN: Absolutely. Of course, the story continues to develop. "BURDEN OF PROOF" will carry on at the bottom of the hour in a couple minutes. Top of the hour, 1:00 p.m. Eastern, we expect a news conference from Attorney General John Ashcroft talking about the plans for the Justice Department, what we expect to be an announcement of a delay of the execution of Timothy McVeigh.

HARRIS: That's going to do it for us for right now. We thank you for sticking with us this morning. We've had lots of breaking news. I'm Leon Harris.

KAGAN: I'm Daryn Kagan. Lou and Natalie take over at the top of the hour.

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