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)
UNIDENTIFIED FEMALE: ... horrible noise, the roar of the whole building crumbling.
UNIDENTIFIED MALE: About a third of the building has been blown away, and you can see...
JOHN ASHCROFT, U.S. ATTORNEY GENERAL: On June the 2nd, 1997, a jury convicted Mr. Timothy McVeigh of the April 19, 1995 bombing.
WILLIAM J. CLINTON, FORMER PRESIDENT OF THE UNITED STATES: It was an act of cowardice.
UNIDENTIFIED FEMALE: We are seeing injured people everywhere!
CLINTON: And it was evil.
UNIDENTIFIED MALE: They are on what they call a "code black" right now, a disaster mode.
ASHCROFT: This brutal act of terrorism killed 168 innocent people...
JANET RENO, FORMER U.S. ATTORNEY GENERAL: The death penalty is available, and we will seek it.
UNIDENTIFIED MALE: Bomb experts say the destruction appears to indicate a car bomb loaded with more than a thousand pounds of explosives.
UNIDENTIFIED FEMALE: Unfortunately, there are still people trapped.
UNIDENTIFIED MALE: We are getting reports of -- of numerous fatalities.
ASHCROFT: This cowardly crime against our nation was the largest terrorist attack ever within the United States of America.
(END VIDEO CLIP)
ROGER COSSACK, HOST: Hello, and welcome to BURDEN OF PROOF. Barring any other legal action, Timothy James McVeigh will be executed by the federal government in less than 68 hours. McVeigh, who was convicted of the worst terrorist act ever committed on American soil, has halted his request for a stay of execution. Late yesterday, the U.S. court of appeals for the 10th Circuit rejected his appeal of a federal judge's denial of a stay. It was an ironic closing act in this historic case, as the federal building McVeigh exploded in 1995 was named in honor of the former chief judge who presided over that very federal appeals court.
So joining us today from Denver, Colorado, is Chris Tritico, attorney for Timothy McVeigh. From Chicago, we're joined by former federal prosecutor in the McVeigh case, Scott Mendeloff. Here in Washington, Catherine Parker (ph), Catherine Rochester (ph) and Cameron Resavi (ph). In the back, Emily Dillard (ph) and Nicole Allen (ph).
Chris Tritico, I want to go right to you. First of all, to represent somebody like Timothy McVeigh is an exceptionally difficult thing to do. You have to put aside all of your personal feelings and recognize that you're representing your client under the best of what a lawyer must do. Was that a difficult thing for you to do?
CHRISTOPHER TRITICO, ATTORNEY FOR TIMOTHY MCVEIGH: Well, once you start practicing law and do what I do, and do the -- take the profession I chose, it's not hard to -- to do that. This, of course, was an exceptional case, and it was an extremely emotional case for all of us -- prosecution, defense, Judge Matsch, everybody.
But no, it wasn't difficult for me to put my feelings aside. My job is to protect my client's rights and make sure that the prosecution can prove their case beyond a reasonable doubt, and that's what we did.
COSSACK: Chris, there is a report that is now out that indicates that a federal judge has ordered the videotaping of Timothy McVeigh's execution to be used possibly in another federal trial. What do you know about that?
TRITICO: What I know about that is, earlier this week, Richard Cammon (ph), the lawyer in Indianapolis, called me and informed me he had filed the motion in federal court in Pittsburgh, and the judge had asked him to find out if Mr. McVeigh opposed. I told Mr. Cammon to fax me his motion and I would discuss it with my client. When we had a conference with Tim, a telephone conference with Tim, I raised the issue.
He said he was not opposed to the videotaping or the use in that case. I called Mr. Cammon and faxed him a letter telling him that. Last night, late last night, I spoke with Mr. Cammon and he informed that the judge had granted the motion.
COSSACK: Now, Mr. McVeigh, I take it, had no point in that motion other than to the -- to allow or not allow. Isn't it against the Bureau of Prisons regulations, though, for an execution to be videotaped? And we have also heard from Attorney General John Ashcroft, who has indicated that he will fight that.
