Victims' rights -- and wrongs

Why didn't we hear from the relatives of the dead who don't want Timothy McVeigh to die?

Published June 13, 1997 7:00PM (EDT)

from the beginning, the Timothy McVeigh trial has been a challenge to the press and legal commentators. On the one hand, the sheer horror and scale of the Oklahoma City bombing demand attention; on the other, the trial itself has offered little tension beyond grim, almost banal procedural momentum. The prosecution's evidence was solid, there were no spectacular claims of either investigator malfeasance or defendant insanity, and McVeigh's lawyers were reduced to pleading for his life with a sort of White Rage defense. The defendant himself offered no story at all; throughout the trial he sat silent and unresponsive, like a prisoner of war, which is probably how he still thinks of himself.

One story did come to occupy center stage: the victims' wrenching testimony and calls for retribution. In the New Yorker and on ABC, former prosecutor Jeffrey Toobin extolled the role of victims' rights advocates in the case; in the New York Times, Professor Lawrence Tribe of Harvard Law School attacked Judge Matsch for suggesting that some of the emotion might be "inflammatory." "Closure" for Oklahoma City's victims became the watchword of television news anchors.

Amid this wave of victim-consciousness, few seemed to notice that the whole process now playing out discriminated against survivors and relatives who might not favor the ultimate punishment for McVeigh. To put it more bluntly, any victim or relative who wanted to play a part in the sentencing phase of the trial first had to pass a death-penalty loyalty test.

Consider Bud Welch, whose daughter Jennifer died in the Alfred P. Murrah building while he stood across the street. "God only knows there's been enough bloodshed ... we don't need any more death," he told ABC News. Surely Welch, and other Oklahoma City victims who are opposed to execution, deserved the opportunity to seek "closure" by bearing witness in the legal record. But the jury never heard from Welch, because in Denver, as elsewhere in the federal court system, "victim impact" testimony belongs solely to the prosecution. And in Denver, the prosecution wanted an execution. They didn't want Welch's qualms. Since he didn't want to participate in the prosecution's execution plan, there was no place else in the legal process for Welch to be heard.

The McVeigh case is one of the first major sounding boards for surviving next-of-kin since 1991, when the Supreme Court allowed victim-impact testimony as a factor in sentencing. But you wouldn't know from the news reports and analyses that such testimony remains a deeply controversial proposition in legal circles. In a recent University of Chicago Law Review article, DePaul University law professor Susan Bandes, echoing numerous scholars, defense lawyers and civil libertarians, criticized victim-impact testimony for evoking "emotions inappropriate in the context of criminal sentencing." Judge Matsch himself had that concern when he rejected testimony from an 11-year-old boy whose mother was killed and declared he wanted no part of a victim-impact "lynching."

That surviving next-of-kin, especially in heinous cases like the Oklahoma City bombing, should have the right to address the jury may seem obvious. Yet it's a considerable departure for American criminal law, which has historically treated victims as little more than convenient sources of evidence. It was feminists who first challenged this notion in the 1970s, with their campaign to humanize female sexual-assault victims. In the 1980s, a broader range of victim-rights groups sought ways for "consumers" of the criminal justice system to participate more actively in the process. But it was only in 1991 that the Supreme Court permitted juries to consider such testimony when deciding murder sentences. More recently, Congress, under intense political pressure, wrote that right into federal law.

As the McVeigh trial demonstrates, not all victims are treated equally -- -- as SuZann Osler of Hallandale, Florida found out a few years ago. In 1986 her father was murdered by a young man named James Campbell, who also stabbed SuZann in the head and left her for dead. SuZann, who opposes capital punishment, wants her father's killer jailed for life. Yet although she has testified as a witness through two re-trials, Campbell is on death row and has never been permitted to ask a sentencing jury to spare his life.

If "closure" was really the issue, there are other, fairer ways to achieve it. In the 1995 trial of Long Island Railroad gunman Colin Ferguson, victims and next-of-kin spoke eloquently -- after Ferguson was sentenced, not before. Those who wanted Ferguson dead and those who did not, shared the same opportunity to look the killer in the eye, to bear witness to the cost of his violence. Some have argued that victims should be represented by their own lawyers during trials, since the interest of a victim and the interests of the state are not necessarily the same.

The harrowing stories of Oklahoma City's survivors demanded to be heard, whatever their views on Timothy McVeigh's fate. But what was on display in Denver was vengeance rights, not victim rights. It was unfair to the victims to box them into a narrow role as prosecutors' aides -- as unfair as it once was to ignore them completely.


For one son, remembering his father makes things worse.

BY TED RALL | when I was a kid, I always dreaded the week before the second Sunday in June.

The Hallmark store in my local shopping center was much larger than my sterile Ohio suburb deserved, but I still could never find a Father's Day card for the guy I only saw during court-ordered visits.

