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Judge Denies McVeigh's Request for a Stay

Aired June 6, 2001 - 13:00   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: We're going to explore this Judge Matsch ruling in Denver extensively in the next few minutes, including reports from Denver where Judge Matsch will make his ruling momentarily; from Oklahoma City, where many of the victims' families are waiting for this ruling and their reaction to it; and while we wait, Timothy McVeigh, himself, who is five days away from an execution date, waiting in Terre Haute, and CNN's Jeff Flock is there -- Jeff.

JEFF FLOCK, CNN CORRESPONDENT: And we have just spoken to Bureau of Prisons officials here in Terre Haute at the U.S. penitentiary as well as a spokesman for the warden, who indicates that at this moment, all plans are proceeding as normal. that is, heading toward the Monday execution 7:00 a.m. local time.

We were just across to the prison grounds, not able to broadcast live from the prison grounds at this point. That will be allowed beginning on Friday provided that all systems remain go.

But I can tell you that although they expect perhaps to hear first word of any kind of postponement if that's the way it goes, perhaps on television as well as anywhere else, Bureau of Prisons officials are on the cell phone with representatives of the Justice Department in Denver. They had to report that, in fact, the hearing was over and that perhaps a decision was imminent.

Speculation here, of course, as people think about how this might play out, if there is a rapid decision that perhaps that would indicate that perhaps there will be some delay, but no hard reality on that at this point. That's just the scuttlebutt out here outside the prison. But to repeat, the mechanisms remain moving toward the Monday execution.

Perhaps you can see out behind me, trailers are out at the ready there, that's both the prison officials as well as the members of the news media who will be here to cover this and a lot begins to ramp up if it's all systems go and if not, of course, we wait.

WATERS: And if not, Jeff, what happens then in regard, particularly to the folks who had gone to or are on their way to Terre Haute to bear witness to this execution?

FLOCK: Well, I don't that anyone's left home at this point. I think everyone is kind of waiting on some pins and needles. Another interesting note, of course, here is that these people at prison certainly believe that they will have an execution in the next couple of weeks one way or the other.

As you know, if it's not Tim McVeigh on the 11th, on the 19th, Juan Raul Garza may become the first man executed in the U.S., in the federal system since 1963. So, it's a big story here in some sense and a big focus either way, whether it's McVeigh or Garza, but clearly, two weeks from yesterday would be the date of the Garza execution if the McVeigh does not come off. So, preparations under way here that they feel are going to come to some fruition one way or the other, Lou.

WATERS: All right, Jeff Flock, we'll get back to you. Jeff's in Terre Haute, scene of one of the elements of our Timothy McVeigh story this afternoon, which includes that petition before Judge Matsch in Denver for a stay of execution -- Natalie.

NATALIE ALLEN, CNN ANCHOR: Well, that judge in the case, we're talking about Judge Richard Matsch, said to the hearing today that he found it shocking that FBI documents were withheld in the case until just last month.

Let's find out more about the Justice Department's appearance in this hearing today and how folks are reacting to what has gone on so far from our Justice correspondent Kelli Arena, who is in our Washington bureau --Kelli.

KELLI ARENA, CNN JUSTICE CORRESPONDENT: Natalie, as you know, the Justice Department all along has contended that it would fight any attempt by Timothy McVeigh to get a stay of execution vigorously. Now, whether that means that they will go ahead and appeal if that stay is granted is unclear at this point. That decision, we are told, has not been made. They are just waiting to hear of what Judge Matsch has to say.

One underlying theme this whole episode -- this whole situation, though has been that Justice says that there's nothing in, as shocking as it may be to the judge or anyone else that these documents were not turned over, number one, no one has proved that there was any intent to withhold those documents and number two, they insist there's nothing in those documents that would contradict the fact that Timothy McVeigh is guilty or that would change his sentence of death.

As a matter of fact, in the brief that was filed on Monday, Justice contended that the defense said that there were only nine documents, that amounts to about 20 pages out of more than 4,000, that they say would have been helpful to the defense in the course of this trial.

So, we are waiting, we are seeing, we are waiting for a response from Justice when we do hear from Judge Matsch. But Right now, everything is pretty much on hold, Natalie.

ALLEN: The defense, Kelli, argued before this judge that there is something, no matter how many pages, that could have helped their defense. Do those in the Justice Department think that Judge Matsch will be forced to grant them some more time?

ARENA: There is -- every legal expert I've spoken to, including those in the Justice Department, have really been divided 50/50 on this issue. There are those who contend that Timothy McVeigh does not meet the standards that the law sets, that he hasn't established in any way that he may be innocent.

As you know, the department even argued that the court with Judge Matsch was not -- did not have jurisdiction to make this decision, that it should have been brought to a different court. So there really is a 50/50 split. Some say that just to sort of protect the integrity of this whole process, to not leave any stone unturned, that Judge Matsch may very well delay it.

But if you go back to the letter of the law and the very high standard that Timothy McVeigh's defense lawyers have to reach, if you look at it just on that basis alone, many legal experts say that a stay would not be granted. So it really depends on who you listen to. And even those within Justice are divided on how exactly how this will all turn out, Natalie.

ALLEN: All right, Kelli Arena, we will talk with you again.

We again are awaiting Judge Matsch's decision. And we expect that literally at any moment.

WATERS: We are hearing, Natalie, that the court has reconvened in Denver. And as we wait, we are going to go to Oklahoma City: Stephen Jones, who, as you recall, was the original attorney for Timothy McVeigh.

