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McVeigh Attorney Files Appeal of Matsch Ruling

Aired June 7, 2001 - 10:54   ET


DONNA KELLEY, CNN ANCHOR: Right now we'll interrupt to go to Denver.


CHRISTOPHER TRITICO, MCVEIGH ATTORNEY: ... we filed an application for stay of execution with the 10th Circuit Court of Appeals, appealing Judge Matsch's ruling yesterday. Our hopes is that the 10th Circuit will see what we were asking for yesterday that Judge Matsch did not. Further, we have asked the 10th Circuit to make a ruling based on Judge Matsch's ruling yesterday. Our briefs will be made available by the Court of Appeals shortly.

It's our hopes that the 10th Circuit will see and agree with us that, when the attorney general said he's moving the execution date 30 days to give Mr. McVeigh's lawyers time to review the documents and materials and file whatever papers were necessary on his behalf, that the attorney general truly meant that.

I'll take any questions.

QUESTION: (OFF-MIKE) argument are you using?

TRITICO: The brief -- I'll let you read the brief, and it'll speak for itself.

But we've certainly asked for the time that we were asking for yesterday in front of Judge Matsch so that we have a sufficient amount of time to make fair use of the material that we got. Thirty days -- actually three weeks, was not enough time for us to read over 4,000 pages of documents, view the videos and the photographs that we got and conduct an investigation into what we believe is truly some very important excluded Brady material by the FBI.

And so what we're asking for right now is time. And that's all we're asking for right now is time to do what we need to do on Mr. McVeigh's behalf. If, at the conclusion of the process, after we get the time, Mr. McVeigh is still executed, then we know the system worked. If, at the conclusion of the process, Mr. McVeigh is given relief in the form of a new punishment hearing, then the system still worked.

And that's all we've been asking for since this started.


QUESTION: What legal basis will you argue?

TRITICO: Obviously, Mr. McVeigh wants to go forward, or we wouldn't have filed this morning.


QUESTION: Do you ever feel (OFF-MIKE)

TRITICO: Well, Mr. Chambers is meeting with Mr. McVeigh right know, as I speak. And he'll have some statements to make about his meeting with Mr. McVeigh later on today.


TRITICO: We're going to take this one step at a time. And right now -- you know, we didn't expect to be here this morning filing in the 10th Circuit. I think we -- all of us fully expected to get a stay yesterday. And so we'll await the 10th Circuit's ruling before we make a decision on the Supreme Court.

QUESTION: (OFF-MIKE) feel for how long it will take them to act?

TRITICO: No, I have no idea. I'm sorry.


TRITICO: Well, as you saw in our previous pleading, and what we argued yesterday, and with the limited amount of time we've had to investigate this, we have not been able to make a claim of actual innocence, and I don't know that we ever will be able to make a claim of actual innocence. What we are look at right now is a denial of due process by excluding from us Brady material that we feel would have been a significant mitigation of punishment.

QUESTION: (OFF-MIKE) you already filed one appeal, and Judge Matsch said that there was -- the evidence was overwhelming, so that you could not rightfully reopen that appeal. On what legal basis will you argue before this court?

TRITICO: Well, when you got our brief you'll see that what we feel that Judge Matsch used the wrong standard when he made his ruling yesterday. And hopefully the court of appeals will see that Judge Matsch used the wrong standard, and hopefully apply the correct standard of the law on this.


TRITICO: I was extremely optimistic yesterday; I am optimistic today; and I'm hoping that next week I'll begin -- be able to begin an investigation into what happened, why it happened, and begin to develop the Brady material that we were excluded.

Thank you very much.

QUESTION: (OFF-MIKE) Supreme Court?

TRITICO: We're going to take that one step at a time. Thank you.

KELLEY: Christopher Tritico, who had just gone into the 10th Circuit Court of Appeals, as they took that box of legal papers. That's what we were showing you earlier, live here on CNN.

What he said is they're hoping that the 10th Circuit Court of Appeals will see what Judge Matsch did not. As you probably know, Judge Matsch yesterday denied the stay of execution. It's still on for 7:00 a.m. local time on Monday of Timothy McVeigh.

And he said when the attorney general gave him 30 days, that's not enough time. At this point they're asking for a couple of things; but first of all, they're asking for time.

And our Susan Candiotti is in Denver -- Susan.

SUSAN CANDIOTTI, CNN CORRESPONDENT: That's all they want. And of course, as you know, Donna, time is running out.

They have taken this first step by now filing their brief before the 10th Circuit Court of Appeals. And it is up to this court now to distribute it, probably to a panel of three judges who sit on the Circuit Court. And they will decide what to do next.

