The Justice Department late Saturday opposed a Supreme Court appeal on videotaping Timothy McVeigh's execution, arguing it would sensationalize what ought to be a solemn event.
A man who faces a possible death sentence filed the appeal with the Supreme Court Saturday to allow videotaping of the Oklahoma City bomber's execution. A federal appeals court on Friday had overturned a federal judge's order for the taping.
But Acting Solicitor General Barbara Underwood urged the court to reject the last-minute taping request as misguided and contrary to federal prison regulations.
"In light of the ubiquitous interest in the Oklahoma City bombing, the mere creation of a videotape of McVeigh's execution would present the government with unique challenges," Underwood wrote.
U.S. District Judge Maurice B. Cohill on Thursday had granted a request to videotape the Oklahoma City bomber's death by injection, which is set for Monday morning.
The request came from lawyers in the death-penalty case of Joseph Minerd, who are trying to show that execution violates the Eighth Amendment protection from cruel and unusual punishment.
The Justice Department opposed the move in an eight-page filing delivered to the high court Saturday night.
It argued that a stay of an appeals court ruling that dismissed the case "is not necessary to prevent irreparable injury" to Minerd.
"It is well settled that that the lethal injection form of execution passes muster under the Eighth Amendment" to the Constitution, barring cruel and unusual punishment, the Justice filing said.
Even though the Justice Department delivered its filing to the court Saturday night and it was logged as received by security personnel, a court spokeswoman said it would not be processed by the clerk's office until Sunday morning.
There was no immediate indication when the Supreme Court would rule.
Cohill's ruling, which is under seal, was stayed on earlier Friday by Third U.S. Circuit Court of Appeals Judge Joseph Weis Jr. in Pittsburgh until the full three-judge panel in Philadelphia was able to consider it. The panel then overturned Cohill's ruling Friday evening.
Saturday's Supreme Court appeal first goes to Justice David H. Souter, who has jurisdiction over Pennsylvania.
He can either act alone on the appeal or refer the matter to the full court.
McVeigh lawyer Chris Tritico said a defense attorney in the Pennsylvania case contacted him to ask if the Oklahoma City bomber would mind the videotaping.
Tritico said he spoke about it with McVeigh, who told the lawyer he would not oppose the videotaping or its use in the unrelated case.
Cohill's ruling came in a case against Minerd, who was charged with rigging the pipe bomb that killed his ex-girlfriend and her daughter.
Minerd was charged under the federal arson and bombing law that was also used to prosecute McVeigh and co-conspirator Terry Nichols in the Oklahoma City bombing.
Weis said Cohill did not give any reasons in his order for why he approved the request. Weis said the tape would be used as a record that would potentially be shown to a jury, but it would not be distributed.
A federal regulation prohibits any photographic, visual or audio recording of executions.
Attorney General John Ashcroft had said Friday his department would vigorously defend the prohibition on taping.
Meanwhile, McVeigh sits on Death Row in the federal penitentiary in Terre Haute, Ind., as the hours count down to 7 a.m. CT Monday, when he will be put to death by lethal injection.
On Thursday, McVeigh ordered his lawyers not to make a final appeal to the U.S. Supreme Court for a stay of execution.
The mass murderer made his decision minutes after a three-judge panel of the 10th U.S. Circuit Court of Appeals rejected his request for a delay.
McVeigh said he has chosen his last words — "I am the master of my fate" — from an excerpt from William Ernest Henley's 19th-century poem "Invictus."
"He needed to know what was going to happen and get ready for it," Attorney Richard Burr told Fox News.
After the rejection, McVeigh could have petitioned for the full appeals court to consider his request, taken the case to the U.S. Supreme Court or asked President Bush for clemency.
He was convicted of murder, conspiracy and mass weapons charges in the April 19, 1995, bombing of the Alfred P. Murrah Federal Building. The blast killed 168 people and injured hundreds more.
Burr said he expects his client will make a public statement before his execution.
"He has his own sense of dignity and his own sense of honor," Burr said. "I’m sure he will say something that reflects why he did what he did."
McVeigh will most likely be moved by the end of Saturday from his cell at the prison to the execution building, a windowless, two-story brick structure surrounded by a fence topped with barbed wire. He would be the first federal prisoner executed since 1963.
In Oklahoma City, reaction was mixed among bombing victims' relatives and survivors.
"It's kind of like a burden lifted off my shoulders," said Paul Howell, whose daughter was killed in the bombing and who plans to witness the execution at the prison in Terre Haute. "I'm going to start preparing myself mentally for it now."
Jannie Coverdale, whose two grandsons were killed, wants McVeigh to remain alive because she does not believe the full truth has been told about the bombing. She plans to begin writing letters next week to Attorney General John Ashcroft, congressmen and McVeigh's attorneys to try to get copies of court documents.
But first she will go to her grandsons' graves.
"I have to tell the boys the bad man is dead and he can't hurt anyone anymore," she said.
McVeigh stopped his appeals this year and was preparing for his May 16 execution when the Justice Department announced in early May that nearly 4,500 pages and 11 CDs of FBI material had been found that should have been given to his attorneys before his 1997 trial. Ashcroft ordered the execution delayed to give the defense time to review the material.
A week ago, attorneys for McVeigh, a Gulf War veteran, began an aggressive campaign to delay the execution a second time, alleging in a court brief that the government committed a "fraud upon the court" by withholding documents.
On Wednesday, U.S. District Judge Richard Matsch denied McVeigh's request, saying it was clear he was "the instrument of death and destruction" in the bombing, the worst act of terrorism on U.S. soil.
His attorneys appealed Thursday, but the three-judge panel ruled that McVeigh "utterly failed to demonstrate substantial grounds" why he should not be put to death.
The attorneys acknowledged that nothing in the FBI documents proves McVeigh is innocent.
In the book, American Terrorist: Timothy McVeigh & the Oklahoma City Bombing, McVeigh admitted he carried out the attack to avenge government raids at the Branch Davidian compound at Waco, Texas, and the cabin of white separatist Randy Weaver at Ruby Ridge, Idaho.
Attorney Rob Nigh said Thursday that McVeigh allowed his appeals to be renewed because he wanted to try to prove the FBI committed fraud by withholding the material. He said he didn't try to talk McVeigh out of his decision because "his mind was resolved."
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