I heard you, Mr. Jones, say on "BURDEN OF PROOF" just a short while ago that Timothy McVeigh closed this door on the -- on the capital punishment. Now he wants back in. What is the nature of this exercise?

STEPHEN JONES, FORMER ATTORNEY FOR TIMOTHY MCVEIGH: Well, Lou, what his lawyers are trying to do is to take him from, say, circle four -- which is the last circle, where you have to show actual innocence to the 10th Circuit -- and take him back to step three, which is the so-called post-conviction effort; step two, of course, being the initial appeal; step one being the trial.

So they want to take a step back to step three. To get to step three, they have to do three things: First, they have to get the stay of execution. And we'll know in a few minutes whether they get that. No. 2, assuming they get it, they then have to convince the judge in some type of hearing that they are entitled to go back and raise the post-conviction relief argument to either set aside the conviction or to set aside the death penalty.

If the judge says, "OK, now you can do that," then they have to go to the third step and convince the judge that he's entitled to a new trial or a new sentencing. Now, those are very difficult roads to climb. To be frank with you, the easiest is going to be the stay. If they get the stay today, then the momentum is with them. But it's not a momentum on a flat highway. It's a momentum uphill.

WATERS: Now, the judge knows about the three things you just mentioned. So if he grants this stay, he must know that this could go on for quite some time.

JONES: Well, not necessarily for quite some time, but certainly 30, 60 or 90 days. But knowing Judge Matsch, there are two things in his mind.

First, he is very concerned about the integrity of the process. And to deny a stay with the background in this case of these 4,000 documents coming at last minute, literally four or five days before the original execution, with the rush on McVeigh's lawyers -- and remember, he's only got a staff of four now to go through these 4,000 documents.

The fear, I am sure that the judge has is: If I don't give them the stay, then I am setting up a circumstance where this man may be executed and, ultimately, that will have been proven a mistake. So what do I have to lose by granting a short stay? What does the system have to lose? What does justice have to lose?

And the answer to that question is: nothing. McVeigh can still be executed. But you cannot bring the dead back to life.

WATERS: Do you -- on a personal level, do you have a sense of the feeling in Oklahoma City about all of this? Many folks who are even against the death penalty were for the capital punishment of Timothy McVeigh. And now that's in some question, at least for the short term.

How are they reacting to that in that

(CROSSTALK)

JONES: You know, Lou, it's almost unbearable for them. They had prepared themselves for the execution and then, I think, the greatest shock to them, other than of course the initial bombing, was to find out that the FBI had made this mistake. The loss of confidence in the justice system and in the bureau in Oklahoma City reached the bottom.

Now, that may not be a fair assessment, but it is how people felt. So they are beyond being shocked anymore. I think that they expect the worst, hope for the best from their standpoint of the execution. But I -- but I will tell you that among the victims and the families and people here, confidence in the federal bureau of investigation was shattered.

WATERS: And that's subject for another time, our immediate concern is of that ruling out there in Denver, expect momentarily. Stephen Jones, thank you so much. Now let's go to Natalie.

ALLEN: Gina London is just outside the federal courthouse there in Denver. She joins us now, and Gina, we have heard that court is back in session. GINA LONDON, CNN CORRESPONDENT: That's right, just a few minutes ago, in fact, Natalie. After Judge Matsch heard from the defense and federal prosecutors about an hour and a half in the building you see behind me, he suddenly gave it is a recess and then said that he would convene at 10 minutes before the hour, which as you can see, they've been convened now for just about 15 minutes, and we are expecting a ruling from the bench.

We are expecting Judge Matsch to issue some sort of a decision whether or not to grant the stay, or to deny it based on the arguments that he heard. But also, of course, based on the written responses and the written motion that he received last week from the government and from McVeigh's attorneys and, of course, the response this week as well.

Those are what he used to base his questions on Natalie, and we understand from those in the hearing, that he asked a lot of pointed, tough questions to the defense. Initially, the legal community here said it was a pretty much a foregone conclusion that Judge Matsch would grant a stay, and now we're hearing some indecision on all of that, that perhaps the judge will say that the case wasn't made, that they don't get anymore time in all of this.

But it's important to point out that no matter which way Judge Matsch does rule, of course, each side may appeal and we expect that appeal to come immediately, right here, of course, in the building behind us also. That's the 10th Circuit Court of Appeals, based here in Denver in this building, and that is where that first round of appeals will go. And then, also if it's denied down that way, it can be appealed once again to the Supreme Court.

So, again, the session, the hearing is back. It reconvened just a few moments ago and we expect to hear any moment now how Judge Richard Matsch will determine whether or not to grant that stay to Timothy McVeigh.

ALLEN: And Gina, there are any victims or family members attending this hearing today that you can tell?

LONDON: I don't know how many people are actually in that hearing themselves. It was a small -- it's a small court, actually, that he has and there is limited seating. We don't have any protesters out here one way or the other.

Denver, of course, since this is the city that has been hearing all of this since 1996 when the trial began, has kind of taken a little bit of a calm attitude, though I'm certain in Oklahoma City there is a lot of emotion going on right now, the victims' families wondering of what Judge Matsch will decide.

ALLEN: Gina London in Denver. And now back to over to Lou.

