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Transcript of McVeigh hearing
The transcript from Thursday's hearing involving Timothy McVeigh's request to end his appeals and set an execution date for the Oklahoma City bombing. Present were McVeigh, U.S. District Judge Richard Matsch, federal prosecutor Sean Connelly and defense attorneys Dennis Hartley and Nathan Chambers.
MATSCH: Please be seated. We're convened in Criminal Action 96-CR-68 and Civil Action 00-M-494, United States vs. Timothy James McVeigh. The purpose for this session of court is to inquire directly of Mr. McVeigh regarding some papers that have been filed with the Court on Dec. 11 of this year, 2000. Mr. McVeigh will be attending this session of court by video conference equipment. And I see Mr. McVeigh and counsel, Mr. Nathan Chambers, on the video equipment. Mr. Chambers, are you able to hear me?
CHAMBERS: Yes, sir.
MATSCH: And see me?
CHAMBERS: Yes, I am.
MATSCH: And Mr. McVeigh, you as well?
McVEIGH: Yes, sir. Good afternoon, your Honor.
MATSCH: Good afternoon. The room in which you are sitting is an extension, really, of the public courtroom here in Denver, and I want you to see this setting as well. So seated here with me at counsel table are your co-counsel, Mr. Dennis Hartley.
HARTLEY: Good afternoon, your Honor.
MATSCH: Good afternoon. And Mr. Ellis Armistead, who has been is assisting in this case. Mr. Sean Connelly, representing the Government.
And this is a public courtroom, and the public is present. And there is a monitor where those in attendance in this courtroom can see you and Mr. Chambers. Have you seen -- I don't understand this equipment, so have you been able to see who is present ...
McVEIGH: Yes, your Honor.
MATSCH: Mr. McVeigh?
McVEIGH: I can see. Yes.
MATSCH: And you understand, therefore, that this is a public proceeding here in court, just as all other proceedings have been when you've been present. McVEIGH: I understand.
MATSCH: All right.
MATSCH: Now, if at any time anytime there is some kind of difficulty with the equipment and you, Mr. McVeigh, are unable to see or here, you tell me about it and I'll ask to get it fixed. Hopefully, it will be.
McVEIGH: I will.
MATSCH: Thank you. Now, I want to review for you the present status of your case to be certain that you understand it. You know, of course, that on Aug. 14 of 1997, I sentenced you to death on each of 11 counts on which you were found guilty by the jury and on the jury's special findings and recommendation. You know, of course, also that the court in that judgment said the following -- and I'm reading to you the paragraph -- most pertinent paragraph from the judgment. It reads that "pursuant to the provisions of 18 United States Code Section 3596, it is ordered that the defendant is committed to the custody of the Attorney General of the United States until exhaustion of the procedures for appeal of the judgment of conviction and for review of the sentence.
When the sentence is to be implemented, the Attorney General shall release the defendant to the custody of the United States Marshal, who shall supervise implementation of the sentence in the manner prescribed by the law of the State of Colorado. That's the final paragraph of the order, and you're aware of that.
MATSCH: The conviction -- and I just want to review, you know, exactly what the present status is. The conviction and the sentence were affirmed on a direct appeal by the 10th Circuit Court of Appeals, and the Supreme Court of the United States denied a petition for certiorari.
MATSCH: New lawyers were appointed to represent you: Mr. Hartley, who is here in Denver, Mr. Chambers, who is with you there in Terre Haute. They filed a motion to vacate that conviction and sentence under a statute called United States Code Section 2255 and for a new trial under Rule 33 of the Federal Rules of Criminal Procedure based on an allegation of additional or newly discovered evidence.
Both of those motions were denied by a memorandum opinion and order that I signed on October 12 of this year, 2000, and which was entered on the docket in the clerk's office on October 13 of 2000. That decision is subject to review by the Tenth Circuit Court of Appeals, being an appeal from that decision.
Now, the rules provide that to exercise that right to appeal and have review by the Court of Appeals, a notice of appeal must be filed here with the clerk of this court within 60 days of the entry of the order denying the motion; and that 60 days expired on Dec. 12 of this year. On Dec. 11, your lawyers, Mr. Hartley and Mr. Chambers, filed a pleading called "Notice to the Court." Have you seen that?
