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| DELAY REQUEST | |
 May 31, 2001  |
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Two attorneys discuss the request from Timothy McVeigh's legal team for a delay of the convicted bomber's execution.
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Ms. Wilkinson, after hearing the lawyers and reading this petition, is there a legal basis, a firm legal basis for a request like this? |
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ELISABETH SEMEL: I would beg to differ in several regards. First of all, the standard under which they will be operating or asking the court to reopen or reconsider the case is not whether or not Mr. McVeigh is innocent of the crime but whether -- as Dick Burr said in the interview -- a fraud was perpetrated on the court by the withholding of massive amounts of documents. And they certainly seem to be suggesting in the information provided to the court today that they have substantial reason to believe -- to the extent they have been able to investigate thus far -- that there is information and there are witnesses whose evidence would have made a difference in the outcome of the case. That may not necessarily go to the question of guilt; it may indeed only go to the question of penalty. That is yet to be determined. MARGARET WARNER: As you understand it, in cases like this where the defendant alleges fraud, what is the test that has to be met? BETH WILKINSON: It has to go to the fundamental integrity of the judicial system; even the cases that Mr. McVeigh's attorney cite talk about things like bribing of a juror, the bribing of the judge, not something like withholding evidence. In fact, there are cases out there that say that withholding of evidence is not in and of itself a fraud upon the court -- now, setting aside the fact whether there is any actual evidence in this case, that there was any purposeful withholding by the FBI of evidence in this case.
MARGARET WARNER: But you agree with Ms. Wilkinson that before they can get the judge to consider this or to stay the execution, they have to demonstrate at least to some degree that this withholding of documents or failure to produce the documents would have affected the verdict? Whether it's the guilt or innocence verdict, or the sentencing verdict it would have had to affect something. ELISABETH SEMEL: They have to demonstrate at least that a further investigation is warranted. In other words it may be that they can demonstrate to Judge Matsch that at this particular juncture there is still enough reason to believe documents are out there, still being withheld or otherwise not disclosed, significant enough to warrant further investigation and those leads -- in order to determine whether this fraud has occurred -- those leads must be investigated. |
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BETH WILKINSON: Mr. Nichols did choose to present numerous what we call Joe Doe two witnesses --people who claim they saw other people with Mr. McVeigh. But what's most important here is Mr. McVeigh had that same information; the information that was turned over to Mr. Nichols was turned over to Mr. McVeigh. So McVeigh and his counsel chose not to put that information in during trial. So there is really -- I think we're confusing the issues here about the information that Mr. Burr was referring to when he was talking about someone who saw some four people at the site where they built the bomb. Well, that information was in the 302 and it was disclosed to Mr. McVeigh and his counsel, as well as Mr. Nichols. ELISABETH SEMEL: I think the difference though is in what the lawyers for Mr. McVeigh are saying of course that had they been in possession of the evidence that is now coming forth and the evidence that may yet be revealed, the decision that the lawyers might have made or would have made indeed in Mr. McVeigh's case might well have been different.
MARGARET WARNER: You never heard them say today that they thought he was not guilty. BETH WILKINSON: Absolutely. What they're saying is we just have a basis to believe there might have been a fraud in withholding of further information. So what I find fascinating is they found 3,000 pages and they can point to not one page that suggests that it would show that Mr. McVeigh wasn't involved in the crime or was actually innocent. MARGARET WARNER: All right. What is the process that the judge, Judge Matsch, has to go through? ELISABETH SEMEL: Well, I think what Judge Matsch has to do obviously is hear from the government, what the government's response is, and make a determination at this juncture whether or not he's persuaded based on these documents and the response the government will offer that he wants to issue a stay and put a halt to the execution date in order to allow further inquiries; whether a formal hearing as the defense is requesting -- further investigation -- further time. |
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| Impact of the confession | ||||||||||||||||||||
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MARGARET WARNER: And are the defense lawyers right when they said the reporters kept saying, post conviction Timothy McVeigh confessed to the bombing -- at least to the author of a book -- he wrote a letter to a newspaper saying there was no John Doe two; he acted alone. But none of that will be before Judge Matsch; that will have no impact on this finding that he has to make?
MARGARET WARNER: What's your view, your take on what the judge has to consider here? BETH WILKINSON: Well, right now he's being only asked to consider a stay and an evidentiary hearing which is quite different from the ultimate question which is can Mr. McVeigh file an appeal of his conviction and ask for a reversal of that conviction. There he could consider what would be introduced at a new trial because that is the real question. Did we get the right person, did the jury have the information that they needed to make a determination of whether he was guilty beyond a reasonable doubt? That is a much different standard than the one we're talking about here, about just getting a stay. There the court can consider what would be introduced at a new trial and all of those admissions that Mr. McVeigh made to the reporters which have now been disclosed in the book, letters that he wrote -- all of those would be admissions against the defendant and would come in at a trial.