WATERS: And as we wait for Judge Matsch's ruling, Roger Cossack, our CNN legal analyst -- and we may be interrupted at any moment. Roger, the presumption or the safe bet, however you want to put it that Judge Matsch will rule to grant a stay of some sort as a result of this hearing, and you had an explanation of why you thought that was going to happen. Could you run that through for us?

ROGER COSSACK, CNN LEGAL ANALYST: Well, Lou, first of all, I want to tell -- remind everybody that my record of predictions is not very good, so perhaps I should learn my lesson, but I think that's what they pay us for, so the reason that I believe that there will be a stay in this case is because you know, 4,000 pages was turned over just a few days before he was scheduled to die, May 16th.

That's a lot of evidence, and his attorneys have been looking it over, and what they are going to the court and saying is two things: One, we believe that by further review of this evidence, we will be able to come to you and convince you, even though the bar is very high, that perhaps a new trial or even a new sentencing hearing should be in order.

Or two -- and two, we also believed that there is more evidence out there that the FBI has failed to turn over and we have reason to believe that and they told the judge in their brief that are there references to interviews, some of which they claim they still don't have.

So, what's the downside, as Stephen Jones said, if they extend 45 more days as turns out to be life to Timothy McVeigh. It's not likely he's going to be out on bail. He's not going to be walking the streets with us. He will be staying in the prison while the courts go through this decision.

We are talking, after all, about a death penalty. We are talking, after all, about an execution, and I think that most people would feel that if, in fact that there is evidence that would indicate that perhaps his lawyers might at least have a reasonable chance of coming back into court and at least trying to convince the court of something new, that that time should be given.

WATERS: So, as I understand it, say that the stay is granted and the documents in question, and I guess it's been whittled down to about nine document, 20 pages total, there would be a hearing about those documents following the granting of the stay or is that not even a fate du compli (ph)?

COSSACK: Well, the government claims that there's only nine pages that, in fact, of all these 4,000 that might find or might describe something that the defense didn't know in the first place. Now, that's the government's view of what those pages represent.

I am sure if you talk to the defense lawyer, they may be saying something else. The government says look, even the defense isn't coming in here and trying to say that he's not innocent -- or that he's not guilty, he's merely saying that perhaps there should be a different sentencing hearing.

What I am suggesting to you is that the defense is saying, look, we don't know what they are going to be able to come up with, but we have reason to believe that by looking through this material, we may be able to come in front of you and convince you that something else could have happened or should happen. How do you deny that to someone when the penalty you're talking about is death and the reason that you're having this problem is because of the necessary of the investigating agency, in this case of the FBI, to turn over all of the material. You know, there were several, several briefs filed in this case in which each time the government signed -- the government by its attorneys signed documents saying we have turned over every bit of discovery in this case, more than even we need to, they said time and time again.

Now, I'm not suggesting they were holding back, I'm just suggesting that for whatever reason there was a gap here and the FBI didn't turn it all over and now you have someone saying, I'm about to die. Don't you think I should have 45 more days to figure out if there is something I can come to the court with?

No one has any great love for Timothy McVeigh, believe me. But if you believe in a judicial process and fair process and due process for all, it just becomes difficult, I think, not to extend him at least a short period of time.

WATERS: I guess, most folks would be wagering that Timothy McVeigh eventually will die, but is there something in these documents -- this is a difficult question because we don't know what's in those documents -- but is there a shot for him to avoid capital punishment here?

COSSACK: You know, we don't know. His documents, of course, are filed under sealed, but we do know that perhaps the argument of the defense may include an argument that says Timothy McVeigh did not act alone, as he recently has said to those two authors from Buffalo who wrote that book about him.

Stephen Jones tells us that initially in his original interviews with Timothy McVeigh when he was representing him, McVeigh made it clear, that he did have help. But nevertheless, everyone agrees McVeigh is the one that set off that bomb that did all of that horrible carnage.

The only issue would be whether or not you -- the defense would be able to bring up enough evidence to show that McVeigh perhaps was one of the perpetrators, not the perpetrator and in fact could use that to convince a jury that perhaps he should not receive death, he should receive life.

This is a long, long leap of faith, what I have just told you. I think it's more important just to concentrate on whether or not he's going to get 30 or 45 more days to see if he can marshal any arguments whatsoever into the court.

WATERS: OK, Roger, if you will just stay close. We are still waiting for that ruling out west and we'll call upon you again -- Natalie.

ALLEN: And now, joining us from Chicago, Scott Mendeloff, who was a former prosecutor in this case for the Justice Department, We thank you for saying with us today, Scott. SCOTT MENDELOFF, FRM. MCVEIGH PROSECUTOR: My pleasure.

ALLEN: As we await this, I thought that it was interesting, our Justice correspondent Kelli Arena saying that of all of the legal experts she has talked with, that it was split 50/50 on what this judge may decide. Where do you stand?

MENDELOFF: Well, I have to say that I expect that he'll grant a brief stay. Knowing him, he's very careful and very concerned about the public perception of the justice system, concerned that the public realize that the justice system operates toward -- with an eye towards fairness, ultimate fairness.

But I have to say that the government's brief was extremely powerful in the arguments it made, that the court does not have jurisdiction to take those steps. And it may well be that the government -- that the judge, heeds those arguments and realizes that after all, Mr. McVeigh, even in their briefs, is not alleging that he didn't do this.

He's admitting he killed all these people -- and in fact, the evidence in this case, which Judge Matsch is very well aware of, was clear that it was Tim McVeigh and Terry Nichols, really, primarily by themselves that gathered all the components of this bomb and put this whole operation together.