McVEIGH: Yes, I have, your Honor.
MATSCH: And you're aware of the contents of that notice, are you?
McVEIGH: I am. I reviewed it before signing it.
MATSCH: And then attached to it is a document ...
MATSCH: ... called the "Statement of Timothy McVeigh Regarding Notice of Intent to Forego Further Appeal." It appears to have your signature. Did you sign it?
McVEIGH: That is my signature. I did sign it.
MATSCH: Now, who was present when you signed it?
McVEIGH: It was Nathan Chambers, my attorney, and Ellis Armistead, present there in the courtroom with you.
MATSCH: All right. Now, I want to read the statement into the record to be sure that we're talking about the same thing.
And the statement reads as follows: "I, Timothy James McVeigh, do hereby advise the Court and all parties that I do not wish to pursue any further appeals in this case. I believe that it is my right to forego any appellate remedies that may be available. In United States vs. Hammer, 226 F.3d 229, Third Circuit, 2000, the Third Circuit acknowledged that a defendant under sentence of death may waive his right to direct appeal.
"My case has already been through direct appeal, and the Tenth Circuit affirmed the conviction and sentence. If Hammer was allowed to waive his right to direct appeal, I should certainly be allowed to forego appeal from denial of my Section 2255 motion.
"I believe that I am fully competent to make this decision. If the Court thinks that a psychological evaluation is necessary to make certain that I am competent, I will submit to such an evaluation. I will not justify or explain my decision to any psychologist but will answer questions reasonably related to my competency.
"My attorneys have explained to me the issues that they would raise on any appeal. I understand the appellate issues; and understanding those issues, I persist in my decision to forego appeal. This decision to forego appeal is done against the advice of my lawyers.
"By foregoing appellate rights, I am not waiving any right to petition for executive clemency. I am waving further review by the judicial branch of the federal government. I am not waiving review by the executive branch. It is not my desire by waiving appeal to delay my execution. I request that the Court set an execution date or order the Director of the Bureau of Prisons to do the same, with the execution date to be within 120 days of the filing of this notice.
"This waiver is my decision, and these are my words intended to convey my decision. I have asked my lawyers to file this notice with the Court." And your signature and the date, which I believe is December 7 of 2000. Do you have a copy of it there?
McVEIGH: I do have a copy here.
MATSCH: All right. And I've read it correctly?
McVEIGH: That is the same document, yes.
MATSCH: All right. Now, the purpose of this hearing today is that I'm obliged to ask questions of you to determine if this is your decision today as well as when you signed it. You certainly may talk with Mr. Chambers before answering any questions or making any statements. There is also available, as I understand it, in the room where you are a telephone that is not subject to monitoring by the Bureau of Prisons people, so that you may or Mr. Chambers may call to Mr. Hartley here. And, of course, any conversation there would be non-public.
You indicated in your statement an awareness of the Third Circuit Court of Appeals in United states vs. Hammer. I take it that you've read that. Have you?
McVEIGH: I did read it, and I had reviewed it in the process of formulating this document here.
MATSCH: All right. Now, the notice to the Court that your lawyers signed and filed has this language in it. I'm not going to read the whole notice, but the following language is included in it:
"If the Court determines that Mr. McVeigh's decision is not knowing, intelligent, and competently made, until such time as the validity of the waiver of appeal is established and in order to preserve jurisdiction to consider any appeal, this pleading shall serve as notice of appeal from the Court's order of October 12, 2000, as required by Federal Rule of Appellate Procedure 4(a)." I take you are aware of that language? Are you?
McVEIGH: I am aware, yes.
MATSCH: Now, I've reviewed that language and I do not consider it to be a notice of appeal. In my opinion, there is now no appeal pending. And if Counsel intended for that to be in the nature of a protective notice, it has no -- in my judgment -- no validity.
Therefore, as of this time today, Dec. 28, there is no appeal pending. Do you understand what I'm saying?
McVEIGH: I understand fully.
