- The Washington Times - Friday, May 11, 2001

WASHINGTON — John Ashcroft had no choice but to postpone Timothy McVeigh's execution. Only six days before McVeigh's originally scheduled trip across the Lethe, the FBI announced the discovery of 3,135 pages of documents relevant to the case — pages it failed to share with McVeigh's defense team during the professed mass murderer's trial.

The bureau argues the material — raw files buried in a creaky old computer system — does nothing to exonerate McVeigh: It includes interviews and sketches made immediately after the bombing of the Alfred Murrah Federal Building in Oklahoma City on April 19, 1995.

As any crime reporter will tell you, such accounts are notoriously unreliable, prone to including gossip and hysterical speculation. The first theories about the Murrah blast posited that Islamic terrorists had detonated the bomb; a “John Doe No. 2” was at large; and other assorted characters — unnamed and unknown — participated in the massacre.

Even so, it doesn't matter that the documents may contain nothing but fevered gossip. Our legal system requires juries to determine that defendants in criminal cases are guilty “beyond a reasonable doubt.” This high standard sometimes lets the guilty walk, but it's designed to ensure that the innocent always go free.

In this instance, attorneys must confront a series of “what-ifs.” What if the documents provide scanty evidence that the John Does might exist after all? What if they cast doubt upon McVeigh's boasts? What if they hint that FBI agents doctored evidence? What if they include nothing but doodles?

Each set of suppositions opens corresponding possibilities. Consider a few. If McVeigh's attorneys conclude the interviews corroborate earlier talk of conspiracies, they might ask to re-interview all the witnesses involved. They also may seek a rehearing on McVeigh's verdict, saying that although he is guilty, he was not alone — and therefore deserves another chance to make a more nuanced plea to live.

If the paperwork is even more provocative, they could request a retrial. And if they conclude the newly discovered files might persuade an impartial jury to hand down a not-guilty verdict, they could ask a judge to declare a mistrial. Under federal rules governing double jeopardy, such a motion could set McVeigh free. In that final, highly remote, possibility, the Justice Department would have no option but to prosecute McVeigh under civil-rights statutes.

In any event, a growing band of legal experts now believes the mere wrangling over these matters could extend McVeigh's life by a year or more.

If one steps back and takes a larger view of the ground, things become even more convoluted, for the “misplaced documents” caper places the federal system of justice on the brink of a no-win situation.

First comes the idea of “perfect evidence.” O.J. was acquitted because prosecutors persuaded jurors that a one-in-a-billion chance of innocence was good enough to exonerate. The McVeigh case could create an expectation that federal officials have a similar obligation to present seamless cases to juries. No such thing is possible, of course — and the perfection standard could swing the presumption of innocence to the point of logical absurdity, so juries would find almost nobody guilty of serious crimes — especially defendants with high-powered legal counsel.

Politics further clouds the picture. Timothy McVeigh was slated for the Big Sleep not just for legal reasons. Bill Clinton delayed the federal execution of convicted murderer Juan Raul Garza so McVeigh, not Garza, would become the first man executed under federal auspices since 1963. (Ironically, Garza still may end up first in that grim line.)

If the public senses an attempt to railroad the Oklahoma City bomber, McVeigh not only could claim a sick sort of vindication; the public also might begin to entertain dark notions about the behavior of officials in the Justice Department.

Finally comes the matter of the death penalty: The president rightly argued that prosecutors ought to expunge doubts about the guilt of people slated for capital punishment. But the last-minute FBI revelations fulfill the grimmest predictions of death-penalty foes, who have been warning for years that someone, some day, may be proven guilty — after execution.

The president and attorney general did the right thing. But now, they've got a big, gooey, sprawling mess on their hands. They have to rehabilitate the FBI. They must persuade the public that the government will never execute innocents. And they must devise some way to give the victims of Timothy McVeigh the thing they deserve most — enough peace of mind to begin rebuilding their shattered lives.

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