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McVeigh Execution: A Delay?
With Ira Robbins
Professor of Criminal Law, American University
Thursday, May 31, 2001; 3 p.m. EDT
Will there be a stay of execution for Timothy McVeigh? Lawyers for the Oklahoma City bomber have met with him and a stay has been requested. Will it be granted?
Ira Robbins, professor of criminal law at American University, will be online Thursday, May 31, at 3 p.m. EDT, to discuss the latest developments in the case and what they mean.
"Even if McVeigh's lawyers apply for the stay and the judge grants it, we all have to be aware that this doesn't necessarily mean either that his death sentence will be changed or that his conviction will be overturned," said Robbins.
Below is a transcript.
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Ira Robbins: Good afternoon from Washington, D.C.
As you know, a short while ago today Timothy McVeigh's lawyers stated that, having obtained Mr. McVeigh's approval, they will be filing an application for a stay of execution with the Federal District Court in Colorado. I am happy to take your questions regarding the current situation and the possible paths that this case may take in the foreseeable future.
Ira Robbins
Alexandria, Va.:
Everybody keeps saying that the courts will not grant a new trial due to statements Timothy McVeigh made in his recent book. Why is his book an issue when it cannot be used in court?
Ira Robbins: Good question. His book is an issue because in it Timothy McVeigh admitted his guilt in the Oklahoma City bombing. But, at least theoretically, this admission is not immediately relevant to the current proceedings: it was not made in court; it was not made under oath; and, of course, people can say anything they want in a book, for any reason. Having said this, however, should the proceedings in Denver get far enough along that TM's culpability again becomes an issue, what he wrote in the book might well be used to impeach his credibility.
Kerrville, Tex.:
Is there anyone on either side that is now making the claim that McVeigh is not guilty of the Oklahoma City bombing?
If so, who are they and how do they counter McVeigh's confession?
If not, then why is this "new evidence" important?
Ira Robbins: The question you raise is really important. Sometimes, if the government violates an defendant's constitutional rights, a court has little choice but to grant relief (whether a new trial or a new sentencing). We see this all the time (on TV and in real life) with the Fourth Amendment, for example; if evidence has been illegally seized, then usually it must be excluded. The point here is not just that our system seeks to find the truth, but also that it must do so fairly. So, if the judge in Colorado decides to grant the application for a stay, at some point thereafter the judge may have to decide whether the government violated the Due Process Clause of the Fifth Amendment ... specifically, whether the government withheld material information that could have helped TM's defense.
Boston, Mass.:
What is the difference between discovery and disclosure? What are the typical sanctions for discovery violations (in less sensational cases)?
Also, A.G. Ashcroft says that the documents would not change the surety of the McVeigh conviction, but could they have affected the penalty phase of the trial?
Ira Robbins: Let me focus on the second part of your question. While it is true that Attorney General Ashcroft has stated that the documents in question would not change the outcome of the trial, we have to keep in mind that this is a statement of one of the parties in the case. No doubt, the Justice Department will make this point forcefully in legal papers opposing TM's application for a stay of execution. What is much more important, however -- indeed controlling -- is not what the Judtice Department claims, but what Judge Matsch rules. If the case gets far enough along, he is the one who will have to decide whether any of those documents calls into question the legitimacy of the original verdict.
Bethesda, Md.:
Are you troubled by the fact that these latest events seems to have given Mr. McVeigh and his notions of justice, fairness, etc., once again a national platform?
Ira Robbins: Nice question. You might think that, at a certain level, Mr. McVeigh is again getting undue national (or international) attention. However, the issues that are now being raised in his case are, unfortunately, very common in far less public cases. So, to the extent that, in considering the government's possible withholding of material exculpatory evidence in this case, we revisit some of the government's practices, the consequences of such a discussion are at least as important in thousands of other cases as they are in the McVeigh case.
Alexandria, Va.:
Do you believe that the FBI's blunder in this case will be enough for the judge to grant the stay?
Ira Robbins: In and of itself, the FBI's "blunder" may not be enough to grant a stay, particurlarly if Judge Matsch is persuaded by the Attorney General's assertion that the documents in question would not have changed the outcome of the case. The bigger question, in my opinion, is twofold: (1) Do Mr. McVeigh's attorneys have sufficient time between now and June 11 to go through all of the documents and fairly present their arguments to the court? and (2) Will the Judge have enough time to consider the arguments of both sides, as well as any relevant documents, in this time period? It is important to bear in ming that a stay may help not only Mr. McVeigh, but also the Court. It is dangerous to rush to judgment in a death penalty case.