Now, I know it's not your case, but what do you think will happen?
TRITICO: Well, I -- I understand that Justice is going to take it to the 3rd Circuit. This is a novel theory, one that I've never heard of this being granted in any state or federal court. I was surprised the motion was granted. And so I would be surprised if the 3rd Circuit doesn't strike it down.
TRITICO: But I've been -- I've been very surprised the last two days.
COSSACK: Chris, what do you think? Do you know what the purpose is of having the execution videotaped, what Mr. Cammon intends to do with this videotape?
TRITICO: Mr. Cammon wants to use the videotape as evidence in mitigation of punishment if his case gets that far. All I know about his case is it's another federal capital murder case, and he wants to introduce the tape and play it for the jury in punishment, if he needs to, as mitigation evidence.
COSSACK: To show a jury the -- what an execution actually looks like.
COSSACK: All right. Now, your -- one of your colleagues indicated in a press conference the other day that, in fact, what we've seen happen or what the results of Judge Matsch's ruling and the 10th Circuit ruling was the Timothy McVeigh exception to the rule of law, if you will, indicating his displeasure with what he believed, at least, that the courts just -- the way -- the horror of the crime versus the due process necessary and said, "You know what? It's just time for Timothy McVeigh to die."
One, do you -- do you agree with that statement? And two, tell me what your thoughts are, if you do.
TRITICO: I do agree. That was Richard Burr, and I do agree with that. A lot of the -- of the rulings in this case, from right before trial started through the appellate process we feel have been motivated by the emotion of the case. Understanding that everybody dealing with this are just human beings and this is a very emotional case; but a judge, just like me, must separate your feelings from the law.
And what we felt that Judge Matsch did and the 10th Circuit put their seal of approval on was make a ruling based on the emotion of the case and not on what the law is. And that is -- has happened time and time again in this case. The 10th Circuit, in affirming his conviction, reversed 110 years of 10th Circuit law, and then on the very next case said, "Well, we didn't really mean that," and went back to the old law -- the Tim McVeigh exception to the law.
COSSACK: All right, joining us now is Scott Mendeloff, former prosecutor in the McVeigh case.
Scott, you've recently -- you've heard what -- what Chris has said regarding the videotaping of Timothy McVeigh's execution. As a former member of the prosecution team, what is your thoughts on this?
SCOTT MENDELOFF, FORMER MCVEIGH PROSECUTOR: Well, I think that -- first of all, I understand that Chris and Rob and Dick have gone through a lot with this case, more than we have recently. And I can understand that their feelings must be really frayed, at this stage. But I think the kinds of statements that Chris just made are unfortunate and misplaced and also very, very incorrect.
COSSACK: All right, let me -- let me...
MENDELOFF: In fact...
COSSACK: Let me just ask you for -- first of all, to respond to the videotaping. And then I'm going to give you a chance to respond to -- to...
COSSACK: ... Chris's feelings regarding the notion that perhaps -- or his view of what justice did or didn't do in this particular case. Go ahead. What is your view on the -- on the taping of McVeigh's execution?
MENDELOFF: I think it does not -- first of all, I don't think it will happen. I did not know about that matter until just now, and I understand it's a -- it's a district court in Indiana? Is that right?
COSSACK: I think it's Pittsburgh.
MENDELOFF: Pittsburgh. OK. I agree with Chris that I expect that the 3rd Circuit will reverse that. I don't think there's any basis for going forward on that. They don't have to tape this execution. There's plenty of other evidence of how executions are taken -- occur. So I agree with him on that.
In terms of the question of justice in this case -- I'm sort of surprised to hear Chris say what he said because, in fact, over and over again, throughout the course of the pre-trial and trial phase in Mr. McVeigh's case, Judge Matsch went out of his way to grant motion upon motion that, frankly, we thought we had a pretty good argument against.
