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Sentenced to Die

June 13, 1997 at 12:00 AM EDT
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JIM LEHRER: The death sentence for convicted Oklahoma City bomber Timothy McVeigh leads the news of this day. The jury of seven men and five women unanimously agreed McVeigh should be put to death. They deliberated for nearly 11 hours to come to their decision. After the sentencing verdict, McVeigh’s defense lawyer, Stephen Jones, spoke to reporters.

STEPHEN JONES, Attorney for Timothy McVeigh: The jury has spoken, and their verdict is entitled to respect and all Americans should accord it that respect until such time, if ever, it is overturned by a court of competent jurisdiction. We ask that the barriers and intolerance which have divided us may crumble; that suspicions disappear; and that hatreds cease; and that our decisions and intolerance being healed, we may live together in justice and peace. God save the United States of America. God save this honorable court.

JIM LEHRER: Now we look at this verdict with three men who have been with us before during the trial: Time Magazine correspondent Patrick Cole, who will be joining us shortly–he’s been covering this story since the bombing, itself; Jim Fleissner, a former federal prosecutor, who has worked with two of the prosecutors in the McVeigh case, he’s now a professor at the Mercer University School of Law in Macon, Georgia; and Dan Recht, president of the board of directors of the Colorado Criminal Defense Bar, also a practicing attorney in Denver. Mr. Recht, the appeal process begins almost immediately in a death penalty case, does it not? Start us down the road.

DANIEL RECHT, Colorado Criminal Defense Bar: It begins immediately. There’s no question but that the appeal process will take many years, Jim. There are 13 people on federal death row now. Their appeals have been going on, I think, many of them over five years, and none of them completed, so there are no death sentences–dates for anybody on federal death row, and the process is a long one.

JIM LEHRER: And, Mr. Fleissner, the federal death penalty mandate itself has not even been okayed yet, has it not, approved yet by the Supreme Court, hasn’t gone there yet at least?

JIM FLEISSNER, Former Federal Prosecutor: It is not. The law that this sentencing was held under went into effect in September ’94 during the beginning of the conspiracy in the case, actually, and it has not yet been approved by the Supreme Court. However, there is a related statute that has been in effect since the mid 1980′s relating to drug-related murders, and that one has been upheld by a series of federal courts.

JIM LEHRER: I see. Patrick Cole has joined us. Patrick, set the scene for us, if you can, in that courtroom when this verdict was returned this afternoon.

PATRICK COLE, Time Magazine: Well, again, there was a feeling of nervous relief, I guess you could say. There was great anticipation, just like there was in the guilt phase. But, you know, the victims were very anxious to see what the jurors had decided. Timothy McVeigh walked into the courtroom again, a complete surprise, with a smile on his face, talking to other lawyers who were part of the defense team. But when Judge Matsch walked into the room, there was–there was a great deal of silence. He read the verdict that the jury had delivered, and when–after reading the mitigating and aggravating factors, he said that McVeigh had been sentenced to death, and there was a great gasp that was heard throughout the courtroom. I think a lot of us expected it, but the reality has now sunk in, that Timothy McVeigh has been sentenced to death.

JIM LEHRER: What was McVeigh’s reaction, Patrick?

PATRICK COLE: Again, this is something we still don’t quite understand, but he was just sitting there, with his hands clasped. He just kind of looked around the courtroom. I think there was maybe a flush of nervousness. The reality had sunk in that he had been sentenced to death, but, again, there was–there was no cringing by him, no pain, no nothing, really. It was–it was as if he were expecting and awaiting this decision.

JIM LEHRER: He said nothing to his lawyers or anything like that, no communication of any kind?

PATRICK COLE: No communication during the reading of the death sentence. On the other hand, his parents were visibly upset. Mildred McVeigh was crying. Her eyes were red. Bill McVeigh was looking down–from my angle it was tough to see his reaction, but–

JIM LEHRER: That’s his father, right?

PATRICK COLE: That’s right. I’m sorry. It’s his father, yes.

