By Todd Spangler

Associated Press

PITTSBURGH – A federal judge has ordered that Timothy McVeigh’s execution be videotaped, granting a request by lawyers in an unrelated death penalty case trying to show that capital punishment is cruel and unusal.

The ruling is under seal, U.S. Court of Appeals Judge Joseph Weis Jr. said today, confirming a report of the decision by NBC News.

Defense lawyers in that case asked that McVeigh’s execution be videotaped because they hoped to use it to argue that the way federal executions are carried out violates the 8th Amendment’s protection against cruel and unusal punishment.

McVeigh’s execution by injection, scheduled for Monday in Terre Haute, Ind., would be the first federal application of the death penalty since 1963.

McVeigh lawyer Chris Tritico said that a defense attorney in the Pennsylvania case contacted him to ask if McVeigh would mind the videotaping.

“I discussed it with my client,” Tritico said on CNN.. “He said he would not oppose the videotaping or the use of it in that case.”

Justice Department officials are appealing the ruling, citing a federal regulation that prohibits any photographic, visual or audio recording of executions.

The ruling by Judge Maurice B. Cohill Jr. in Pittsburgh involves a federal death penalty case against Joseph Minerd, Weis said. It wasn’t clear when Cohill made the ruling. Minerd 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 defendants in the Oklahoma City bombing.

According to Weis, 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.

The government is appealing the Pennsylvania decision, said Mindy Tucker, a Justice Department spokeswoman in Washington. Weis said the appeal would be referred to the 3rd U.S. Circuit Court of Appeals in Philadelphia, and he expected a three-judge panel would hear it today or Saturday.

Attorney General John Ashcroft said today his department will vigorously defend the prohibition on taping.

Ashcroft said the Justice Department “respects the rule and regulation of the federal Bureau of Prisons which prohibits the taping or recordings” of executions.

“The Justice Department will do everything within its power to sustain that rule,” he said in an interview on CNN. “I think that a responsible approach to the completion of justice responsibility here is very consistent with the federal Bureau of Prisons’ prohibition.

He said the prohibition “is the right policy and we will do everything in our power to sustain that regulation.”

Former Attorney General Janet Reno gave approval to seek the death penalty against Minerd last October.

An attorney for Minerd, Richard Kammen, did not return a phone message. The U.S. attorney’s office in the western district of Pennsylvania declined comment.

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