THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
(BEGIN VIDEO CLIP)
STEPHEN JONES, FORMER ATTORNEY FOR TIMOTHY MCVEIGH: Lawyers who were appointed by the court to defend him, who exposed themselves to some personal and professional risks should not be expected to remain quiet while somebody stands up and tries to stab us in the back. The attorney-client privilege, after all, is a shield, it's not a sword. You can't raise it and then lower it -- stab your lawyer in the back and raise it again. I told Mr. McVeigh and his previous lawyers that if he attacked us, we would defend ourselves.
(END VIDEO CLIP)
ROGER COSSACK, CO-HOST: In the wake of a national disaster, he was appointed to represent the man who would be convicted in the Oklahoma City bombing. Now on BURDEN OF PROOF Stephen Jones speaks out about his former client, Timothy McVeigh.
ANNOUNCER: This is BURDEN OF PROOF with Greta Van Susteren and Roger Cossack.
COSSACK: Hello and welcome to BURDEN OF PROOF: attorney-client privilege versus the First Amendment. This week in Denver, Colorado a federal judge ruled against the lawyers for Oklahoma City bombing co- conspirator Terry Nichols. The Nichols legal team wanted to prevent Stephen Jones from discussing elements in a book written about his former client, Timothy McVeigh.
GRETA VAN SUSTEREN, CO-HOST: But Judge Richard Matsch ruled Jones has a First Amendment right to discuss the case and his former client. Nichols' lawyers, in trying to quiet Jones, argued that by revealing conversations with McVeigh, Jones is jeopardizing their case in Oklahoma state court.
COSSACK: And Stephen Jones, former attorney for Timothy McVeigh, joins us today from Oklahoma City. And here in Washington: John Yagerline (ph); Father Robert Drinan, professor of legal ethics at Georgetown University, and Leah Doane (ph).
VAN SUSTEREN: In the back row: Stacy Gruen (ph) and Katherine Dunagan (ph).
Stephen, first to you. Two quick questions: When was the last time you spoke to Timothy McVeigh -- that's the first question -- and the second is: Why do you want to talk about him?
JONES: The answer to the first question is that I last spoke with him on the day of sentencing, and we took leave of each other.
VAN SUSTEREN: And when does -- before we get to the second part -- why do you want to talk to him -- what do you mean by, you took leave of each other? Does that mean that you quit, he fired you, as oftentimes happen when lawyers get -- I mean, when clients get stiff sentences they frequently want to get rid of their lawyers, or when they get the death penalty in particular. But what do you mean by, took leave of each other?
JONES: I mean that in July, about a month after the trial and a month before the sentencing I told Mr. McVeigh that I was going to withdraw, and would not represent him on appeal. I so informed Judge Matsch. And so I stayed in the case until the sentencing, and then after that I would notify the circuit that new counsel needed to be appointed, which is what I did.
VAN SUSTEREN: OK, now the second question: Why do you want to talk about him?
JONES: I'm sorry?
VAN SUSTEREN: Why do you want to talk about him? This dispute has arisen -- why is it?
JONES: Primarily because the book "American Terrorist," which is based upon 75 hours of interviews with Mr. McVeigh is false in almost every important particular. It gives a totally wrong impression of the crime, the prosecution, the defense and what happened in the courtroom.
COSSACK: Stephen, why is it important, though, that you dispute what he has written? And the reason I ask you this is, look, you know, all of us, you know, have been out there and have had bad relationships from time to time with clients who oftentimes are bad people. The fact of the matter is that most times lawyers just walk away from it and say, look, this is just part of the game. Why is it important, in terms of what the issue of the attorney-client privilege is all about, and how important that is, that you really dispute him in public?
JONES: Well, Roger, that's the heart of the question, and I agree with you. He waived the attorney-client privilege in March of 2000, when he filed a motion for a new trial, some 50 pages, 45 of which were an attack on me directly and, by inference, other members of the team.
I didn't respond then; I mean, he has a right to ask for a motion for a new trial; he has a right to raise an ineffective assistance of counsel or conflict of interest. Judge Matsch heard the argument, dismissed it as having no merit.
That's a different proposition. What we have here is Harper Collins, one of the nation's most distinguished and well-established publishing houses, releasing 150,000 hardbacks through two writers who obviously want to promote the book to earn the money back and are appearing on nationwide television in the public forum repeating Mr. McVeigh's allegations. So we're out of the court and into the public; and I didn't want this book to be the last word of history on what happened in this case.