BETH WILKINSON: I don't think we disagree. Those statements are not in the record today for this purpose. But that's because we're only at a procedural level of asking for a stay. ELISABETH SEMEL: I think it's very, very important to remember that half of the trial -- if you will -- is about the question of whether the right person was convicted; in other words, is this individual guilty of the crime? But before us is a question about whether or not an individual -- Mr. McVeigh -- ought to be executed and that goes to the issue of whether or not his penalty trial -- the sentencing decision was fundamentally fair. That may be at the end of the day what the crux of the issue is. BETH WILKINSON: But since I was there at the sentence hearing -- Mr. McVeigh chose not to introduce any evidence about other participants; he had that information; we turned over, over 10,000 documents talking about John Doe two sightings. He did not introduce one of the witnesses; he chose to talk about Waco and Ruby Ridge and tried to put the government on trial during the sentencing phase, so it would be very difficult for him to come back now on appeal and say, well, I would have used information about others involved, when he chose not to do that the first time when he had, you know, voluminous information that he could have pursued about other persons who allegedly were sighted with him and involved with the crime. |
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MARGARET WARNER: How quickly is this likely to be resolved?
MARGARET WARNER: Do you agree with that as a timetable? BETH WILKINSON: I do. It will depend on Judge Matsch and how quickly he wants to rule on the motion and ask for the government's response. MARGARET WARNER: But you agree it would be headed to the Supreme Court or next level, whoever loses here? BETH WILKINSON: It could. Although that could happen very quickly. If Judge Matsch were to deny the stay it could go immediately to the 10th circuit who could again take the same steps and the Supreme Court where you'd have to have a cert petition, so that could happen rather quickly. MARGARET WARNER: All right, thank you both very much. |
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MARGARET
WARNER: For some legal insight into today's action, we turn to two attorneys.
Former Justice Department lawyer Beth Wilkinson was a member of the
special federal team that prosecuted both Timothy McVeigh and Terry
Nichols. A former assistant U.S. attorney in New York, she is now in
private practice in Washington. And former criminal defense lawyer Elisabeth
Semel is now director of the American Bar Association's Death Penalty
Representation Project; she is not associated with McVeigh's defense,
but has had considerable experience representing defendants in capital
cases. Welcome to you both. 
BETH
WILKINSON: I don't believe so. It's very unusual -- the route they've
chosen to go forward to ask for a motion for a fraud upon the court
and they're saying that they don't have any facts at this point that
are sufficient to make the motion but they want a stay and an evidentiary
hearing so that they can determine whether there are any facts. Most
importantly, in the document that they filed they have acknowledged
they do not have evidence to show… that will prove that McVeigh
was actually innocent, which is the standard upon appeal. 
ELISABETH
SEMEL: Well, I think again, the question is and what the lawyers are
really asking the court to do is assist it in upholding the integrity
of the process by shining a light where I think the American public
would like it to be shown. Let us understand what happened, how it happened
and what significance it has. Are we talking about gross negligence
in not turning documents over, are we talking about deliberate misconduct
or malevolence, or some spectrum essentially a conduct of that sort?
MARGARET
WARNER: Ms. Wilkinson, one of the lawyers said and we just heard him
say this, that if the jurors had seen some of this evidence that they
claim is in these papers, that the verdict might have been more like
the Terry Nichols verdict. That is the sentence which is not death but
life -- life in prison but life. Was there evidence since you were involved
in both cases that was presented in the Nichols trial that maybe suggested
accomplices that wasn't presented in the McVeigh trial? 
BETH
WILKINSON: Can I address that, because I think that's really the important
issue here. With the new information they've just received -- about
3,000 pages -- would that have made a difference; what you didn't hear
in that press conference today was any assertion that that information
would make a difference. What they have said is that they have no newly
discovered evidence that would prove his innocence. So they have reviewed
those 3,000 pages; that's not sufficient for a new trial. 
ELISABETH
SEMEL: Well, I would certainly make that argument and I'm sure that
the lawyers for Mr. McVeigh will. At this point that is not evidence
before the court. It wasn't before the court at the trial; it isn't
part of evidence that has been withheld by the government. Now, obviously
it's in the court of public opinion and I'm sure that Mr. McVeigh's
lawyers are mindful of that. But in terms of the law and in decision
under law those statements are not before the court.
MARGARET
WARNER: But my question is for Judge Matsch right now, does he consider
any of that, and, if so, what -- if not, what does he consider? 
ELISABETH
SEMEL: Well, I don't know how quickly, frankly, it will be resolved.
I think it's fair to say quickly to move through the courts in other
words, whoever does not prevail before Judge Matsch will seek a review
in the circuit court of appeals and ultimately in the Supreme Court.
But if the stay is granted and holds at some point then it may take
any number of weeks or months for to us get to the truth.