And in fact, Judge Matsch's rulings were so in favor of Mr. McVeigh during the trial stage that, as Mr. Tritico knows, Congress had to pass a law to overturn actually two of -- two of the judge's rulings in connection with this case, for purposes of allowing once -- one -- in one instance, the video transmission of the trial, in another instance the presence of victims in the courtroom during the course of those case. Those -- those rulings were rulings in which Judge Matsch went directly...
COSSACK: But -- but...
MENDELOFF: ... favor of Mr. McVeigh.
TRITICO: Wait a minute...
COSSACK: But Scott, let me -- let me go back to Chris a second.
Chris, but what you're specifically referring to is this inability, I think, by your defense team to get more time in light of the fact -- and more time to investigate materials that were admittedly turned over to you lately and negligently, correct?
TRITICO: Absolutely. The -- the government -- the FBI found out about this in January, and waited until after Mr. McVeigh had waived his appeal on his writ of habeas corpus, until six days before his execution to turn this over. They had 272 agents working on this before we got the information and then gave us less than 30 days to investigate it, read all that material and file a motion for stay. That's not right. That's wrong.
MENDELOFF: OK, well...
COSSACK: Scott, go ahead and respond to that particular point.
MENDELOFF: Sure. Sure. Let me -- and let me say I agree that that's wrong, and I agree that the FBI -- what the FBI did was not just wrong but inexcusable. I also agree with Judge Matsch that the FBI should be taken to task for this, and I think they will. I know Congress is already talking about taking steps to rein in the FBI, and I think they're going to be sorry this happened, for a lot of reasons.
But all of those things are separate and apart from whether or not these -- this proof is even theoretically helpful to Mr. McVeigh. And Judge Matsch's ruling was clearly that they were -- that these things were not theoretically helpful to Mr. McVeigh. Even if they were able to find what they were -- they thought they were looking for, Judge Matsch's ruling was basically that it wouldn't have mattered.
And the most -- the most telling part of the ruling, again, was that, you know, we're -- we're not looking for mystery men out there. The best resource for other people -- for finding out whether other people were involved is Mr. McVeigh himself.
COSSACK: All right, let's take a break. When we come back, we're going to go to Jeff Flock and find out how the prison is gearing up for the execution of Timothy McVeigh. But first I want to speak some more with the lawyers who actually first-hand participated in this case.
Stay with us.
(BEGIN VIDEO CLIP)
PAT RYAN, FORMER MCVEIGH PROSECUTOR: This is a man who gave up his last appellate rights on his habeas appeal, so he's obviously someone who is not inclined to always follow his lawyers' advice. And in this case, I think that he's done a favor, finally, to the nation.
(END VIDEO CLIP)
(BEGIN LEGAL BRIEF)
On this day in 1968, James Earl Ray was arrested in London and charged with the April 4 assassination of Martin Luther King, Jr. Ray pleaded guilty in 1969 and was sentenced to 99 years in prison. He later recanted his plea, saying there was a larger conspiracy in the killing. Ray died in 1998.
(END LEGAL BRIEF)
(BEGIN VIDEO CLIP)
ROBERT NIGH, MCVEIGH ATTORNEY: I can tell you that he said clearly he doesn't want to pursue any further legal options. He doesn't want to create any more uncertainty. He wants to make the preparations that are necessary between now and Monday. He's mindful of the impact of this situation upon everyone affected by this, and he's ready for us to stop.
(END VIDEO CLIP)
COSSACK: We're back, and we've been talking with Chris Tritico and Scott Mendeloff, two participants in the original trial of the -- of Timothy McVeigh.
Scott -- Chris, I want to -- I want to start with you. Here -- here's the argument, and I think -- here's what Richard -- or Judge Matsch said. He said, "Look, you -- you, the lawyers, agree that you weren't here to argue with me about the guilt or innocence of Timothy McVeigh, but what you were saying was there could possibly be innocence -- possibly be evidence that would mitigate the death penalty. But in fact," he said, "look, there's never going to be any evidence that would deny what he did, which is drive the truck, park the truck, explode the truck and blow up that building." Therefore, how could you ever present any evidence that would mitigate the death penalty for those acts?