Now, you heard Mr. Tritico say that all that they're asking for is time. They said that when Attorney General John Ashcroft initially announced that the FBI had failed to turn over thousands of pages of documents that these lawyer had not seen before the trial, the attorney general said he would postpone the May 16 execution for 30 days. The attorney general said that he thought that would be enough time -- more than enough time, as he put it, for the attorneys to review the documents and, he added, to do anything necessary they had to do legally to pursue this matter.

Well, Mr. Tritico said he hopes that the attorney general is being true to his word. He's not take the 30 days literally. He's also taking into account that -- and whatever else they need to do to get their appeals taken care of.

So it is not only on that, but also a legal basis. And we'll be reading that brief now to hear exactly what the legal argument is. But Mr. Tritico has already indicated that they will try to argue before this court.

The trial Judge Richard Matsch used the wrong legal standard. That these attorneys believe that they should be able to be granted more time in order to reopen their case and examine what they believe to be exculpatory material. Material that might raise a doubt in the jury's mind, if not on the conviction of Timothy McVeigh, at least on the death sentence.

Trial Judge Richard Matsch has said that he has not seen any evidence -- the evidence being so overwhelming that McVeigh himself was guilty. He doesn't think information about any possible, additional people who might have assisted Timothy McVeigh and Terry Nichols would have mattered to this jury when they decided upon a death sentence.

Donna, back to you.

KELLEY: OK, Susan Candiotti in Denver, Thanks -- Leon.

LEON HARRIS, CNN ANCHOR: Well, we know that Tim McVeigh's got lawyers all over the country working on this case. And we understand that he was meeting with his lawyers there in Terre Haute, where he is now incarcerated.

Our Jeff Flock is standing by there -- Jeff.

JEFF FLOCK, CNN CORRESPONDENT: That's right, Leon. Obviously, for some reason they thought it important for Nathan Chambers to come here directly. Just a little bit ago he arrived here on the prison grounds, now being processed in to the special confinement unit, where there is a room where they'll have an opportunity to meet and talk.

He had some questions as he arrived last night, asking him specifically, what are you here for? They talked to him on the phone already; you heard the attorney just a short time ago in Denver saying that Mr. McVeigh had approved what they're doing thus far, in terms of pursuing the appeals. But this clearly would be their opportunity to hear from him face-to-face if he has any doubts about going forward with this.

As you know, earlier on he terminated his appeals process, which is what fast-tracked this execution. So, certainly the possibility exists that he might be willing to do that again. Someone has suggested that, obviously there is some preparation -- preparation to die, and that someone in Mr. McVeigh's position may be thinking about -- being about the business of getting down to that as opposed to fighting to the very end in terms of court.

But we will know only when Nathan Chambers emerges.

I talked to a Bureau of Prisons official just a moment ago who said they don't expect him to come out anytime soon, but they don't know. It takes him a while to get in and processed and then make his way all the way out here.

But as you can perhaps see -- I don't know if you can -- microphones at the ready here for Nathan Chambers; and we will be as well.

That's the latest from here. Back to you folks.

HARRIS: All right, got you. Thanks Jeff; Jeff Flock reporting live from Terre Haute, Indiana. We'll get back you when -- as Mr. Chambers does come out.

In the meantime -- Donna.

KELLEY: And let's check in with our Roger Cossack, our legal analyst; he's in Washington.

Roger, when you heard the attorney there in Denver, and he said that he thought that Judge Matsch used the wrong legal standard. How big of an opening is that, and how far will they get with that, in your opinion?

ROGER COSSACK, CNN LEGAL ANALYST: Well, what they're talking about, Donna, is the -- you heard them say "the Brady material." And what Brady material is, it stems from a case that -- I guess about, maybe 40 years old by now -- Brady -- maybe even older. Brady versus Maryland. In that -- the holding in that case said that the government has an absolute obligation to turn over to the defense all materials that may point to the defendant's innocence. Now, of course, there's always arguments about what that materials would be, and how much do you have to turn over.

But that's what they're claiming here: that there may be materials, Brady materials, that would perhaps point, not necessarily to his innocence, but the fact that other people were involved, and that may mitigate his death sentence. Therefore, they're saying, that standard is a lower standard, and Judge Matsch should have at least granted them time to find out if Brady materials exists.

That's what their argument is. As I've said earlier, and all day, I think they're going to have a very difficult time with the 10th Circuit. I think they know that, too. Judge Matsch made a finding that, you know, you can just about find whatever evidence you want, and the bottom line is, and it's undisputed, that Timothy McVeigh drove that truck right up to the Murrah Building and he lit it up and blew up that building.

