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Possible Execution Delay for McVeigh

Aired May 11, 2001 - 11:00   ET


DARYN KAGAN, CNN ANCHOR: We continue our coverage of this developing and breaking story concerning Timothy McVeigh. The Justice Department asking for stay of execution for 30 days in light of the missing documents that suddenly showed up just days before McVeigh was to be executed in Terre Haute, Indiana.

LEON HARRIS, CNN ANCHOR: Yes, and in the meantime, we're still waiting on Attorney General John Ashcroft. He is supposed to be coming out and making a statement about this and finalizing the whole deal. We don't know exactly when that's going to happen. When it does...

KAGAN: But when it does, you'll see it here on CNN.

HARRIS: ... In the meantime, let's go see what our Greta Van Susteren has to stay. She's standing by in our Washington bureau.

Greta, what do you make of this? And the 30-day stay -- Daryn and I were talking about this during the break. Is this a setting of a date 30 days from now or 30 days from May 16, or the decision will be made 30 days from May 16?

GRETA VAN SUSTEREN, CNN CORRESPONDENT: Oh, I think the attorney general may at the moment think it's going to be set 30 days from now. You know, a death warrant actually has to be signed if you actually set a date.

But, wait a second. This is not the end. The clock is just beginning to run on this. The defense attorneys aren't going to just sit and read those documents and say, "Gee, aren't these interesting?" They're going to dig deep into them.

The job of the defense attorney is not to agree with the United States government. It's to fight for the benefit of his client. So there may be motions filed. If they go back to Judge Matsch on some motion saying that there is something in a document that is critical, if Judge Matsch holds a hearing after he rules, if he rules against the defense, they're going to go up to the Court of Appeals. If the Court of Appeals rules against them, they're going to try to go to the United States Supreme Court.

Look, the role of the defense attorney here isn't just simply a role -- let me read the documents. The role is to save your client. And these are aggressive lawyers. Now, here's the big problem. Suppose that Timothy McVeigh wants to die.

HARRIS: And he has been saying that. And he has been saying that.

VAN SUSTEREN: Well, of course. A lot of people say that until you get right up to the deadline. A lot of defendants on death row say that. And then they have buyer's remorse, and suddenly they don't want to die.

HARRIS: But they don't want to be martyrs. This man -- it's been clear that he wants to be a martyr.

VAN SUSTEREN: Leon, I have no idea. We only hear what other people say. I haven't heard it from Mr. McVeigh himself.

But let me tell you one thing. There's a huge debate within the death penalty community. Now, I'll take you inside what defense lawyers talk about in the death penalty community.

If your client wants to die, is your role as an advocate for the client to help him die, to look the other way? Or do you suddenly depart from your role as the advocate spokesman for your client and take a different role instead, almost fight your client and try to save your client's life?

You oftentimes see these disputes. We saw in it Ted Kaczynski where the lawyers wanted to go one way because they thought it would save Ted Kaczynski's life. Ted Kaczynski wanted to go the other direction.

In death penalty cases, lawyers and their clients sometimes depart on the role of the lawyer. And that in itself can create appellate issues.

So don't expect June 16 to be the day when everyone gathers in Terre Haute. It very well could be some day in the future. It could be June 16. But it could be a year or two from now.

HARRIS: That's very interesting because the way you play this whole thing out, you bring up this ethical dilemma here. How do you think it will play out? Do you think Timothy McVeigh would use that sort of thing to play this whole thing out seeing as that's not been the road he has taken so far?

VAN SUSTEREN: Leon, there's no blueprint in this case, how people act. There's no blueprint in terms of how a defendant in this situation is going to react.

He just may -- this could end very swiftly. You know, it could be so bizarre that Timothy McVeigh could file a motion on Monday opposing the attorney general seeking a postponement of his execution. I mean, there is just simply no blueprint.