And since he had waived the attorney-client privilege, even though I had repeatedly warned him and his lawyers not to do that -- had written them letters, called them, visited with them personally on the subject -- he went ahead and did it. And I simply, under those circumstances, it would have been wrong for me to remain silent.
VAN SUSTEREN: Let's get a definition of attorney-client privilege.
Father Drinan: What is the attorney-client privilege, I mean -- so that we have some idea of how far a lawyer can go.
REV. ROBERT DRINAN, LEGAL ETHICS PROFESSOR: It's something very solemn and centuries-old. And it says, simply, that everything an attorney learns from his client he must keep confidential, and that relationship survives the death of the client. And there's only one or two exceptions to it: A lawyer may reveal certain significant things, not beyond those necessary things, if his fee is not paid or -- and this is the exact words, that the lawyer may speak, quote, "to respond to allegations in any proceeding concerning the lawyer's representation of the client."
I'm not sitting in judgment on Stephen Jones, but that generally lawyers should be quiet. And even if there's some offense to their reputation, they should bear that. My idea was Mr. Jim St. Clair, who just recently died. He represented President Nixon, and no way -- in any way did he ever reveal directly or indirectly what President Nixon told him. That's the idea.
VAN SUSTEREN: Well, let me -- you raised -- when you read that to me, the word that caught my attention is "proceeding." And let me go back to you about this, Stephen, is that when Timothy McVeigh attacked you in the motion for a new trial, you have a right to defend yourself when he makes that attack in court, in the proceeding.
Here, though, we're in a completely different situation. You have a book that's written about you, perhaps libelous by both the author, maybe the publisher. So why isn't it that, instead of making public statements, that you take that redress into court against the publisher -- and obviously McVeigh is judgment-proof -- but why not go that way?
JONES: Well, first let me respond to Father Drinan's comment. Richard Nixon didn't write a book criticizing Jim St. Clair and go around appearing on television shows and talking about the mythical conversations. That's the difference here.
No. 2, while I agree with your interpretation of the rules, there are some 50 or 60 cases, including the leading case, which is a U.S. Supreme Court case in 1888 -- a Fifth Circuit case written by Chief Judge Elbert Tuttle, joined in by a man who later became attorney general of the United States, Griffin Bell. And Judge Tuttle says that in every case where a lawyer has been attacked by his former client on his competence, his ethics or his strategy, the attorney- client privilege is out the window and the lawyer may respond. I've never found a case and, believe me, I researched it, to the contrary.
Now the second question, though, is, that's the bar ethics; what is my personal standard? Do I speak out? Should I speak out, leaving aside the bar rules? When he attacked me in the courtroom I did not speak out. That was a different situation; it was an adversarial situation, the court had heard the trial, the court could make its own determination. But once you move to the public forum, and the annotations under the bar rules and the cases say that if the client writes a book or the client encourage someone else to write a book, the lawyer even has the right of preemptive self-defense -- that that is now recognized by the bar association, to even get ahead of the client.
VAN SUSTEREN: And you know what? I got to tell you, thought, Stephen, is that if Timothy McVeigh said something bad about me -- that I was a bad lawyer, a bad person, whatever. I've got to tell you, he doesn't have a whole lot of credibility at this point.
COSSACK: Well -- but I don't think that's the issue. I think, you know...
VAN SUSTEREN: But I mean, in terms of, like, why do you need to fight back against this guy? I mean...
COSSACK: I don't think you need me to fight your battles for you, but I think the issue here is, he is saying -- as I understand what you're saying, Stephen -- is that saying, that once you get into the public forum it's not a question of whether I have -- you know, I have the right to fight back, and I think I should fight back.
VAN SUSTEREN: I guess the question of whether you have the right is different than whether you should or need to. And when you take light of the fact of the attorney-client privilege -- Father Drinan, you want to get in on this.
DRINAN: There's something very, very, essentially different, though, because the lawyers for Terry Nichols are objecting that Mr. Jones is saying these things. And in their judgment, this jeopardizes the defense of Terry...
COSSACK: That's a different issue.
VAN SUSTEREN: But I don't know if they have any standing to object to that. That's a whole other issue.
DRINAN: That's a whole other issue...
COSSACK: But I think that gets to an ethical issue of whether or not Stephen Jones should speak out, and I think... DRINAN: If it endangers, in the opinion of his lawyers, the defense of Terry Nichols. That's the very issue.
VAN SUSTEREN: I don't know if he has any obligation to protect Terry Nichols, though.
COSSACK: And let me also just jump in here and say that there's no one that is seated in this room, as far as anybody I know, that in any way is questioning your ethnics, Stephen Jones. So let me just end this segment by saying that.
