In McVeigh's defense
© St. Petersburg Times, published May 16, 2001
The federal government should extend the delay of the execution of Oklahoma City bomber Timothy McVeigh until it can establish that the FBI has turned over all investigative records to McVeigh's lawyers. The surprise finding last week that the government failed to disclose 3,100 documents to the defense raised broader questions about federal law enforcement. If prosecutors can't get it right on a death penalty case as publicized as McVeigh's, what confidence should the public have when the government takes on obscure defendants?
As a practical matter, the impact this news will have on McVeigh's death sentence for the 1995 bombing is unclear. Defense attorneys are still reviewing the first batch of misplaced records compiled from FBI field offices. At least seven additional documents were found Monday at the FBI office in Baltimore. The material, which includes interview reports, photographs and tapes, amounts to a fraction of the millions of documents produced during the investigation. Prosecutors claim they didn't have access to the documents either. It has not been disclosed whether the records are copies or originals. The FBI blamed the mistake on poor instructions from archivists to bureau agents in the field.
Attorney General John Ashcroft ordered the Justice Department to investigate, though some federal officials have already said the withholding did not compromise McVeigh's defense. That remains to be seen. Neither the courts nor Congress should accept these early assurances from the agencies that botched the job in the first place. It is no comfort the bureau would offer sloppiness as a defense. Given the spate of earlier problems at the FBI, the bureau should have been especially careful handling the McVeigh case. Even the best explanation casts embarrassment on the supervisors who oversaw the bureau's biggest investigation of domestic terrorism.
His attorneys say McVeigh is deciding whether to use the lapse as grounds for an appeal. In December, before the error was disclosed, a federal judge granted McVeigh's request to end further appeals. He was scheduled to be executed Wednesday, but Ashcroft postponed the date to June 11 so McVeigh's attorneys could review the documents. A retrial might not change anything; McVeigh, after all, has acknowledged his role in the bombing and, in a letter last week to the Houston Chronicle, flatly dismissed the theory he was aided by a "John Doe No. 2."
But even in the absence of substantial new evidence, this episode gives McVeigh and his soul mates on the militia fringe ammunition to spout more anti-government paranoia. Executing McVeigh under suspect circumstances would make him even more of a martyr in the eyes of his sympathizers. Imagine if the government had kept its error secret an additional week.
Ashcroft has said he won't extend the June execution date, but the government -- and the courts, if necessary -- should wait for the FBI probe to run its course. This delay was, after all, the bureau's fault. McVeigh's cold disregard for the 168 killed in Oklahoma City is not a rationale to violate or minimize his constitutional rights. The person who succeeds Louis Freeh as FBI director needs to put in place a staff and a process that can keep that from happening.
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