[Congressional Record Volume 147, Number 78 (Thursday, June 7, 2001)]
[Senate]
[Pages S5957-S5959]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     THE OKLAHOMA CITY BOMBING CASE

  Mr. LEAHY. Madam President, we are all familiar with the recent 
developments in the Oklahoma City bombing case. Last month, just 6 days 
before Timothy McVeigh was to be executed, we learned that the FBI had 
withheld thousands of pages of documents from McVeigh's defense team. 
The execution was then postponed until June 11 to give McVeigh and his 
lawyers time to review the evidence that should have been provided to 
them before the trial began.
  The bombing of the Oklahoma City Federal Building 6 years ago left 
168 people dead and hundreds more injured.
  The Federal Government spent millions investigating and prosecuting 
McVeigh, and millions more on his defense. The prosecution and the 
courts bent over backwards to ensure that he got a fair trial--one in 
whose outcome all Americans would have confidence. A member of the 
prosecution team once called McVeigh's trial ``a shining example . . . 
of how the criminal justice system should work.''
  I have great respect for the dedicated team of prosecutors and law 
enforcement agents who worked on the Oklahoma City bombing case. I 
honor their commitment and I commend their accomplishments. But I agree 
with the trial judge that the FBI's belated discovery of thousands of 
pages of documents that were not turned over to the defense was 
``shocking.'' And I believe that this shocking incident holds some 
lessons for us about our criminal justice system.
  First, something we all know, even if we do not want to admit: 
Mistakes happen. Even in the highest of high profile cases, where the 
world is watching every step of the way, and even when the government 
devotes its most talented personnel and spares no expense, you cannot 
eliminate the possibility of human error or, as appears to be the case 
here, an unreliable computer system.
  That should tell us something about other less infamous cases. The 
average case, even the average death penalty case, does not get the 
benefit of intense media scrutiny, and is not litigated by the best 
lawyers in the land. In the average death penalty case in Alabama, for 
example, the defense does not get millions of public dollars. 
Sometimes, defense lawyers are paid less than the minimum wage for 
defending a man's life. Too often, in the average death penalty case, 
corners are cut.
  We saw what comes of corner cutting last month, when Jeffrey Pierce 
was released from prison in Oklahoma. He served 15 years of a 65-year 
sentence for a rape he did not commit, because a police chemist claimed 
his hair was ``microscopically consistent'' with hair found at the 
crime scene. Turns out it was someone else's hair. Whoops: Mistakes 
happen.
  The second lesson to be learned from the McVeigh case is this: 
Process matters. The new documents that the FBI discovered may have no 
bearing on McVeigh's guilt or sentence, but that does not excuse the 
FBI's initial oversight in failing to produce them.
  The right to a fair trial is not some arcane legal technicality. It 
is the bedrock constitutional guarantee that protects us all against 
wrongful convictions. The fair trial violation in Jeffrey Pierce's case 
did have a bearing on his guilt or innocence, and cost an innocent man 
15 years of his life.
  Finally, the McVeigh case reminds us that however much we may long 
for finality and closure in criminal cases, our first duty must always 
be to the truth. While I am dismayed by the FBI's failure to produce 
evidence 6 years ago, I would be far more troubled if it had tried to 
cover up its mistake. It appears that the FBI and the Department of 
Justice acted responsibly under the circumstances, by turning over the 
materials in an orderly manner and giving McVeigh time to consider his 
response. The Government's willingness to acknowledge its mistake and 
uphold the rule of law was proper and commendable.
  It also stands in sharp contrast to the actions of certain State and 
local authorities. The sad truth is that in America in the 21st 
Century, with the most sophisticated law enforcement and truth-
detection technologies that the world has ever seen, there are still 
some law enforcers who would rather keep out critical evidence, and 
hide the system's potential mistakes from the public, than make sure of 
the truth. There are still people playing ``tough on crime'' politics 
with people's lives, at the expense of truth and justice.
  A prosecutor's duty is to the truth, the whole truth, and nothing but 
the truth. That duty does not end just because the defendant has been 
convicted. As Attorney General Ashcroft said in announcing the 
postponement of McVeigh's execution: ``If any questions or doubts 
remain about this case, it would cast a permanent cloud over justice, 
diminishing its value and questioning its integrity.''
  One cannot think of the Oklahoma bombing case without thinking of the 
hundreds of victims whose lives that bomb shattered. We as a society 
cannot give the families back their loved ones, but we can and should 
give them closure. As the Attorney General acknowledged, you cannot 
have real closure without a fair and complete legal process that 
ensures that all of the evidence has been properly examined.
  We cannot achieve infallibility in our criminal justice system, and 
we cannot spend millions of dollars on every trial. No one suggests 
that we should. But if we want real justice for those defendants, like 
Jeffrey Pierce, who happen to be innocent, and real closure for victims 
of violent crime, we must ensure that we as a society do not cut 
corners in the administration of criminal justice. That requires, at a 
minimum, that we provide competent counsel to capital defendants and 
make DNA testing available in all cases where it could demonstrate the 
defendant's innocence.
  Process matters, for victims and defendants alike, and I hope that we 
will take real action in this Congress to pass the Innocence Protection 
Act and stop cutting the corners.
  I ask unanimous consent to print in the Record a recent Wall Street 
Journal article discussing the growing support for stronger protections 
against wrongful executions.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

