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.
WOODRUFF: Breaking news, we go to Denver, where there apparently has been a decision by the Federal Appeals Court in the attempt by lawyers for Timothy McVeigh to seek a stay of his execution. CNN's Susan Candiotti joining us now -- Susan?
SUSAN CANDIOTTI, CNN CORRESPONDENT: Hello, Judy.
Here is the order in judgment just received now. It's a stay -- it's a denial of the stay. It says that Judge Matsch of the U.S. District Court denied a stay of execution, and in fact this court agrees with that. The court says that it has denied a stay of execution for Timothy McVeigh, this court has been reviewing this brief, three judges on this panel for more than seven hours this date after it was filed first thing in the morning.
And then the next step would be for Timothy McVeigh's lawyers to move on to the U.S. Supreme Court if in fact Timothy McVeigh wants to do that. We do know that McVeigh's lawyers have been working on their brief already for the U.S. Supreme Court. In fact, that highest court of the land has a copy of the FBI records that are in dispute, already in the hands of the U.S. Supreme Court.
So now, that an attorney will recall, one of the lawyers is already in Terre Haute, Indiana, has already visited with Timothy McVeigh this day, and now, that he will be receiving this news shortly. And also, that lawyer will make his way most likely over to the prison -- that was the plan anyway -- to brief Timothy McVeigh personally and find out exactly whether he wants to go to the highest court of the land -- Judy?
WOODRUFF: Susan, refresh us, if you will, on the reasons that the federal district judge, Judge Richard Matsch gave for initially turning down McVeigh's attorneys' request for a stay?
CANDIOTTI: Yes, the reason that Judge Matsch turned down his original request for a stay of execution is that in the view of Judge Matsch, he felt that the attorneys had had enough time to review the materials, he himself reviewed the FBI documents in record.
And the judge said, that the evidence was so overwhelming against Timothy McVeigh, and that because he himself had admitted guilt in the Oklahoma City bombing, the judge felt as though, even if you considered all of these additional FBI documents, that no reasonable juror would change their mind when it came to deciding on a death sentence: life or death for Timothy McVeigh. The judge said that all of the additional information simply wouldn't have mattered,
So the defense attorneys appealed that decision, saying that, your honors, before this court, we simply didn't have enough time, and it's not fair for you not to give us enough time to review all these materials and present a case before the court.
But evidently, the three judges on the Circuit Court of Appeals agree with Judge Matsch, and has upheld his decision.
And we might also point out that this court has never reversed one of Judge Matsch's decisions in the past.
WOODRUFF: Susan, how could there be such a discrepancy between McVeigh's attorneys saying they haven't had time to go through these documents, and then Judge Matsch, the Federal District Judge, and now the Appeals Court judges apparently saying they've looked at it all, and there's not enough there to change anything?
CANDIOTTI: Well, that is a question for the judges to elaborate upon, and so far we haven't had a chance to read this order.
We do know that Judge Matsch felt as though, from his review of the documents, obviously he has a different opinion than the defense attorneys do. They felt as though -- and they tried to make this argument to the court -- that in looking at these documents for 30 days, they wanted to have more time to interview some of the witnesses mentioned in the reports.
Judge Matsch, after looking at their names, apparently wasn't impressed by that, and that's why he ruled the way that he did.
WOODRUFF: And Susan, you said earlier that McVeigh's attorneys have already started putting together their appeal to the United States Supreme Court. Does that mean that they anticipated losing here in the Federal Appeals Court in Denver?
CANDIOTTI: I think what it means, Judy, is that is what any lawyer would do. They don't wait until the last possible moment to put together their briefs. They must prepare for any eventuality.
And so it is one of those lawyers, Richard Burr, who has been working on this aspect of the case. And frankly, he told me late last night, after their brief that was presented this morning was finished, that he intend, if they lost here, to go back to Houston to put the finishing touched on the brief, and that that brief would be delivered by someone else in Washington to the U.S. Supreme Court if Timothy McVeigh agrees that that's what he wants to do.
And quite frankly, some of his former defense attorneys have said that they're not sure what Timothy McVeigh will do. You know, he has these options before him, but they said they could also foresee a scenario where he might want to give himself enough time to prepare himself for Monday's execution, and might not want to proceed.
But president ultimate decision, of course, is with him.
WOODRUFF: You mean, might not want to proceed with an appeal to the Supreme Court?
CANDIOTTI: That is correct. And...
CANDIOTTI: ... frankly -- yes?
WOODRUFF: Go ahead, finish your thought.
