June 6, 2001
A federal judge today refused a request by Timothy McVeigh's lawyers to delay his June 11 execution date.
IFILL: Now some legal analysis of today's developments. Scott Mendeloff
was one of the lead trial lawyers on the prosecution team in the McVeigh
bombing case. He's now in private practice in Chicago. 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.
SCOTT MENDELOFF: Well I was a little surprised at the ruling given Judge Matsch's prior record of really doing everything he could to protect defendant's rights. But you could see from the tenor of the comments that he made that he felt that there was just nothing to the submission that defendant McVeigh's lawyers made and in fact, believed that Mr. McVeigh had been given every possibility of a fair trial going in., and had gotten that trial and this was... There is nothing to be added here.
GWEN IFILL: Elisabeth Semel, how did you read the judge's statement today?
ELISABETH SEMEL: Well, I was concerned by the judge's order and I think a number of issues will be raised by the defense on the appeal. First of all, the judge seemed to understand that what the lawyers were doing was asking for more time but then the judge essentially leapt to the conclusion that, no matter what the defense was to uncover or find, Mr. McVeigh was guilty of the crime, that he is guilty of the bombing. That's not what the defense was arguing. And I think that in the appeal to the Tenth Circuit Court of Appeals one of the things the defense will be pointing out is that the judge essentially got it wrong and didn't understand the argument they were making or the opportunity that they were seeking.
GWEN IFILL: The argument that they were making was that fraud had been perpetrated on the court by the FBI for failing to turn over the documents. Did the judge just reject that argument out of hand?
ELISABETH SEMEL: He rejected that argument but my point is he rejected it prematurely. What the defense is saying is that the government came forward literally not at the 11th hour but at the 12th hour with 4,500 documents, numerous CD's, and said essentially, go fish -- and at this late hour come forward with evidence of a fraud on the court in order to essentially reopen the proceedings. And the defense is saying, we think we can do that; we need the opportunity to further investigate. That's what it was asking for and the court without giving that opportunity was saying essentially you can never get there.
|The relevance of additional evidence|
GWEN IFILL: How about that, Scott Mendeloff, was the judge's ruling premature?
SCOTT MENDELOFF: No and I really think that the statement "go fish" is an unfair characterization. What happened here if you look at the judge's ruling is that his view was that they were, the defense was really trying to row a very difficult route up a very, very stormy river here. What they had was a theory, a creative theory to try to get around the antiterrorism and effective Death Penalty Act of 1996, which set a standard that they admitted in their brief they couldn't meet. To be able to get around that provision and get the stay they wanted they really had to show with the evidence they had at their disposal that there was a very reasonable likelihood that they would be able to meet the standard of fraud on the court.
And what the judge did is say, look, I've looked at the evidence that was presented by the defendants -- excuse me -- by defendant McVeigh as being the important proof the evidence that was submitted in camera and not made public so far and his ruling was: This was no different than any of the other evidence that was already produced. And the other thing he said which was extremely important here, is that the defense took the position that Mr. McVeigh was, in fact, not saying he didn't commit this crime. So the defense is arguing, we're looking through these records to see if there's proof of other people involved. The judge points out, and rightly so, that Mr. McVeigh is the best resource for that information. Mr. McVeigh would know truly know who was involved and who wasn't. The defendants don't have to search records to find that out. And in fact, the judge made the point that defendants had that information through Mr. McVeigh throughout the entire proceedings -- had that during the course of the first part of this hearing and chose not to use that information.