But the one thing that's certain is that there's sort of the internal struggle that lawyers have. A defense lawyer in a death penalty case goal is to save the client or to follow the client's wishes. And we don't know right now what those lawyers -- we don't know what the wishes are, first of all, about the client. Once those wishes are established, which will probably kept private between the defense attorney and his client Timothy McVeigh, but we don't know how they will react to it.

There's a tremendous amount of uncertainty. But a very good defense attorney having a few cards fall his way correctly could delay the matter for a year or two.

Now, why would lawyer do that in light of the fact that Timothy McVeigh has allegedly confessed to two others? Even if he got a new trial...

HARRIS: Right.

VAN SUSTEREN: ... back in the soup with these authors coming to court and say he confessed. I'll tell you why. Because sitting on the back burner -- and every defense lawyer knows it -- is this ongoing discussion in this country about a federal moratorium on the death penalty.

We have none. And usually it's in connection with DNA cases. But it wouldn't be a selective moratorium. So there's a wild chance, wild, that perhaps the death penalty in federal cases would go away.

HARRIS: Well...

VAN SUSTEREN: So there's so many uncertainties in this.

HARRIS: ... let me ask you one other one. What about the FBI? What about -- is there any culpability there since they are the ones that pretty much created this whole situation?

VAN SUSTEREN: You know, a lot of people are going to sit around and criticize the FBI. But I'll tell you, Leon, I'm not. You know, there are tens of thousands of documents in this case. But I'll tell you why I'm not.

And I've been in court, and I've screamed and jumped up and down and accused the FBI of all sorts of things.

HARRIS: I can believe that.

VAN SUSTEREN: Yeah, I know. But let me tell you something.

You know, the fact that our Justice Department would come forward with these documents I think is a reason for all of us to be proud of our Justice Department. They shouldn't have been so sloppy. The FBI should have been more careful. But, you know, chances are nobody would have discovered this anyway.

But, you know, even if the criminal is going to play fair, is going to violate a social contract and commit murder, the federal government must go about prosecuting, and state governments as well, in a very careful, strict way, totally compliant with the rules. When the government is sloppy or makes a mistake, it needs to step up to plate and say, "I made a mistake. And now is the time to take corrective action. And it may result in this delaying it a couple of years."

But I must say, I'm not going to criticize the Justice Department, the FBI. I wish they turned them over sooner. The judge may give them a lot of heat. The judge may be furious. But the fact is, they have turned them over. And they turned them over today. They didn't turn them over at 8:00 next Wednesday morning.

HARRIS: That would have been really interesting. All right, good deal. Thanks much, Greta. We appreciate it. We'll talk with you later on about all this. Daryn.

KAGAN: Of course, Greta coming from a legal and a scholarly position. It might be very different if you were a victim or lost a family member. And that's the situation with Kristi McCarthy. She lost her father in the Oklahoma City bombing. And she's with us on the phone right now from Kansas City. Miss McCarthy, thanks for joining us.


KAGAN: What can you tell us your reaction is to this announcement, this news that we're hearing that there will be a 30-day delay at least in the execution of Timothy McVeigh?

MCCARTHY: It's very troubling to me. I mean, although I am for the death penalty, I do think that it's right in this situation. It's very frustrating to me that now six days -- five days before it's scheduled to happen, there's 18,000 pages that we have misplaced and somehow here's another 30 days that we have to wait and wonder.

KAGAN: Had you planned to go to the execution or to witness it from Oklahoma City?

MCCARTHY: I hadn't planned to. I have an uncle who is. But I had not planned to myself, no.

KAGAN: Give us a glimpse from inside your family, the agony this has been for a number of years already, and what this does to even extend it by at least another 30 days.

MCCARTHY: You know, people have asked me that all the time. I don't think I can ever fully describe what this kind of loss is like. I mean, it's never -- I mean, the death penalty having this man die is not going to bring back my father. But the pain that you live with every day, the loss, looking at my nephew every day knowing he never knew my father. My children that I plan to have one day will never know him. My mother is a widow.

And you can't replace that. You can't fill that kind of void in your life. And extending this more, it's just that it adds to the pain. It adds to the fury as far as I'm concerned. KAGAN: Can you tell us a little bit about your dad?