NYC:
Why is Ashcroft unwilling to extend the delay (stay?) of execution? The way things stand, it appears that Ashcroft cares very little about individuals receiving fair trials. In a way, this case reminds me of OJ's case. A high profile murder with many irregularities in the investigation by federal and local authorities that you would think authorities would be super careful to avoid. To execute McVeigh before his case can be reviewed in court would make the United States appear bloodthirsty and vengeful.
Ira Robbins: Of course, I can't presume to know the Attorney General's motives. No doubt he has the interests of the victims' families in mind. However, he did agree to the first stay of execution. His position now appears to be that that one stay of execution is enough, and that if there is going to be another one it is going to be over his strong objection. ... To get to your broader question, there is definitely a major debate in legal circles today between providing post-conviction relief only for those who are actually innocent vs. for those who can show that the government has violated the Constitution, even if their actual innocence is not called into question. The parties' respective arguments in this case will provide a good example of the current relevance of these two positions.
Washington, D.C.:
If Tim gets a new trial, could he receive a life sentence?
Ira Robbins: If TM should receive a new trial (however unlikely that may be), then upon a finding of guilt the sentence would be up for grabs again. A second jury would not be bound in any way by what the first jury had done.
Kerrville, Tex.:
Please allow me to follow up with my earlier question:
I understand the Constitutional questions/arguments raised. However, doesn't McVeigh (or SOMEONE else) need to claim McVeigh's innocence before another stay or a retrial could be granted.
If everyone INCLUDING McVeigh claims that McVeigh committed that horrible act, what is there in question?
I could understand if McVeigh said all along that he was innocent, but he didn't and he hasn't. By finding McVeigh guilty of that crime, the State is overriding McVeigh of his rights (by incarcerating him & sentencing him to death). He still is guilty of that crime. What rights are being preserved?
Ira Robbins: This gets rather complicated. If TM's attorneys file a new habeas corpus motion (they filed the first one late last year and lost on that motion), then in order for the court to file this second habeas motion one of the things TM's lawyers must should would be his innocence of the underlying crime. The chances of winning on such a motion are probably slim to nil. That is why, undoubtedly, they lawyers will be looking for other means to get the "new evidence" before the court. One way to do this is by asking Judge Matsch to reinstate TM's appeal from the denial of the original habeas corpus motion. (TM's attorney, Richard Burr, referred to a "fraud upon the court" in his statement earlier today.) If the appeal should be reinstated, TM's innocence would not have to be part of a threshold showing to the court.
Ira Robbins: Let me say a bit more about this assertion that the government's withholding of documents was a "fraud upon the court." Federal courts have the inherent power to grant relief where the judgment or order is obtained through a fraud on the court. To constitute a fraud on the court, the misconduct must be an assault on the integrity of the judicial process, to the extent that the impartial system of justice fails to function. To the extent that Judge Matsch is upset by the government's failures in this case -- particularly if he thinks that these failures have called into question the legitimacy of the original verdict and sentence -- he does have some discretion in how to proceed. For example, as stated in my previous reply, he couceivably could order reinstatement of the appeal. Another possibility is that he could decide that the first habeas motion shouldn't be counted. Thus, a habeas motion, if filed in the foreseeable future, could be treated as an initial motion. In that case, TM would not have to make a showing of innocence before he could get into court on the other issue (withholding of evidence).
Denver, Colo.:
Unless it was requested, did the FBI have to turn over all the papers relating to the invesigation to the defense?
Ira Robbins: Not only does the government have an obligation to turn over to the defense all material exculpatory information to the defense (according to a 1963 U.S. Supreme Court case, Brady v. Maryland), but in this case Judge Matsch early on went beyond Brady by issuing a very broad discovery order. So even if the government has not violated Brady, it might well have violated the Judge's order. The consequences of these two violations, however, may be very different. Many Brady violations lead to new trials. Such a result would be much less likely shoul Judge Matsch decide that there is no Brady material in the withheld documents (as the Attorney General has claimed).
Washington DC:
Prof. Robbins,
What could McVeigh have to gain from applying for and/or getting a stay? Wouldn't it just make him wait longer for the execution, particularly since he has admitted to the bombing and the new evidence (as far as we know) will not exonerate him?