JIM LEHRER: And the jurors, themselves, once the judge had read their verdict and then they polled them one at a time–

PATRICK COLE: That’s correct.

JIM LEHRER: –to ask them if this was, in fact, their verdict. How did they go through that?

PATRICK COLE: Well, basically, under the federal rules what they–what the judge must do is poll the jury, and he just asked each juror one by one is this, is this a correct statement of your verdict, and each one answered yes. And it was hard from my angle to see exactly what their reaction was, but they walked in, I believe stone-faced is what the reports are saying, what my colleagues are saying, and also when they left the courtroom, they also walked out with very little expression. Some of them, I think, looked grim as they turned around the corner to go out of the courtroom because I’m sure they were pondering the gravity of just what they had done.

JIM LEHRER: Now, the–as you said, before the judge read the verdict, itself, the death sentence, he went through the answers the jurors gave to a series of questions, both on aggravation and mitigation–aggravation for the death penalty, mitigation possibly against it. And just explain quickly what they said and pretty well led to this conclusion, did it not?

PATRICK COLE: Yes, that’s correct. Under the aggravating factors the jury’s vote on each of the issues that McVeigh had killed 168 people, that had committed a crime that was–that created substantial bodily harm. The votes were twelve to zero on all of the aggravating factors, so it was pretty clear from their vote that there was unanimity in how they saw the gravity of this crime.

JIM LEHRER: All right now, back to Mr. Fleissner on what happens next. Mr. Fleissner, from your point of view, and I’ll ask Mr. Recht the same question. If you–if this case–there is an automatic appeal, but based on your knowledge of this trial, where are the possible appeal points?

JIM FLEISSNER: Well, there are going to be a number of points raised on appeal. I’ve read the transcript with the eye of an appellate lawyer. And there are going to be a number of issues the judge ruled on, some evidence that was excluded at the trial, some of the rulings concerning the elements of particular offenses; however, my sense, my bottom line, after looking at the record and thinking about these issues, is that even if there were some mistakes made in the trial–and there always are in a trial of this magnitude–there’s going to be nothing that’s going to be reversible error in the case.

JIM LEHRER: Yeah. How do you read it, Mr. Recht?

DANIEL RECHT: In a similar fashion. The only issues have to do with evidence that Judge Matsch didn’t let the defense present excluded evidence about the FBI lab, some of it, excluded some evidence about another potential conspiracy, but, overall, I agree completely. This case is not going to get overturned. It was a strong prosecution case. If anything, the appellate courts will say it was harmless error, whatever error they find. You’re going to find the guilty verdict upheld by the courts. If anything, there might be some issue with regard to the death penalty phase, but, frankly, I can’t even point out to you what that is.

JIM LEHRER: But would you not agree then that the appeal process will be based on whether or not this man should be executed, right, rather than whether or not they prove the case against him?

DANIEL RECHT: No. They’ll be contesting both areas.

JIM LEHRER: Mr. Fleissner, what do you think about what will be the focus of the appeal, I mean, beyond the point that you just made, that you didn’t see anything in the record–any mistakes that the judge made? So what are they going to be talking about for three or four years during this appeal?

JIM FLEISSNER: Well, there are going to be some issues about evidence that was excluded, as was just mentioned. There may be some revelations yet to come. I don’t know of any, of course, but some of the time evidence comes to light after a trial and the defense says, well, we could have used that. Some of the time there are even accusations that someone in the government held that evidence back, so there may be issues like that that will come up. I can tell you from looking at all the pretrial litigation that the defense turned over every stone in this case. They filed every objection, every motion conceivable in the case. And so even if each one of these individually doesn’t have a lot of merit, it’s going to take appellate courts quite a while to go through the substantial record of the case and sort all of it out.

JIM LEHRER: Mr. Recht, there’s also, particularly in death penalty cases, sometimes on appeal lawyers make a point that the defendant didn’t get proper representation; he wasn’t vigorously defended. Is that–would that be a legitimate case to make in this case?