TRITICO: The problem with that ruling is -- and that's what I was talking about, about the emotion of the case because the problem with that ruling is what we needed was, what we've been asking for all along, is time to investigate. The law is clear that if you are minor participant in a conspiracy, then you are entitled to offer that in mitigation of punishment.
We got evidence that -- that was turned over six days before the execution that was a theory that we were actively investigating during trial. Judge Matsch would not allow it in because he said we couldn't link it up.
COSSACK: But Chris -- I don't mean to interrupt you -- how could you ever claim that he was a minor participant, when it's admitted he did just what I just said, that he drove the truck, exploded the truck and blew up the building? Under any theory, could that make him a minor participant?
TRITICO: But -- furthermore, you don't have to be a minor participant, under the law. There's -- you could also offer in mitigation a broader conspiracy, and that's what we were trying to focus on. And Judge Matsch wouldn't let us use it in trial because he said we couldn't link it up, and then here some the 302s that we were asking for during trial!
COSSACK: All right, let me go to Scott on that. Scott, the argument is further evidence perhaps could have indicated a broader conspiracy. That is evidence that might have gone to a jury. That is evidence that possibly could have swayed a jury. Judge Matsch will not allow that to happen.
MENDELOFF: Yes. And let me -- let me address that. First of all, Judge Matsch addressed that issue, as well, in the -- in his ruling. He pointed out that in the trial, the defendant, Mr. McVeigh, and his attorneys did present evidence suggesting a broader conspiracy, and the jury roundly rejected that. The jury ruled in coming down with the death penalty that notwithstanding that evidence of a broader conspiracy -- which, by the way, we believe we rebutted -- that there was no mitigating factor in connection with this case.
And the other factor that we have to take into account is that we were able to show that Mr. McVeigh and Mr. Nichols were the ones who gathered all the components for the bomb. So there is no way that, broader conspiracy or not, Mr. McVeigh would not have been the central character in connection with this case.
COSSACK: All right, let me move on for a second and go to Jeff Flock at the penitentiary.
Jeff, what's happening at the penitentiary? What's -- where are we in the preparations for Timothy McVeigh's death, as of now?
JEFF FLOCK, CNN CORRESPONDENT: Yeah, Roger, you can see that there behind me. Back in there where you can't see is somewhere a building called the "death house." McVeigh right now is in the special confinement unit. That's the federal death row, where he's with 19 other people. Starting today, he is eligible to be moved to the death house, which they call the execution facility here. He will be put in a holding cell, once he gets there. And he needs to get there before the 24 hours to go period. So that could come at any time today or tomorrow.
And then he's held in that -- in that holding cell there until they're all ready to go.
COSSACK: And when do they -- do we have any idea when they expect him to be moved or what -- has he -- has he already done the -- given away his possessions? Has he sent -- what -- what preparations has he made, do we know?
FLOCK: Yeah. Bureau of Prisons protocol provides that there's this window, and they don't tell -- tell you exactly when they're planning to do it. Of course, this is a real, you know, event at the prison. In addition to this being the first federal execution in almost 40 years, it's the first lethal injection. This death house has never been used before. So you know, it's a big deal here.
The prison is planning to be on lockdown Sunday night. Some prisoners have expressed some concern about that because, of course, the NBA playoffs are Monday night, and they would like to watch that, which they can't do if they're on lockdown. So there's all of that.
As to McVeigh's own actions, we don't know a lot about that, although there is a Web site out there, this deathrowspeaks.com, that is a -- purports to be journals of some of his fellow death row inmates. And so those folks have shed some light on what he's doing.
COSSACK: All right...
FLOCK: They said that he initially gave some stuff away, but then they gathered some stuff back up again when he thought there might be a stay. So we don't know for sure.