If the defense is able to cobble together allegations of other people being involved -- which, by the way, we saw none of -- those allegations would reference people at the extreme periphery of this whole affair, and I don't think that that would lead the judge to a different conclusion.

ALLEN: You said that the Justice Department argued that the court does not have jurisdiction. What's their argument regarding that?

MENDELOFF: It's a complicated legal argument, but the long and the short of it is that the Justice Department argued that the defense pursued this appeal not under the habeas corpus rule, under the Anti- Terrorism and Effective Death Penalty Act, which was codified in 1996, but under a relatively narrow civil rule, Rule 60B of the federal rules of civil procedure, under which they're alleging that there was some sort of fraud on the court.

To establish the fraud on the court, they have to establish two things: one, that there was intentionally evidence withheld, and two, that the evidence that was withheld goes to the core of the case -- not to peripheral matters, but to the core of the case. Both of those steps are going to be very, very hard to establish.

ALLEN: If this judge, though, does go ahead and give McVeigh's lawyers a stay -- whatever it could be, 30, 60, 90 days -- what's the best that they could get from that if they cannot prove, or come close to proving, that there was someone else involved in this, and it just wasn't McVeigh and Nichols working on this? MENDELOFF: I don't think that they can expect anything but the judge to deny their request to put off this case any further and to deny their request to stay the execution.

ALLEN: Scott Mendeloff, we thank you for staying with us as we continue on here, waiting to hear from Judge Matsch in this case.

Court has reconvened. It's been a little over 20 minutes now, that following a 1 1/2 hours hearing earlier today in Denver. So we wait to see what Judge Matsch is going to do in this case.

WATERS: We talked to attorney Stephen Jones just a little bit ago about the personal feelings in Oklahoma City, where 168 people died at hands of Timothy McVeigh.

We have CNN's Gary Tuchman there today, and he checks in with us live.

Gary, what's going on there?

GARY TUCHMAN, CNN CORRESPONDENT: Lou, we come to from you the Oklahoma City National Memorial. This is where the Murrah Building used to stand. What's very noteworthy today is many family members of the victims and survivors have come out here today. We have talked with many of them on the telephone. And not one of those people that I have talked to expect the execution to be carried out this Monday. They all fully expect a stay to be issue in a short while.

It was a crushing disappointment last month when they heard that more than 4,000 pieces of evidence had been withheld by the FBI, and for many of them who wanted this death penalty to be carried out, they were disappointed from the May 16 point.

But at this point, they fully expect it to be carried out. Those who favor the death penalty nevertheless tell us they do expect that it will one day be carried out, just not this Monday -- Lou.

WATERS: Gary, can you be pro-death penalty in Oklahoma City and still go along with a stay of the execution, as is expected from Judge Matsch momentarily?

TUCHMAN: I think a lot of the people here who favor the death penalty for Timothy McVeigh don't want any cloud to hang over it, so many of them are saying, Listen, we think that there's going to be a stay, but we don't think the stay will last for very long, and we do think Timothy McVeigh will eventually be executed. It would be fair to say that there probably will not be a lot of anger among the family members of the victims and the survivors if a there is a stay.

There would be anger, however, if, down the road, that death penalty were turned into a life sentence. That would make people here very angry.

WATERS: Is there anything happening at that memorial today?

TUCHMAN: Right now, there's a lot of tourists here, as there have been for the 1 1/2 months, ever since the sixth anniversary, on April 19. Business has picked up here. It's a wonderful museum to visit if you ever come anywhere near Oklahoma City. There's an indoor component to the museum and an outdoor component. It's very moving. It will teach you a lot about human suffering and about perseverance. There have been a lot of people here since the sixth anniversary, on April 19.

WATERS: CNN's Gary Tuchman, keeping watch in Oklahoma City as we wait for ruling in Denver on the request for a stay of execution on behalf of Timothy McVeigh -- Natalie.

ALLEN: Let's bring back in now Timothy McVeigh's first lawyer, Stephen Jones, who's with us. Also Scott Mendeloff, former member of the prosecution, and Roger Cossack, our legal analyst, who's always with us on these days, from Washington.

Do we expect, since they have been back in court for some time now, Roger, that the judge could be taking more questions this afternoon?

COSSACK: Well, I'm sure that there are some questions. I must tell you, this is not a case that I would like to be arguing, and I'm sure my two colleagues would agree with me on this one. Judge Matsch is not going to be in a good frame of mind. He's not going to be particularly pleased that he's there having to make this decision. These are tough calls anyway.

And now, when you have negligence on behalf of the FBI, and you have the defense coming in and making the kind of argument they're making when everybody knows it's almost an possibility in the end to succeed with these arguments, I am sure that Judge Matsch is not in a pleasant mood today, and I'm sure the questions are being hurled at both sets of lawyers.

ALLEN: Mr. Jones, I'm interested in hearing from you what you thought, since were in on this case in the very beginning -- what you thought when you first heard that the FBI had so many -- we're not talking about a few dozen pages; we are talking about 4,000 pages of documents that it had not turned over?

JONES: I wasn't surprised. I felt from the beginning, the very first time that we had difficulty getting into the Murrah Building, that we would always have problems with the government with respect to the discovery. However, having said that, I do think that it is important to remember that many of these pages will be totally irrelevant and of no use to the defense, and there will be no prejudice in that they didn't have them. It also has to be remembered -- and I agree, again, with Scott -- Sean Connelly.