Nonetheless, my mom insisted that our shattered little family attempt to retain some vestige of normality, and that meant dropping a few dollars on a card for my dad.

Money had been impossibly linked to my father since before I could remember. Mom and I didn't have any. Dad had it, but wouldn't give it up.

I was 2 when my parents split. My dad moved downtown to a high-rise apartment with abstract art on the walls and a pool on the roof. My mom got a job teaching high school French. In a ritual familiar to half of Americans under age 35, the family court ordered my mom to turn me over to my dad on alternating Saturdays and Sundays, 1 to 7 p.m., plus two consecutive weeks in August. He stuck to that schedule with the pinpoint precision that he'd picked up at MIT, cutting his latest new car into my driveway without fail at the top of the hour. We'd spend the ensuing six hours at the Dayton Mall, watching action-adventure films, feeding quarters to pinball machines and shopping for his stereo equipment. He never held my hand or put his arm around my shoulder. "Don't ever wear your heart on your sleeve," he used to say.

The stuff of day-to-day parenting -- open house, recognition assemblies and Boy Scouts -- fell to my mom. She taught me how to swim, counseled me about bullies and helped me unravel the mystery of fractions. During weekdays, my dad vanished from my life. He never called. I saw little difference between my dad and James Garner in "The Rockford Files." Both came every weekend, and neither one felt very real.

My dad was working on the B-5 bomber when he left us. Only four prototypes were ever built, but it turned out to be the biggest triumph of his Air Force career. He invented the supersonic plane's movable nose, a feature later incorporated into the Concorde. He was a brilliant engineer.

I hated him a little more each alternating Saturday and Sunday as his new prosperity bought him more new furniture and art.

One morning, Dad broke the routine. He appeared with the principal at the door of my elementary school classroom. "You're going with your dad," the principal said, intimating some terrible family emergency. As we left, Dad broke into a rare grin. "How about box seats to the World Series?" he said, waving two tickets. It was a magical day. The Reds beat the Boston Red Sox. Dave Concepcion signed my ball. I forgot for a day that Dad was always late with the child support ("Thank God it's so tiny that it doesn't matter," my mom liked to joke.) Afterwards, I almost felt something resembling love for him.

A few months later, Dad remarried.

He bought a sprawling new split-level to house the five stepkids he'd acquired through Mrs. Rall II. My dad exposed me every alternating Saturday and Sunday to the lavish upper-middle class lifestyle to which I might have belonged if not for my parents' divorce. He and his new wife tried to keep up appearances by merging her children's photos with mine on the wall of the new house's family room, but the gesture was telling: My picture was on the bottom right-hand corner of the arrangement.

After the remarriage my mom and I spent our weekdays in court, trying to force dad to honor the divorce decree he'd signed in 1968. First he refused to pay for my braces. He knew he couldn't win in court, so he showed up at the orthodontist's office the day before the hearing, slammed fifteen $100 bills on the receptionist's desk and stormed out.

Although we never discussed money during visitations, I couldn't forget his latest rancid court maneuvers. I'd come home incensed at nothing in particular, unable to articulate my rage, my head throbbing for hours.

After I got my first job, I asked my boss to schedule me for work on weekend afternoons. I saw my father less and less, and felt guilty about not missing him. My mom and I fought the battles of my teen years, with others and against each other. But she was always there for me, providing the moral center that my father lacked.

Dad had promised to pay my tuition at the college of my choice. But as I was packing to leave for Columbia, he called my mom's lawyer to say he would only pay for state-school tuition. Four years later, I was repaying $850 a month in student loans.

I was still seething a decade later, when I fired off a nine-page hate letter to my now-retired dad. At his suggestion we met for a weekend summit at an Embassy Suites on the I-270 loop outside Columbus, Ohio. During the course of two day-long sessions, he admitted that he had never felt any parental emotional responses, ever -- a fact for which he blamed his own distant, Methodist parents. This explained part of my personality: Mostly I'm like my very emotional, very French mom, but like Spock in "Star Trek," I can turn off my feelings whenever I need to.

His take on his cheapness was: "I can't do anything about it. That's all in the past now."

"You could pay off my student loans," I replied, knowing that he would never attempt to make good on his previous neglect. I returned to New York to find a newsy letter from Dad in the letter box. He seriously believed that I had understood him, that we could begin a light-hearted father-son relationship without revisiting the past. I haven't spoken to him, nor have I thought about sending him a Father's Day card since.

I've reconsidered the holiday lately. Just because my dad wasn't a father doesn't mean I didn't have a father. This year, I'm calling my real dad on Father's Day. I'm calling my mom.

By Bruce Shapiro

Bruce Shapiro is national correspondent for Salon News.

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