Getting In The First Punch

050701, timothy mcveigh story image, JM
Commentary by CBS News Legal Analyst Andrew Cohen.
By unilaterally staying Timothy McVeigh's execution before he himself could ask a court to do so, the government took some initiative in this fiasco, while at the same time keeping firm control over McVeigh and his future.

McVeigh still may ask a judge for additional time, and a judge conceivably could grant that request, but now no one can reasonably say that the feds were dragged kicking and screaming into a June execution. And no one can say that the feds didn't acknowledge their mistake and at least try to make it right — or give McVeigh's lawyers some time to make it right.

Now those lawyers will pore over these famous documents and pictures and tapes and whatnot and try to evaluate what they all mean. Prosecutors will look at it all to ensure that there are no "smoking guns" which would help exonerate McVeigh or give his co-conspirator, Terry Nichols, a better chance at a new trial.

If a hearing on this development is held, prosecutors will need to convince the judge that the FBI's mistake did not rise to the level of a constitutional violation. "Foul but no harm" will be their argument.

Defense attorneys, meanwhile, will look at that same pile of stuff to determine whether they can apply the information there to the legal standard that governs requests for new trials in these circumstances. They will be looking for information that helps them make a case that the withheld information would have made a critical difference at McVeigh's trial in 1997.

It will be virtually impossible, I think, for these lawyers to make the showing in court they ultimately need to make to get McVeigh a new trial, to overturn his conviction or to commute his death sentence. But the FBI now has given them the right to try.

And McVeigh himself, I suspect, if he actually gets a gander at the box dropped off at his lawyers' offices earlier this week, probably will be looking for further proof in his own twisted mind that the government is out to get him.

Of course, if the feds truly were out to get McVeigh, if the vast conspiracies which seem to exist only in the minds of McVeigh and his camp-followers truly existed, these newly found documents would have stayed lost for another week or so, until after McVeigh was dead, or perhaps forever.

Meanwhile, Nichols' lawyers also will be poring over the information to see how it affects their client.

Don't forget, Nichols still maintains his innocence, still has plenty of appellate avenues open to him, and presented a much stronger defense against a much weaker government case than did his counterpart. Nichols, too, isn't likely to get a new federal trial but he has a much better chance than does McVeigh. The week's revelations, in other words, don't just stop an execution.

So now we wait. To see whether McVeigh's attorney file a motion asking for a new trial. To see whether McVeigh is true to his word tha he wants to die sooner rather than later. To see whether they ask for more time beyond June 11. To see whether additional information is uncovered in the next month or so. To see whether this stunning turn makes things easier for Nichols, to get a new trial or to otherwise get some relief from the state court proceeding he may be facing. To see whether the trial judge takes some action between now and June 11.

The questions still far outweigh the answers in this story. But at least the government has given McVeigh some time for those answers to come.

(c) MMI Viacom Internet Services Inc. All Rights Reserved