CANDIOTTI: No, I was just going to say, above and beyond that, we haven't really had a time to study this order. It was literally just handed to us. So we hope to learn more details it after reading the material in its entirety.
WOODRUFF: Well, Susan, we can appreciate that, and we want to give you time to do that.
Just to reiterate to our audience: Susan was just handed the documents, along with others there at the Federal Appeals Court in Denver. The -- three of the judges on that appeals court have decided to deny the request by Timothy McVeigh's attorneys that his execution be stayed, be delayed.
In doing so, these appeals court judges are upholding the decision by a lower federal district judge, Judge Richard Matsch, who ruled just a matter of days ago that the execution should go ahead, that despite this new flood, if you will, of documents that the FBI just turned over years after the McVeigh trial -- despite these new documents, there was nothing in there that, in effect, would change the guilt, in their view, of Timothy McVeigh.
Joining us now, our Supreme Court correspondent -- Washington correspondent Charles Bierbauer.
Charles, if McVeigh's attorneys go ahead and appeal to the Supreme Court, what are the procedures there? What can we expect there?
CHARLES BIERBAUER, CNN SENIOR WASHINGTON CORRESPONDENT: The procedures are pretty well spelled out. The appeal would go initially to Justice Stephen Breyer, who bears the oversight responsibility for the 10th Circuit Court. Each of the justices is assigned certain circuits.
Justice Breyer could act on his own to grant or deny a stay, but because of the prominence of this particular case, Justice Breyer is certain to circle -- circulate the petition to all of the justices. They do not have to actually meet; they can confer by phone. He would take a poll of the justices. It would require five of the justices to agree to a stay for a stay to be granted for Mr. McVeigh. They are certainly cognizant of the timetable under which they are working.
There are certain criteria laid out under which a stay may be granted, and spelled out in the order -- in the rules of the court. One is that there is a reasonable probability of a review. That is to say, not just of this current petition, but of a review of the whole trial and sentencing. Two: that there is a fair prospect that the decision would be found to be erroneous. Three: that there would be irreparable harm from denying a stay. And fourth: a kind of balancing test that takes into consideration the interests of the public at large.
So those are the criteria that Justice Breyer and his colleagues would have to consider. They can work through the weekend of course, too. We do not have a sense of timing at this point -- Judy.
WOODRUFF: So, Charles, just quickly, you're saying those criteria are different from the ones that have been used by the appeals court judges and the district judge -- federal district judge?
BIERBAUER: No, I'm not saying that. I'm saying that those are the criteria spelled out in the procedures for the court -- things that a justice would take into consideration.
Obviously, they will take into consideration all that pertains to the law here -- excuse me -- and will start with Judge Matsch's ruling. And certainly the track record is such that, if the district judge, Judge Matsch, and the circuit courts deny the appeal, it's a very slim probability that the Supreme Court itself would grant a stay at this point.
WOODRUFF: All right. We're talking with Charles Bierbauer here in our studio.
Also joining us in the Washington studio, CNN's justice correspondent Kelli Arena.
Kelli, this has to be considered good news for the Justice Department who, after all, have been pushing the -- for the execution of Timothy McVeigh on time.
KELLI ARENA, CNN JUSTICE CORRESPONDENT: Well, that's right, Judy.
All along, as you know, Justice has said that there's nothing in the documents that were recently turned over that would have reversed a verdict of guilty, or would have reversed a sentence of death for Timothy McVeigh.
Justice, though, has been pretty mum today. They said -- Attorney General John Ashcroft said what he had to say yesterday after the stay was denied. Of course, we heard from the attorney general, he basically said just what I said, that there was no evidence of any innocence here, that the verdict would not have been overturned and so, therefore, it was a good day for Justice.
Business as usual. Attorney general is headed home to Missouri. They are -- Justice is just -- was waiting. They either would have had to present a reply to the court today; that didn't happen. There was a judgment, and now we wait to see what happens at the Supreme Court level -- Judy.
WOODRUFF: And Kelli, in just a matter of a few second, the view inside the Justice Department that this McVeigh appeal was something serious that had serious merit, or just something that was a desperate last attempt?
ARENA: Well, they take everything seriously, Judy. But there was -- I think I could describe it as confidence, at least today, that that decision would be upheld.
WOODRUFF: All right. CNN justice correspondent Kelli Arena, our Washington correspondent Charles Bierbauer.
That is it. And to recap, a federal appeals court in the Denver has turned down Timothy McVeigh's appeal for a stay of execution.
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