MATSCH: Now, the rules here of appellate procedure do provide what is called an extension of time, a motion for extension of time. And under that rule, it is provided that the district court -- me -- may extend the time to file a notice of appeal if a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires and that party shows excusable neglect or good cause. No extension under this rule 4(a)(5) may exceed 30 days after the prescribed time or 10 days after the date when the order granting the motion is entered, whichever is later.
Now, you're still within the 30 days from Dec. 12 of 2000, this being Dec. 28. The 30-day time will expire on Jan. 11 of 2001. Therefore, I have the authority on a showing of good cause to now extend the time for the filing of the notice of appeal to Jan. 11, or to 10 days after an order entered before January 11. Do you understand?
McVEIGH: I do.
MATSCH: So what I'm saying to you in plain language is you can change your mind and as of right now, you are not bound by or committed to the decision which you have communicated in your statement to the Court. Do you understand?
MATSCH: So what I must do now is ask you questions so that I can determine whether you are making your decision knowingly, voluntarily, and intelligently and that you're competent to make this decision. That means, of course, that you have given careful and sober consideration of this choice with full awareness of the consequences of it. If you have any objection to anything that I ask you here, then I want you to tell me your reasons for objecting. Also, your attorneys may make any objections. Do you want to proceed with these questions?
McVEIGH: I do.
MATSCH: Now, you are, of course, housed in a secure facility in Terre Haute, Indiana, operated by the Bureau of Prisons. Correct?
MATSCH: And tell me generally the conditions that you are under there in your confinement.
McVEIGH: Well, each inmate on death row is housed in an approximately 8-by-10 cell, single-occupancy. We have all the basics of three meals a day, running water, electricity. We have television, resources for the law library. We have recreation three days a week, showers three days a week, and other general conditions common to prisons.
MATSCH: All right. Now, tell me this: Is there anything about the conditions in which you're now housed that have in any way influenced this decision?
McVEIGH: Not in any great, weighty way.
MATSCH: I mean, obviously it's confining and restricting.
MATSCH: And the reason that I ask this question, Mr. McVeigh, is the suggestion could be made that the conditions are so bad that you'd, to put it plainly, rather die than continue living under them.
McVEIGH: And if I may respond plainly ...
McVEIGH: ... reading into the question, there is -- I am under no duress from the conditions of my confinement to ask for this waiver of appeal, nor am I under any coercion or duress from the officers that work here.
MATSCH: All right. Well, you anticipated some questions initially, and I appreciate that. Have you been given any medications while you're there?
McVEIGH: Only limited for heartburn, Zantac or Pepcid, that kind of thing.
MATSCH: Yeah. And have you taken any medications within the last 24 hours?
McVEIGH: I have not.
MATSCH: And, of course, I understand that you have talked with your lawyers about your decision.
McVEIGH: Yes, I have.
MATSCH: And I'm not getting into what you said and they said. Obviously, that's privileged. But they have advised the Court in the Notice to the Court, as you have in your statement to the Court, that they have advised against your making this decision and have told you that in their opinion there are good grounds to appeal my decision. Is that correct?
McVEIGH: That's correct.
MATSCH: Now, have you discussed this decision with anybody in the Bureau of Prisons or any representatives of the Department of Justice or any other U.S. Government agency?
McVEIGH: Not in the course of making the decision. It has been mentioned as part of the daily routine. That's it.
MATSCH: Okay. And you've already indicated that no one there has put any duress or pressure on you to cause you to make this decision. Correct?
McVEIGH: That's correct.
MATSCH: Is there anyone else who has put any sort of pressure on you or pushed you in some way into making this decision?
McVEIGH: No. Quite the opposite: The only pressure I have felt is from those that were opposed to me making this decision.
MATSCH: Now, is there anyone that you would like to talk to about this decision that you've not been able to talk to so far?
McVEIGH: I have had sufficient access and -- to people that I wish to speak to about this decision, and I do not feel additional need to speak with anyone else.
MATSCH: In your statement, you expressly say that you are not waiving your right to petition for executive clemency and that you're not waiving any review by the executive branch. I read that, and that's what you're saying; right?
McVEIGH: Basically, what I did was review the Hammer decision ...