MCCARTHY: Yeah, I can. My dad was -- he was a very funny guy. And he was just kind of a very easygoing guy, hardworking. And I tell you, he never really did anything without his family. There was never any vacations just him and mom. It was always all of us kids and dad.

And I think I get a lot of things from my dad. I look like him, and I act like him. And he's somebody I will miss for every moment for the rest of my life.

KAGAN: What was he doing in the Murrah federal building on that day? Why was there?

MCCARTHY: He was the director for the Department of Housing for the state of Oklahoma. He was on the ninth floor. And he had a window office.

KAGAN: Just a good family man at work.


KAGAN: Wrong place, wrong time. Kristi McCarthy, we're sorry for your loss even all these years later. And we realize it's a difficult time with each development. And we do appreciate your visiting with us and giving us your perspective.

MCCARTHY: Thank you. And you're welcome.

KAGAN: Thank you. Leon.

HARRIS: Let's check in now with our Keith Oppenheim, who is working the story for us from Terre Haute, Indiana, which is where the penitentiary is where Timothy McVeigh is sitting right now -- Keith.

KEITH OPPENHEIM, CNN CORRESPONDENT: Well, Leon, earlier you asked about what's the reaction from prison officials here. The news had just broken. We hadn't had a chance yet to talk to them. Since then, we have.

And the comment from the Bureau of Prison officials on the ground here is that the plans are still in place for the execution to take place on Wednesday. They have no other comment than that.

We are going to pan off for just a moment to give you an example of what I'm talking about. There are staff here who are busy working. They've been putting up some fencing. The plans for Wednesday's scheduled execution are quite elaborate.

If you go to a prison facility just little ways down the road because we're at training center on the ground. So the actual prison facility is about a half-mile away. Well, in the field around that prison, you would find that there is an area that has been cordoned off for protesters, a large area that's there for the media. It's a day that they've put a lot of effort into. And the point being made is despite what we are hearing from the Justice Department at this point, the comment here is that until someone tells them that there will not be an execution to take place on Wednesday, they have to operate under the assumption that things go as planned. That's normal procedure, given the way executions work at the state level.

The federal level works the same way. There has to be an actual call for the date to be changed. And as of now, that has not happened. So it's a fluid situation, Leon.

HARRIS: We understand the attorney general should be coming out -- we don't know exactly when, but it will sometime this afternoon I believe is what we are hearing from Washington. So we will stay on top of that story. Thanks much, Keith Oppenheim reporting live from Terre Haute. Daryn.

KAGAN: And when the attorney general does speak, it will happen at the Justice Department. That's where we have our correspondent Kelli Arena standing by with the new information -- Kelli.

KELLI ARENA, CNN CORRESPONDENT: Hi, Daryn. Well, here is my guidance from the Justice Department. Again, they are reiterating the previous statement of coming from the Justice Department spokesperson that there is a strong possibility that the attorney general will recommend a stay of execution.

Now, here's why they're sticking to that statement. Anything can happen between now and 1:00 when the attorney general is scheduled to hold that press conference. One of the most pressing points being that Timothy McVeigh could decide for himself, no, he doesn't want the execution delayed, that he wants to go forward as planned. If that happens, then of course that changes this whole scenario.

So there's a lot of negotiation going on right now behind the scenes of Justice. The advice to us is right at this point, strong possibility, but, as I said, anything could happen. The situation is very fluid.

There are three parties involved here, Daryn. You not only have Justice Department, you also have obviously Timothy McVeigh's defense attorneys, and you have the judge who heard this case back in 1997. Those parties have all just received this information, this week are thumbing through it to see whether or not it really is relevant.

And I would like to reiterate one more time, Daryn, the information that was uncovered, the 3,000 pages worth of documents that were uncovered, according to Justice and law enforcement sources, they say there's nothing in those documents that would contradict Timothy McVeigh's guilt, Daryn.

