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CNN Crossfire

Should Timothy McVeigh Get a Stay of Execution?

Aired May 31, 2001 - 19:30   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)

UNIDENTIFIED MALE: Today, at Mr. McVeigh's direction, we have filed at the U.S. district court, a petition for stay of execution.

(END VIDEO CLIP)

TUCKER CARLSON, CO-HOST: Timothy McVeigh seeks a stay of execution. Does he have a right to?

ANNOUNCER: Live from Washington, CROSSFIRE.

In the crossfire, former federal prosecutor Barbara Olson, and in Santa Barbara, California criminal defense attorney Gerry Spence.

MICHAEL KINSLEY, SLATE.COM: Good evening. Welcome to CROSSFIRE. I'm Mike Kinsley of slate.com sitting in for Bill Press. Lawyers for Timothy McVeigh today asked for a stay of his scheduled June 11 execution. McVeigh was convicted of the 1995 Oklahoma City Bombing that killed 168 people. He was sentenced to die by lethal injection, and previously he had said he was ready to die.

But today his lawyers said he is seeking the delay as a matter of principle. The FBI has admitted that it withheld thousands of pages of documents from McVeigh's lawyers during his trial. The lawyers say they believe there still may be documents the FBI hasn't turned over.

The FBI and the Justice Department both deny this. And Attorney General John Ashcroft said this afternoon that he will, quote, "oppose vigorously any further delay in McVeigh's execution."

Tucker Carlson is CROSSFIRE's official Mr. Right. He walks in the shadow of giants like John Sununu, and that other guy. Congratulations, Tucker.

CARLSON: It's my pleasure. Mike Kinsley, thank you. Now Gerry Spence, joining us from Santa Barbara, thank you. Now normally it seems to me in situations like this people who defend death row inmates say well, this guy is innocent or he's retarded or somehow there's been a government frame up, but in this case nobody's claiming that Timothy McVeigh is innocent.

He is not claiming he's innocent. He turned down his appeal. He admitted he did this. Now the government makes a clerical error. It's not as if some other guy has been found to have committed the Oklahoma City bombing. How is it protecting the Constitution to delay his execution?

GERRY SPENCE, DEFENSE ATTORNEY: Well, a clerical error of 4,000 documents that may have something to do with this case? Here is what it has to did with: it means that if we are truly America, that even the most heinous criminal and McVeigh fits that description, even the most guilty has to have a fair trial in this country.

If we don't, you know, we aren't America any more. And so that's what this is finally all about in that it has to do with the process. If the process is fouled, then we are fouled. And I have to say this: It isn't about McVeigh. It isn't about him at all. What it's really about is you and me because if the FBI can do this one of most important cases in this century, against McVeigh, they can do it against any of us.

And my own experience at Ruby Ridge when I represented Randy Weaver, was that the federal government and the FBI did exactly same thing there. The court caught them, we caught them, we brought them before the judge and guess what happened? What happens is that they say, well, it was just an error.

CARLSON: But wait a second...

SPENCE: It was an error that was the difference between life and death.

CARLSON: I understand that but in this case there's no, and that may have been true at Ruby Ridge, but in this case there's no evidence at all that the FBI did anything to prevent Timothy McVeigh from having a fair trial. Is the principle here that self-professed guilty people ought to have more time to make political pronouncements? What it exactly the principle, considering that nobody's alleging it was an unfair trial?

SPENCE: That's -- you know, that's a neat question the way you put it but you know, it isn't a matter of whether or not he is guilty or innocent. It's a matter of the process. If the process is fouled, if it doesn't work, if it just doesn't work, if we can't trust FBI, then what do we have in our hands?

I think we need to turn our face away from the McVeigh case and say look, this is what they're doing in almost every case -- they've done it in almost every case that I have ever been in -- and so what you have to say is that there's something -- when these agencies run loose like this, well what is next step?

The next step is -- I don't like to hear the word -- but it's Gestapo.

