from wrong test. i don't think he has the ability in this situation. and he's going to use it and mitigating factors saying look. he's got mental instability. should he be found guilty? >> shannon: do you think he will be facing the death penalty? do you think that is where prosecutors will go? >> if you look from a legal standpoint there is a federal area for trial and a state area for trial. and now, in other words he can be like tim think mcveigh charged in federal and state system. both contexts he's eligible to be charged with death penalty. i do think there is a strong probability and the defense attorneys are going to try to avoid the death penalty. we're going to use mitigating. you have aggravating and mitigating circumstances that you bring in and one of the things aggravating is that makes death penalty eligible

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