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Justice Department Refutes McVeigh's Request for Stay of Execution

Aired June 04, 2001 - 14:01   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.
LOU WATERS, CNN ANCHOR: And as we just reported, the Justice Department has just moments ago filed its reply to Timothy McVeigh's petition for a stay of execution. CNN's Gina London is at the federal courthouse in Denver where it's all happening right now.

Gina, bring us up to speed.

GINA LONDON, CNN CORRESPONDENT: Good afternoon, Lou. Well as you just mentioned, the government did just file its response to last week's motion calling for a stay of execution by McVeigh's defense team. Now, I just got this seconds ago. It was only filed a few moments ago here at the court. And I can tell you this much so far that, of course, this is calling for no stay of execution, needless to say. That was made very clear by Attorney General John Ashcroft last week.

And it does say here in this 25-page brief response that it opposes McVeigh's motion for a stay of execution, and more specifically, its says in the back: "McVeigh us undeniably guilty, and there is no case in which the death sentence could be more appropriate than this one. There is no" -- in the words of the government -- "no jurisdictional or substantive basis for granting the relief requested by McVeigh."

Now, of course, this has been submitted by the government, by Sean Conley (ph), who is acting as a special attorney in this case to the attorney general. Now, this, of course, will be under review now by federal Judge Richard Matsch. He is going to read the points, put out points in this response along with last week's motion, and then he is going to hear each side argue why or why not there should be a stay of execution for McVeigh on Wednesday here in the federal court in Denver.

This motion, once again, just refuted seconds ago by the federal prosecutors and we will find out more, of course, when the hearing takes place on Wednesday -- Lou.

WATERS: We know, Gina, that lawyers can tend to tie things up almost indefinitely. Do we have any idea how long this will go on before Judge Matsch makes a ruling here?

LONDON: A couple of things we don't know. One thing is how long the hearing will go on Wednesday. It could wrap up Wednesday. It starts at 9:00 a.m. here in Denver. But it could possibly go on another day. We really don't know.

We do know this: From his past dealing throughout all of this, including the trial, Judge Richard Matsch is very thorough, he is very prepared, and he is very balanced. So, he also, with all this preparation, is expected to make some very pointed questions and the legal community here, Lou, expects that he'll make a ruling pretty shortly after the hearing raps up.

But as we've been saying all along today, either side can appeal whichever way Matsch goes ahead and decides.

WATERS: All right, Gina London covering things at the Denver federal courthouse where the petition has just arrived from the government asking for a stay of execution in the Timothy McVeigh case. And Natalie is here with more about that.

NATALIE ALLEN, CNN ANCHOR: Well, Kelli Arena joins us now from the Justice Department. Oh, excuse me, she's in Washington right now, our Justice Department correspondent with more -- Kelli.

KELLI ARENA. CNN JUSTICE CORRESPONDENT: Natalie, I want to follow up on what Gina said. First of all, there is no guarantee that we will get a decision from Judge Matsch Wednesday. He will have to move quickly. As we know, there is an execution date set for June 11th. The Bureau of Prisons and Justice Department is operating on the premise that Timothy McVeigh will be executed by lethal injection on that day. So, things are moving along in that direction. So, again, no guarantee of a decision made on Wednesday by Judge Matsch.

And there are lots of legal maneuverings that can occur here. You have your response that has been submitted by the Justice Department. Now, of course, the judge will hear oral arguments from both sides, and make a decision and then, of course, we can go through the appeals process. And let's not forget that the agenda that any defense attorney has is to keep his clients alive for as long as possible, and Timothy McVeigh's lawyers can be expected to pull out every weapon they have in their arsenal to try to keep their client alive.

He has apparently made it clear -- Timothy McVeigh has made it clear that this is something that he wants. He wants to, unlike what he had said previously, delay this process, and some speculate that's to embarrass the government, embarrass not only the Justice Department, but the FBI for its handling of those 4,000 or so documents and not having turned them over when they were supposed to be turned over to his defense lawyers.

So, this thing could drag out. But then again, we are working against that June 11th date. So we do have a bit of a deadline here.

