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Jewish World Review May 16, 2001/ 23 Iyar 5761

Wesley Pruden

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The villain reopens
a grim argument -- THE incredible FBI cock-up, the confession that it withheld documents in the highest profile American crime since the kidnapping of the Lindbergh baby nearly three quarters of a century ago, will inevitably set off new debate over capital punishment. Killing in the name of the state, however good it makes some of us feel, is nevertheless a lottery, and the McVeigh case proves it once more.

McVeigh himself will probably, in the end, die at the hands of a federal medic, or whoever is commissioned to dab a little alcohol on his arm (to make sure there´s no infection from bacteria on the skin) and drive the needle home. There´s not likely to be exonerating evidence in the 3,135 pages of withheld evidence, and even if there is, the pressure on the courts to allow the feds to get on with it will be enormous. Just as the Supreme Court follows the election returns, the courts almost never resist public opinion in cases as emotional as this one.

But others on other death rows, and those who will one day join those waiting for the electric chair, the gallows, the firing squad or the needle, will get the benefit of new doubts.

A study last year at Columbia University Law School found that trial judges and prosecutors made significant errors in two-thirds of all death-sentence cases. The death-penalty system, says the director of the study, "is collapsing under the weight of its own mistakes." The state of Illinois, under a conservative Republican governor, has declared a moratorium on executions after it discovered 13 innocent men on death row. DNA and advanced forensics advances have turned certitude upside down.

The FBI´s screw-up illustrates how badly things can go wrong. "If [evidence] is missed in such a high-profile case where they had to do everything just right, who knows what information lurks in police files that may relate very much to the innocence of people that should have been turned over," says Richard Dieter, executive director of the Death Penalty Information Center.

"What happened shows this system is fallible and certainly cannot be trusted . . . . If the system is broken, we have to stop these executions and find out what is wrong."

If that is so, the excruciating irony is that the man who prompts such a re-examination should be Timothy McVeigh, who has shown himself to deserve all the contempt the nation -- indeed, the world -- has poured down on him. "We´re cautioned to never, never argue specific cases," says a longtime lobbyist for an organization dedicated to eliminating the death penalty on principle, "because the truth is that, by and large, the men on death row are the scum of the earth and deserve what they´ll get, and by all accounts, Timothy McVeigh is the scum of the scum, with the moral code of a rattlesnake. But this case, which looked so cut and dried a week ago, promises to reopen an argument we haven´t had for nearly a generation."

President Bush, who shocked even death-penalty advocates with his earlier mockery of the terror of a reformed and regenerated Karla Faye Tucker as she waited for the needle in Texas for murder, was appropriately solemn, somber even, when he announced last week that the government would do only what decency and respect for the law require it to do, to spare McVeigh for at least a month to allow his lawyers -- and the government -- to sort out the mess.

"This decision is going to create some frustration amongst people whose lives were destroyed and turned upside down by Mr. McVeigh," the president said, endorsing John Ashcroft´s postponement of the execution. "But it is very important for our country to make sure than in death-penalty cases people are treated fairly. Today is an example of our system being fair."

But by the end of the week Mr. Ashcroft, feeling pressure from those who can´t wait to watch a man die, if only vicariously, promised that he wouldn´t postpone the execution beyond June 11. "We feel that ample time has been provided, and I have no intention of further extending this deadline," he told the Oklahoma City Daily Oklahoman, even as McVeigh´s lawyers complained they couldn´t get through the 3,000 pages of documents in less than a month. Of course, the courts, not the attorney general, will decide whether a month is long enough, and Mr. Ashcroft knows this, and he´s no doubt happy it´s not a decision that will be his to make. But his promise, smacking of the justice of the Old West ("we´ll give you a fair trial before we hang you"), is a sign of the pressure the administration feels to satisfy the nation´s thirst for revenge.

JWR contributor Wesley Pruden is editor in chief of The Washington Times. Comment by clicking here.

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