KAGAN: Kelli, I don't know if you would happen to know or if we could get Greta back, but does Timothy McVeigh have that power to overcome a stay by the government? Can he himself say, "No, I want this execution to go ahead?" Or can the government put in stay whether Timothy McVeigh wants it or not? ARENA: The scenario as described to me was that the he does have that right, that he can say, "No, I want the execution to go forward." Now what is not clear is that many legal experts have argued Justice needed to stay this execution. The Justice Department sets the date for the execution. So they don't request a stay, they grant a stay. They say, "OK on this day, Timothy McVeigh will be executed."

And I do believe that Justice thinks that they need to prolong this process because they need to give all interested parties an adequate amount of time to review the pertinent documents. And I do believe that Justice can trump McVeigh.

However, if Timothy McVeigh does come forward and say, "No, I don't want this, I have been informed by my lawyers, and I do not believe that this execution should be delayed, then I think that the guidance that we've received now is that Justice will go along with that recommendation from McVeigh." So that is how it works, Daryn.

KAGAN: Bottom line, you're hearing 1:00 p.m. for the John Ashcroft news conference.

ARENA: That's right, about 1:00 p.m., about 1:00 p.m. Eastern.

KAGAN: OK, that's the first we have heard of an exact time. Once again, you'll definitely see that live here on CNN about less than two hours from now. Kelli Arena at the Justice Department, thank you. That John Ashcroft, the attorney general, holding a news conference at 1:00 p.m. Eastern.

We will take a break. Much more after this.


KAGAN: Once again, we continue this breaking news in terms of the execution of Timothy McVeigh. We're waiting for 1:00 p.m. news conference from Attorney General John Ashcroft. You will see that live here on CNN at 1:00 p.m. Eastern.

Right now, we want to talk with Marsha Kight. She is a mother who lost her daughter in the Oklahoma City bombing. And Mrs. Kight, I understand we have your husband Tom on the phone with us. He is in Oklahoma City.

Tom, are you there?

TOM KIGHT, DAUGHTER KILLED IN OKLAHOMA CITY BOMBING: Yeah, but I can't help the calls coming in. I'm not taking them, but you're going to get that.

KAGAN: OK, we'll ignore the call waiting if you do. And we'll talk to both of you.

We're going to start with Mrs. Kight in Washington, D.C. Thanks for being with us, first of all.


KAGAN: Can you tell us your reaction to this ever-changing story on what looks like will be a stay on the execution of Timothy McVeigh?

M. KIGHT: Well, it's been an emotional roller coaster ride. A lot of people have been emotionally preparing themselves for this upcoming execution.

But I must say that the FBI should not be gatekeepers of evidence. If that hadn't happened, we wouldn't be having to go through this right now. And it's too sensitive of a case to make any kind of mistake. And I don't wand a cloud hanging over this execution in any way. And all these documents should be disclosed and made to the general public because we don't want McVeigh to be seen as a martyr.

KAGAN: So as frustrating as it is, you would support of idea of giving this some space to breathe and give the defense attorneys some time to look over these documents so there is no question involved when the day does come that Timothy McVeigh is put to death?

M. KIGHT: Yes, absolutely.

KAGAN: Does it add, though, to the frustration of all these years as a parent?

M. KIGHT: Yes. Absolutely it adds to frustration. But we have to make sure that justice is served. That's why we have checks and balances in our system. And I think it's crucial. I don't think anybody would feel good not having all the information out there and having Tim McVeigh put to death. He would probably be laughing.

KAGAN: Is there -- in terms of the sense of frustration, the sense of control and power that this puts in the hands of Timothy McVeigh, and we're still not exactly clear as to whether he gets to decide if there's a stay of execution or if he gets to override that, even if the Justice Department wants one. It's yet another level of power control it puts in his hand.

M. KIGHT: Well, I hope that's not true. I hope Justice can say, "No, we need to look at this evidence," and McVeigh not have the last say. I hope that's not the case.

KAGAN: Had you as family planned on viewing the execution?


KAGAN: Why did you make that decision?