VAN SUSTEREN: I watched the trial, we're not challenging his representation, either. I looked into the evidence.
Anyway, We will take a break. When we come back: televising McVeigh's execution; find out what Stephen Jones and Father Drinan think about that. Stay with us.
(BEGIN LEGAL BRIEF)
The California Supreme Court rejected O.J. Simpson's bid to overturn the $33.5 million civil court judgment against him. None of the justices voted to review his appeal of the judgment that found him liable for the deaths of ex-wife Nicole Brown Simpson and her friend, Ronald Goldman.
(END LEGAL BRIEF)
VAN SUSTEREN: No cameras are allowed in federal courts but, in the McVeigh trial, in an unusual situation, a closed-circuit television feed was provide to people in Oklahoma City. Similarly, there will be a television feed of the McVeigh execution on May 16.
Stephen Jones, your former client going to be executed May 16. What do you think of the concept having this feed to people of Oklahoma City?
JONES: Greta, emotionally I understand why they want to see it. But from a standpoint of the larger interest, their message as victims would probably be more effective if not a single one of them showed up to watch the execution and all that the television cameras saw was a room of empty chairs.
VAN SUSTEREN: Father Drinan, your position on that?
DRINAN: The only term I have for it is gruesome, abnormal, unnatural. This goes back to the days in England when they invited mobs of people, thousands of them to see a hanging. And the theory was that somehow this would deter them.
In this case, everyone wants to bring closure, but I simply don't see how their participating in this, and seeing this poor man die, how that is going to bring closure.
COSSACK: Father Drinan let me ask you this, and if -- as an opponent of capital punishment, couldn't the argument be made that if the people of America want to have capital punishment, then let them see exactly what they're getting? That, in fact, by hiding it, you are, in a way, making it easier to do this kind of thing. If you want to execute somebody and you want to kill somebody, then here it is -- you're just as much part of it as anybody else, put it on television, see what you're doing.
DRINAN: Well, I'll use any argument that's a deterrent to the people liking this, but I just don't see the logic. Somehow it is just macabre and unnatural for people to say, I will be pleased by seeing a man die.
COSSACK: I agree with that, and I think...
VAN SUSTEREN: ... about this, though, is that I think the people are going to be really surprised by what they do see. I've witnessed an execution, and I don't think the whole watching it is necessarily going to be a deterrent in terms people are not going to want to execute. It's very dramatic by its lack of drama. It's very quick, very quiet, there's no screaming, there's none of that.
Without -- putting aside the issue of whether you're for the death penalty or not, what I do not understand is why the people of Oklahoma City want to risk giving that man the last word to torment them one more time. You know, he can stand up there and say 168 wasn't enough. I mean, he could say the most cruel things you can imagine, and they're giving him a chance to do that.
COSSACK: Let me talk to -- Stephen, do you believe that your client is manipulating the system by the way he has sort of orchestrated his ending?
JONES: I don't believe he's manipulating the system, but I do think that he is controlling the ultimate decision by -- defeating the government is the way he would put it -- in choosing the time of his own execution in the sense that he's dismissing his appeal.
But I have to say that I agree with Father Drinan. I think this carnival-type atmosphere surrounding the execution, both in Terre Haute and, unfortunately, here, is very wrong.
VAN SUSTEREN: Stephen, in all the time that you represented him, did you ever once get the sense that he had any sort of remorse, No. 1; and No. 2, did he seem to want to die in this way? Was this some sort of carnival he wanted to be involved in?
JONES: I do think Mr. McVeigh has remorse. I think he's afraid to show it. He's trying to make a political statement. I spent 75 hours with him, which is the amount of time these two reporters did, the first two weeks I represented him. I know him pretty well. And I even see some evolution in his thinking now; the way he has made these statements about, well, if he had known children were there he -- it might have given him pause.
I think he wants to say that he's sorry, but he is afraid that it is a sign of weakness and, therefore, he will abandon the cause. I think he's a man in deep conflict with himself.
COSSACK: Why do you think he has remorse, Stephen? I mean, what evidence do you see of remorse? I mean, the way he referred to the death of the children was, "collateral damage." I mean, it couldn't be any colder than -- there's no colder words than that.
VAN SUSTEREN: And I've got to tell you is that watching from afar, Stephen, it's hard to have any sort of, like, sympathy in any way. You can't say that he's retarded, he's this -- he seems evil.
COSSACK: But why -- where do you see remorse?
JONES: Well, first, I think Tim McVeigh still has humanity. It may be only in shadow of the boy, but it's still there. No. 2, this is a man that talked about wanting to have a child, even to the extent of having his sperm taken out of the prison. It's a man that, at least, is tentatively willing to say that had he known children were there, it might have caused him pause.