McVEIGH: ... and differentiate his case from my case and then further step back and, not being a jailhouse lawyer, try to interpret it the best I could as a layman. And with my knowledge of the system, I understand that the judicial branch and the executive branch are separate; and I wanted to ensure that this proceeding preserves the right to file for executive clemency.
MATSCH: All right. Now, what is your understanding of executive clemency?
McVEIGH: From reading the applicable regulation 28 C.F.R. 1.1 and 26 -- lays out that within 30 days of a date being set, I have the option of filing with the executive branch of the government -- in this case, it's through the Department of Justice, I believe, Pardons and Parole Board -- a request for executive clemency. The President, as I understand it, has almost unlimited power in this respect. And from there, the Department of Justice files its own report, hears its own witnesses, and then submits everything up to the President, and he makes the final decision.
MATSCH: So you are aware, and I'm not an expert in executive clemency, so I'm not giving you any kind of expert opinions here; but the petition, of course, is to be addressed to the President of the United States and does go through the Office of Pardon Attorney in the Department of Justice, an executive branch department. You've already indicated you understand that.
MATSCH: And the Department of Justice has issued regulations both for the procedures to be followed in carrying out a sentence to death and the procedure to be followed for a petition for executive clemency; that is, commutation of a sentence to death to some lesser sentence, or reprieve, a stay of -- a postponement. You understand?
MATSCH: Now, the procedures that are in the regulations for carrying out the sentence is, in summary form, that the director of the Federal Bureau of Prisons designates the date and time for the execution. The warden of the institution designated for carrying out the sentence shall give, in this case you, advanced notice of the date and time designated. Do you understand that?
MATSCH: Then, as you've already mentioned, you have 30 days within which to file your petition with the Department of Justice, the Pardon Attorney, and all that. Is that your understanding?
McVEIGH: Yes. And we also here on death row track those proceedings through both the Garza and Hammer cases, so we're more familiar with it.
MATSCH: All right. Well, you may know more about it than I do at this point, then. And these regulations were changed in August of this year.
MATSCH: And so that what I've read and apparently what you've read are the regulations as they have been modified in August of this year. Is that your understanding?
MATSCH: And they say that the normal time for advance notice of the date of execution is to be 120 days.
McVEIGH: Right. In fact, that's where I got that date.
MATSCH: When you put it in your statement. Yeah.
MATSCH: Okay. Now, and, of course, the regulations expressly say that clemency is a remedy of last resort. And I take it you understand that.
McVEIGH: Yes, I do.
MATSCH: And this court, of course, has no authority whatsoever in the matter of an executive clemency. You've already noted that these are separate branches of government, and the President of the United States has the exclusive power under the United States Constitution. Are you aware of that?
MATSCH: Now, the regulations make it clear that the filing of a petition for executive clemency does not stay the date for execution nor the carrying out of the sentence. There is no, in other words, automatic stay by the filing of the petition.
MATSCH: Is that your understanding?
McVEIGH: Yes, it is.
MATSCH: Now, you apparently have television and you're current on news, I take it, generally.
MATSCH: Is that right? So you aware there will be a change of administration, a change of president when the president-elect, George W. Bush, is to be inaugurated on Jan. 20 of 2001. Are you aware of that?
McVEIGH: I'm aware, yes.
MATSCH: And a new attorney general is expected to be appointed. That person may not be confirmed in that office in time to consider a petition for clemency if you file one, so that what I'm saying to you is that it may be that Janet Reno, the present Attorney General of the United States, or an acting attorney general from within the present Department of Justice, would be reviewing any application that you file. Do you understand that?
McVEIGH: Right. I understand because of the transition, yes.
MATSCH: All right. So we don't know, sitting here today, who will actually be reviewing that petition. And what I'm saying is you can't rely on any particular person on that point.
MATSCH: Now, there is within the law the availability of a second or successive motion to vacate sentence and conviction under this same 28 U.S.C. 2255, but that's a very limited opportunity. Such a motion is subject to a one-year limitation, and it has to be certified by a panel of three judges of the Court of Appeals; in this case, the Tenth Circuit Court of Appeals. And they, to make such a certification, must determine that the petition contains newly discovered evidence that if proven and viewed in light of the evidence as a whole would be sufficient to establish by clear and convincing evidence that no reasonable fact-finder would have found the ... defendant, guilty of the offense or that a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court that was previously unavailable. You understand what this means?