So it's going to be very difficult to find evidence that would in any way mitigate that, even if they found that there were other people involved.

KELLEY: Roger, stay with us, if you will.

We're going to include, now, Scott Mendeloff. He's in Boston, and he's joining us -- he's a former prosecutor in the McVeigh case.

Mr. Mendeloff, as Roger is talking about, this is kind of a tough deal to do. But as we're talking about time -- the attorneys have talked that they need more time to look through these 4,000-plus pages. Was there any time limit that, even though the 30 days was set and the execution set for Monday -- can't they make that case that, you know, we have material here, and we didn't get a chance to go through it?

SCOTT MENDELOFF, FORMER MCVEIGH PROSECUTOR: Well, you know, the standard is -- and that -- and this is the standard whether someone is entitled to a stay. The standard is whether there's reasonable cause to believe that any of the additional evidence that they're looking at would lead to a different result.

KELLEY: Well, and that's what Judge Matsch said yesterday in his decision, didn't he? MENDELOFF: He did. And the interesting thing -- I think he -- his decision is very well-reasoned on this point in particular. McVeigh's appeal is not limited to -- has nothing to do with guilt. He's saying, of course, this additional information about other people might have changed the sentence.

But the judge points out, and rightly so, that the best resource that the defense had for identifying other people that were involved is Mr. McVeigh himself. Of course, Mr. McVeigh is the one who admits he perpetrated this crime. And the defense doesn't have to go through 302s and other outside sources of people who think they saw something to find out whether there were other people involved. They can just go to Mr. McVeigh.

The judge also goes on to point out that Mr. McVeigh's defense was given a tremendous amount of money to pursue his case and, accordingly, they had more than adequate resources to be able to track down any evidence of quote, "other people."

So what the judge is saying is, look, you know, there may or may not be additional evidence of quote, "other people," but even if there is, it really doesn't amount to much because they had the best resource all along in Mr. McVeigh.

KELLEY: And that he was the instrument, as the judge put it yesterday.

Roger, can you still ask for more time, though? Can you still look at that and say, we have other avenues we need to look at here; didn't have time to go through all the paperwork, you've got to give us more time?

COSSACK: Well, that's probably the only argument they have.

Scott -- I know that Scott will agree with me on this. It's -- what Judge Matsch said was -- in a sense he just cut to the chase and said, you know, I could give you another six months or I could give you another year, but there are certain facts here that are just undisputed. And one of them is that your client drove that truck and exploded it and blew up that building. And, you know, whether or not there's five others involved or 100 others involved, it's never going to lessen or mitigate your client's -- what your client did and what your client doesn't deny doing.


KELLEY: And if that's the case then, Roger -- if that's the case, are the attorneys taking it to the new step? Christopher Tritico was just saying, OK, it's not. maybe, a claim of innocence; I'm not sure we;LEITER: ever be able to do that. But, they say that perhaps it's a denial of due process.

COSSACK: Well, that's their argument. You see, yesterday they admitted that they weren't there arguing about -- that we're ever going to come in with evidence to show you that my -- that their client was not guilty. What they were saying is, is that we may be able to come up with evidence that, perhaps, would mitigate his sentence in front of another jury. But the fact of the matter is, as I keep repeating myself, the judge said, look, it is undisputed that your client alone drove that truck and exploded it. How can you ever mitigate in front of the jury?

Now, the due process argument is always, well, judge, you know, you don't know what the future holds and I don't know what the future holds, so why don't you give us another 30 days. We have this negligence by the FBI; we have all these documents that we never got a chance to really go through. It doesn't hurt to give us 30 more days.

And, quite frankly, I thought they'd get 30 more days. But the way Judge Matsch saw it, and the way he describes it, it becomes clear why he didn't do it. And I just think they're going to be in a tough spot in front of the 10th Circuit.

MENDELOFF: If I may add one other thing...


MENDELOFF: ... that's, I think, relevant, as well. And it's relevant to those Americans who are concerned about -- and rightly so -- concerned about whether there is any fairness being flouted here. You must remember that at trial, and Judge Matsch pointed this out in his ruling -- at trial Mr. McVeigh did present evidence of other people, supposedly, that were involved. And when the jury rendered its verdict, it determined that there were no mitigating factors mitigating in favor of Mr. McVeigh. So in effect, the jury rejected the notion, already, that the involvement of any other people would have changed the result.

And you know, one of the key things in our justice system is finality of verdicts. He's already had his day in court on this issue according to Judge Matsch.

COSSACK: But Scott, if I...


KELLEY: So you think...


