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American Morning

McVeigh Execution: Arguments Set for Tomorrow

Aired June 05, 2001 - 10:04   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: We turn now to the case of the Oklahoma City bomber. Government prosecutors are insisting that Timothy McVeigh's scheduled execution on June 11 should stand and that it should not be affected by the recent discovery of additional evidence. The government yesterday filed a brief on the case in response to McVeigh's attempt to win a stay of execution. Arguments will be heard tomorrow. The case revolves around the disclosure of more than 4,400 documents that had not been given to McVeigh's lawyers during his trial.

To get some legal perspective on this, we're joined by our legal analyst, Roger Cossack, in Washington with more -- Roger, good morning.

ROGER COSSACK, CNN CORRESPONDENT: How are you?

KAGAN: I am doing just fine. I'm probably doing better than some of those government prosecutors. It sounds like the burden of proof, to borrow from your show, is on them, that they have to prove why this execution should go on on Monday.

COSSACK: Well, I would say that they have a lot to answer for and Judge Matsch is known as a fair but, you know, a pretty tough guy and I think that he's going to be very curious as to what happened here. I mean what the government did when they responded, Daryn, is they basically said look, you know, none of the pages that we failed to turn over would have made one bit of difference in this case. None of them would have proven his innocence. He's already admitted his guilt. If there's anybody in the world that deserves the death -- if you're going to have a death penalty and there's anybody who deserves this, it's Timothy McVeigh. Pretty much what they've been saying all along.

But what the defense has to say, of course, is you know what? We thought we had all these pages. You told us time and time again in various filings and documents that you file with the court that every bit of discovery had been turned over. We conducted a trial that didn't have this evidence. We are entitled to at least review this material to see whether or not we have other motions to bring before the court. That's a tough argument to get around.

KAGAN: I have to imagine Judge Matsch thinking of two big things. One, of course, this being the death penalty so the finality of that. There's no going back. COSSACK: That's right. It's not like you -- that's exactly right. I mean it's not like you're sentencing this guy to prison. I mean, look, he is in prison. No matter what happens, he's not going to be out on bail while we discuss this. So he is going to be in prison. The issue is if you go ahead with the sentence, I mean that's the end. There's no more discussion of this case. There's no more court hearings because it becomes obviously moot.

So what Judge Matsch is faced with is whether or not to let this ultimate penalty go forward when you have all of these thousands of pages that the defense says look, we need some time to analyze and to look forward. The prosecution comes in and says come on, this is just a sham. The guy's admitted he's guilty. Nothing would have amounted to...

KAGAN: But not in a court of law. He has not admitted it in a court of law, just allegedly to the two guys who wrote the book up in Buffalo.

COSSACK: Good point, Daryn.

KAGAN: Thank you.

COSSACK: You know, that's something I've been saying to you and that's exactly right because tomorrow...

KAGAN: I've been listening.

COSSACK: That's tomorrow he could say, you know what, I was just putting those guys on. I really didn't do it.

KAGAN: Wink, wink.

COSSACK: So for the purposes of -- right. So for the purposes of what would go on in a court of law, you're right. And Judge Matsch will not have that material in front of him. So I think the government's going to be in a tough spot at least for the purposes of being able to say he shouldn't have a delay in his execution.

KAGAN: Well, and the other thing, too, I'm thinking of time and you mentioned time. This thing is set to go on Monday.

COSSACK: Right.

KAGAN: And as we said, there's no going back.

COSSACK: That's right.

KAGAN: Judge Matsch taking into account probably well, what if you put it off some more? It doesn't mean it's not going to happen, maybe just it shouldn't be happening on Monday.

COSSACK: Right. And something else I think that's probably interesting and may play into what the decision is. You know, yesterday the United States Supreme Court issued an order in the Nichols case saying that they wanted the government to respond to Nichols' argument before the Supreme Court saying that the failure to turn over all of this information perhaps had an effect on his trial.

Now, Nichols, as you recall, you know, wasn't convicted of the same thing McVeigh was convicted of. He may be in a much better position in terms of what this evidence means and doesn't mean.

But the fact that the Supreme Court ordered the solicitor general to respond shows at least that they didn't dismiss it out of hand and perhaps they have some interest in what Nichols is saying and that might add, as a -- might play as sort of a signal to Judge Matsch that look, if the Supreme Court is at least interested enough to ask the solicitor general to respond, you know, what's the down side of giving another month or so for the defense to look through this evidence which they should have had?

KAGAN: Very good. Roger, what are you talking about later today on "BURDEN OF PROOF"?

COSSACK: JonBenet Ramsey, Daryn. You know, there's a civil suit going on. Linda Arndt, the agent who was the first on the scene, came in and she is now claiming that because of gag orders she was not able to defend herself and that she was liable. And so we're going to have some of the players right on this case and we're going to have a good "BURDEN OF PROOF." And Greta is joining me today.

KAGAN: Well, even better. There you go, the full team, 12:30 P.M. Eastern. We'll see you then. Roger Cossack, thank you.

COSSACK: OK.

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