COSSACK: All right. Let's take a break. Find out how the police are preparing for a potential security nightmare and why McVeigh's fellow inmates are protesting the prison lockdown. It's all about that NBA basketball game. But we'll talk about more than that when we come back. Stay with us.
Q: On this day in 1917, Supreme Court Justice Byron R. White was born. Who took over his seat when he retired from the bench?
A: Justice Ruth Bader Ginsburg.
COSSACK: At 7:00 a.m. local time on Monday morning, Terre Haute, Indiana, is scheduled to be the site of the first federal execution in more than 38 years. But before Timothy McVeigh takes his last breath, Justice Department and prison officials will put into place an elaborate security agenda, which was years in the making.
And joining us now from Terre Haute is police chief James Horrall.
Chief Horrall, tell us what the precautions are that -- that Terre Haute is taking. What do you expect that city to be like Sunday and Monday?
CHIEF JAMES HORRALL, TERRE HAUTE, INDIANA POLICE: Well, what we've done -- the mayor's closed the city offices. The county commissioner's closed the courthouse, as well as the county offices. Mr. Tenuse (ph) closed the schools. Yesterday was the last day of school. However, Monday was going to be the first day of summer school.
So in order to increase our manpower for the coverage and responsibilities that we have to do at the various parts and our commitment to the Bureau of Prisons, you know, he's closed the schools so we don't have to worry with that, as well as the government offices.
COSSACK: Chief, do you expect an increase in the population for those two days? And if so, how many? And are you expecting demonstrators?
HORRALL: We're expecting some demonstrators, but it's the same as back in May. Nobody can tell us exactly how many are coming or what they're expecting. They have told me as late as yesterday that with the delays, with the possible appeals, that they wasn't sure exactly -- some people are saying they would be there. Some were saying now that they won't be. So it's just another unknown in this mess.
COSSACK: And Chief, how many officers will you have on duty starting, say, Sunday through the execution?
HORRALL: The department has 124, and we'll probably have about 110 that will be working 12-hour shifts both Sunday and Monday.
COSSACK: All right, thanks, Chief. Let...
HORRALL: And the...
COSSACK: Oh, I'm sorry. Go ahead, Chief.
HORRALL: No, that's all right. The state police is also going to have an extra 100 troopers here in the area. So you know, we feel, with the coverage from the state police and my department, that we've got everything pretty much covered for the city of Terre Haute.
COSSACK: And you're not expecting any particular violence or anything during this period of time, are you, chief?
HORRALL: No, we're not.
COSSACK: All right. Let me go back to Chris Tritico in Denver.
Chris, I know you have an attorney-client privilege, and I'm not going to ask you to violate it, of course. But we have a couple of minutes left. Is there any way you can help us unlock Timothy McVeigh at all?
TRITICO: Well, let me -- let me put it this way. When I got appointed on this case, which was in -- six weeks before the trial started, I -- I knew what you knew about Tim McVeigh, and that's just what I saw on the news and read in the paper. I came to Denver expecting to meet a seething government hater, and that's not the Timothy McVeigh that I know. The man that I met is -- is easygoing, has a good sense of humor and is extremely intelligent.
Unlocking him and what happened -- I don't have an answer for that. I don't have an answer for -- for why I'm here today talking about this. I don't know what -- what causes these kinds of things. I do know that the man that I met is -- is somebody that I came to like.
COSSACK: Do you think that he is sane?
TRITICO: Well, I -- yeah, I do think that Tim is sane, and his decisions that he's made since I've been his lawyer have been based on reason. And he wants to know everything before he makes a decision, and I think he clearly understands where he is and -- and what's happening. And so when he made his decision yesterday to stop his appeals, while we disagreed, it's his case. And once he understood everything, we agreed with him.
COSSACK: All right, that's all the time we have for today. Thanks to our guests. Thank you for watching. Join us again Monday for another edition of BURDEN OF PROOF. I'll see you then.
TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com