Missing McVeigh Documents Are Sure to Reignite Death Penalty Debate

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DAVID LONGSTREATH/AP

Timothy McVeigh is surrounded by law enforcement officials after his arrest

Timothy McVeigh will not die next Wednesday.

After months of anticipation, McVeigh’s execution has been delayed so that his defense team can examine an estimated 3,100 pages of documents discovered this week during an FBI archiving exercise. The documents were supposed to have been provided to the defense under a pre-trial agreement; Attorney General John Ashcroft has given McVeigh’s lawyers until June 11 to examine the papers.

Over the course of the next few weeks, attorneys and legal ethicists will engage in arguments over the intricacies of McVeigh’s case. The bigger debate likely to emerge, however, is over the death penalty.

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Friday afternoon, TIME.com spoke with four death penalty experts. We asked them how the prosecution’s blunder might affect the public's perception of the ultimate punishment.

Robert Bloom, professor at Boston College’s law school, who declares no particular position on execution: I think this is just a chapter in an ever-expanding book of cases for death penalty opponents. Along with the chapter of how corruption affected convictions in Illinois and how defense lawyers were falling asleep in court in Texas.

This is just another chapter death penalty opponents can use. This brings up obvious concerns about the finality of the death penalty and the efficacy of government prosecution.

Can they use what’s happened with McVeigh? Sure. How important is it on its own? Who knows? It may just be a piece of a larger story.

You have this horrible crime and you send your best people to solve this crime. And apparently it wasn’t coordinated nearly as well as we might have hoped.

Brenda Bowser, communications director at the Death Penalty Information Center, an anti-death penalty group:

Timothy McVeigh’s case is unique in many ways. Until now, it hasn’t included many of the issues that are generally involved in death penalty cases, including racial inequities and ill-prepared defense counsel. But even with the government’s commitment to a fair trial and their unlimited resources, a serious mistake was made. And these are the kinds of mistakes that happen all the time in lower profile cases.

Given the attention and resources that have been dedicated to this case, and the broad implications of the verdict, knowing that this error happened certainly makes you question what happens in every case that doesn’t have those kinds of resources.

Lawrence Fox, partner at Drinker, Biddle, and Reath in Philadelphia and chair of the American Bar Assocation Death Penalty Representation Project, which provides death row defendants with counsel:

This story of misplaced papers or legal mistakes keeps repeating itself all around the country. We have seen lapses like this again and again, most recently with the falsified laboratory tests that surfaced in Oklahoma just last week. Again and again, when we hold these death penalty issues up to scrutiny, we see there are mistakes, or slip-ups or carelessness that can make a huge difference in these trials.

McVeigh had the best representation he could be possibly have; he had all the resources in the world. But this happened anyway.

It’s not that anyone expects these documents to prove exculpatory — that would be truly shocking. But they absolutely leave open the question: How would the defense have changed their case if they’d have the papers? Would the jury have had a difference response? We’re left to speculate. And we should not be speculating in any criminal cases — let alone in death penalty cases.

Kent Scheidegger, Legal Director for the Criminal Justice Legal Foundation, a Sacramento- based non-profit organization supporting "the rights of victims of crime and the law-abiding public." While Scheidegger says the organization supports the death penalty on a case by case basis, CJLF "unquestionably" supports Timothy McVeigh’s death sentence.

It’s very important to remember that these documents probably aren’t exculpatory. They aren’t going to render McVeigh innocent. It’s just a situation where you have a case with a huge amount of material, and some portion of that with no particular exculpatory value was not turned over to the defense team.

I do believe that it’s important to give McVeigh’s defense lawyers time to examine these documents, because it will help maintain trust in the judicial system. Even if the documents did show he didn’t act alone, I don’t think there’s any real sense that McVeigh wasn’t one of, if not the, primary actors in the bombing.

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