Last December, Juan Raul Garza was scheduled to become the first federal inmate put to death in the United States since 1963. That execution was postponed by President Clinton, however, because of concerns about ethnic bias in the application of the death penalty. Garza's reprieve moved a more attractive target to the front of the line: Oklahoma City bomber Timothy McVeigh. McVeigh was supposed to be the poster boy for resuming federal executions. None of the usual complaints about capital punishment applied to him. As George Will put it, "He's guilty. He's not remorseful about having killed 20 more people than were killed in the Gulf War. He's white. He's well-represented. He's sane. And it was premeditated."
But an unfunny thing happened on the way to the needle. A week before McVeigh's execution date, the government coughed up 3,000 pages of newly discovered FBI documents that should have been shown to his lawyers before his trial. Suddenly, the privileges that were supposed to make McVeigh a poster boy for capital punishment made him a poster boy for its perils. If the nation's top law enforcement agency, in the biggest investigation in U.S. history, can fail to turn over evidence to a white defendant with a $15 million legal team, critics argued, imagine what evidence local cops and prosecutors are failing to turn over to poor black and Latino defendants every day.
Reporters and editorial writers, who overwhelmingly oppose capital punishment, are helping anti-death-penalty groups connect the McVeigh case to other developments that cast doubt on the reliability of the criminal justice system. In Oklahoma, investigators are reviewing 23 cases in which defendants were sent to death row based in part on evidence submitted by a police chemist whose testimony in one case has since been discredited by DNA analysis. Eleven of those 23 defendants have already been executed. Altogether, 87 condemned prisoners have been freed in the last two decades. One of the protesters at McVeigh's execution site this week was an Alabama man whose murder conviction was overturned because missing evidence turned up seven years after his arrest. The buried documents in the McVeigh case play right into this story. "Delay Re-Energizes Death Penalty Debate," crows the St. Louis Post-Dispatch. "Death-Penalty Opponents Say Mix-Ups Are Nothing New," says the Orlando Sentinel. "McVeigh Errors Raise Doubts About Other Capital Cases," warns a USA Today editorial, echoing the New York Times and Washington Post.
Ordinarily, anti-death-penalty activists and their allies in the media can't win, since the public supports capital punishment by a 2-to-1 margin. Until last week, the debate over the McVeigh execution was even more lopsided: In a USA Today poll taken in late April, more than half of those who claimed to oppose capital punishment in principle nevertheless said McVeigh should be killed. But when the debate turns to the reliability of the criminal justice system and the possibility that innocent people might be executed, the death penalty is vulnerable to losing its majority support. Two-thirds of respondents in a recent Washington Post survey said that innocent people are sometimes put to death. In a Newsweek poll taken last Thursday and Friday, 39 percent of respondents said that reports of wrongful capital murder convictions based on errors in crime labs have had a "major effect" on their attitudes toward the death penalty. And while only 8 percent said the discovery of buried documents in the McVeigh case raised doubts about his guilt, 16 percent said it made them less supportive of capital punishment in general.
How have President George W. Bush, Attorney General John Ashcroft, and FBI Director Louis Freeh reacted to this threat? By changing the subject back to McVeigh's guilt. "Career attorneys at the Department of Justice are confident that these documents do not create any reasonable doubt about McVeigh's guilt, nor do they contradict his admission of guilt for the crime," Ashcroft declared last Friday. Bush made the same point in a press conference later that afternoon, and Freeh delivered similar assurances to a House committee yesterday. In McVeigh's case, the assurances are well-founded. The evidence against him, including multiple confessions, is overwhelming. And the newly disclosed documents, by all accounts, pertain not to his guilt but to fruitless leads involving others who might have helped him.
But what about the possibility that similar errors in other cases have concealed more crucial evidence from defendants who were less clearly guilty? To this, Bush, Ashcroft, and Freeh reply that the McVeigh case demonstrates the system's ability to correct itself. "Today proved why [the system] is healthy," Bush argued Friday. "When [we] found that documents hadn't been given to the defense attorney … we delayed until Mr. McVeigh's attorneys have a chance to look at the documents." In his testimony yesterday, Freeh insisted, "We did get it right. … FBI personnel discovered [the records] on their own initiative [and] came forward to stop the execution at the 11th hour. … The process worked by correcting a flaw."
Notice how Bush and Freeh shift the discussion from the error to the correction. It's true that in the McVeigh case the error was followed by a correction. But that sequence is hardly logically necessary. In fact, according to Freeh, the documents that came out six days before McVeigh's execution didn't turn up until the FBI issued its 16th directive ordering field offices to cough up everything related to the case. Why should the public believe that in other capital cases, when the system loses documents, it recovers them in time? Bush, Freeh, and Ashcroft don't answer that question. They simply confine the death penalty discussion to the McVeigh case—while confining the discussion of the McVeigh case, in turn, to what went right in the end.
Likewise, their observation that the documents don't exonerate McVeigh is a shell game. Freeh didn't know what was in the documents until a week before McVeigh's execution date. Ashcroft still didn't know what was in them when he asserted last Friday that they wouldn't clear McVeigh. "The trial attorneys and those attorneys that have handled the matter on appeal in the Justice Department have reviewed the documents, and that is the basis for my representation," he told reporters. Saying that the documents turned out not to be relevant is like saying that the chamber that was in firing position when you put the pistol to your head turned out to be empty.
When asked to consider the obvious implication—that the next chamber might turn out to be loaded—Bush and Freeh refuse to be pulled off-message. At his press conference Friday, Bush was asked about the possibility that some of the men sent to death row by the Oklahoma City police chemist might have been innocent. "Well, in this case …" Bush began, steering the conversation back to McVeigh. As for a reporter's observation that the lost documents "could have been discovered days after" McVeigh's execution rather than before it, Bush shrugged, "You bring up a hypothetical, but that's not the way it happened." Yesterday, when Rep. Patrick Kennedy, D-R.I., asked Freeh about the risk of executing an innocent person, Freeh replied, "There is no danger that an innocent Timothy McVeigh is going to be punished." In exasperation, Kennedy shot back, "I'm not asking about Timothy McVeigh. I'm talking about the process, sir." Freeh responded by discussing how well "the process" worked in what were supposed to be the last two weeks of McVeigh's life.
There's no proof that the United States has executed an innocent person. While it's possible that the lax handling of investigative records in the McVeigh case illustrates a systemic problem that has led to fatal injustice in other cases, that inference remains, for the time being, just a question. "Are we going to learn next week that there are yet more documents?" McVeigh's co-counsel, Nathan Chambers, asked Sunday. "Are we going to learn after an execution that there's more documents?" For that matter, added Phil Donahue, "We have 3,700 people on death row—3,700. How many of their boxes have been lost?" Those are good questions. It would be nice if the president and his law enforcement officials tried to answer them.