KINSLEY: Well, before we turn our face away from the McVeigh case, Barbara Olson, the question is, what is the rush? He's obviously guilty. He is going to be executed. The FBI obviously screwed up. I don't think even you would deny that. This is the first federal execution in 40 years. It's a solemn thing. Shouldn't we dot every i and cross every t? And isn't that worth a month? What's the difference?

BARBARA OLSON, FORMER FEDERAL PROSECUTOR: Well, you are right. We should dot every i. Execution is final. There is no going back on that. And that's exactly why General Ashcroft prolonged the execution. He said it will not happen back in May. He's given them a month to review these documents and a month, frankly, for the new Justice Department to review these documents.

They don't go to his guilt or innocence. And let's really talk about what this is really about: We know McVeigh is guilty, he's admitted it. What this is really about is if there's some phantom other person. McVeigh has denied there's another person. And the defense lawyers want to go into that over the sentence. I think they know his trial was fair. He was convicted fairly.

They think if they can create a phantom other person maybe he won't get a death sentence. But there is no evidence of that. And that's why General Ashcroft came out yesterday and said we're going to oppose a continuation of this. We gave the defense attorneys an extra month. We looked at the documents and the evidence isn't there.

KINSLEY: Now wait a minute. You said way back in May, it's still May, isn't it? Or...

OLSON: Yes, but the execution will not be until June 11. They still have two more weeks to look at it and there is nothing there. The defense does have some burden to show that there's some evidence that would go to his innocence or guilt, not a phantom process.

KINSLEY: So, look, not a month ago, two or three weeks ago they were suddenly discovering that there are thousands of pages of documents dumped on them. They have been through them. You are going to execute the guy. Are you saying that two weeks later it's perfectly OK to say, you can't do anymore, you can't have anymore time?

OLSON: Well, let me correct the record a little bit. Yes, there were 4,000 pages, but after they've gone through them, they were duplicates, magazine clippings. I think there's like a calendar of a swimsuit issue. What they found out, there's about 898 actual pages that should have been turned over. Those have been gone through. And certainly in a month...

SPENCE: I don't where this information -- where did this information came from?

OLSON: It came from the attorney general, in his statement.

SPENCE: Where does information -- where does this fiction come from that there was eight hundred and ninety something pages..

OLSON: It came from the attorney general and the defense attorneys have not questioned that.

(CROSSTALK) OLSON: What they are trying to do is create enough doubt of a phantom other person. And frankly, a month is a long stay. They've had time to go through these documents and defense hasn't found anything to go to his guilt or innocence.

SPENCE: Ever go down to the beach, Barbara? And let me ask you this question: You ever go down to the beach with a nice novel to read. You don't have read it carefully, you just go down to the beach and read -- about 400 pages. Now what they gave to these folks was the equivalent of ten novels.

Every page of which you have to look at and if it wasn't relevant to this case, if it wasn't relevant to this case, if it didn't have something to do with the guilt or innocence of these people, all 4,000 of those documents, I'm sure that Ashcroft wouldn't have given them to the defense. Mr. Ashcroft isn't delivering calendars of girlies. I'll tell you that.

OLSON: Gerry, you are a great defense attorney, and you know 4,000 pages did not go to his guilt or innocence. You know the amount of documents that is created in a case like this. You get citings of psychics, you get sightings of people in mental institutes. Prisoners will send you -- all that has to be documented. It doesn't go to his guilt or innocence and you know that.

KINSLEY: How does he know it? How do you know it?

OLSON: Because he's tried a lot of cases, I have tried a lot of cases and we know a lot of that evidence...

KINSLEY: You are probably right. You have been down the track a lot of times, but you are going to execute this guy and his lawyers say...

OLSON: No, no, his lawyers are looking at those documents and they haven't found anything to go to the guilt or innocence of Timothy McVeigh.

SPENCE: How do we know that?

OLSON: Well, we have his confession. Timothy has said he did it.