In my private conversations with him I never heard him speak disrespectful of the dead or the children or any of that. And I rather suspect -- McVeigh sometimes has a flippant way of speaking. And I sort of think that maybe these reporters might have taken a flippant, highly technical military term and exploited it beyond its natural means.
VAN SUSTEREN: But you know, Stephen, I've got to tell you, sir, that he never was, sort of flippant or anything -- but he really did the utmost -- I mean, like...
COSSACK: Let me ask you to hold this a second because I have to take this break.
On May 8, 1995, a U.S. district court appointed Stephen Jones to a case which instantly gave him international recognition. Let's go inside McVeigh's prison cell with the insights of his former attorney after this short break.
Q: What does Lou Smit, a former investigator in the JonBenet Ramsey case, plan to do in an attempt to get investigators to look for suspects other than John and Patsy Ramsey?
A: Release crime scene photographs to the public. Smit says the photos point to the likelihood that JonBenet was killed by an intruder in 1996.
COSSACK: The Oklahoma City bombing was the worst act of terrorism on American soil. The driver of the Ryder truck, which was loaded with explosives and parked in front of the Alfred P. Murrah building, was a former army soldier turned antigovernment follower named Timothy McVeigh.
Stephen Jones, our guest, was appointed as lead counsel for McVeigh in the federal trial against him. Stephen, one of the charges Timothy McVeigh makes is that right from the beginning he said, "Look, I'm guilty. I want to plead guilty. Let's just get this thing over with." He told you he was guilty. He told you he did it. And you wouldn't let him plead guilty.
The trial ended up costing several million dollars, the implication was, "Look, I didn't want to spend this money," says McVeigh. It was Jones who wanted to spend this money. What about it?
JONES: Well, that's one of the reasons that I spoke out, because potentially, certainly in Oklahoma that that's a damning charge that could be made against me. However, it's not true.
It is true that from the beginning Mr. McVeigh strongly implicated himself, but the stories changed. The story of what he did or what others did was never consistent. There were numerous inconsistencies, contradictions -- holes that he would not fill in.
No. 2, I told him that if he wanted to plead guilty, he could do that. But before Judge Matsch, or whoever the judge was at the time of the conversation would accept the plea of guilty, Tim McVeigh would be placed under oath and would have to answer certain questions. And that I felt that one of those questions would involve the conspiracy and who the other conspirators were.
And in fact, Judge Matsch basically told Terry Nichols at the end of the trial that if he spoke and identified others, or cooperated with authorities, it would impact with his sentencing. McVeigh was not willing to answer those questions. He said, "Well, what's the judge going to do, leave me in jail?"
I said, "No, Tim. What the judge will do is he will not take your guilty plea, and we will go to trial, and the headline will be judge rejects McVeigh's plea of guilty. Trial starts tomorrow." I mean, we're bad off as it is. That would only make the situation worse.
VAN SUSTEREN: Father, when he walks down to the execution chamber on May 16, he'll have the option of having a priest with him. Timothy McVeigh is Catholic. What does a priest do, what do you think -- what would be your advice to that priest if he wants? How do you deal with that last walk for a man who is...
DRINAN: I think it's the usual thing of somebody is dying. You talk with them, you ask them to pray, you pray with them. And this would be a case where -- is he prepared for death, does he understand, does he have some repentance. It's not simple, but I think that it's not unlike all of the other deaths that Catholic priests participate in or witness regularly.
(CROSSTALK) JONES: Greta, if I might just remind Father, it was a Catholic writer, Graham Greene, in the heart of the matter, who -- you remember, Father Drinan -- told Mrs. Scobee (ph), "Mrs. Scobee (ph), the church knows all the rules but it doesn't know what goes on in a single human heart." And we don't really know what is in Tim McVeigh's heart.
DRINAN: Very good.
VAN SUSTEREN: And follow up with that, Stephen, what do you think -- if you were his lawyer at this point, how would you be handling these last days with him, as we approach May 16?
JONES: Greta, I don't think Tim McVeigh has listened to his lawyers in three years.
COSSACK: Stephen, that is the final thing. What will you be doing on May 16, the day that he is executed? Where will you be spending your day?
JONES: I will be in Denver, Colorado, preparing for a case in federal court, and certainly, I will be thinking about my client.
VAN SUSTEREN: And of course, that's all the time we have today. Thanks to our guests, and thank you for watching.
COSSACK: And join us again tomorrow for another edition of BURDEN OF PROOF. We're going to see you then.
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