ALLEN: Kelli, on one end, you've got the Justice Department saying there's nothing in any of the papers that would warrant prolonging this. You've got McVeigh's lawyers saying: We may even ask for a new trial on this.

From what we know that's in these thousands of pages of documents, is there -- are there any themes or certain areas of this investigation that we may hear about this week that would be the crux of McVeigh's attorneys' arguments?

ARENA: Well, you must remember, Natalie, that Timothy McVeigh's lawyers have never once said that there was anything in these documents that would contradict his own admission of guilt. What they have said is that they want this process to go on so that they can figure out why these documents were withheld. And, of course, they accuse the FBI of withholding even more documents.

Now, the government -- the Justice Department and the FBI have both said all of the documents have been handed over; there is nothing in them that would contradict his guilt or even change his sentencing. We have not seen those documents, As you know, they are under seal. But a large part of those, what we're told by sources, is that they have to do with John Doe No. 2, someone else who may have been at the scene.

We did hear a lot about that at the time immediately following the bombing. Many of those leads, though, didn't come up with anything very credible. But that should be something that we will hear about some more. Legal experts suggest that if there is the slightest possibility of someone else that was involved, that may not have had changed at all the verdict of guilty against Timothy McVeigh, but it may have had something to do with whether or not he was sentenced to death or life in prison. And so that really is the question here.

ALLEN: All right, Kelli Arena, who is in our Washington bureau.

And now for more, here's Lou.

WATERS: And we have our national correspondent Charles Bierbauer, who is at the Supreme Court, where this -- in Washington, excuse me -- the Supreme Court.

Charles, what we are talking about here is something that more than likely will end up before the Supreme Court. We have this June 11 deadline, of course. But as Kelli alluded, there is going to be much legal maneuvering here. Give a sense of the process here and what's likely to happen after Judge Matsch makes a ruling.

CHARLES BIERBAUER, CNN SR. WASHINGTON CORRESPONDENT: Well, what is possible, unless Judge Matsch himself grants a stay, is that the attorneys for Tim McVeigh would then appeal to the 10th Circuit Court and quickly on up to the U.S. Supreme Court, if their appeals are denied at the lower courts for anything that would prolong the process.

As Kelli Arena says, that's what a good defense lawyer does, is to keep his client alive. And they would likely go to the Supreme Court. I could point out today that the Supreme Court, in a related case -- and that involves Terry Nichols, the co-conspirator, so to speak, in this case, who was sentenced to life imprisonment for conspiracy and for manslaughter -- today the justices asked the solicitor general over at the Justice Department to weigh in with a response to Terry Nichols' appeal for a new trial.

This does not necessarily mean that he will get it. In fact, what the rules of the Supreme Court say that just asking for a response to a petition is not a signal that a rehearing will be necessary or even likely be granted. But they certainly have to take all these things into consideration. And Terry Nichols' attorneys -- like those of Tim McVeigh -- point to these reports about a John Doe No. 2 that are presumably contained in the documents as being something that would help Terry Nichols' case.

I also talked with Beth Wilkinson, who was the prosecutor in these cases the other day, and she says -- and, of course, she was the prosecutor -- that John Doe No 2. was a misidentification, someone who showed at the Ryder truck rental the day after Timothy McVeigh. So those are kind of the elements that are at play here, Lou.

WATERS: John Doe No. 2 or not, there are many folks no doubt wondering -- especially those in Oklahoma City -- this man McVeigh is an admitted bomber. He said he did it. So what is this exercise all about?

BIERBAUER: Well, let's remember where he said he did it. He said that in recorded interviews with a couple of journalists who have written a book. He did not make that admission in court. One of the tricky tests of the law here to get a new trial -- at least for Timothy McVeigh -- is to be able to produce evidence that would exonerate him.

It's called Brady evidence, Brady material. They would have to show that, in these FBI documents, something that would change the verdict, not that would simply add information, but that would change the verdict. That's a very high legal threshold to be crossed. And according to some of the legal experts I've talked with, the fact that he made this admission in the book could be brought in at that point, even though it was not a part of the trial record itself -- Lou.

WATERS: All right, Charles.

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