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FBI Documents Could Impact McVeigh, Nichols Cases

Aired May 11, 2001 - 12:00   ET


DARYN KAGAN, CNN ANCHOR: We continue our coverage of this breaking news story concerning Timothy McVeigh and what will look like will be a delay of his execution. But it turns out the missing documents that suddenly turned up this week are having an affect on other defendants in this case.

With more on that, here's Jeanne Meserve with our Charles Bierbauer -- Jeanne.

JEANNE MESERVE, CNN CORRESPONDENT: Daryn, specifically they are having an effect on the case of Terry Nichols. He is the convicted co-conspirator in the Oklahoma City bombing. Charles Bierbauer, senior Washington correspondent, joins me. What's the headline?

CHARLES BIERBAUER, CNN CORRESPONDENT: Well, the headline is that attorneys for Terry Nichols will file an appeal with the U.S. Supreme Court by midnight tonight. That's a deadline they have to meet. And they're going to ask the Supreme Court to ask the solicitor general to look into this and get an explanation as to what these documents are all about.

Now, the reason for doing this is that Terry Nichols, who is serving life sentence, he was convicted of conspiracy and involuntary manslaughter -- he had already appealed for new trial, was turned down by Judge Matsch. He had appealed to the 10th Circuit Court of Appeals, and then subsequently to the Supreme Court, was turned down again, just on April 16.

So he has a narrow window in which to refile. That's what he's going to do. Why is this important? It's because in good measure, this is material that was not available to them. It's called Brady material, based on an earlier precedential case -- withheld material that his defense attorneys should have had. They're are particularly concerned about the so-called John Doe 2, the person we have only seen as a sketch, that we do not know if there is a John Doe 2. But if there were, that would suggest this was a broader conspiracy than just Timothy McVeigh acting alone. And as an attorney for Terry Nichols told me just a moment ago, talking to Mike Tigar, he said this is more significant for Terry than it is for Tim.

MESERVE: And these documents came to light in the nick of time for him?

BIERBAUER: In the nick of time for Terry Nichols, absolutely. Yes, because that window of would have closed at midnight tonight, since he'd already been denied once by the U.S. Supreme Court.

MESERVE: OK, let's about the McVeigh case and possible things his attorneys could do as a result of a revelation about these documents.

BIERBAUER: Timothy McVeigh's attorneys, as I understand it, are limited by what Timothy McVeigh wants to do. They cannot act independently. They would have to prove that he was incompetent to act on his own behalf, and that does not appear to be an option at hand.

So it depends on whether McVeigh himself will say, all right, let's go ahead. Let's file an appeal. Maybe this changes things. Maybe he has a different view of what his outcome might be.

MESERVE: Could a third party intervene?

BIERBAUER: Very limited. Very limited circumstances. One legal expert I talked to said someone could act in the role of close friend, best friend -- someone, perhaps, like Timothy McVeigh's father. But not just some random group, even if they were opposed to the death penalty. They'd have to have standing, and that would not be available to them since McVeigh is capable of acting on his own behalf.

MESERVE: We've just been talking a little bit about time deadlines, the attorney general expected to speak in a little bit more than half hour. Is he under any sort of time pressure to decide whether or not to announce a delay in this execution -- except of course, the obvious deadline, Wednesday.

BIERBAUER: The obvious deadline is Wednesday morning, and he could do something up to the very last minute. But it's clear now that Attorney General Ashcroft has within his power, as the attorney general, as the overseer for the Bureau of Prisons, to say we're going to slow this down. We're going to wait. We're going to see what develops.

A delay, not a legal stay. We haven't reached that point yet. That's what we are expecting, or we're anticipating the attorney general will tell us what he's going to do.

MESERVE: Charles Bierbauer, senior Washington correspondent, thanks so much. And so, Daryn, we all wait. We'll give you more analysis when we know what action the Justice Department is going to take. Back to you.

KAGAN: Thanks to both of you. Very informative segment there. We are also getting word that former attorney for Terry Nichols, Michael Tiger, will be joining "BURDEN OF PROOF" at the bottom of the hour. He should be able to provide some insight on what possible plans and options Terry Nichols has at this point -- Leon.

HARRIS: Well, this decision by the Justice Department is having an impact on lives across the country. One of those lives is that of Kathleen Trader. She joins us now from Oklahoma City. Now, Miss Trainer lost her daughter, Ashley, in that explosion, as well as her in-laws. And we'd like to know what your thoughts are. We've been talking with quite a few family members and some survivors this morning, getting their thoughts on what's going through their minds right now (UNINTELLIGIBLE). What is exactly going through your mind right now?

KATHLEEN TREANOR, MOTHER OF BOMBING VICTIM: I'm understandably angry. I just don't understand what has happened here. I didn't get much sleep last night after I heard that this has happened. And, you know, this has been an emotional roller coaster for all of us, and the fact that everyone who was involved with this case knew how important it was to not make any errors. And now, six years later, we're finding out there were errors made. And basically, this is -- this is wrong. This is just wrong. And somebody needs to pay for this.

HARRIS: You feel like this is just basically dragging out the pain that you're suffering?

TREANOR: Oh, absolutely. There's a lot of emotional preparation that goes into preparing for what we were going to do next Wednesday. And now it looks as if that's going to be delayed. And God only knows when that's going to be. I really don't worry about the execution going through. I really think that that's going to happen no matter what.

Even if McVeigh manages to get through -- get away from the death penalty on the federal charges, we've still got a legal right to him in here in Oklahoma. So I'm not worried too much about that. But it could draw this out for years, if necessary. So it's just a mistake that should never have been made.

HARRIS: Well, what were your plans for next Wednesday? I should say what are your plans until this announcement is made? What are your plans for next Wednesday? Are you going to be going to witness the execution or watch on the closed circuit?

TREANOR: My plans were to watch it on closed circuit, but now we don't know what the plans are. So we're waiting to hear from Attorney General Ashcroft as to what his decision is on regarding these documents. And once we know that, then we'll know how to plan for future. But, see, that's another thing, I mean, everything has been totally disrupted for the next, God only knows how long.

You know, I think probably the thing that makes me more angry about this is I can see McVeigh sitting there in his cage, and he's laughing himself to death. Because he -- this is the kind of stuff he just revels in, and I think that probably just goes all over me worse than anything else. This should never have happened. And I'm -- I really see this as giving him a little more power, too, to determine when it is that he's going to die. And I just hate that.

HARRIS: Kathleen Treanor, we thank you very much for your thoughts, and I hope you understand how many of us feel for you and are sorry about your loss. Take care. Good luck to you.

TREANOR: Appreciate that. KAGAN: You've got to feel for the families. The frustration and the difficulty goes on for them.

HARRIS: Well, you have to understand. If nothing else, you have to understand what they must be feeling.

KAGAN: Absolutely. Of course, the story continues to develop. "BURDEN OF PROOF" will carry on at the bottom of the hour in a couple minutes. Top of the hour, 1:00 p.m. Eastern, we expect a news conference from Attorney General John Ashcroft talking about the plans for the Justice Department, what we expect to be an announcement of a delay of the execution of Timothy McVeigh.

HARRIS: That's going to do it for us for right now. We thank you for sticking with us this morning. We've had lots of breaking news. I'm Leon Harris.

KAGAN: I'm Daryn Kagan. Lou and Natalie take over at the top of the hour.



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