Execution Decision May Rest With Supreme Court

WASHINGTON – The Supreme Court, which historically has been unsympathetic to 11th-hour appeals, likely will be the court of last resort for Timothy McVeigh.

Since the death penalty was reinstated in 1977, the Supreme Court has taken a generally skeptical view of last-minute appeals. The current conservative-led court denies all but the smallest handful of these requests, but there is some indication that the court is attentive to recent public concern over the fairness of the death penalty.

Since March, the Supreme Court has given temporary reprieves to two death row inmates within hours of their scheduled deaths, and agreed to hear their wider appeals in the court term that begins in October.

Lawyers for McVeigh, the convicted Oklahoma City bomber, said Wednesday they planned to fight a federal judge's ruling that an FBI blunder should not further delay the execution, which is scheduled for Monday. That appeal will go to the 10th U.S. Circuit Court of Appeals.

Depending on how the Denver-based appeals court rules, either McVeigh or the Justice Department probably will take the case to the nation's highest court.

McVeigh's lawyers contend they need more time to review whether his case is strengthened by thousands of pages of FBI documents belatedly released to defense lawyers after McVeigh's trial and conviction.

Attorney General John Ashcroft delayed McVeigh's execution once because of the document foul-up but has said he will fight any attempt to further postpone or "stay" the execution beyond Monday.

"The Supreme Court has to decide whether to grant a stay or lift a stay, depending on the status of things in the 10th Circuit," said Elizabeth Semel, head of the American Bar Association's Death Penalty Representation Project.

At that point, the justices would not be looking at the nitty-gritty issues involved in McVeigh's arguments.

"It's not the question of guilt or innocence, it's the question of whether the correct procedures were followed (by lower courts), and if there was a mistake, was it a mistake of constitutional magnitude," said Jay Feinman, law professor at Rutgers University and author of "Law 101."

No matter which side were to appeal to the Supreme Court, the high-profile case would follow procedures that have become routine as the court considers last-minute requests for delays in dozens of state death sentences every year.

Defense lawyers who lose death penalty appeals in lower state courts almost always turn to the Supreme Court as a last resort. Lawyers file special emergency paperwork asking that the justices grant a delay in the execution and usually also request that the court agree to hear the merits of the condemned prisoner's appeal.

The nine justices are responsible for separate geographical areas of the country and get the first look at appeals from their respective areas. In McVeigh's case, Justice Stephen Breyer would get the appeal first.

Although Breyer technically could decide whether to grant a delay, the individual justices generally refer death penalty appeals to the full court.

At that point, the court weighs the appeal using legal standards developed in previous cases. It takes five votes to grant a stay.

The court handles the entire matter via legal filings, without holding hearings.

The court's written ruling, usually only one or two sentences long, does not typically reveal how individual justices vote. However, justices on the losing side occasionally put their votes on record.

If the court denies an inmate's last request for a stay, the execution proceeds. The court has the last word unless a state governor intervenes to grant clemency.

In McVeigh's federal case, only the president could grant clemency.

McVeigh, convicted in the 1995 federal building bombing that killed 168 people, would be the first federal prisoner executed since 1963.

The Supreme Court is also considering another appeal related to the bombing. The court this week asked the Justice Department to respond to McVeigh conspirator Terry Nichols' latest request for a new trial.

The justices had turned Nichols down earlier this spring, but his lawyers asked the court to reconsider in light of the revelation that the FBI failed to turn over some 4,000 documents.