Could the information in those papers somehow lead to the declaration of a mistrial, a change in the penalty,
or something along those lines?
Thank you.
Ira Robbins: Just as I cannot presume to know Attorney General Ashcroft's G's motives, I can only speculate as to those of Timothy McVeigh. True, a stay would (by definition) delay his execution -- the execution that he seemed to have wanted unti recently. Perhaps he has had a change of heart and no longer wishes to hasten his execution. Perhaps he (and his attorneys) believe that they can get a retrial that may result in a different outcome. Or perhaps, now that it is clear that the government has blundered, TM wishes to have a forum in which to publicize the extent of the government's failures.
Alexandria, Va.:
Ira Robbins: What is the truth behind the witholding of the FBI documents? Is it because of a computer glitch waiting to be fixed? Or did the FBI intentionally keep these documents from the court, the prosecution, and the defense?
Ira Robbins: These are certainly very important questions. As I said in my previous reply, if Judge Matsch grants a stay of execution, proceedings in his court may well shed some light on these questions. I suspect, however, that even if the Judge denies the stay, these questions will not go away. Instead, they will surface in other forums -- e.g., Congress, the media, and, perhaps, Terry Nichols' case.
Arlington, Va.
Professor Robbins,
Although emotions should not be playing any part in this, how much of an effect, if any, do you think they may play in how the request for the stay is treated and perceived?
Ira Robbins: The key part of your question concerns "treated" vs. "perceived." I have no doubt that emotions will play a large part in how the arguments for the stay and the ultimate ruling on the stay will be perceived. We have to hope, however, that the stay will be treated will be strictly according to law and the conscience of the court. That is a major reason that federal judges are appointed to the bench for life. They are independent and answerable only to their own consciences (and the higher courts). They do not have to run for election or re-election. Death penalty cases (both well-publicized and not-so-well-publicized ones) are very difficult for all concerned, including the judge who has to issue the key rulings. If Judge Matsch needs, or thinks he needs, more time to get the issues before the court in a way that fairly allows for the solemn and studied scrutiny that the case requires, then the public, in my opinion, should accept the wisdom of the court.
Fairfax, Va.:
I understand there is little to no chance of TM being granted a new trial based on the contents of the FBI documents--focus seems to be on whether the contents could somehow have influenced his sentencing. Could the very fact of improperly following procedures by the government lead to TM's sentence being reduced (assuming anything other than a death sentence is a 'reduction'), or could that only happen based on information contained in the documents? Would resentencing have to be done by a jury (or the same jury), or by a judge?
Also, what kind of information could be contained in the documents that would prompt either judge or jury to impose a sentence other than death (in this case specifically)?
Ira Robbins: Let's assume for the moment that you are right in saying that there is little chance of TM being granted a new trial and that all that we are addressing now is the sentencing. Let's also assume for the sake of argument that the government has withheld material exculpatory evidence. One question then becomes: Specifically what type of evidence was withheld. If the documents in question present a credible case for there having been another person involved, perhaps at the very highest level, then (again, perhaps), a jury might perceive TM as having been less, or slightly less, culpable. Whether, with these assumptions, a jury would come back with a different result is open to question. But no doubt TM's attorneys will argue that he was entitled to have all relevant evidence presented to the jury before they made their life-or-death decision.
Ira Robbins: Thank you for your excellent questions. Let me wrap up with a brief final statement. The McVeigh case is a difficult one, from so many angles. We thought, until just a few weeks ago, that the execution would have taken place and, while debates would have continued, for some people this case would come to an end. This next phase of the case may be short-lived -- for example, should Judge Matsch deny the application for the stay of execution. Or the case may continue for a while.
In part, this case is a test of the federal death penalty. The case is also a test of some of the provisions of the Antiterrorism and Effective Death Penalty Act of 1996, which gave us many new provisions for the filing of habeas corpus motions. Perhaps most importantly, the case is a test of our faith in our criminal justice system. While "justice" is susceptible of many definitions and perspectives, and therefore we can be absolutely certain that we will never have universal satisfaction with the results in this case -- whatever they may be -- the fact that we constantly have this debate is, in my opinion, healthy. When all is said and done, the consequence of the judicial and extra-judicial arguments in the Timothy McVeigh case will affect hundreds and thousands of other criminal cases in the foreseeable future.
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