"If the government can't get it right in this case, how can we rely on it to get it right in any case?" Experts react to the FBI blunder.

Published May 12, 2001 3:12PM (EDT)

In a dramatic last-minute turnaround, the Justice Department announced Friday it would postpone the execution of Timothy McVeigh. After confirming the existence of approximately 3,100 pages of previously undisclosed FBI evidence, Attorney General John Ashcroft announced that the department would give McVeigh's defense team time to review the material and take whatever action it deemed appropriate. Ashcroft said the Justice Department does not believe the new evidence will raise any doubt about McVeigh's guilt.

The scheduled execution of McVeigh, who was convicted of killing 168 in the 1995 Oklahoma City bombing, has now been postponed to June 11, when he will be executed by lethal injection at the federal prison in Terre Haute, Ind. But McVeigh's lawyer, Rob Nigh, said that his client was frustrated by the events and might reconsider his earlier decision not to challenge the execution order. Meanwhile, families of those killed in the bombing expressed anguish at the delay.

At a press conference Friday, President George W. Bush told reporters that the Justice Department's decision to issue a stay is proof that the criminal justice system is working properly. "Today is an example of the system being fair," Bush said. "This is a country that will bend over backwards to make sure that his constitutional rights are guaranteed as opposed to rushing his fate." But opponents of the death penalty believe the case is a gross example of how human error can taint a capital prosecution -- even one as high-profile as McVeigh's.

Beyond the death penalty debate, the sudden revelation of a mountain of evidence that was not made available to defense attorneys before the trial -- including photos and tapes collected from some 45 FBI field offices -- raises serious questions about the management of an already embattled federal agency. Security lapses, the bombshell Robert Hanssen spy case and the planned departure of chief G-man Louis Freeh have rocked the FBI in recent months. Reporters at Bush's press conference asked whether Freeh, who announced his resignation last week, knew about the documents. Bush said Freeh did not discuss it when they met, and that he had only learned of the documents this week. For now, these questions linger, but Ashcroft has pledged to conduct "a careful study" into what went wrong.

Salon gathered reactions from criminal justice experts about the latest developments.

Rob Warden is director of the Center on Wrongful Convictions at the Northwestern University School of Law.

If the government can't get it right in this case, how can we rely on the government to get it right in any case? Regardless of whether this new evidence is relevant to the issue of guilt or innocence in the Timothy McVeigh case, I think it shows clearly that there are problems in the criminal justice system. We cannot rely on this system, particularly when it comes to taking the lives of our citizens. We can simply never rely on the fact that all of the evidence has been brought forward. I think that's the bottom line.

The statements of the attorney general and the president today are incredibly disingenuous. They suggest that we'll do everything, we'll go to the greatest lengths to make sure that we don't execute innocent people. But, in fact, George W. Bush has signed off on a number of executions in which the evidence was incredibly dubious.

Bush allowed the execution in June 2000 of Gary Graham to go forward, based on a single eyewitness identification when there were other eyewitnesses who the jury never heard, who were in a better position to see the culprit and who said unequivocally that it was not Graham. In the previous federal administration, we had a number of cases in which foreign nationals have been executed when their rights under the Vienna Convention had been violated. We've had capital cases in which people have been executed and the Justice Department, over which Ashcroft now presides, has taken the opposite position. In fact, we have gone to great lengths to execute people regardless of the evidence that they may have been innocent.

They stopped this execution simply because this is a really high-profile case, when in fact every judgment of our justice system is not reliable. Whatever reforms we need to fix this may be beside the point in the current debate [over McVeigh], but we certainly should never kill our citizens based on the evidence produced by this unreliable system.

Elisabeth Semel is director of the American Bar Association Death Penalty Representation Project.

The chorus with regard to this case in the press has been "this case is unique, there is no case like this." And I think this shows how much this case is like the others handled by the death penalty system. That system is human, fallible, full of mistakes and, sadly, mistakes that are found in the final hours.

The government did not have a right to withhold those documents, and to say that they were irrelevant is a presumptuous statement. The law requires that the government turn over to the defense any information which may either show that the defendant is not guilty of the crime or guilty of a lesser crime than what he has been charged with; may show that his role in the events is less than what the prosecutor has charged; or may mitigate the sentence. It's up to a court to make a decision whether evidence meets these standards. The government is not the sole decision-maker about whether it does or doesn't turn over information.

