Botching The Big Case

(5 of 6)

In any capital case, the stakes are by definition as high as they can be. With this latest misstep, the doubts about the process are threatening to help reshape the whole death-penalty debate. The prospect of McVeigh's execution had already made every argument get up and dance. Just as capital punishment was losing support with each new innocent man freed by DNA evidence, along came the perfect villain: so clearly guilty, unrepentant and pitiless that at least 75% of Americans agreed with his sentence, including 22% who say they oppose the death penalty but would make an exception for him. The Pope had asked for mercy; most Americans didn't think McVeigh deserved any.

But last week the debate, with its sudden plot twist, turned inside out once again. Death-penalty opponents seized on the FBI's embarrassing revelation to argue that when the stakes are this high, justice must be perfect. The moment Ashcroft announced the delay, questions flew. What if these documents had turned up six days after his execution, rather than six days before? McVeigh admitted his guilt, but death row is full of inmates who have not. How much doubt can the criminal justice system withstand? "The events of the past three days demonstrate that even in Mr. McVeigh's case, the government is not capable of carrying out the death penalty in a fair and just manner," said McVeigh lawyer Robert Nigh.

McVeigh's execution had all along promised to rattle our thoughts about justice, simply by virtue of being the most closely watched, widely discussed, endlessly publicized execution in a generation. We are already involved: we "know" McVeigh. However mysterious his motives, he is still far more familiar than anyone America has executed in decades. We know that we were all his targets--that's how terrorism is supposed to work. In return, we were going to hear all about his last meal, his last words, at last.

That sense of closeness was affecting even the bombing survivors. Randy Ledger was a maintenance man on the first floor of the Murrah building. His views on the death penalty have been challenged by this process. "Six months ago, I would have said it was fine. But the more personal this becomes, the closer it becomes, the more moderate I become. It's very easy to say, 'Just put to death another murderer' when you have no personal feeling involved; but the closer this gets, the more introspective I get--morally and spiritually--and it's very difficult."

Even if the FBI's conduct proves to have been more careless than venal, the charges call attention to more serious problems that have led to 95 exonerations in capital cases since 1973, problems such as corrupt prosecutors, lying jailhouse snitches, incompetent forensic experts, junk science and racial prejudice. Will people be prepared to support the next execution if they have even the faintest doubts about the last?