     Despite McVeigh Case, Curbs on Executions Are Gaining Support

                           (By John Harwood)

       Washington.--Americans last year elected an enthusiastic 
     proponent of capital punishment to the White House. And 
     they're applauding the resumption of federal executions next 
     month, when mass murderer Timothy McVeigh is scheduled to die 
     by lethal injection.
       Yet, paradoxically, the dawn of George W. Bush's presidency 
     is bringing a swing in the pendulum away from executions in 
     America. Though most Americans continue to back capital 
     punishment, support has been dropping in recent years in 
     tandem with declining rates of violent crime. Advances in DNA 
     testing and scandals involving the prosecution of major 
     offenses have underscored the fallibility of evidence in 
     capital cases.
       One state, Illinois, has placed a moratorium on the death 
     penalty. Others, including Arkansas and North Carolina, have 
     indirectly curbed its application by beefing up standards or 
     taxpayer funds for the representation of indigent defendants. 
     The number of people annually sentenced to death in the U.S. 
     has fallen in three of the last four years for which 
     statistics are available, to 272, in 1999, since peaking at 
     319 in 1994 and 1995.
       Just last week, the Texas House voted to create the state's 
     first standards for court-appointed lawyers. The Texas Senate 
     had already passed similar legislation. The Supreme Court 
     this fall is scheduled to revisit whether to bar the 
     execution of mentally retarded inmates. In the Republican-
     controlled Congress, support is building for stronger 
     protections against the execution of defendants who may be 
     innocent.


                           shift in oklahoma

       The pendulum swing is occurring even in Oklahoma City, 
     where Mr. McVeigh bombed the Alfred P. Murrah Federal 
     Building six years ago, killing 168 people. There is early 
     evidence that Oklahoma convicts are receiving fewer death 
     sentences in the wake of the

[[Page S5958]]

     state's decision to improve legal counsel for poor defendants 
     and expand access to DNA testing. Recent allegations of 
     misleading testimony by an Oklahoma police chemist who served 
     as a frequent prosecution witness, as well as the FBI's 
     mishandling of records in the McVeigh case, are only adding 
     to pressure for better safeguards.
       ``The politics of the death penalty are clearly changing . 
     . . because of the blunders of the system,'' says Oklahoma 
     Gov. Frank Keating. Though he staunchly supports capital 
     punishment, the conservative Republican says he favors 
     establishing a higher standard of proof in capital cases, 
     even if that makes death sentences more difficult to obtain.
       Just five years ago, such a change was unthinkable. But it 
     reflects a broader reconsideration taking place across the 
     spectrum of criminal-justice issues.
       Since crime rates began to soar in the 1960s, voters and 
     politicians have responded with an increasing array of get-
     tough measures, from more-aggressive police practices to 
     longer sentences to sterner jails. But now, questions about 
     the wisdom of America's get-tough approach are coming from 
     state officials straining to finance the prison boom, leaders 
     of poor neighborhoods depleted by the incarceration of rising 
     numbers of drug offenders and criminologists concerned about 
     the long-term effect of inmates of harsher jail practices.
       ``Maybe we have gone too far,'' says U.S. Rep. Ray LaHood, 
     a member of the GOP leadership on Capitol Hill, whose 
     downstate Illinois district includes a federal prison. He is 
     co-sponsoring the Innocence Protection Act, which would 
     encourage states to provide capital defendants with 
     ``competent counsel'' and death-row convicts with access to 
     DNA testing.
       Mr. LaHood says federal judges--both Republicans and 
     Democrats--are urging him to ease stiff ``mandatory-minimum'' 
     drug-sentencing laws and the 1987 U.S. sentencing guidelines 
     that took away most discretion from judges. One of those 
     judges, Michael Mihm of Peoria, Ill., a Ronald Reagan 
     appointee, says that with experience on the bench, he has 
     concluded that some mandatory minimums are excessive. At 
     sentencing time, ``I am saying, `All right . . . could we 
     accomplish all of the legitimate concerns of the society with 
     10 years rather than 20, with 10 years rather than 30?' ''
       ``We're filling up our prisons,'' Mr. LaHood adds. More 
     than 1.9 million people reside in the nation's prisons and 
     jails. ``When people think about the number of prisons,'' the 
     congressman says, ``they really wonder if this is what we 
     should be doing.''


