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Roger Cossack: McVeigh's legal options

Roger Cossack

(CNN) -- When U.S. District Judge Richard Matsch rejected the appeal of convicted Oklahoma City bomber Timothy McVeigh on Wednesday, he ruled that thousands of pages of documents that the FBI failed to hand over to his defense team had no bearing on the outcome of the trial.

McVeigh received a 30-day delay in his scheduled execution when those documents were revealed, and his attorneys filed their request for a stay with Matsch last Thursday. Immediately after Matsch's ruling, McVeigh's attorneys said they would file an appeal with the 10th Circuit Court of Appeals in Denver on Thursday.

CNN's Roger Cossack explains the process as the clock ticks toward the newly scheduled date for McVeigh's execution: June 11.

VIDEO CNN Legal Analyst Roger Cossack explains how government prosecutor Sean Connelly won the ruling (June 6) Play video (QuickTime, Real or Windows Media)  IN-DEPTH • Execution of Timothy McVeigh • Oklahoma City Bombing

CNN: What must the defense do in order to persuade the 10th Circuit Court of Appeals to overturn Matsch?

COSSACK: The defense has a particularly difficult way to go now because it's not enough just to say, "We don't like Judge Matsch's decision. They have to have a legal grounding for that, and that is that he abused his discretion or he relied on some law that was not proper. I think that's going to be an exceptionally difficult decision for the 10th Circuit to make. You may not agree, or you may agree, but it's hard to argue that Judge Matsch wasn't within his discretion in coming to the decision that he did.

The prosecution will obviously respond to the defense's motion that in effect will affirm Judge Matsch and say that he acted prudently.

CNN: And should the Circuit Court agree with the prosecution?

COSSACK: There's one more step. It is possible that if the defense loses again they would go to the United States Supreme Court. At they point, the must convince Justice (David) Souter, who is the justice with the jurisdiction for that area, that in fact McVeigh needs a stay pending a decision by the majority of the court to hear the case. He could stay it, but it would be for a short period of time pending a vote on whether or not they wish to hear the case.

CNN: Could anything delay the case reaching the Supreme Court?

COSSACK: Three judges from the circuit court will make a decision. It is possible to ask for a rehearing ... (before) the entire make-up of the circuit court, which is probably some 25 or 30 judges. But those kinds of hearings are granted irregularly, if at all, and chances are the next appeal by the defense would go directly to the United States Supreme Court.

CNN: Can the three circuit court judges decide they would rather the entire court hear the case?

COSSACK: Yeah, but that's not likely.

CNN: Attorney General John Ashcroft set this series of events in motion when he delayed the execution for 30 days. Where does he fit in now?

COSSACK: Ashcroft is the head of the Justice Department, who vowed to fight this. He is the attorney general. Ashcroft is really the chief lawyer for the prosecution, in the sense that the attorney general is the chief lawyer for the United States.