M. KIGHT: It's not going to bring me closure. It's not going to bring my daughter back. I thought I had seen -- and I do feel like that I saw justice served when I was in the courtroom every day from gavel to gavel in Denver, Colorado.

KAGAN: Mr. Kight, had you decided whether or not you were going to be viewing the execution? T. KIGHT: I am going to be viewing the execution. I don't know when now. But Judge Matsch is one of the finest judges. I've watched him both -- as you know, he was the judge in both Nichols and McVeigh's cases. And he's a stickler for following the law as he sees it.

And I -- it's an emotional roller coaster ride. But this law has to apply, as he sees it, to everybody. And that includes Tim McVeigh.

KAGAN: And so you support the stay?

T. KIGHT: I support -- if that is the way Judge Matsch sees it, then I've got to go along with it because I think he's a very true jurist in the purest form, a very technical person. And he holds it to the letter of the law as he sees it.

And we've lived six years with this. So if we have to live it little longer with Tim McVeigh living, then so be it. But it has to apply to everybody.

KAGAN: Throughout this, have you supported the death penalty?

T. KIGHT: I have been for the death penalty long, long before this. My problem with the people who get life in prison for murder, I value life as very precious. You give somebody life in prison, basically you're giving them room and board, medical care, some form of recreation, and visitation rights with the family. And I don't know that that's a great punishment when you take somebody's life, have all those things victims don't have. You (UNINTELLIGIBLE) life at all.

I am definitely for the death penalty. And in this case, when you're talking about 168 lives, many of those being children, it's just ludicrous. It's ludicrous. And there's no remorse in Tim McVeigh, none whatsoever.

KAGAN: Mr. Kight, can you tell us something about your daughter Frankie (ph)?

M. KIGHT: Frankie was 23 years old. She worked for the Federal Employees Credit Union. Frankie was a very loving...

KAGAN: I know it hard.

M. KIGHT: ... young woman. And she was one of the best mothers in the whole wide world. And I miss her very much.

KAGAN: I understand. We feel your pain all these years later.

Marsha and Tom Kight, I know it's a difficult day for you, yet another difficult day in what has been six years of difficult days. And we appreciate your time in spending it with us. Thank you so much.

T. KIGHT: Have a good day.

KAGAN: Leon.

HARRIS: Those may not be the only tears we see today. All right, we'll take a break right now. But when we come back, we'll check in with our Jeanne Meserve, who is trying to scare up some more information on the details coming out of the Justice Department on this pending announcement. And we'll check in with our Charles Bierbauer, who covers the Supreme Court for us. And we'll check and see some -- he's going to check out the different legal aspects of this particular move. So stay with us. Much more to come.


HARRIS: Welcome back, 24 minutes after the hour now. Let's go to Jeanne Meserve, who is standing by in Washington. She's been digging up some more information on this pending announcement we expect from Attorney General John Ashcroft -- Jeanne.

MESERVE: Leon, here's the very latest guidance from the Justice Department. It is that the attorney general -- there's still a strong possibility that the attorney general will announce a delay of the McVeigh execution. A couple of key words here. He will be announcing a delay, not seeking on. And it is a delay that he will announce, not a stay.

Charles Bierbauer here with me, senior Washington correspondent, covering the courts for us. Charles, what is the difference between a delay and a stay?

CHARLES BIERBAUER, CNN CORRESPONDENT: Well, it is more than semantics. It is an administrative procedure. The attorney general as the head of the Department of Justice also supervises the Bureau of Prisons. And they set the dates. And they carry out executions.

So it would seem what we are hearing, if this what comes to pass and everything is very fluid, is that a delay means we're not going to execute him on Wednesday. We're going to examine these papers and see what legal steps might come as a result of that. A stay is a legal process, a delay in the administrative process.

MESERVE: And a delay is an action that the attorney general can take unilaterally?

BIERBAUER: The attorney general is within his powers as the nominal head of Bureau of Prisons to do that.