This revelation is one in a sadly long series of FBI incompetence. Incompetence, corruption, carelessness -- no matter what adjective you apply, the result has been to undermine our confidence in this institution. Even if these documents don't produce new evidence, given what the FBI has done here and in the past, it is perfectly reasonable to be suspicious about what else might be out there.

It's all terribly, terribly sad. This country has been worked up into an incredible frenzy over this execution, and the idea that the execution of Timothy McVeigh will be [the] ultimate manifestation of justice. This brings up just how wrongheaded that idea is.

Frederic Whitehurst spent over a decade with the FBI, but was dismissed from his post as a lab chemist after blowing the whistle on deficiencies and mistakes made by the FBI crime lab.

There is just no way in hell the FBI did not know those documents were on board. The FBI's record keeping is like nothing I have seen before. They know everything they've got; they know where every piece of paper is. Nobody just went in and found a whole box of papers. This isn't the end of this kind of thing at all.

Athan G. Theoharis is editor of "The FBI: A Comprehensive Reference Guide" and a professor of history at Marquette University.

I can't understand how this happened, despite what they've said about antiquated processes of storing information. The FBI has a pretty efficient records-retrieval system; it was efficient even when it was a manual system under J. Edgar Hoover.

Now they're saying it's a computer glitch. It would have been different if they lost one or two documents, but to lose 3,000 pages and to turn them over in this sort of "by the way" manner raises very serious questions about their competence.

It's just sort of inexplicable that these records should not have surfaced until now. That they first came across them in December and the story breaks in May is sort of mind-boggling. If, as the FBI says, the documents are not crucial in terms of the final verdict, then it makes it all the more perplexing that they didn't turn them over to the defense.

The FBI claims that there's nothing that proves McVeigh innocent, but defense attorneys would argue that what all they needed to do was produce sufficient doubt, reasonable doubt, in the minds of the jury. Regardless, the whole issue of which documents are relevant is not something determined by the prosecution.

This incident is one in a series that have severely damaged the bureau's credibility, like the FBI lab story, the Robert Hanssen [spy story] and the Olympic Park bombing. You can't expect that the bureau will always be perfect. They can't always get their man, but there has to be more accountability. But there's certainly a culture within the bureau that has to be addressed. There's a sense that the bureau is able to monitor itself, and that needs to change.

David Kopel is coauthor of "No More Wacos: What's Wrong with Federal Law Enforcement, and How to Fix It" and research director of Independence Institute.

We can't know whether there was a deliberate coverup or just incompetence, and I think both are possible, given recent events. I think this reinforces the concerns that people on the right and on the left have had about the FBI for many years. Skepticism about FBI misdeeds is a fairly bipartisan idea.

This could have a very negative effect on other FBI cases, and on prosecutions as a whole. The thinking among juries could be this: "If you can't trust the FBI, then who can you trust?" The fact that juries are less credulous of the FBI and law enforcement officers in general is part of the reason for rising acquittal rates in some jurisdictions.

Though the FBI under Clinton has been particularly bad, with the deaths at Waco, the complaints about the lab and other problems, the preceding administration wasn't very good itself. The Ruby Ridge incident actually happened under Bush I. The agency actually reached its height of competence under Reagan.

When you look at how federal law enforcement -- not just the FBI -- is so far removed from practical democratic control, you can see how these incidents happen. There's just no oversight of the FBI. Compare that to local law enforcement: Many large cities have police oversight commissions, and there are plenty of cities where, if the police were getting out of hand, a regular citizen could go in and talk to the mayor about it. A regular citizen just can't do that with the FBI.

Congress has not done its job. There's nothing more important that Congress should do than executive oversight, but they've gotten so rolled by the FBI. Their response and the president's to terrorist acts is to have a major expansion of FBI powers like surveillance of political groups and warrantless wiretaps.

The public reaction plays a role in that. McVeigh thought he was going to address Waco in a way that the government refused to do and start a second American Revolution. But his actions didn't avenge the dead at Waco, and even people who agreed that the government shouldn't be trusted found McVeigh and his actions despicable. And now the government has given people a new reason to distrust it all over again.

By Fiona Morgan

Fiona Morgan is an associate editor for Salon News.

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By Alicia Montgomery

Alicia Montgomery is an associate editor in Salon's Washington bureau.

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