ALLEN: Mr. Jones, I'm going to interrupt you just a minute because we just received word -- let me check it on the wires -- that a stay has been denied. Is that what we are hearing? A stay has been denied for Timothy McVeigh by judge Richard Matsch.

Are you surprised, gentlemen, by this?

Let's start with you, Mr. Jones?

JONES: I'm not surprised. I read Sean Connelly's brief. I thought it was excellent. I think that Mr. McVeigh heard himself by his statement and made it very difficult for his lawyers, and Judge Matsch is a man of the law. He's not a man of the media. And Sean Connelly knew the arguments to make, and I do not think that it is a surprise.

In my own mind, I understand why people may have thought it. I thought it could go that way, but after reading Sean Connelly's, I have to tell you I am not surprised.

WATERS: We'll get right back to you, Mr. Jones.

Again, Judge Matsch out in Denver has denied Timothy McVeigh's petition for a stay for execution.

We have CNN's Gina London with us, from outside the courtroom.

Fill us in, Gina.

LONDON: We've heard Judge Matsch said to the defense that it had an opportunity to prove that the evidence that they had recently received would have pointed to the innocence of Tim McVeigh, Judge Matsch saying that it does not point to his innocence, that he is still guilty, and that that was the standard. Therefore, he will deny the stay.

Also, on the idea of the fraud of the court, on these materials that were recently turned over to the defense, the judge, apparently, said that the materials that were recently turned over need to be put into the context of the incredible enormity of all of the materials, more than 50,000 documents, and just the 4,000 pages that were recently turned over. That is not fraud or intent.

Right now, the judge is not staying this execution. Five days from today, McVeigh is still scheduled to be executed.

One other word of note: We expect there to be an appeal by the defense filed really quickly, Lou, because the circuit court of appeals is right here in this building you see behind me. The hearing by Judge Matsch -- and we expect the appeal as well.

At this moment, there is a stay, however, denied by Judge Matsch -- Lou.

WATERS: And as we understand from Stephen Jones, Timothy McVeigh's first lawyer, Judge Matsch is seldom if ever overruled by an appeals court on his decisions.

LONDON: The people at the 10th Circuit Court of Appeals that we've talked to, Lou, said that they were prepared. They've read all of the same motions and documents that Judge Matsch has, and so they're prepared to take that and rule on it very quickly. Of course, also go ahead and put in the factor of U.S. Supreme Court, with an emergency appeal put in after the circuit court of appeals denies it, there is a chance that one justice in the Supreme Court could go ahead and rule whether or not to stay the execution of Tim McVeigh, if it goes that far. But at this point, we have to wait for that legal process to get underway.

WATERS: Do those documents that we've been hearing so much about remain under seal throughout the whole process?

LONDON: Right now, the particular portions of the arguments that the McVeigh team and then that the Justice Department went ahead and rebutted in their response are under seal, although they did discuss them at length during the hearing itself.

But we have don't have access to them in writing as of now.

WATERS: All right, Gina London in Denver.

Natalie, what's next?

ALLEN: Well, Susan Candiotti, our correspondent also in Denver, was in the courtroom this morning during the hearing. And she was in there just now when Judge Matsch issued his decision.

Susan, what can you tell us about what he had to say?

SUSAN CANDIOTTI, CNN CORRESPONDENT: Well, Natalie, one of the key points that the judge made here during the course of all of this was that: Look, during the course of this trial, Timothy McVeigh had the opportunity and did not use it to try to present evidence that other people -- that's a key part of this argument for a stay here -- that other people might have also been involved here in the bombing of the Oklahoma City Federal Building.

But the judge pointed out: Look, you didn't take advantage of that during the course of the trial. Once you were convicted, the attorneys did present or try to present evidence to a jury, when it came time to decide on what the penalty would be, that other people might have been involved.

But he said, you know: I reflected on this trial time and again. There's no question -- and you with the defense also do not raise any questions about the fact that your client committed this crime. He said: I thought about it, and there's no doubt in my mind that Timothy McVeigh got up that morning of April 19, 1995 and, shortly before 9:00 in the morning, planted -- having loaded a truck with explosives and parked it in front of that building -- blew up the building and killed 168 men, women and children.

And, therefore, he wants the execution to proceed. As we speak now, I'm being signaled that the lawyers for Timothy McVeigh are in fact moving forward. Let's turn the camera over there to train cameras on them to see what they have to say about their loss here today and whether they will appeal this decision.

ROBERT NIGH, ATTORNEY FOR MCVEIGH: We know that you all have a lot of questions. Unfortunately, we will not be able to address them. Of course, we are extremely disappointed in the court's ruling today. We will file, on Mr. McVeigh's behalf, an appeal to the United States Court of Appeals for the 10th Circuit. And it is to that issue that we must turn our immediate attention. We apologize that we will not be able to address further of your questions at this point.

But, as you are well aware, we have a lot of work to do. Thank you very much.

UNIDENTIFIED FEMALE: Thank you.

ALLEN: The attorneys for Timothy McVeigh, as you heard, not willing to take any questions right now, saying they are extremely disappointed from this decision by Judge Matsch today, and they are going to appeal immediately to the Circuit Court of Appeals -- back to Susan Candiotti in Denver.

My colleague Lou, Susan, pointed out that -- let's go back to more lawyers.

