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Toobin: 'A complex legal situation'

CNN Legal Analyst Jeffrey Toobin

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The FBI says suspected bomber Eric Robert Rudolph has been captured. CNN's Anderson Cooper talks to CNN Legal Analyst Jeffrey Toobin about what comes next. (May 31)
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(CNN) -- Jeffrey Toobin, CNN legal analyst, spoke with anchor Anderson Cooper on Saturday about the legal issues that surround the arrest of Eric Robert Rudolph.

COOPER: Where does this thing go from here?

TOOBIN: Well, this is actually going to be an extremely complex legal situation because you've got many jurisdictions with possible claims on Rudolph.

I mean, it will certainly be a federal case. It will be in federal courts somewhere. But you have three or four states with legitimate claims to trying him first and certainly what will happen is the Justice Department will call everybody in and decide who has the best case, where perhaps the death penalty is best ... applicable and then sort out where he gets tried first.

But also you have the question of a lot of evidence over many years, reconstructing what he's alleged to have done. It's going to take a long time and be a very complex undertaking.

COOPER: And let's just emphasize at this point, it is all alleged. He's been indicted in the Birmingham clinic bombing, indicted in the Olympic Park bombing, indicted for the Outside Club bombing but it is just indictments, it is not proof at this point.

Jeffery, I don't know if you heard, we were talking to Doug Jones, former U.S. attorney in Alabama, who said he thought it would go to Birmingham first. And that's really because it would appear that's where the case is strongest. That's where there was an eyewitness and that was really the incident that broke the case wide open.

TOOBIN: That's usually how these things are determined. We've had a similar situation with the sniper cases in Maryland and Virginia. They go to the places where they think the evidence is strongest and also where they think they have the best chance of winning and getting the penalties they want. Here, you don't have the state-versus-state competition -- these are all federal claims. But certainly what these U.S. attorneys will do when they come to Washington to make their case to get Rudolph first, they will say, look, we have the strongest case. Personally, I don't know which one is the strongest case, but that's usually how these things are determined.

COOPER: When you look at the indictments, as I have been this morning, you don't see the word murder, why is that?

TOOBIN: Bombing is a separate offense and you can be charged with murder if the bombing is done intentionally to kill someone and someone dies, but also federal law does not specifically have a murder crime. There are various crimes that include murder but murders per se is not a federal offense.

COOPER: So the murder has to come from the state court?

Toobin: Not necessarily. You can be charged with murder as part of a larger federal case But murder specifically is not a federal crime. It's a legal distinction that's not particularly meaningful because you can still be executed as a result of a federal case as the Timothy McVeigh case illustrates but murder specifically is not a federal offense.

So he would be basically adjudicated whenever the case is stronger, whether that's in Birmingham or whether that's here in Atlanta. And then, one trial and then move to another state for another trial?

TOOBIN: Well, that's an interesting question. Sometimes the government decides that as a reasonable use of resources, if it's clear that he's got the penalty he's going to get, if the penalty is death, if the penalty is life in prison, and they don't think they can do any better, they will decide to save the government money and not try him again.

We have right now going on in Oklahoma City the new trial of Terry Nichols. Terry Nichols is serving a life sentence. All of his appeals are over in the Oklahoma City bombing because of his federal conviction, in federal court that took place in Denver. But the Oklahoma authorities are trying him again and there's a lot of controversy about that, about whether that's a worthwhile use of resources.

Here, you could, I don't want to look too far ahead, have a similar issue, where if he is tried once, convicted, and who knows whether he will be convicted, but if he is, whether all of these jurisdictions will want to try him again.

COOPER: And the decision on the death penalty will be made by whom? When?

TOOBIN: It will certainly be made by Attorney General John Ashcroft. This is the kind of case that will go straight to the top. The attorney general has a committee that reviews all death penalty cases in federal courts and they have a set of criteria that they use and so they try to keep its application according to consistent standards but ultimately the buck really stops with John Ashcroft and that will determine how the first case is pursued.

COOPER: And in your mind the hardest part about this case is going to be what?

TOOBIN: I think the age of the case. One of things about criminal cases is they don't improve with time. Evidence is lost. Witnesses disappear. They die. Their memories fade.

I think the time is going to be difficult to prove and also, I think, the complexity. Bomb cases are always complex. You tend not to have the same kind of eyewitnesses that you might have to a shooting or a stabbing or something like that.

And just the complexity of how to prove where someone got their ingredients, whether other people were involved. I covered the Timothy McVeigh and Terry Nichols trials in Denver and they were just enormously complex undertakings because you had to assemble where they got all of the bomb ingredients came from and that takes time and it can be a long process

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