CARLSON: Let's talk about what we do know. Now, you compared a moment ago the Justice Department to the Gestapo. Which I think you'll agree, upon further reflection, was a pretty appalling thing to say, because one we do know about the FBI is that they admitted that they made this mistake.

And in fact if it weren't for these various FBI field offices overseen by the Justice Department, fessing up, we never would have known about the 4,000 some odd pages that hadn't been turned over originally. So in this sense it was a self-correcting system, wasn't it? I mean, if the FBI was truly out of control and executing people like the Nazis, and I hope you will apologize for that at some point, then we never would have known, would we? SPENCE: Give me a chance to say what I want to say about that. I don't think that the people in the FBI are bad people. I think...

CARLSON: They're Nazis but they're not bad people?

SPENCE: No, wait a minute. Don't put these words in my mouth because they don't belong there. But when you have an agency that's responsible to nobody you can't -- you know, if I did what they did, if I held back documents case after case, I could be charged and probably would be charged with obstruction of justice.

Now when you go -- you have the FBI who is going to put them in jail? Nobody puts them in jail. There is no oversight over these people, and if you have 1,000 cases out there and they are found guilty in one they say oh, it was just a mistake. Now how many cases do you think are really out there in which...

CARLSON: Now, wait a second. Of course there's oversight. They're answerable to Congress, they're answerable to the president. What you are talking about? It's not if they are a foreign army who happens to be occupying the United States. They get money every year from the Congress.

KINSLEY: It is true, isn't it, Barbara, that during the Clinton Administration, Louis Freeh was the charmed boy for both conservatives and for the press, and the FBI got very little criticism and Janet Reno got blamed for everything.

OLSON: No, that's not true. I mean we did oversight. We did oversight -- I did oversight of the FBI. Remember the FBI files? We did oversight when it was warranted. And understand what happened here, I do want to explain.

This case was getting calls from all over the country. There's 50 some odd field offices in the FBI. When they get someone who calls up and says, I'm a psychic, and I just talked to witness who may be able to tell me something. The FBI can't say this person is not a legitimate witness. They write it down. They do what's called a 302. That's evidence. Is it legitimate evidence that would go to trial -- no. A defense attorney would throw it in the garbage can.

KINSLEY: But don't they have the right to throw it in the garbage can? And the FBI does not have the right to throw it in there.

OLSON: And they don't do that, but when you have got a case that large with people calling probably all over the world into the FBI, there is a mountain of documents to get together.

KINSLEY: You did oversight of the FBI and you are saying it's perfectly OK for the FBI -- it's beyond the FBI's competence to make sure they don't accidentally throw away even a trivial document.

OLSON: No, what I'm saying is, very large cases all of the evidence came in, you are going to have a copy here or there. God knows we found copies here or there in every branch of government none less than the White House.

SPENCE: 4,000 copies.

OLSON: This is Less than 1 percent of the documents. These are documents that an FBI agent when he's asked for documents would say, OK, we have already given interview, or we've given the 302 and they don't give the phone record of the call. That's not evidence.

KINSLEY: Well, Barbara, all I have to say is I want you to be overseeing me if I'm ever involved in a controversy.

CARLSON: We may be having this conversation ten years from now: Will Timothy McVeigh ever be executed. We will get to that when we return in just a moment.

(COMMERCIAL BREAK)

CARLSON: Welcome back to CROSSFIRE. It's the story that just won't die: Timothy McVeigh convicted of the Oklahoma City bombing. He was scheduled to be executed this month, then next month. And now, perhaps many months in the future. McVeigh has requested a stay of execution. "It's a matter of principle," say his lawyers. "It's a matter of unacceptable delays," says the Justice Department. Who's right?

Joining us from Santa Barbara, California, criminal defense attorney Gerry Spence, he is the author of "Half Moon And Empty Stars," a new novel about the death penalty. And here in Washington, former federal prosecutor Barbara Olson. She's the author of "Hell To Pay" a political biography of Hillary Clinton -- Mike.

