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Solicitor General Given 30 Days to Respond to Terry Nichols Request for New Trial; Supreme Court Orders Revaluation of Death Penalty Case

Aired June 04, 2001 - 11:07   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.
DARYN KAGAN, CNN ANCHOR: And now we want to shift to the nation's highest court, which has just ruled in the case of McVeigh co-defendant Terry Nichols. It's one of several cases before the U.S. Supreme Court that we are watching today.

And we are doing that with our senior Washington correspondent Charles Bierbauer -- Charles, good morning.

CHARLES BIERBAUER, SR. WASHINGTON CORRESPONDENT: Good morning, Daryn.

Well, Terry Nichols' attorneys have filed for a new trial, based, again, on those FBI documents which were missing. Now, bear in mind that Terry Nichols is faced with a life sentence, not with the death penalty. And what the court today has done is to invite the solicitor general's office -- the solicitor general over at the Department of Justice argues cases on behalf the U.S. government -- so they've been invited to file a response to Terry Nichols' appeal for a new trial, and given 30 days to do so.

In the order of things that happen up here, that means it could come as late as the beginning of July, after a time in which the court is likely to be recessed. But there is no impending death penalty here. The court also points out in its rules -- not necessarily in today's action -- but its rules say that counsels should be aware, the court's action in calling for a response to a petition for rehearing is not a signal that rehearing will necessarily or even likely be granted.

What they are asking for is simply the solicitor's general view as to whether or not Terry Nichols should be given a new trial. The only thing I can point to coming from the Department of Justice is the attorney general's view that nothing in those FBI documents would change the outcome in the McVeigh case, and not likely to in the Nichols' case as well. But that would be the attorney general's viewpoint, not the solicitor general's -- Daryn.

KAGAN: Charles, other news out of the court today: What about the specific death penalty case coming out of Texas?

BIERBAUER: The Texas death penalty case involves Johnny Penry, who, more than 20 years ago, murdered a woman and was sentenced to die for that. This case has come before the Supreme Court twice. And each time -- first 12 years ago and now today -- the court has said that the jury instructions with regard to whether the death penalty should be invoked or whether, because of mitigating circumstances -- specifically Johnny Penry's mental retardation -- should limit him to a life sentence rather than the death penalty.

And twice the court here has found here that the jury instructions were confusing, so much so that, as Justice Sandra Day O'Connor put it today: "A law-abiding juror would have been required to take a truthful 'yes' in response to questions about mitigating circumstances and change it to an untruthful 'no' in order to change the death sentence to life imprisonment."

She says -- and the court rules -- that that is much too confusing. So Johnny Penry will at least get another hearing in terms of his sentencing as to whether he should get life imprisonment rather than the death penalty. And I would point out that Texas is considering eliminating the death penalty for the mentally retarded -- Daryn.

KAGAN: Charles Bierbauer at the Supreme Court, thank you.

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