PAUL HEATH, OKLAHOMA CITY BOMBING SURVIVOR: ... the judge's role in the federal judiciary system and protects and defends defendants until they're proven guilty and sentenced. Judge Matsch gave every single advantage throughout the trials to both Timothy McVeigh and Terry Nichols. Today, the judge's ruling that Timothy McVeigh, who demanded on Pearl Harbor Day, December 7, 2000, to require the government to set an execution date, and then on December 28 in a courtroom across the street, Judge Matsch tried to talk Timothy McVeigh out of it. His attorney tried to talk him out of it. His family tried to talk him out of it. And this psychologist and survivor tried to talk the judge out of it.

Monday, Timothy McVeigh, the condemned, delusional, suicidal bomber of the federal building, who showed his real self as a hypocrite by even bringing this charge, will die by lethal injection. It's what he wants. It's what he demanded. And it's what justice requires.

Family members and survivors will continue to be concerned about all that have been affected by the bombing. This will be one of the last chapters in the Timothy McVeigh saga. I hope for this survivor from now on, it will not be Timothy McVeigh. It will be Timothy "who"? And I will place my memory on the 168 innocent men, women and 19 children who Timothy McVeigh took their lives in an act of cowardice with a bomb, 4,000 pounds of fertilizer, and he did it with no impunity, with no remorse, and he has stood since then and bragged about it and called all of us "collateral damage."

At least today, I am reassured that the Constitution of the United States is still in place. It gave him every protection that it gives anybody accused, and he was found guilty. Let's support the jury and the judge's decision.

Thank you.

ALLEN: One of the victims speaking there before microphones outside the federal court, reacting to Judge Matsch denying Timothy McVeigh's stay of execution in this matter. We expect others may come forth to the microphone.

So we have you jumping back and forth there as we get reaction to this announcement this afternoon. Of course, there is a matter of an appeal by McVeigh's lawyers. And we'll continue to explore their chances.

Now, here's Lou with more about that.

WATERS: Things are moving quickly now. But we're fortunate to have the expertise of two of our guests: Scott Mendeloff, former government prosecutor; Stephen Jones, the first attorney for Timothy McVeigh.

We heard from Stephen Jones on the judge's decision, Mr. Mendeloff. From you, are you surprised at what Judge Matsch has ruled here?

MENDELOFF: Just a little bit. Judge Matsch has always gone out of his way, as Dr. Heath just said, to really make sure he is the protector of the rights of the defendants in this case and in other cases.

He is the consummate judge and has demonstrated that time and again. So I am little surprised. But I don't think he did the wrong thing. I think he did the right thing. As I said a few minutes ago, the government's brief was just outstanding. It really established that there wasn't a basis for this motion. I think that had something to do with the judge's ruling, in addition to the fact that, in the defense brief, in a footnote, they basically admitted, again -- and for the first time in a legal document -- that Mr. McVeigh did commit this crime.

WATERS: And, Mr. Jones, of course, we're talking about these documents that were presented that were not turned over by the FBI. We don't know what's in them. But we can assume that Judge Matsch went over them, can we not? Did he not look them over and based his decision on what he found in those documents?

JONES: I am sure that was a factor. And while I haven't seen all of the documents, I'm pretty familiar with them. And there wasn't very much in there that even remotely was helpful to Tim McVeigh. And, in fact, I'm not so sure you can't say there wasn't anything in there that, in the final analysis, really helped him.

I think the circuit will affirm Judge Matsch. And I believe that the execution will go forward Monday. I do want to commend the government's lawyer, Sean Connelly. But I also have to recognize and salute the work of three men that I brought onto the team, Rob Nigh, Chris Tritico and Dick Burr, who have done a magnificent job for Tim McVeigh under very difficult circumstances, circumstances that, unfortunately, Mr. McVeigh himself created.

But that is the world in which we live. They are to be honored and saluted for doing this difficult task and for making every argument that could be made for Tim McVeigh in front of Judge Matsch. And Tim McVeigh could not have asked for a better judge to hear this than Richard Matsch, who was so fair to him and considerate -- and, indeed cordial -- during so much of the proceedings.

WATERS: Thank you both, Stephen Jones, Scott Mendeloff.

Now here's Natalie.

ALLEN: And we've just learned that we will be hearing a statement from Attorney General John Ashcroft on this matter. As we've reported to you, he has given every indication that he would fight this matter very hard. And his side won today: Judge Matsch denying the stay for Timothy McVeigh.

So as soon as we hear from Mr. Ashcroft, we will bring that to you live.

Let's go to our legal analyst Roger Cossack in Washington. Roger, the judge surprised a lot of people today.

(CROSSTALK)

COSSACK: He certainly surprised me, I must say, I said publicly a number of times that I believed that the judge would grant a stay somewhere between 30 and 60 days. What I am surprised at in his decision is that he...

ALLEN: Roger, we have to interrupt, just a moment. Now, the prosecution in Denver.

(JOINED IN PROGRESS)

SEAN CONNELLY, PROSECUTOR: .. not only about the law associated with this case, but about the tremendous harm and devastation caused by Timothy McVeigh. Judge Matsch found that for anybody that sat through the evidence and heard the evidence at trial, there can be no doubt that Timothy McVeigh exploded a Ryder truck bomb outside the Alfred P. Murrah Federal Building on April 19, 1995, killing 168 men women and children and maiming and injuring scores more.

