SALON Daily Clicks: Newsreal

A federal prosecutor analyzes the McVeigh guilty verdict and speculates on his punishment.



Ros Davidson
June 3, 1997 11:00PM (UTC)

the doubts and fears of families of the victims of the Oklahoma City bombing were laid to rest Monday afternoon when a federal jury of seven men and five women found Timothy McVeigh guilty on all counts for the April 19, 1995, attack on the Alfred P. Murrah Federal Building that killed 168 people.

Some family members may testify in the penalty phase of the trial, which is scheduled to begin Wednesday. McVeigh, 29, was found guilty on eight counts of capital murder, which are death penalty crimes. He could be the first American to be executed under federal law since 1963.

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What led the jury to its decision, after four days of deliberation, and is McVeigh likely to receive the ultimate punishment? Just after the verdicts were announced, Salon spoke with William Pizzi, a former federal prosecutor and professor of law at the University of Colorado at Boulder. Pizzi has taught criminal law for more than 20 years and is an expert on victims' rights.

Some victims' relatives were getting worried that the jury was taking so long to reach its verdict. Did you share those doubts as the deliberations went through the weekend?

At one point I wondered whether there might be a hung jury. But not an acquittal, because the case was so strong.

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Which all courtroom observers seemed to agree on. Yet it took the jury four days.

They may have taken a preliminary vote at the beginning -- we don't know -- but then maybe they agreed to go over everything or at least go through the exhibits, or some of them. There were 750 exhibits and 137 witnesses. And they couldn't take notes during the trial.

Would the fact that it was a death penalty case have made them that much more careful?

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Yes. They would want to make sure they did a good job, and if they were leaning toward conviction there's almost more reason to go slow. They knew they would have to deliberate again if they convicted him, so it's not as if they were home and done just by reaching a verdict.

Was there anything during the trial that made you doubt McVeigh's guilt?

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No. The prosecution put on an overwhelming case. And the defense didn't put on a very strong defense, maybe because they didn't have it. The prosecution had so much: They had friends of McVeigh, his sister, his fingerprints on the receipt for some of the explosives, they had the book that shows how to make the bomb, they had phone calls for him seeking out detonator cord and racing fuel and even rocket fuel. When you put all the evidence together, it was impossible to imagine an acquittal.

Now we're on to the penalty phase. What do you think we'll see?

It's somewhat hard to say, because there have been so few federal death penalty prosecutions. It will be a very difficult and emotional proceeding. A lot of the families of the victims will want to talk -- and they are allowed to. I don't know if Judge (Richard) Matsch will impose any limits on them. It could take a couple of weeks. Maybe less, 10 days. That's just a guess.

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There have been reports of as many as 90 people testifying for the prosecution in the penalty phase.

Even if there were just 50 testifying, it will take a while. These people have to be listened to. But again, it could be difficult. In some homicide cases, I've seen a victim almost get out of control with hatred of the defendant. I don't know what kind of limits Judge Matsch will put on them or whether he'll put a time limit or what. On the defense side, I've heard there'll be McVeigh's father, his sister, I suppose McVeigh himself. I expect he'd testify and explain what he was doing.

Do you think McVeigh will be sentenced to death?

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It's so hard to predict. There are many possible "aggravating" factors in the death penalty statute. Factors such as the heinous, cruel or depraved manner of committing the offense. The vulnerability of the victims. Substantial planning and premeditation. Grave risk of death to additional persons. Multiple killings or attempted killings. The jury would have to return a specific finding of at least one of these aggravating factors. And anything can be a mitigating factor.

What do you think the prosecution will emphasize?

The amount of planning. Months and months of planning. The number of the deaths, the enormity of the crime, the indiscriminate nature, almost an intent to take many lives, the timing of it -- during the day when the building was most in use. Just the hard-heartedness of this crime. It's almost like we can understand a crime of passion -- you kill your lover or something like that. Everyone's been mad, at one time or another. At least for us Italians, we lose our temper. Or even jealousy. We can understand that. But this crime, it's going to be hard to get any emotional sympathy from anyone. The magnitude. It's just so cold-blooded. Still, the jury also has the discretion to come back with a life sentence.

What are the chances of that?

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There's a couple of factors you ought to be aware of. Colorado juries have not been in a hurry to return death penalties. It's very hard to get a death penalty in this state, although this is a federal jury, not a state jury. Maybe that says something about the character of people in the state. We're not Texas or some of these other states where it seems easier to get a death penalty. Secondly, there may be some people in the jury who will just have a tough time returning a death sentence if they think about it long and hard. A lot may depend on what the defense puts on. What McVeigh says could possibly explain why he did what he did and why he killed young kids and so many people. But I think this looks like a good case for a death penalty, you have to say!

Will the defense appeal the guilty verdict?

Yes, there definitely will be an appeal. There'll probably also be a motion for a new trial. It's just routine.

On what grounds?

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In this case, it will likely be on the pre-trial publicity, the confession that came out prior to trial, the failure to move the trial to some other place like Alaska or wherever. But the centerpiece of the appeal will probably be the judge's refusal to allow more of the government report on the failures of the FBI lab to be introduced. There will also be an appeal about the ATF informer who was going to testify she overheard someone, some militia guy, talk about the crime, who was not allowed to testify.

Could the verdict be overturned -- or a new trial granted -- on these grounds?

Judge Matsch has a very fine reputation and I think he's thought of very highly by the appellate court -- the United States Court of Appeals for the 10th Circuit. And given the enormity of the case and the care that went into it, I would be very surprised if the conviction were reversed.


Ros Davidson

Ros Davidson is a frequent contributor to Salon.

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