MESERVE: There has been some speculation today about what impact this will have not just on Timothy McVeigh, but some of the other people involved or allegedly involved in the Oklahoma City bombing. You have some news about Terry Nichols and his lawyers.

BIERBAUER: Well, most specifically Terry Nichols because Terry Nichols has raised this question of was there a John Doe number two, someone else who was involved in this conspiracy with Timothy McVeigh? And that could be a factor in Nichols' case.

Nichols is appealing, has sought appeals with the Supreme Court and been turned down. But Nichols is serving life imprisonment for conspiracy and involuntary manslaughter. If these documents contain more information about a John Doe number two, we've seen those sketches years back of someone else who might have been with McVeigh, that would certainly be something that Nichols' lawyers would want to raise.

MESERVE: And I believe you know that his lawyers intend to file a petition tonight relative to this?

BIERBAUER: I've heard that. I'm not actually sure what the timing will be.

MESERVE: OK. Michael Fortier, another person involved in this case. Possible impact on him too?

BIERBAUER: Well, I suppose it comes up in the same way. Was this a grander conspiracy? Were there other people involved? Is there something that might mitigate the sentence?

MESERVE: OK, let's talk about the McVeigh case, the one central to all of this. What are the legal options before his attorneys now?

BIERBAUER: Well, the legal options before his attorneys would be, one, if McVeigh said, "Let's go ahead and file an appeal." Maybe he's having second thoughts about this. But there's nothing that McVeigh has said or done that indicates he wants to alter the calendar and the timeframe of his execution. But he may not have control over that. That's up to the attorney general.

He does have control as to whether he would file an appeal. And it's my understanding talking with legal experts that his lawyers cannot act on their own. They would have to show that she was incompetent -- unable to make a judgment on his own -- and nothing indicated that. So they would have to rely on McVeigh saying let's appeal or let's not appeal.

MESERVE: Because there has been some reporting that the lawyers could do otherwise, that they could feel that the system was more import than their individual...

BIERBAUER: I've heard that. But the legal experts that I've talked to, and there's an abundance of them in this country, say no, that it really depends on McVeigh because he has not demonstrated incompetence.

And the important thing to remember here is that what legal experts are telling me is there is no precedent for this. This is an unusual set of circumstances. There's no statute that particularly governs this.

But let me point out one thing that might be important. And that is in terms of an appeal, it would have to go to the Court of Appeals, not to the presiding judge, is my understanding. And the Court of Appeals would have to act under provisions of the 1996 act, which was essentially passed following this disaster, this tragedy, which says newly discovered evidence for a Court of Appeals to act, the standard, the threshold, for even taking up the case would be 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 fact finder, judge, or jury would have found the movement guilty of the offense.

In other words, it would have to throw the whole thing out and say, gee, maybe there's some doubt that Timothy McVeigh did this. So it's certainly conceivable that an appeal filed with the Court of Appeals, they look at it and say there's nothing here that changes anything.

MESERVE: Now, his attorneys have the documents in hand. What are they doing with those documents? How long will an investigation and study of these documents take?

BIERBAUER: I can't really tell you that. It's, what, 3,000 pages, some 200 documents. How much redundancy in them, what they really entail. Obviously, there are transcripts of conversations and interviews there.

They could move with some dispatch depending on their mood and his mood. Or they could say, "We may need weeks to go through this." And for that matter, so may the government.

MESERVE: Charles Bierbauer, senior Washington correspondent, thanks much for your input.

And, once again, that latest guidance from the Justice Department is that there is still a strong possibility that the Attorney General John Ashcroft will announce a delay in this case when he meets with the press later today. Now back to Atlanta.

HARRIS: All right, thanks, Jeanne. As we understand, that should happen around 1:00 Eastern. Of course, live coverage right here on CNN.

KAGAN: Yes. And, of course, we've been spending the last hour or so talking about what the government might do. The question still remains: What will Timothy McVeigh and his lawyers request to do? That is ground zero, Denver. And we'll check in in Denver, with our Gina London after this break.



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