Watch CBSN Live

McVeigh's Last Hope Dashed

Commentary and analysis by CBS News legal consultant Andrew Cohen:

McVeigh's curtain is closing.

The federal government didn't win Wednesday's hearing in the Timothy McVeigh case as much as McVeigh himself lost it. U.S. District Judge Richard Matsch didn't sound particularly pleased with the way the FBI handled its obligations to defense attorneys. In fact, he conceded that he was initially shocked and angered when he found out that thousands of pages of documents had not been properly turned over to McVeigh's team. And he suggested, although not in particularly strong terms, that the feds ought to be held accountable for their unacceptable actions at some point down the road.

But at the end of a shorter-than-expected hearing, and in the bowels of an enormous marble-walled courtroom, Judge Matsch denied a stay of execution anyway for the convicted Oklahoma City bomber. He did so for several reasons, not the least of which was his stated belief that "there can be no doubt" that McVeigh committed the horrible crimes for which he was convicted four years and four days ago.

Once again, then, the enormity of the crime here, the magnitude of the damage to human life and limb, outweighed the many other considerations that other judges have to give in other cases involving other defendants who do not happen to be the biggest mass murderers in American history.

Click on these links for more from's coverage of the McVeigh case:
  • Judge Matsch's order
  • Transcript of the hearing
  • McVeigh's stay request
  • The government's response
  • The defense team's reply brief
  • Reaction To Stay Denial
    See the Victims
    Watch a tribute to those killed in the blast.

    State Your View
    Sound off on McVeigh's latesmove.
  • Remember how prosecutors earlier this week had accused defense attorneys of attempting an "end-run" around the key federal statute? Well, Matsch himself pulled a little end-run in coming to the conclusion that there was nothing the defense could argue, even with the additional time a stay would generate, that could reasonably change McVeigh's death sentence into a life term. Even if the defense were able to prove that other people may have contributed to the bombing, Matsch ruled, it would not have mitigated the effect that McVeigh's murder and terrorism convictions had on his jury when it recommended a death sentence.

    Once Matsch framed the issue that way, the defense was doomed. Their only chance was to convince Matsch that the additional time they were asking for could, might, perhaps generate proof of another bomber, or another conspiracy and that this proof would have convinced McVeigh's jury to go easy on him. But when Matsch noted that there were plenty of other good reasons for the jury to vote for death, 168 reasons in particular, it was over.

    I'm surprised that the judge ruled the way he did; surprised that he didn't call off the dogs for 30 days or so to allow a more complete investigation into all the disputed facts here. But in hindsight, I shouldn't be. This decision was always going to be a tug-of-war in Matsch's mind about his skepticism toward the government and the way it handled its discovery obligations, versus his cast-in-stone impression of McVeigh. Wouldn't a law-and-order judge side with law enforcement and against the convicted terrorist? What was I thinking to predict otherwise?

    Matsch's ruling proves again that it is virtually impossible to predict how a judge will rule based upon how he or she acts in a courtroom. The judge was visibly sympathetic toward the defense during its presentation; he conceded several arguments made by McVeigh's lawyers and even explored with them what the contours of a future hearing would look like. And when the prosecutor, Sean Connelly, got his turn, Matsch seemed almost bored by his arguments. I took that to mean that Matsch was leaning toward granting a stay. He wasn't.

    The ruling and the way Matsch announced it right after oral argument also remind us how efficient judges often handle their caseloads. There is no doubt in my mind that the judge's mind was made up long before he entered that beautiful courtroom Wednesday morning. Clearly, he had thought through the issues and had written down those thoughts into a cogent, at times poetic, ruling which he proceeded to read from the bench just minutes after oral arguments ended. I suspect that he wanted to double check a few key points and ask a few key questions, but there was nothing McVeigh's lawyers could have said in their 60-minute submission which would have turned the tide.

    So now the case moves up the appellate ladder. First to the 10tU.S Circuit Court of Appeals, located in the same courthouse as Judge Matsch's chambers, and then perhaps to the United States Supreme Court. The appeals are likely to last for a few more days, but don't let that fool you. McVeigh's last, best chance of living past Monday was dashed today by the same federal judge who sentenced him to death in 1997. No federal judge is going to be eager to overrule today's decision and no one else is likely to come to McVeigh's aid as his curtain closes.

    ©MMI Viacom Internet Services Inc., All Rights Reserved

    View CBS News In
    CBS News App Open
    Chrome Safari Continue