                          looking at minimums

       President Bush himself has raised similar questions about 
     prison policy. ``Long minimum sentences may not be the best 
     way to occupy jail space and/or heal people from their 
     disease,'' he told a CNN interviewer just before taking 
     office in January. ``And I'm willing to look at that.'' The 
     administration is expected to propose sentencing changes 
     later this year.
       On capital punishment, the shift has occurred in spite of 
     Mr. Bush, not because of him. In Texas, he presided over 152 
     executions, more than any other U.S. governor in the last 
     quarter-century. He said earlier this month that the one-
     month delay in Mr. McVeigh's execution is ``an example of the 
     system being fair,'' as he has long maintained.
       But that hasn't stopped the development of an unusual 
     community of interest across the political spectrum as debate 
     has shifted from whether capital punishment should exist to 
     how it is applied in practice. Opponents want stronger 
     safeguards because it will mean fewer executions. Supporters 
     will tolerate fewer executions as a means of stemming the 
     erosion of public confidence in the death penalty. The result 
     is an emerging consensus resembling a goal former President 
     Bill Clinton once articulated concerning abortion, which he 
     said should be ``safe, legal and rare.''
       It isn't the first time that post-World War II America has 
     reconsidered capital punishment. Before public attention 
     focused on the rising crime rates of the 1960s, and amid that 
     decade's optimism about liberal social goals, support for 
     capital punishment dropped below 50%, notes Pew Center 
     public-opinion analyst Andrew Kohut. The supreme Court halted 
     executions across the country in 1972, declaring the death 
     penalty's application arbitrary and capricious.
       But that was followed by years of steadily increasing 
     support for capital punishment, as crime levels rose. In the 
     1970s, state legislatures scrambled to pass new death-penalty 
     statutes designed to meet the Supreme Court's constitutional 
     objections. Today, capital punishment is legal in 38 states. 
     In 1977, Utah became the first state to resume executions 
     after the high-court ruling, and 30 others have followed 
     suit.
       In the late 1980s, moderate Democratic strategists said 
     fielding a presidential nominee who supported the death 
     penalty was crucial to the party's hopes of recapturing the 
     White House after three consecutive Republican victories. 
     They found such a candidate in then-Arkansas Gov. Clinton, 
     who left the campaign trail at one point in 1992 specifically 
     to preside over the execution of murderer Ricky Ray Rector.
       Public support for the death penalty crested at 80% in 
     1994, following another decade of rising violent-crime rates. 
     Legislation passed that year by a Democratic-controlled 
     Congress and signed by Mr. Clinton made some 60 additional 
     categories of crime, such as major narcotics trafficking, 
     subject to the federal death penalty. Two years later, an 
     antiterrorism bill signed by Mr. Clinton placed new 
     limitations on federal appeals by death-row inmates, while 
     the new GOP majority in Congress cut federal funding that 
     aided defense lawyers in capital cases in many states.