KINSLEY: Barbara, the FBI says this time they really have turned over everything and they mean it. McVeigh's lawyers say they have no confidence quote/unquote that that is true. Do you have confidence that they are telling truth this time, and on what basis would you have such confidence?

OLSON: Well, let's start with first of all, the agreement that was made between the prosecutor and the defense attorney to turn over everything over was an unusual agreement. Most FBI agents who have a lot of experience with evidence and turning over documents now know that this agreement includes every scrap of paper, every phone call you got when you wrote down a note.

KINSLEY: They didn't know that before?

OLSON: Well, it was an unusual agreement that was made in this case. The discovery agreement -- normally what you have to turn over to the defense counsel is exculpatory. Any evidence that I have that might go to the innocence of the defendant. Instead, there was an unusual agreement here which most agents weren't used to. And I think they probably were not put on proper notice.

Now they clearly have -- Louis Freeh has told General Ashcroft that everything has been turned over. I think the FBI now realizes that it's every scrap of paper no matter how insignificant, and I think that is exactly what has happened and there's no evidence otherwise.

KINSLEY: Let me try once more: We're going to execute this guy. The FBI said they turned over all the evidence one before. They hadn't.

OLSON: Right.

KINSLEY: You say the stuff they turned over doesn't matter but the fact is they promised to turn it over and they didn't. His lawyers say give us few weeks to make sure that there really telling the truth now. What is unreasonable about that?

OLSON: They are going to have a few weeks. The date is now June 11. But understand...

KINSLEY: June 11 -- what is today? That's less than two weeks.

OLSON: That's two more weeks. They'll have a month. Please don't lose focus on what the situation is. He has confessed. He did it. There is no question that he is guilty.

KINSLEY: So it doesn't matter that the FBI made a deal with his lawyers and broke it?

OLSON: No, they didn't break the agreement. There wasn't an intentional act by the FBI, it does matter. And that's why the lawyers...

KINSLEY: So, it's OK to kill him.

OLSON: There isn't anything there that goes to his guilt or innocence. At some point we do have to say delay tactics no matter how good they are for defense attorneys and God knows when we do executions it ends all the appeals and they fight us every time we lessen death sentence appeals, they fight it, but General Ashcroft has said, I'm going to delay it myself for a month. I want these lawyers to look at everything. They have come up with nothing.

KINSLEY: But there may be other documents.

OLSON: There may be pink pigs in the sky, but there aren't. We know there aren't.

KINSLEY: Well, they didn't say there are no pigs in the sky, and turned out to be pigs in the sky and there turned out to be pigs in the sky. They did say there are no further document and there were further documents.

OLSON: But the documents don't go to his guilt or innocence.

KING: It doesn't matter.

CARLSON: Gerry Spence, let me ask you a question: this strikes me as the best possible situation for Timothy McVeigh. He killed all those people, all those children because he hates American society. Here the government makes an error and this is just a pinata party for him because he gets to become the man of principle. Listen to his lawyer, Richard Burr. This sort of sums up Timothy McVeigh's position in all this. Here's Richard Burr.

(BEGIN VIDEO CLIP)

RICHARD BURR, MCVEIGH ATTORNEY: For many years, Tim McVeigh has been deeply concerned (AUDIO GAP) of federal law enforcement authorities. When that overreaching became apparent to him in his own case, it overrode other considerations. I think as he would put it, it caused him to put principle over personal concerns.

(END VIDEO CLIP)

CARLSON: Now this makes Timothy McVeigh sound like a political philosopher not mass murderer -- "Reflections on a Constitutional Democracy" by Tim McVeigh. I mean there's nothing about this that has to do with principle, is there? This is just another megaphone for him to spout his philosophy. What is principle here?

SPENCE: Well, you know, first of all, this is America. Everybody has a right to speak. We are speaking. Both sides are speaking here. Timothy McVeigh has right to speak, but he also has a right to have a free trial, a fair trial and the process needs to be right.

