WASHINGTON – The latest in a string of FBI miscues likely will force a judge to delay Timothy McVeigh's execution, but there is little chance of reversing his conviction for the Oklahoma City bombing, legal experts said Thursday.
"Any responsible judge in a case like this, the first instinct is really to put a stay on the execution," said Michael Gerhardt, a professor of law at the College of William asaid any delay in the first use of the federal death penalty since 1963 would be used to let the court "make sure that whatever's there isn't something that would have prejudiced his defense if he didn't have it. As they always say, death is different."
But because McVeigh has openly admitted his role in the 1995 bombing that killed 168 at the Alfred P. Murrah Federal Building, the likelihood of reversal of his conviction is low, the experts cautioned. He is scheduled to be die by lethal injection next Wednesday.
"McVeigh has never contested that he did this," said Daniel Polsby, a George Mason University criminal law professor. "If there were a guilt or innocence question, then there might be some serious re-examination, but McVeigh has admitted to doing this crime."
"This is just a matter of procedure and delay," Polsby added.
Pepperdine University law professor Douglas Kmiec agreed. "Even with an assumption that the documents are somehow central to the case, it is difficult to anticipate any type of reversal," he said.
The FBI's belated discovery that boxes of evidence from the case were withheld from McVeigh's defense during the trial nonetheless represents another big setback for America's premier law enforcement agency, which last week lost its leader of the last eight years -- Louis Freeh.
"It obviously does not make the FBI look good," Gerhardt said. "It's another black eye."
The Justice Department inspector general and an expert panel led by former FBI and CIA director William Webster are looking into FBI security procedures after revelations that senior counterintelligence agent Robert Hanssen may have spied for Moscow undetected for 15 years. Hanssen has pleaded innocent.
Congress just finished hearings into another embarrassing case in which a Boston man, Joseph Salvati, spent 30 years in prison for a murder he did not commit even though the FBI had evidence all that time of his innocence.
A judge freed Salvati recently after concluding FBI agents hid testimony that would have proven Salvati and others innocent in order to protect an informant.
The bureau also faced sharp questioning after revelations it focused too narrowly on Los Alamos nuclear lab scientist Wen Ho Lee, suspecting he was a Chinese spy only to conclude he had not given America's prized nuclear secrets to Beijing. Years of investigation had to be re-evaulated to identify new suspects, and a judge admonished the government for keeping Lee in solitary confinement for nine months.
And Freeh endured very public differences with then-Attorney General Janet Reno over the government's investigation of the Democrats' fund raising during the 1996 presidential election. Freeh insisted that Reno should have asked for an outside counsel to investigate the allegations, but she declined to do so.
Freeh resigned last week, but a law enforcement official said the discovery of the documents came after his announcement. "There's no connection between the two," said the official, speaking only on grounds of anonymity.