In Defense of Justice

I don't often find myself defending the Justice Department. For years in the courtroom I battled federal prosecutors and FBI agents, often accusing them of deliberately withholding evidence. In response, the government always claimed that the withheld documents were irrelevant and not "material" to my case.

This familiar mantra surfaced last week in the Justice Department's mea culpa letter to the McVeigh defense lawyers. Justice floated it in hopes that the media would pick it up and repeat it. And we did. But the government's argument is laughable. How would a prosecutor know what's important to a defendant's case? Prosecutors use the excuse to minimize their misconduct under the theory "no harm, no foul," but the courts should punish those who deliberately hold back important evidence. Yet judges too often look the other way.

All of which may help explain why I'm a bit nonplussed to find myself defending and praising the Justice Department. My brothers and sisters in the defense bar must think I am smoking something, but I am proud of federal law enforcement for coming clean about the lost documents.

Of course, the FBI should have turned them over in the first place (which seems to have been a slipup rather than a malevolent plot). And one could argue that the bureau was just doing its job when it finally admitted the mistake. But the FBI didn't get caught in the act; it came forward and confessed its error. It behaved honorably. Would the problem ever have surfaced had the Justice Department decided not to do the right thing? Who would have caught them? And if some enterprising journalist did break the story years from now, who would care? How much sympathy is there for someone who confessed to killing 168 people?

I was impressed by how quickly John Ashcroft jumped in and postponed the execution. He said, "Our system of justice requires basic fairness, evenhandedness and dispassionate evaluation of the evidence and the facts." Some may say the Justice Department paid a high price for its integrity: the FBI is again embarrassed, and the execution is postponed and, in my judgment, likely to be tied up for months and maybe even years. But none of that really matters. What matters is that our Justice Department proved its commitment to justice, no matter what the price.

Legal analyst Greta Van Susteren is the host of CNN's The Point.