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. 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.ĬOSSACK: It has to be a reasonable stay, relating to what they are asking for. 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. 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.
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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.Īnd if you think about it, McVeigh was scheduled to die May 16 he's now scheduled to die June 11.
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For whatever reason, evidence was not turned over. 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. Q: How high is the hurdle for getting a delay of McVeigh's execution?ĬOSSACK: I would think that if I had to speculate, the delay, or stay of execution would be granted. Q: So he could get either a new sentence or a new trial? 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. But the next part is where it gets tough. What the defense is going to have to show in this case is, one, that evidence was withheld.
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That's a very high hurdle, particularly in this case.
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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. 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. What does that mean?ĬOSSACK: 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. Q: McVeigh's attorneys claim the government committed "fraud on the court" by failing to hand over documents prior to his trial. 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.ĬNN Legal Analyst Roger Cossack discussed their arguments and their chance for success.