Slim Reversal Chance Seen for McVeigh

WASHINGTON — Convicted mass murderer Timothy J. McVeigh at best has only a slim chance of winning a reversal on appeal, legal experts say, and recent changes in the law will make it difficult for his lawyers to drag out his appeals beyond three years.

Unlike the more familiar capital cases, where appeals move slowly through the state and then federal court systems, McVeigh’s appeal will go directly to the U.S. appellate court in Denver--a result of his conviction in a federal court.

To outside observers, McVeigh’s trial moved surprisingly swiftly and his subsequent appeals may do much the same.

“It is a shorter process [for appeals] than in the state system. And it is an uphill battle for the defense team if there ever was one,” said Stephen Bright, an Atlanta lawyer who specializes in death penalty appeals.

Often in capital cases, defense lawyers appeal to a state Supreme Court or a panel of federal judges, asking them to review a trial conducted by a locally elected superior court judge. The lawyers generally argue that the judge made mistakes during the trial that call for reversing the outcome.

By contrast, McVeigh’s lawyers will be forced to urge the federal judges of the U.S. 10th Circuit Court of Appeals to review the work of U.S. District Judge Richard P. Matsch. They are the same judges who chose Matsch to preside over McVeigh’s trial.

“He is the most bulletproof judge on the 10th Circuit and that’s why they picked him,” said David Lane, a criminal defense specialist from Denver. “The likelihood of them reversing him is rather slim.”

Beginning today, federal prosecutors will present their case for sentencing McVeigh to death. His defense team, led by Stephen Jones, hopes to persuade jurors to spare his life, in part by arguing that others may have conspired to commit the crime.

During the trial, Matsch strictly limited McVeigh’s lawyers from presenting evidence of far-ranging conspiracies. The judge ruled that this evidence was not directly relevant to the charges.

During the penalty phase, however, defense lawyers generally are given wide latitude to present any evidence that could argue for leniency, ranging from tales of the defendant’s unhappy childhood to speculation that others were more responsible for the crime.

Whether the jury sentences McVeigh to death or to life in prison, his lawyers will have 40 days to file an appeal with the 10th Circuit Court. They might well cite 15 or 20 reasons for overturning his conviction or possible death sentence, lawyers say.

They might say that prosecutors appealed too much to emotion during the trial. They could fault Matsch for keeping out evidence of conspiracies that could have created a “reasonable doubt” in the minds of jurors. Or they could argue that defense lawyers should have been able to dwell on the problems of the FBI crime lab.

The 10th circuit court likely will rule on all the appeals within a year and, more likely than not, reject them all, lawyers predict.

“In most appeals, you could predict you will get a decision from an appeals court in six weeks to six months. In this case, it might be six weeks to a year,” said Peter Goldberger, an appellate specialist from Ardmore, Pa. “The 10th Circuit would not want to seem rushed. You want to be very careful in the most serious cases.”

If McVeigh’s appeal fails, he could petition the U.S. Supreme Court to review the case. But the justices reject 98% of criminal appeals without comment.

McVeigh’s team then would have one more chance to appeal. But this second round, known as the “post-conviction review,” has been limited by recent federal laws.

Typically, a new team of defense lawyers takes over and appeals on a whole series of issues. But the appeals go back to the federal district judge.

“Are you going to see Judge Matsch reversing Judge Matsch in this case? Not likely,” Lane said.

Neither the appellate nor the Supreme Court is obliged to hear appeals from this second round, which, once complete, is over because the new law closes the door to further appeals.

Legal experts say there are two aspects of this case that make any predictions suspect, however, especially if McVeigh faces execution.

First, the federal death penalty law is new and still not fully tested. While 12 people have been convicted and given death sentences in federal court since 1991, none has been executed.

Second, the Oklahoma City bombing is the worst act of domestic terrorism in the nation’s history and, therefore, makes it unlike any case before it.

Still, if McVeigh’s appeals follow the route of other recent federal cases, they could be complete within three years.

“I think two or three years of appeals would be likely,” Goldberger said.

And almost no one is predicting now that the appeals would succeed.

“It would take a great deal of courage by an appellate court to overturn this conviction,” said William Moffitt, a defense attorney here. “We have all seen the reactions of the victims and judges are human, too. In this climate, and in this case, it would take a very courageous judge to rule favorably to McVeigh.”