COSSACK: Let me just jump in one second, Donna, and tell you that -- Scott -- that the problem with that is -- and, you know, I agree with you from a legal principle. What the problem is: If you take that position, it gives his defense team the ability to say, look, yes, we did present evidence of other people, but look what we may have been able to present. If we had had these other 4,000 pages, we really may have been able to convince a jury.

So, you know, it kind of opens up the door if you take the position that said, look, they've already rejected it, then the defense says, yes, but they didn't know everything. You know, I... MENDELOFF: You know judge...

COSSACK: Go ahead.

MENDELOFF: Judge Matsch addressed that as well, Roger, because he said, in a very interesting portion of his ruling, said, you know, in addition to all of this, what we had at trial -- what we had turned over to Mr. McVeigh prior to the trial -- I'm not talking about the new evidence -- but what was originally turned over was evidence just like this. Evidence of other people who were saying that they hated the government and were saying that they were interested in blowing up unnamed federal buildings.

And the defense chose not to use that evidence. And so, of course, this evidence, no matter what it would be, would be exactly the same type of proof. And when you combine that with the fact that it was Mr. McVeigh who did this, and it was Mr. McVeigh who knew if there was anyone else involved, it's hard to say the defense hasn't been treated fairly here.

KELLEY: Well, let me ask both of you, then, because that's what brings up one of the points that the attorney made. He said, you know, not talking about the claim of innocence. But then, when they're asking for time, he said, then after that, after we have a chance to look at everything, and if he's executed then, then we'll know that the system worked.

Does that mean that's a fairly large point there for them? That they're trying to play that the system works? And there's been a lot of talk about that, including from the attorney general -- Roger.

COSSACK: Well, there will always be that argument for those who believe -- the conspiracy theory people, or those who believe that just -- due process required, that McVeigh's attorneys be given another 30 to 45, or whatever -- 60 days to comb through that material and see whether or not they could have come up with anything new.

What the judge has done is shut the door and say, you can look forever and you'll never have enough evidence to come up with something that could sway that jury. And for those who disagree with that, there will always be that argument that, in fact, they should have been given more time. For those who don't, I think they'll be very satisfied with Judge Matsch's ruling.

KELLEY: Scott?

MENDELOFF: I agree. I mean -- in terms of appearance -- from (sic) appearance purposes, there's certainly an argument, and it's a policy argument, not a legal argument, to say that a hearing on this point would have dispelled any doubts.

But, you know, Judge Matsch doesn't question that the FBI should be brought to task for this. In fact, in his ruling he says the FBI should be reviewed.

KELLEY: I think he used the word "shocking" that it wasn't turned over.


KELLEY: Roger, you know, I haven't heard -- is there a standard when they go to a circuit court of appeals like this? They asked for a time, but how much time?

COSSACK: Well, they would ask for a reasonable amount of time. I mean, they may have -- I haven't seen their petition yet, or their brief. They may be asking for a specific amount of time. They may be saying, look, you know, it won't take more -- take us more than 30 days, or 45 days, or 60 days. Or they might just articulate all the things they have to do and say, we need a reasonable amount of time. We would leave it up to the court to grant us whatever time they believe is necessary.

KELLEY: OK, Roger Cossack and Scott Mendeloff, thanks, both of you, very much for helping us understand this a little bit better -- Leon.

HARRIS: All right.

Well, we have seen in the past hour -- we have seen Timothy McVeigh's lawyers feverishly at work both in Denver and in Terre Haute, Indiana trying to extend his life and extend their efforts to get him another trial -- or get him a stay of execution.

We have seen, in Denver, some -- a 20-page document filed there in the 10th Circuit Court that the should be -- his lawyers are asking it to be reviewed by the panel there and for them to make a decision. We do not know exactly how soon that will actually happen. We have our Susan Candiotti standing by to deliver us any information on that if it does happen there in Denver. Jeff Flock standing by in Terre Haute, Indiana. You saw moments ago, he reported that Timothy McVeigh's attorney, Mr. Chambers is now in the process of trying to meet with McVeigh right now. And they're trying to formulate a plan.

We are standing by on both points. We're trying to find out exactly what's going to happen next. We don't know, but you'll find out when we do, right here. So make sure you don't go away.

KELLEY: And we have reporters in Oklahoma City, in Denver, in Terre Haute. And the information that we're getting right now is that prison officials in Terre Haute say that they will meet for one hour and one hour only. So apparently they put that on a deadline of sorts. And so we'll probably be getting more information when we hear that that meeting has ended because, as we heard earlier, Nathan Chambers meeting with McVeigh and they were planning on having a statement later.

HARRIS: Yes, if I'm not mistaken, Jeff Flock has reported before, that's sort of the standard that they have there in Terra Haute -- those kind of limits on that sort of visitation.



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