We are gratified by Judge Matsch's ruling. Our thoughts and prayers are with all those who lives lost and so grievously injured by this terrible crime. Thank you very much.

ALLEN: Sean Connelly, he is getting a lot of credit from our guests today on the brief that he wrote for this hearing in front of Judge Matsch, and we'll ask Roger Cossack to comment on what role Sean Connelly played in helping when this one today -- Roger.

COSSACK: Well, obviously, his brief was an excellent brief and an outstanding brief, and obviously, it was a brief that Judge Matsch put a lot of weight into and believed in. I want to just finish my thought that I said earlier.

The reason that I'm surprised here is because what Judge Matsch did in denying the brief is he came to the conclusion before the evidence -- before the defense was given the chance to marshal their evidence. Now, this may very well have been the final conclusion, but what the defense was saying today was, look, we need a little more time so that we can present to you arguments that may change your mind.

What Judge Matsch, in effect, said was, look, there are no arguments that could change my mind. I haven't seen anything in these papers, so let's go ahead and do what we have to do. In a system in which we try and make sure that all sides have the opportunity to speak, I felt in this situation, particularly with the negligence of the FBI, that a 30 to 60 day delay would be given.

You know, Judge Matsch is the person that makes the decision and obviously I respect him, but I am surprised at this decision. I will be the first to say, of all of our guests, that this is not the way I thought would go.

ALLEN: All right, we always appreciate your honesty, Roger. That's why we like you. Let's bring in Charles Bierbauer. He is our man covering the Supreme Court and this could well go all the way there now, Charles. What's the next step here for Timothy McVeigh's lawyers?

CHARLES BIERBAUER, CNN SR. WASHINGTON CORRESPONDENT: Well, McVeigh's lawyers have just told us what the next step is. They will appeal to the 10th Circuit Court of Appeals in Denver. It's right there were they are now. But in all likelihood, we will see this before the U.S. Supreme Court, and we'd have to see it before Monday.

I should point out that these things do move swiftly. Judge Matsch has moved quickly, and the next appeal basically will be to say to the 10th Circuit Court of Appeals that McVeigh's lawyers disagree with Matsch's ruling. Matsch ruled that he found no fraud upon the court which was the essential matter of the McVeigh appeal even seeking to get an extension here.

So, they'll take that and they'll again be asking for an overruling of Judge Matsch to grant the extension so that they may further pursue these documents. Should the 10th Circuit Court of Appeals reject that appeal, then you would expect that the attorneys would file an appeal with Justice Stephen Breyer at the U.S. Supreme. Justice Breyer has the oversight responsibility for the 10th Circuit Court of Appeals.

What Justice Breyer would do would be to circulate that appeal among the rest of the Supreme Court justices. And again, this can move quickly. If that appeal filed this afternoon in Denver, as it probably will be, it could be acted upon in not much more than 24 or 48 hours and we would see the appeal at the Supreme Court before the end of the week.

That would be my expectation.

ALLEN: And we've already seen Terry Nichols case go before the Supreme Court, and in how they've handled that matter, does it give you an inkling how they would handle the Timothy McVeigh case if it does get to that?

BIERBAUER: Not necessarily. They are two different cases. Bear in mind that Mr. Nichols is not facing a death penalty, so they do not have the expediency that do you in the McVeigh case. He is making a somewhat different contention. He is asking for a new trial.

He's actually making a filing a motion for the court to reconsider their rejection of that trial, and what the justices have done is to ask the Department of Justice for its view, to respond. So, they have made no -- given no indication of which way they are yet to go on the Nichols case. I think that they cannot separate the two, but they obviously want to move them on parallel but not on the same track.

ALLEN: And did you talk with legal experts yourself, Charles, during this matter about whether many felt that Judge Matsch would feel some obligation to issue a stay, as we have heard from some of our others joining us today?

BIERBAUER: I don't know that I can make that kind of assessment. I don't know Judge Matsch. I did not cover the trial out there, so I am not the best person to gauge his inclination. We know what his decision is, so the guessing doesn't really matter anymore.

He's made a very clear statement in two rather important points: One saying that he does not want to have a trial of the FBI because he does not feel the fraud has been perpetrated on the court, and then the second point being that whatever the involvement of others may have been and whatever may come out over a period of time, Judge Matsch says that does not alter the involvement of Timothy McVeigh, nor does it alter the guilty verdict and the judgment for execution that was levied by his jury. He said, nothing in there is going to change that.

ALLEN: All right, Charles Bierbauer, thank you from Washington. Now back over to Lou.

WATERS: We're going to Gary Tuchman through all of this. We wonder how the victims' families are reacting to being kept on tender hooks over this capital punishment for Timothy McVeigh. Now we're going to find out. Here is Gary in Oklahoma City.

GARY TUCHMAN, CNN CORRESPONDENT: Well, Lou, we've heard the word "surprised" a lot over the last few minutes. It's fair to use that word here, too, in Oklahoma City, outside the national memorial where the Murrah Federal Building used to stand.

Throughout the day today, we've had family member of the victims and survivors coming out here fully expecting a stay to be issued. Now that hasn't been issued, we have two of the ladies with. One a family member of victim; one a survivor. These are the two ladies, Doris Jones and Priscilla Salyers, who accompanied the attorney general, John Ashcroft, through this museum last month when he toured the museum.