                          Themes of the 1990s

       But the tide of opinion turned under the influence of two 
     of the most powerful themes running through American society 
     in the late 1990s. One was improving social trends, including 
     a steady drop in rates of murder, rape and assault. Fear of 
     violent crime likewise fell. The other was technological 
     advancement, which in the forensic field led to DNA evidence 
     being used to exonerate some long-serving inmates, including 
     some on death row.
       In 1996, two death-row prisoners in Illinois were freed 
     after an investigation by journalism students at Northwestern 
     University led to DNA testing that exonerated the inmates. A 
     year later, the American Bar Association called for a 
     national moratorium on the imposition of the death penalty.
       Increasing opposition to capital punishment among religious 
     leaders helped fuel the shift in opinion. Catholic bishops 
     have called for the abolition of capital punishment as part 
     of the ``ethic of life'' that leads to their opposition to 
     abortion. In early 1999, then-Missouri Gov. Mel Carnahan 
     commuted the death sentence of one inmate after receiving a 
     personal plea from the Pope. Last year, televangelist Pat 
     Robertson, a former-Republican presidential candidate, called 
     for a moratorium on capital punishment, after earlier 
     unsuccessfully lobbying Mr. Bush to spare the life of 
     convicted Texas murderer Karla Faye Tucker.
       Messages in popular culture, including films such as ``The 
     Green Mile'' and ``Dead Man Walking,'' also helped soften 
     attitudes by depicting the humanity of prisoners facing 
     execution. Sixteen months ago, opponents of capital 
     punishment claimed a striking breakthrough when Republican 
     Gov. George Ryan of Illinois imposed a death-penalty 
     moratorium in the sate amid mounting evidence of botched 
     cases.
       In Congress, legislation that would create financial 
     incentives for states to expand access to DNA testing and set 
     standards for legal representation of defendants in capital 
     cases is gathering support in both parties. In the Senate, 
     its 19 co-sponsors include four Republicans and last year's 
     Democratic vice presidential candidate, Joseph Lieberman, who 
     declined to back the bill a year earlier. Its 191 co-sponsors 
     in the House include several members of the GOP's 
     conservative wing.
       GOP Rep. Mark Souder of Indiana, one of the co-sponsors, 
     says, ``I support he death penalty, [but] I'm a little 
     uncomfortable. We want to be more sure.''
       There's no sign of White House support for such 
     legislation, which if implemented could have the effect of 
     significantly decreasing the number of death sentences handed 
     down. But one Bush adviser says the president ``would 
     probably have to sign'' a death-penalty-reform bill if it 
     reached his desk.
       Moderate GOP lawmaker Sherwood Boehlert of New York says 
     Mr. Bush should affirmatively embrace the cause to ``soften'' 
     his image after his narrow presidential-election victory. 
     Among other things, such a move could help tamp down 
     hostility among black voters, who are far more inclined to 
     oppose the death penalty than are whites. Though African-
     Americans make up just 12% of the nation's population, they 
     represent 43% of American inmates now on death row.
       States aren't waiting for action from Washington. Florida 
     this year became the 15th state to bar the execution of 
     mentally retarded inmates, in legislation now awaiting the 
     promised signature of Gov. Jeb Bush, the president's brother. 
     Gov. Jim Gilmore of Virginia, whom Mr. Bush made chairman of 
     the Republican National Committee earlier this year, signed a 
     statute to improve access to DNA testing. In Texas, Mr. 
     Bush's gubernatorial successor has also signed DNA 
     legislation, while lawmakers in Austin move forward on 
     improvements in the state's indigent-defense system.
       Perhaps most striking, neighboring Oklahoma, the focus of 
     national attention because of the McVeigh execution plans, 
     began taking similar steps four years ago. A state board 
     controlled by Gov. Keating hired Jim Bednar to run the state 
     agency that provides lawyers for poor defendants. Mr. Bednar 
     had formerly sought the death penalty as a state 
     prosecutor and presided over its imposition as a judge.
       In the past, if a lawyer assigned to represent an indigent 
     defendant ``had vital signs, he was determined to be 
     competent,'' says Mr. Bednar. ``In theory I'm not opposed to 
     the death penalty. But it's the practice we need to look at. 
     The system is flawed.''
       He began to overhaul the indigent-defense agency by winning 
     funding increases to hire better-quality lawyers. The agency 
     is now sending the message that attorneys for poor inmates 
     ``are really going to show up and do our job,'' Mr. Bednar 
     says.
       Because of stiffer opposition, prosecutors are becoming 
     ``more hesitant to seek the death penalty,'' he adds. In 
     fiscal year 1998, as Mr. Bednar was beginning to reorganize 
     his agency, prosecutors in the area served by his Norman 
     office, which covers roughly the western half of the state, 
     sought death sentences in 36 cases. They obtained the 
     punishment in four cases. Last year, prosecutors

[[Page S5959]]

     sought 26 death sentences and obtained only one.
       Doubts about the validity of some prosecution evidence--
     sown most recently by the scandal involving alleged flaws in 
     the work of Oklahoma City police chemist Joyce Gilchrist--may 
     have also made juries more reluctant to impose the death 
     penalty in the state. Oklahoma Attorney General Drew 
     Edmondson, whose office is reviewing the cases of all 121 
     death-row inmates in the state to see if additional DNA 
     testing is called for, has declined to set an execution date 
     for any of the 12 against whom Ms. Gilchrist had testified. 
     Ms. Gilchrist, who was suspended by the Oklahoma City police 
     department in March and now faces a state investigation of 
     her work, said in an interview, ``I stand by my testimony.''
       Republican Gov. Keating says further steps are needed. He 
     proposes a higher standard of proof--``moral certainty'' of 
     guilt--for capital cases, instead of the families absence-of-
     reasonable-doubt standard used in criminal trials. ``The 
     people now expect moral certainty,'' says Mr. Keating. ``No 
     system can survive if it's fallible.''

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