There is probably no punishment more painful to Timothy McVeigh than the great joke just played by the cosmos. In his fantasy life McVeigh has fancied himself a sort of stoic samurai, avenging himself on the FBI for Waco and then committing hara-kiri by halting appeals. In one letter McVeigh referred to his impending execution as a version of "suicide by cop"; he has planned as his last words William Henley's war horse "Invictus": "I am the master of my fate/I am the captain of my soul." It's taken another spectacular FBI blunder to puncture McVeigh's grand delusion. Now Attorney General Ashcroft promises that McVeigh will be executed in Terre Haute on June 11 come hell or high water, but don't bet on it. McVeigh's game is to control his story by any means possible, and he may still play the only Invictus card left in his deck by initiating the appeals he previously rejected.
In the weeks leading up to the May 16 execution date, pundits predicted that McVeigh's execution would restore popular confidence in capital punishment. Instead, we have gotten a national teach-in on one of the defining evils of capital trials: the fallibility and corruption of law enforcement. If the FBI can "misplace" a cache of documents in the most notorious death-penalty case since the Rosenbergs, is it any wonder that nearly 100 factually innocent people have ended up on death row in recent years?
While McVeigh's case has in many ways been historically unique, in this respect it is typical. Back-drawer evidence is part of the everyday landscape of capital punishment in America. According to Columbia University professor James Liebman's remarkable study "A Broken System" (available online at justice.policy.net/jpreport), vital suppressed evidence has led to dismissal of one in five capital cases since 1973. (More than half of capital cases, Liebman found, are dismissed or retried for "grave constitutional error.") When it comes to capital punishment, the last-minute "oops" is the norm, not the exception. That so many executions go ahead anyway is only because of the current Supreme Court's cavalier attitude toward evidence discovered after a death sentence is pronounced. Justice Rehnquist complains of the "enormous burden that having to retry cases based on stale evidence" would demand.
Why did President Bush and Attorney General Ashcroft delay McVeigh's execution? To "protect the integrity of our system of justice," in Ashcroft's words, which he defined as "a more important duty than any single case." In other words, official malfeasance, undisclosed evidence and public uncertainty all demanded a timeout. Fair enough.
In reality, though, in capital cases "the integrity of the system of justice" is already nonexistent. Just since January, judges in Louisiana, Texas, New York and Massachusetts have ordered the freeing of two innocent death-row inmates and four innocent lifers--their stories full of coerced confessions, doctored documents and suppressed evidence. Consider Ronnie Burrell, released from Louisiana's Angola State Penitentiary in January, who came within two weeks of execution in 1996 for a murder he didn't commit. He had been arrested by a small-town sheriff trying to distract attention from his own corruption and was convicted on the purchased testimony of a career con man. All this came out only because his appeal was taken up by a Minnesota corporate lawyer in search of pro bono work who had a family connection to Louisiana.
Unlike Burrell, McVeigh's factual guilt is not in doubt (although the bomber's degree of culpability and mental state could yet form the basis for appeals of his death sentence). If the FBI's suppression of documents in his case, intentional or not, justifies a timeout, what about the rampant errors in dozens of frame-ups like Burrell's? Doesn't the systemic accumulated record of lost evidence, law-enforcement misconduct and outright factual innocence demand a timeout on all executions? In the final irony of the McVeigh case, which so often has managed to pull the system inside out, George W. Bush and John Ashcroft have now offered one of the best arguments yet for a national death-penalty moratorium.