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“It’s time for justice.” Almost four years ago, those were the first words I spoke in a Denver federal courtroom when I delivered the closing penalty argument asking jurors to return a sentence of death for Timothy McVeigh. In the spring of 1997, McVeigh had been well represented by able and well-funded counsel in a trial for his participation in the worst act of domestic terrorism in our nation’s history. But on June 3, 1997, a jury of 12 returned a verdict of guilty on all 11 counts in the indictment. The next phase of the proceeding — the penalty phase — began just one day later. It was time for the jury to determine what justice meant. Victims, family members, survivors, and rescue workers took the stand to describe the unimaginable pain and suffering they witnessed on April 19, 1995. When the government completed its penalty presentation, McVeigh chose to introduce evidence alleging prior government misconduct during the standoffs with the Branch Davidians in Waco, Texas, and with the family of Randy Weaver in Ruby Ridge, Idaho. According to his counsel, the government’s behavior in those situations somehow justified the death and mayhem brought upon Oklahoma City and our citizenry. When the penalty evidence was complete, I stood in front of the jurors to explain why the government believed justice in this case equaled death, by contrasting the due process McVeigh had received during the two years of pretrial and trial proceedings with the murderous conduct he engaged in without regard for the rights or interests of his victims. After finding evidence to support each and every aggravating factor, the jury returned a sentence of death. I have never doubted that McVeigh received anything other than a fair trial from an impartial jury and an independent and intelligent judge. Nor was there ever any doubt in my mind that McVeigh was guilty of the crimes charged. But with four years to reflect upon the prosecution’s work, and with the recent unfortunate development of the mishandled reports at the Federal Bureau of Investigation, I have asked myself again what justice requires. Can the death penalty ever be carried out in this country in a way that is fair and just, when even the noblest participants in the system are subject to human error? Will there ever be sufficient procedural and substantive protection in the process to guarantee a death penalty defendant a truly fair trial? After leaving the government to enter private practice, I became a co-chairman of the Constitution Project’s Death Penalty Initiative. This group consists of supporters and opponents of the death penalty, Democrats and Republicans, conservatives and liberals, who agree on one thing: In most cases, there are insufficient safeguards in place to ensure fairness in the administration of capital punishment, and the system is in need of reform. ENSURING DUE PROCESS Few, if any, death penalty defendants have the resources, talented counsel, and/or wise judge that helped ensure McVeigh’s right to a fair trial. It was obvious to me how other defendants who were not well represented could suffer unfairly in a system that does not always adequately train and fund all participants in capital litigation. Stories of sleeping defense counsel, aborted investigations, and wrongly convicted capital defendants being exonerated by DNA reminded me that some defendants did not have access to the counsel and resources they deserved. But the issues in the McVeigh case are quite different. Almost a month ago, the FBI discovered it had failed to provide the prosecution with more than 700 reports of investigation. Under an unusual oral discovery agreement, we had agreed to provide the defense with all FBI reports of witness interviews. And during the pretrial process we gave the defense in excess of 27,000 of those reports. Although the 700 newly discovered reports were not disclosed to the defense in a timely fashion, most of the information contained in the reports was previously provided in other formats. More important, none of the newly disclosed information would have had any impact on McVeigh’s trial. In his recent pleading requesting a stay of execution, he acknowledged that none of the information, “if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found [him] guilty of the offense … .” On June 6, U.S. District Judge Richard Matsch, who presided over the trial, confronted these same questions when he ruled that McVeigh was not entitled to a stay of execution. Explaining how he reconciled the requirements of the law, the mistakes of the FBI, and the public demand for a fair process, he eloquently stated: “Whatever may in time be disclosed about possible involvement of others in this bombing, it will not change the fact that Timothy McVeigh was the instrument of death and destruction … .” He continued: “But I can say now that for anyone who heard and saw the evidence presented at the trial of Timothy McVeigh, there can be no doubt that on April 19, 1995, around 9:00 in the morning, Timothy McVeigh parked a Ryder truck in front of the Alfred P. Murrah Building in Oklahoma City; that the truck was packed with explosives; that Timothy McVeigh ignited fuses attached to those explosives and walked away; that … those explosives were detonated, killing 168 men, women, and children; maiming, disfiguring and seriously injuring many more people.” Since the media first reported that 700 FBI reports were not disclosed to the defense, friends and colleagues who knew of my participation in the McVeigh trial and the Death Penalty Initiative asked me how I could reconcile my concern about the process in other capital cases with my confidence that the trial of McVeigh was not subject to some of the same defects. It is, I believe, my intimate knowledge of the facts introduced and the procedures followed in the trial of Timothy McVeigh that gives me such confidence in the process and the outcome of the trial. Like Judge Matsch, I know that the government turned over millions of pages of documents to defense counsel, regardless of their importance, giving McVeigh and his counsel ample opportunity to investigate and pursue any information they deemed relevant. Like Judge Matsch, I know that the evidence at trial was overwhelming and indisputable. And like Judge Matsch, I know that McVeigh’s counsel vigorously, and often successfully, pursued every procedural and factual advantage available to them. THE PLAIN TRUTH In the end, even with sufficient procedural safeguards, impressive and dedicated counsel, and vast resources, McVeigh could not escape the plain truth the facts revealed. On April 19, 1995, he detonated an enormous explosive device during the daytime hours in the middle of America with the intent to kill as many people as he could. Due process and a fair trial did not mean, nor should it, that he could evade justice. Similarly, even if the quality of capital litigation is improved with reforms, better equipped and experienced defense counsel, and greater public scrutiny, defendants whose crimes warrant the death penalty will ultimately receive justice. As for McVeigh, he received a fair trial, as the 10th U.S. Circuit Court of Appeals held June 7, stating, “McVeigh has utterly failed to demonstrate substantial grounds on which relief might be granted.” McVeigh said that he would not appeal, and he died on Monday. Beth Wilkinson is a partner in the D.C. office of Latham & Watkins.

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