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Roger Cossack: McVeigh motion for execution delay

Roger Cossack
Roger Cossack  

Convicted Oklahoma City bomber Timothy McVeigh authorized his attorneys Thursday to file a motion for a stay of his execution, now scheduled for June 11.

CNN Legal Analyst Roger Cossack discussed their arguments and their chance for success.

Q: McVeigh's attorneys claim the government committed "fraud on the court" by failing to hand over documents prior to his trial. What does that mean?

COSSACK: There is a theory of law in this country that says if in fact the result of a trial or of a dispute that takes place in a court was due to a perpetration of fraud upon the court, which means the withholding of evidence or the offering of perjured evidence, then a fraud is perpetrated and an examination would take place and the ultimate remedy would be perhaps a new trial or a reversal of the verdict.

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McVeigh defense prepares to request stay

Having said that, I think people should understand that it's a very, very high hurdle to overcome for those who claim that a fraud has been perpetrated on the court. It requires not only the ability to show that, as in this case, evidence was knowingly withheld from the other side, but that that evidence would have had almost a certainty of effect that would have caused a different result than the one that was arrived at.

That's a very high hurdle, particularly in this case.

What the defense is going to have to show in this case is, one, that evidence was withheld. And that's easy: Evidence was withheld. But the next part is where it gets tough. They have to prove that if that evidence was given to the defense, it would have led to a different verdict, either in the guilt or innocence phase, or in the penalty phase.

Q: So he could get either a new sentence or a new trial?

COSSACK: Theoretically.

Q: How high is the hurdle for getting a delay of McVeigh's execution?

COSSACK: I would think that if I had to speculate, the delay, or stay of execution would be granted. One of the two factors that we've previously talked about -- that evidence had not been turned over to the FBI -- has now been admitted by the FBI. For whatever reason, evidence was not turned over.

The question now becomes 'Has the defense had enough time to examine that evidence and make the appropriate motions to convince the court that their remedies -- either a new trial or a new verdict or a new sentencing -- should be granted?' I think the judge will be inclined to delay this execution to give the defense the opportunity to review all this material and then come to court and request further remedies as they see fit.

And if you think about it, McVeigh was scheduled to die May 16; he's now scheduled to die June 11. It would seem to me to be of very little consequence whether he dies in August or November or December or whatever it would be. I recognize that that is a hardship to the victims of this case and all of our sympathies go out to those innocent people and the families who have suffered. But this is something that if our judicial system is to work and work honestly, then before we execute anyone we have to say that their attorneys are entitled to view all of the evidence and make the appropriate motions.

Q: How long of a delay can they request?

COSSACK: It has to be a reasonable stay, relating to what they are asking for. What they are saying is two things: One, that they haven't reviewed all of the evidence and two, that there is even more information that the FBI has yet to turn over. They're going to say that they need a certain amount of time to prove that

Now what that time is, I don't know. They will ask for a certain amount of time and the government will come in and, as the attorney general has said, will oppose any extension of time. So, the judge will hear both sides and give the appropriate amount of time he sees fit, or not.

Q: Can the judge's decision be appealed?

COSSACK: It can be appealed but most likely the appellate court would have a very difficult time, particularly if he grants the delay. The problem the government has in this case is that they don't come in with clean hands, and this is not to suggest that there was collusion; I don't know the facts in the case. All I know is that the FBI has admitted that somehow they dropped the ball and didn't turn over all the evidence. It's very difficult for them to come in now and say, 'Well we didn't hand over all of the evidence but it doesn't amount to anything,' particularly when you're talking about executing someone.

No one has any great sympathy for Timothy McVeigh. This is about the integrity of the judicial system, and the notion that we may have to wait another few months to find out what the appropriate remedy is is something that we're just going to have to be prepared for.

Q: How will the court determine whether the government has given McVeigh's attorneys everything?

COSSACK: The defense is going to have to make a showing to the court that there is reason to believe that there is information that they don't have. They have indicated that one of the ways they intend to do that is to show the judge that the FBI interviewed some people and there are no records of those interviews even though they are required by FBI regulations. Their conclusion is that the records do exist but have not been turned over to the defense.


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