And if we don't have it right in America, then where are we? What can we ever expect? And you know there's something very interesting going on here folks: I'm listening to my colleague Barbara tell us about all the things that aren't in the documents, all of the things that are in the documents, yet these documents are sealed. The court orders are sealed.

The documents that have been filed by the attorneys have been under seal. The court has ordered that this matter -- that the contents of what is going on be maintained secretly at this point. I wonder where all this information is. Is this a new fiction, Barbara, that you are coming up with? What is source of all of your information?

OLSON: Well, there's statements by General Ashcroft where he generally described the evidence.

SPENCE: He didn't say anything about calendars. He didn't say anything about there not being any evidence of any -- evidence that should be followed.

OLSON: Yes, he did.

SPENCE: He didn't say anything, there wasn't any...

OLSON: I'm afraid he did, and the defense attorneys have also. They are not attacking the trial, you understand. They're attacking the sentence.

SPENCE: They haven't said a word about that. You haven't seen their papers. Nobody has seen their papers. How do you come up with these fictions?

OLSON: I'm relying on statements by the defense attorneys. They have been making statements and General Ashcroft made a very lengthy statement when he said he was not...

SPENCE: The defense attorneys have only said they filed the documents. The defense attorneys have only said they've filed the documents.

KINSLEY: Let me ask you: Suppose it's true...

SPENCE: Where you are coming up with this, Barbara? You better come clean.

OLSON: I will fax you the statement, Gerry. Santa Barbara hasn't gotten it yet.

KINSLEY: Suppose it's not a fiction. What gives one side, the government side, the right to selectively leak the contents of documents?

OLSON: No, that's not leaking. I mean it's not. General Ashcroft said they are under seal, however I can generally describe, we have done a report, we've given the defense attorneys our report on the documents.

SPENCE: Well, where did the swimsuit stuff come from, Barbara?

OLSON: I will fax you General Ashcroft's statement.

KINSLEY: Well, that's not generally characterizing them, that sound quite specific.

OLSON: Well, These are some documents that have already come forward. "60 Minute" did an expose, there are people who have come forward and talked about these. Some FBI agents who actually participated...

(CROSSTALK)

KINSLEY: So they're violating the court order that it's under seal.

OLSON: They're not violating the court order as far as I know. I don't think that's been alleged by anyone but Mr. Spence.

CARLSON: OK, well we're going to have to have another show to get to the bottom of the swimsuit issue. Gerry Spence, Barbara Olson, lawyers, authors, experts on Timothy McVeigh, thank you very much.

Michael Kinsley and I will be back to sum it up, perhaps not for the last time in our closing comments in just a moment.

(COMMERCIAL BREAK)

KINSLEY: Tucker, I agree that what Timothy McVeigh thinks is a matters of principle is not of any particular interest, but listen to what his principle is, that he says is at stake, because I think you might agree with it. He says, "The principle is the paramount principle of trying to curve the power of the federal government."

CARLSON: That's right but I think is sort of a weird situation where Timothy McVeigh is all of a sudden in control of the justice process, at least in his is case and he ought not to be. He ought to have some effect on it, but ultimately society needs to be in control of the wheels of justice, and Timothy McVeigh singlehandedly has halted them.

KINSLEY: I will give you a solution to that. Get rid of the death penalty, because whenever you are about to execute somebody even Barbara Olson said this is extremely final. We have to dot every i, cross every t, and it all becomes much more (UNINTELLIGIBLE)...

CARLSON: Clear language is the solution -- lawyer talk, this idea that the constitution will crumble if a guilty man is punished for a crime he admits he committed is ludicrous when...

KINSLEY: How about the FBI following the rules. That's would be a good solution too.

From the left, sitting in for Bill Press, I'm Mike Kinsley. Good night for CROSSFIRE.

CARLSON: And on the right I'm Tucker Carlson. Join us again tomorrow night for other edition of CROSSFIRE.

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