McVEIGH: You're describing the habeas 2255 ...
MATSCH: Yeah, a second one or a successive one. And Congress put definite limits on that in some amendments to the statute a while back. And it would be applicable in this case. Do you understand?
McVEIGH: I do.
MATSCH: So what I'm saying is that you cannot in any way assume or count on the availability to you of a new, as you say, habeas or a new motion to vacate the sentence under 2255.
McVEIGH: I understand.
MATSCH: You understand what I'm saying?
McVEIGH: Yes. Yes.
MATSCH: So to put it plainly, you know, you're making a decision here which may be the final decision with regard to your future. Is that your understanding?
McVEIGH: That is. I understand.
MATSCH: Now, these attorneys who have represented you here on the 2255 and Rule 33 motions, Mr. Hartley and Mr. Chambers: Do you consider that they have given you effective representation as your lawyers in this matter?
McVEIGH: I believe so.
MATSCH: Do you have any concern about it?
McVEIGH: Well, the hesitation comes, just thinking ahead, that if an execution date is set, there will be additional matters we may have to litigate, and I would count on their support at that time to help me muddle through that.
MATSCH: Well, I don't want you to go into anything you don't want to go into, but they were appointed by me, of course, for the purpose of carrying through the 2255 procedure. You understand that?
MATSCH: They haven't been appointed, for example, to help you file a petition for clemency. That's not within the scope of their authority now. Do you understand that?
MATSCH: Or any other litigation that you might undertake. The assigned responsibility to them under the Criminal Justice Act, which I used to appoint them, is essentially completed with the final disposition of the 2255 motion. Do you understand?
McVEIGH: Okay. Yes.
MATSCH: All right. Now, if you have any question about that, ask me, because, really, they have no authority to do anything further.
McVEIGH: Right. And I will discuss with my attorney after this hearing exactly the procedures we need to pursue to allow me to have appointed attorneys for the executive portion.
MATSCH: All right.
McVEIGH: All right.
MATSCH: Now, let me make this very clear in the plainest language that if you do not file with this court a request for an extension of time to file a notice of appeal on or before Jan. 11 of 2001, then a date will be set to put you to death by lethal injection. Do you understand that is what will happen?
McVEIGH: I understand.
MATSCH: I've asked you a lot of questions. Do you have any question that you would like to ask me?
McVEIGH: I don't believe so, your Honor. I know you're available through my attorneys if something comes to mind, but not today.
MATSCH: All right. Then I need to ask you now, Mr. McVeigh, whether the position that you have taken in the statement filed with this court on Dec. 11 of this year is the position that you take now.
McVEIGH: It is the position I take now. And as guidance to the Court, I can say that I do not foresee changing that decision by Jan. 11.
MATSCH: Very well. I'm going to ask counsel -- first counsel for the defendant -- if you have any reason why the Court should not permit Mr. McVeigh to make this decision.
HARTLEY: I have none, your Honor.
MATSCH: Mr. Connelly, as the attorney for the Government, do you have any reason to suggest why the Court should not permit this decision to be made by Mr. McVeigh?
CONNELLY: I do not, your Honor. I think your colloquy shows it's a knowing and voluntary decision.
MATSCH: Very well. On the basis of this -- and Mr. McVeigh, I've had the opportunity to see you answer these questions here and as you have had the opportunity to see me ask them; and it is my finding here that by your demeanor and manner and by the answers you have given to me to these questions, you have demonstrated that the decision that you have made and communicated to this court is a decision that has been made knowingly, voluntarily, and intelligently, and I believe you to be competent to make this decision. And the Court finds additionally that there is nothing inherently irrational about a person making a decision to accept the judgment of a court. And accordingly, I am formally accepting the decision that you have made, with the understanding, of course, that you still have time, until Jan. 11, to communicate a different decision to the Court. Do you understand?
MATSCH: All right. Then with these findings, this hearing is concluded and the Court will recess.
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