1996 law hindered McVeigh appeals

THE BALTIMORE SUN

WASHINGTON - The swift and decisive resolution of Timothy J. McVeigh's legal appeals this week surprised many people who expected the case to drag on for weeks, if not months.

Though few thought that the man convicted in the 1995 Oklahoma City bombing would win a new trial or sentencing hearing, it seemed likely that, given the stakes, the courts would give his attorneys time to review the thousands of pages of documents belatedly released by the FBI.

Yet the legal story that unfolded in a Denver courthouse over the past few days was exactly what Congress envisioned five years ago when it passed a law that made it harder to prolong death penalty appeals. And it was that law, in part, that sealed McVeigh's fate.

The 1996 law, the Anti-Terrorism and Effective Death Penalty Act, was approved amid widespread concern about the protracted delays between the time defendants were sentenced to death and the time they were executed. On average, capital defendants were spending 11 years on death row. Some languished for 20 years or more.

To speed up this process, Congress imposed new restrictions on federal courts for death penalty appeals. It barred them from overturning state court convictions in all but the most egregious cases. It set new deadlines for the filing of certain appeals. And it made it nearly impossible for courts to hear a second round of appeals once they had rejected a defendant's initial challenge.

This last element was what blocked McVeigh. When a federal judge rejected his claim in the fall of last year that his constitutional rights had been violated at trial, McVeigh could have appealed to an appellate court. But he decided not to pursue the matter further, saying he would rather die than spend his life in prison. So his appeal expired. That meant that when the FBI announced early last month that it had withheld 4,400 pages of documents from defense lawyers before McVeigh's trial in 1997, his attorneys had few options. They could have filed a new round of appeals, arguing that the FBI's documents contained previously undisclosed evidence that might have led to his acquittal.

But the 1996 law all but foreclosed this route. To file a second appeal, his attorneys would have had to show by "clear and convincing evidence" that no reasonable juror could have found McVeigh guilty had the new evidence been available at trial. This standard - higher than under previous law - is hardly ever met.

And McVeigh's attorneys were hesitant to assert that their client was innocent, especially after he had confessed to the bombing in a book published this year by two journalists. And though the old law allowed defendants to file a second appeal to challenge not just their conviction but also their sentence, federal courts differ on whether the new law does. Several appeals courts have ruled that in filing a second appeal, a defendant can now rely only on evidence that undercuts a jury's finding of guilt.

Faced with such obstacles, McVeigh's attorneys chose a different route. They sought to reopen the first appeal, which had been rejected in the fall. To do so, they relied on a little-used provision that permits courts to reconsider decisions obtained by fraud. Their theory was that the government had defrauded the court by failing to disclose that it had withheld documents from the defense.

It was a long-shot argument, in part because McVeigh's attorneys would have had to prove that the government intentionally withheld the documents. When it was rejected by Judge Richard P. Matsch and by the 10th Circuit Court of Appeals in Denver, McVeigh gave up his claims, choosing not to appeal to the Supreme Court.

"I don't think his lawyers had any easy options," said Samuel Gross, a University of Michigan law professor who studies the death penalty. "McVeigh had waived the only form of review that was likely to be considered on the merits. Anything after that and he was going to be climbing a very steep hill."

In some ways, supporters of the death penalty may find it fitting that the 1996 law cut off McVeigh's options. Congress passed the law a year after the bombing, and Mc- Veigh, who had been charged but not tried, was very much a catalyst for it. But the pressure to speed up executions that helped produce the law has largely subsided. In the past few years, public concern over the potential for error in the use of the death penalty has increased.

And in response to assertions that the death penalty is administered in a sometimes haphazard and discriminatory way, several states have imposed moratoriums on executions. Many more have banned the death penalty for mentally retarded killers.

Gross and other legal observers say they doubt that the McVeigh case by itself will alter public attitudes toward the fundamental fairness of the death penalty. But it might generate support, he said, to slow the process down again.

"This rush to get on with executions is a notion from five years ago," said Richard Dieter, director of the Death Penalty Information Center, which opposes executions. "Now, I think people are much more skeptical that they have all the information."

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