DANIEL RECHT: I don’t think it would be legitimate to the extent I don’t think it will win the day. Will that argument be made? It often is made. I wouldn’t doubt if it will be made in this case. I personally think that the defense tried their darndest and had very little to work with and I–I’m not prepared to say they were ineffective. It seemed as though they were quite competent and worked very hard, but will it be raised, I guess it will be raised.

JIM LEHRER: Yeah. Patrick, what have you picked up there around the–around the lawyers about how this case might be appealed and what the points might be made?

PATRICK COLE: One of the options that I think the defense has is that they can file a motion for a new trial under Rule 33 of the federal rules of criminal procedure. I hear that there’s talk of doing that. There’s also talk of an appeal, but I think in the next–within the next couple of next weeks we’ll see exactly what we’re deciding. I think they’re basically looking at their strategic options, and once they do that, then they’ll go from there. But those are the main options I think right now that are being talked about.

JIM LEHRER: Mr. Fleissner, let’s assume that everything that this–this verdict is upheld, as Mr. Recht said, that he thinks it will be, and let’s say that it is, that no–no fatal errors are found made by the judge or anybody else. How long would it–could it possibly take from now until Timothy McVeigh is actually executed?

JIM FLEISSNER: Well, after the direct appeals, that’s to the 10th Circuit Court of Appeals, the federal appellate court, and then on to the Supreme Court to ask them to review it, after that is over, there’s a second round of appeals, so-called habeas corpus petitions being filed. There’s a new law on the books as of 1996 that will somewhat streamline that process, but I think even with the new law on the books in 1996, that we’re probably talking a three to six year time range for all the appeals to play out.

JIM LEHRER: You would agree with that, Mr. Recht, three to six years?

DANIEL RECHT: I think it could be a little longer, but that’s generally right. You know, another odd thing that could happen is that McVeigh could say I don’t want to appeal; I want to be executed. The last federal execution in 1963 was that exact situation. The defendant said, “I don’t want to appeal. Do it.” And McVeigh has acted very strangely throughout this trial–chose not to allocute, chose not to address the jury, chose not to show any emotion. And it wouldn’t surprise me after all of that if he chose not to appeal as well. But I don’t have any reason to think that beyond what I’ve already said.

JIM LEHRER: If he–in other words, that is his option. I mean, there isn’t an automatic process that appeals it on his behalf, whether he wants it done or not, in a death penalty case?

DANIEL RECHT: For example, in Colorado, there is an automatic appeal. I don’t believe that’s true in the federal system.

JIM LEHRER: Okay. Patrick, back to you finally. The jurors were empaneled, and they did all of this anonymously. In other words, you, as a reporter in the courtroom, did not know the names of these 12 people, correct?

PATRICK COLE: That’s correct, but some members of the media already know. I guess one of the new organizations had hired a team to identify who these jurors were and even in the court today, Judge Matsch said that because Mr. Nichols, Terry Nichols, the other defendant in this case, had filed a motion basically citing some concerns about media coverage that will proceed his case because now that these–the names of some of the jurors were known–what Judge Matsch did was instruct the jurors to use their discretion. He said, “Constitutionally I cannot bind you from not speaking but I remind you that there is another case. Please do not say anything about Mr. Nichols.”

JIM LEHRER: As a practical matter, is the press going to go after these 12 people?

PATRICK COLE: If we can and if they’re willing to talk, we will, because constitutionally there are no restrictions. And I think, like any journalist, you want to find out how the minds of these jurors worked during deliberations.

JIM LEHRER: When is the–the Nichols case has not yet been scheduled, has it?

PATRICK COLE: It has not been scheduled at this point. I think right now it’s unclear when it will begin. Mr. Nichols’ lawyers are considering various options, such as, you know, possibly change of venue out of Denver and even out of Colorado, because they feel that perhaps the jury pool in Colorado right now might be–might be tainted or might have had–been exposed to a lot of news about the McVeigh case.

JIM LEHRER: All right. Well, gentlemen, thank you again for being with us.