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CNN Live At Daybreak

Former Timothy McVeigh Attorney Speaks Out

Aired June 07, 2001 - 08:23   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.
COLLEEN MCEDWARDS, CNN ANCHOR: Well, in 96 hours, Timothy McVeigh is slated to die. But a flurry of legal moves is already in motion this morning. His attorneys are set to appear before an appeals court. A federal judge ruled that there's no need to delay his execution, but McVeigh's lawyers are trying to overturn that ruling.

Joining us now is an attorney who was previously involved in McVeigh's legal case. Former defense attorney Jeralyn Merritt joins us from Denver.

Jeralyn, thanks for being here.

JERALYN MERRITT, FORMER MCVEIGH DEFENSE ATTORNEY: Sure.

MCEDWARDS: Just bear with me for one moment, Jeralyn, because earlier I did promise that we would be talking to the former prosecutor Patrick Ryan. And just by way of explanation, we had a bit of a technical mix-up where he was, so he's not able to be here. But you will hear comments from him throughout the day on CNN, which we have on tape.

So I apologize for that. Thanks for bearing with me there, Jeralyn.

How surprised were you by the decision yesterday?

MERRITT: I was disappointed, but I wasn't that surprised. Judge Matsch is a very independent-minded judge. You can really never predict how a federal court is going to rule.

MCEDWARDS: So what kind of a chance do you think his lawyers have on appeal? Try to gauge it for us, if you would.

MERRITT: It usually gets harder to prove your case the higher up you go, in terms of courts of appeals. So, probably, his best chance was with Judge Matsch. I don't expect that the 10th Circuit is going to change Judge Matsch's decision. However, I am hopeful that the U.S. Supreme Court will grant a stay, perhaps because they showed some interest last week in Terry Nichols' case with respect to the same documents that were withheld from Mr. McVeigh.

MCEDWARDS: And explain how that might work. I mean, Timothy McVeigh would have to ask his lawyers to ask the Supreme Court to get involved, correct?

MERRITT: Right. They would -- at this stage, his lawyers would first file in the 10th Circuit and ask for a stay. If that's denied -- and I expect that will happen sometime today -- then his lawyers over the weekend or tomorrow would to the U.S. Supreme Court and ask for a stay. So -- unless, of course, Mr. McVeigh instructed them not to.

MCEDWARDS: Right, right -- which could happen.

Now, if the Supreme Court decided to get involved, I mean, how late could this go? What kind of a timeframe would the Supreme Court be looking at?

MERRITT: The Supreme Court actually has up to the moment of the execution. There is a telephone in the execution chamber exactly for that reason: in case a judge grants a stay at the last minute. So it could happen up until the last minute.

MCEDWARDS: And, Jeralyn, would his lawyers be going in with any kind of a different strategy? We heard our legal analyst, Roger Cossack, say earlier that it's too late to change strategy at this point.

MERRITT: You know, I don't think they need to change strategy. You know, the judge yesterday acknowledged that they had used the proper legal mechanism to get into court. He said that their filings alleging a fraud on the court were proper for him to consider.

He also said that they're asking him to exercise his plenary jurisdiction, so to speak under that All Writs Act was appropriate. The only difference here is that Judge Matsch is saying that nothing the defense could have provided would have led the jury to issue a life sentence instead of a death sentence. And I think that's the issue that they go to the Supreme Court on: We need to investigate these documents because we believe something in them could lead a jury to have returned a verdict of life instead of death.

MCEDWARDS: All right, Jeralyn Merritt, former defense attorney for Timothy McVeigh, thanks very much for your thoughts this morning.

MERRITT: Sure, any time.

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