Front Page















What's Next for McVeigh? - June 7, 2001

By James L. Hirsen, J.D., Ph.D.
contributor to

Once again, it looks as though the U.S. Supreme Court is going to be thrust into the squalid media spotlight. No, there's not another election matter to adjudicate or social issue to reconstruct. But public scrutiny, and attendant anxiety, will be every bit as great as in previous high profile cases, if not more so.

Unless Timothy McVeigh changes course again, his attorneys will appeal U.S. District Judge Richard Matsch's ruling, which denied a delay in McVeigh's execution. The appeal will be filed in the 10th U.S. Circuit Court of Appeals.

Which ever way the appellate court comes down, the losing side is likely to take the matter to the highest court in the nation to make the final determination on whether McVeigh is executed on schedule for his role in the Oklahoma City bombing.

In the recent district court ruling, Judge Matsch made it a point to emphasize that "we're not here for the purpose of trying the FBI." Implicit in this statement is the sentiment that an investigation of the FBI is not really warranted. Matsch apparently decided to proceed on the assumption that there were no intentional lies or reckless oversights on the part of the FBI.

What about the repeated assurances to both the court and McVeigh's counsel that all evidence had been produced when it hadn't been? Well, the judge seemingly assumed that it was best to just ignore it. Time to move on.

Essentially, Judge Matsch has bootstrapped the issue of potential culpability by failing to determine it. Matsch's reference to avoidance of "trying the FBI" is based on subjective assessment. He made the above referenced comment in response to argument and allegation that a fraud may have been committed against the court.

"Generally speaking, only the most egregious misconduct, such as bribery of the judge or members of the jury or the fabrication of evidence by a party in which an attorney is implicated, will constitute a fraud on the court. Less egregious misconduct, such as nondisclosure to the court of facts allegedly pertinent to the matter before it, will not ordinarily rise to the level of fraud on the court."

Here his opinion distinguishes between "egregious conduct" and mere "nondisclosure." We must ask Judge Matsch, respectfully, how can we know whether the conduct is egregious without putting the FBI on a trial of sorts? In courtrooms all across America, judges place law enforcement officials "on trial" to determine whether confessions were voluntary, Miranda warnings were given, Fourth Amendment privacy was respected or searches were made with probable cause.

The request for a delay of execution is based on two different discoveries of what now amounts to thousands of pages of FBI documents delivered to McVeigh's defense lawyers after his trial had already concluded. Attorney General John Ashcroft delayed McVeigh's execution once because of the documents. Why would he previously authorize a delay based on failure to provide documentation but vigorously oppose it now?

Reasonable questions still await answers. Why did the FBI fail to produce over four thousand pages of evidence? Has anyone engaged in reckless or intentional misconduct in connection with this failure to produce evidence? Has any other evidence been withheld or destroyed?

When the U.S. Supreme Court is called upon to review Timothy McVeigh's case, it will presumably follow a standard pattern for all death penalty appeals. Last minute petition to the High Court for delay in execution happens routinely each year.

Because each of the nine justices has jurisdiction for separate geographical areas of the country, Justice Stephen Breyer will probably get the first look at McVeigh's case. Justice Breyer will then, most likely, follow convention and refer the case to the entire court.

If the likelihood exists that a majority of the justices would reverse Judge Matsch's decision, a stay will be granted. The justices will not consider McVeigh's guilt or innocence. Instead, the constitutional due process and proper use of judicial discretion by the trial court will be at issue.

The U.S. Supreme Court indicated its interest in the FBI's newly produced evidence when it recently ordered the Justice Department to respond to co-defendant Terry Nichols's latest appeal. The Justice Department must be aware that this entire imbroglio is much bigger than the execution of one criminal. Faith and trust, associated with the ideal of transcendent justice, are at stake. No particle of truth can be allowed to die withTimothy McVeigh.

Jannie Coverdale lost two grandsons in the ill-fated explosion. She expressed the feelings of an increasing number of Americans when she said, "I'm wondering now that if Tim is executed, will we ever know? We have been fighting so long for the truth. I have no confidence in the government now. They've lied to us for six years. We need to know who killed our little ones."

Reproduced with the permission of . All rights reserved

Copyright © 2001 -
James L. Hirsen, J.D., Ph.D.

All Rights Reserved