Doris last her daughter, 26-year-old Carrie and her grandchild, who was going to be brought into the world three months away. She was six months pregnant, your daughter. Priscilla is a survivor. She was on the fifth floor of the building, fell five floors when the bomb exploded, was in the hospital a while. We've known each other a long time, Priscilla. I want to ask you right now, how do you feel about this decision in court?

PRISCILLA SALYERS, BOMBING SURVIVOR: I am very surprised. I was really expecting him to grant a stay. But it just shows that the documents that came forward it still doesn't show that McVeigh was not -- he's guilty.

TUCHMAN: I want to point out both of you favor the death penalty, both of you plan on being at the closed-circuit telecast of the death penalty.

SALYERS: Right.

TUCHMAN: Do you think now -- you know, I've explained to you that it has to go to a court of appeals in Denver, then it may go to the U.S. Supreme Court. Do you think now, though, there will be an execution this Monday, Priscilla.

SALYERS: I don't know that it will happen this Monday, but I have -- I really feel that it will happen.

TUCHMAN: OK, let me ask you, Doris. When you heard -- you were watching with us, when you heard the word that the stay of denied, how did you feel?

DORIS JONES, MOTHER OF BOMBING VICTIM: I was a little bit surprised, but I felt really good. I was hopeful that this was what would happen, but at the same time, I really had my dreads, you know. I was afraid that I was going to have to sit and wait a little while longer. I'm ready for this to be over with. It's been six years, and we need to come to a point -- we need to have this behind us. We have enough to deal with not to have to have this brought up into our faces all of the time.

TUCHMAN: Well, now that the stay has been denied, you expected there would be a stay, are you concerned there could be another surprise and that perhaps the appellate court or the U.S. Supreme Court could overturn this and once again issue a stay?

JONES: That's always possible, and it's kind of like you don't want to get your hopes up. And that's kind of an ugly word but at the same time, you know, I have had so many ups and downs that I am hopeful that it will happen Monday, but at the same time, I certainly won't be surprised if something comes up.

TUCHMAN: Before we go, I want to ask each of you ladies this question: You wake up early Monday morning. The execution is 7:00 a.m. time here in Oklahoma City; the appellate court and the Supreme Court have ruled this will go. What do you think that you will be thinking on Monday morning?

JONES: That I think I'll still apprehensive because I've already came to this point, and thinking it was going to -- you know, that it should have happened, and I -- it's -- it's kind of -- it's an emotional, you don't know whether I mean -- I am not happy. I am certainly not happy. But I am ready and I am ready for it to happen.

TUCHMAN: Priscilla when you wake up Monday morning, tell me...

WATERS: Gary, we're going to the Justice Department. The attorney general is speaking.

ASHCROFT: ... that today our judicial system exercised its responsibility in a way that reinforces justice. It's important that we have a system understood to be fair, understood to be complete, and understood to be thorough and understood to be accurate.

Earlier in the McVeigh case, when it was announced that there were additional documents that were found, I felt that it was very important to make sure that there was time so that those documents could be assessed and evaluated and considered. We've never had a doubt about the guilt of Timothy McVeigh. He's responsible for the brutal murder of 168 innocent individuals, including 19 children. But it seemed to me that we needed more than a guilty defendant in the administration of justice here. We needed an innocent system.

And so a month ago, I deferred the execution of Mr. McVeigh so that it would be clear that we not only had a guilty defendant, but that the system had operated fairly and innocently and effectively. And today, I believe the ruling of the court in Denver, Colorado makes unmistakably clear that we not only have a guilty defendant, but that the fairness and innocence of the system is sufficient and is complete and that it merits the trust and confidence of the American people.

ASHCROFT: I want to commend the victims who have had to endure an additional month here of uncertainty, and I thank them. I went to Oklahoma City to be with the victims. I know the pain and the agony and the distress. I know the wound. I know the absence of loved ones which will forever be absent. But I want to commend them for their patience and their endurance and their understanding.

I want to commend the FBI, for when discovering that there had been documents not delivered in accordance with the agreement, the FBI brought those documents to my attention and allowed me to do the right thing. And we sent an alert worldwide to every FBI office, if there's anything that could be swept from the most remote corner of the office or the most remote component of the filing system, to send it in, and they did well.

I want to commend the Justice Department team which has worked on this case from the beginning. The argument today in Denver was an exemplary argument conducted by an attorney of great skill, and the brief provided was a brief which conclusively demonstrated that the materials that were developed and that were submitted in no way provided any evidence of any exculpation nor to demonstrate any potential innocence of this defendant.

I believe that we have satisfied the responsibility, completely and thoroughly, that the system operate fairly and innocently in dealing with a defendant who is unquestionably guilty. And the ruling of the court in Denver today is a ruling for justice. It's a justice which cannot be denied, and it is an appropriate ruling for which I am grateful.

WATERS: The attorney general of the United States reacting to the ruling by Judge Matsch, out in Denver, denying the stay of execution to Timothy McVeigh -- the attorney general suggesting that we needed an innocent system, and that's why he deferred the death sentence.

You'll recall it was Mr. Ashcroft who delayed Timothy McVeigh's death sentence upon discovery of over 4,000 FBI documents that were undisclosed during the trial.

That's what the Judge Matsch hearing was all about, Judge Matsch, apparently, determining that those documents had no bearing on the guilt or innocence of Timothy McVeigh. He's denied a stay of execution, which is set for 7:00 a.m. local time, in Oklahoma City, on Monday.

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