GWEN IFILL: Mr. Mendeloff says that the judge basically he mentions that the documents that were at issue here and most of them were never made public. Will we ever know? Is there any mechanism for to us know whether there was anything for to us know other than the judge's conclusion? Is there anything --
ELISABETH SEMEL: We may never unless the judge unseals the documents that are presently sealed or another court the tenth circuit on review or the Supreme Court does. I think it's very, very important to emphasize, however, that lawyers make decisions about what they do in a case based on information available at the time, and what the lawyers for Mr. McVeigh are arguing is these 4500 documents were not available to us at trial, were not available to us when this court reviewed the case, and so the judgments were made based on the absence of that information, and that's critical, and again the issue here is not whether Mr. McVeigh is guilty or not guilty of the crime, as the defense counsel pointed out. The question may indeed be was the sentence a fair sentence and may the penalty phase of the trial have turned out differently had the lawyers had the opportunity to have the information which the government waited again until the 11th hour to disclose?
|Proof of FBI negligence?|
GWEN IFILL: Mr. Mendeloff, what would have been wrong if the judge had decided to allow the lawyers a little extra time to decide what was really there?
SCOTT MENDELOFF: Nothing would have been wrong with that and in fact that would have been a perfectly appropriate reaction to this in my personal opinion. But I don't think that what the judge did here was out of line either. I mean, you have to remember the judge, unlike most of the viewers and my colleague, knows what the evidence is in this case. He has gone through all of the proof and gone through the two different trials and he knows whether this evidence was cumulative, in other words, whether it was just the same as other evidence that Mr. McVeigh had at his disposal during the first trial.
In effect what the judge is saying is yes, this is cumulative; it's just the same proof as any other proof Mr. McVeigh had. And also the other thing the judge is saying is that based on his review of the proof in comparing it to what was produced earlier he sees no indication of any kind of intentional withholding of proof. Remember, to establish a fraud on the court there are two things that must be shown: One an intentional withholding of that proof by the FBI and two that the proof goes to the very core of the case.
GWEN IFILL: Ms. Semel, the judge wrote today among other things that we are not here to try the FBI. Does this mean that what the FBI did in withholding this information or whatever happened to the information that it was acceptable?
ELISABETH SEMEL: Well, that's an interesting distinction that the judge makes in his opinion. In essence it seems to insulate the conduct of the FBI from the scrutiny of the court. I'm sure that's one of the issues the defense will raise. While it is true that the court did not find an intent to withhold or a scheme to withhold on the part of FBI, one of the points that the defense was so cogently arguing was that we need the time in order to be able to pursue those leads, acknowledging that they would have to make that case. So I was a little disturbed by the distinction that the court was making essentially saying that the FBI apparently was negligent, perhaps mismanaged, but that wasn't what the court was being called upon to assess.
GWEN IFILL: You have outlined a couple of things that the defense might use in their appeal. How high is the burden for them to appeal this for anything to change?
ELISABETH SEMEL: Well, there is no question that it's an uphill battle at this point because the defense is going to have to contend with both the factual findings that the judge made that is the fact that there was no intentional scheme to defraud and the legal conclusions that he drew. I expect the defense to be arguing essentially that both were wrong.
GWEN IFILL: Do you agree with that, Mr. Mendeloff?
SCOTT MENDELOFF: I do.
|Appealing the decision|
GWEN IFILL: What happens if this goes to the Supreme Court; is the Supreme Court likely to side with this judge because this judge has been through this trial and Nichols' trial?
SCOTT MENDELOFF: The real battleground I think will be the tenth circuit. If they deny the stay and basically holds that the execution can go forward I seriously doubt whether the Supreme Court will grant the state. The procedure is simply one that the justice assigned to the circuit Justice Breyer received the motion for the stay but they need five justices to vote the stay of the proceeding and given the record and the lack of any novel legal issue I seriously doubt whether the Supreme Court would vote in favor of the stay.
GWEN IFILL: The Supreme Court last week expressed some interest in Terry Nichol's case. Is there any connection between the two?
ELISABETH SEMEL: There is a connection in the sense we're talking about other participants in the offense. Judge Matsch attempts to draw a distinction between the theories used in the Nichol's case and the theories that are used in the McVeigh's case. What the defense is essentially saying now that some of that evidence that may well have been relevant again to the sentencing question in Mr. McVeigh's case was not available to McVeigh at the time of trial or review of his case.
GWEN IFILL: Elisabeth Semel, Scott Mendeloff, thank you both very much.
SCOTT MENDELOFF: Thank you.
ELISABETH SEMEL: Thank you.