USA
TODAY - 16, 2001
McVeigh
Errors Raise Doubts About Other Capital Cases Our view: FBI
blunders spotlight how often death-penalty cases are flawed.
EDITORIAL
Today, when most Americans expected to be contemplating the death
of Timothy McVeigh, they will instead be forced to contemplate his
continued existence. It will also be useful if they cast a
similarly jaundiced eye on the process that produced today's
colossal anti-climax. McVeigh's execution was delayed because the
FBI failed to provide more than 3,000 documents to his defense
attorneys before trial. The evidence may be irrelevant, but it may
also contain information about whether McVeigh was part of a
broader conspiracy, as his defense attorney believes. This is
troubling twice over. First, it is possible, although not probable,
that McVeigh's lawyers will use the mistake to win a new trial.
This would drag out the prosecution of a confessed mass murderer
by several more years and millions more dollars. Second, and of
deeper significance, the error illustrates that the capital system
is far more prone to error than its defenders admit. If the
federal government can't prosecute a slam-dunk case without making
potentially prejudicial mistakes, imagine what's happening in the
states, where capital crimes are tried by less-skilled lawyers
with fewer resources. What's happening is that errors occur at a
rate few people realize. Between 270 and 300 people are condemned
to die every year in state courts, but many aren't high-quality
convictions. From 1973 to 1995, almost 70% were overturned by
appeals courts due to serious flaws, according to a review of
4,600 capital convictions by Columbia University Law School
Professor James Liebman. More than 80% of those reversed by state
courts resulted in a sentence less than death in retrial; 7% of
the suspects were totally exonerated. The leading cause for
reversal in these cases was incompetent counsel. No such risk
faced McVeigh, for whom taxpayers supplied a raft of legal talent.
But the second-leading cause was the failure by the prosecuting
team to disclose evidence to the defense team. That's exactly what
happened in the McVeigh case. And it happened even though the case
features top-ranked investigators, prosecutors and defense
attorneys at a cost, by some estimates, that was upward of $80
million. Concern about errors is causing many states to re-examine
the death penalty. Executions are on pace to fall for the third
year in a row. Traditionally active states such as California are
seeing fewer capital convictions. And after a close legislative
debate, Texas, the nation's leading executioner, is considering a
referendum on whether to enact a moratorium. Wyoming recently
adopted a sentence of life without parole as an option to death.
That's only prudent. If McVeigh can't be cleanly convicted and
condemned with all of the resources of the federal government, it's
certain that the states are also making errors and that not all of
them are being discovered. A sentence of life without parole
obviates the fear of killing an innocent person that can accompany
the death penalty. It's hard to imagine the feelings of McVeigh's
victims today as they anticipate another three weeks (and maybe
many more) before his sentence is carried out. It's not hard,
however, to endorse the delay itself. The death penalty requires
infallibility, which relies on perfect jurisprudence. McVeigh may
be as guilty as sin, but rushing an execution isn't the path to
justice. It is the path to greater error.
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