Botched!

Elisabeth Semel is director of the American Bar Association Death Penalty Representation Project.

The chorus with regard to this case in the press has been "this case is unique, there is no case like this." And I think this shows how much this case is like the others handled by the death penalty system. That system is human, fallible, full of mistakes and, sadly, mistakes that are found in the final hours.

The government did not have a right to withhold those documents, and to say that they were irrelevant is a presumptuous statement. The law requires that the government turn over to the defense any information which may either show that the defendant is not guilty of the crime or guilty of a lesser crime than what he has been charged with; may show that his role in the events is less than what the prosecutor has charged; or may mitigate the sentence. It's up to a court to make a decision whether evidence meets these standards. The government is not the sole decision-maker about whether it does or doesn't turn over information.

This revelation is one in a sadly long series of FBI incompetence. Incompetence, corruption, carelessness -- no matter what adjective you apply, the result has been to undermine our confidence in this institution. Even if these documents don't produce new evidence, given what the FBI has done here and in the past, it is perfectly reasonable to be suspicious about what else might be out there.

It's all terribly, terribly sad. This country has been worked up into an incredible frenzy over this execution, and the idea that the execution of Timothy McVeigh will be [the] ultimate manifestation of justice. This brings up just how wrongheaded that idea is.

Frederic Whitehurst spent over a decade with the FBI, but was dismissed from his post as a lab chemist after blowing the whistle on deficiencies and mistakes made by the FBI crime lab.

There is just no way in hell the FBI did not know those documents were on board. The FBI's record keeping is like nothing I have seen before. They know everything they've got; they know where every piece of paper is. Nobody just went in and found a whole box of papers. This isn't the end of this kind of thing at all.

Athan G. Theoharis is editor of "The FBI: A Comprehensive Reference Guide" and a professor of history at Marquette University.

I can't understand how this happened, despite what they've said about antiquated processes of storing information. The FBI has a pretty efficient records-retrieval system; it was efficient even when it was a manual system under J. Edgar Hoover.

Now they're saying it's a computer glitch. It would have been different if they lost one or two documents, but to lose 3,000 pages and to turn them over in this sort of "by the way" manner raises very serious questions about their competence.

It's just sort of inexplicable that these records should not have surfaced until now. That they first came across them in December and the story breaks in May is sort of mind-boggling. If, as the FBI says, the documents are not crucial in terms of the final verdict, then it makes it all the more perplexing that they didn't turn them over to the defense.

The FBI claims that there's nothing that proves McVeigh innocent, but defense attorneys would argue that what all they needed to do was produce sufficient doubt, reasonable doubt, in the minds of the jury. Regardless, the whole issue of which documents are relevant is not something determined by the prosecution.

This incident is one in a series that have severely damaged the bureau's credibility, like the FBI lab story, the Robert Hanssen [spy story] and the Olympic Park bombing. You can't expect that the bureau will always be perfect. They can't always get their man, but there has to be more accountability. But there's certainly a culture within the bureau that has to be addressed. There's a sense that the bureau is able to monitor itself, and that needs to change.

David Kopel is coauthor of "No More Wacos: What's Wrong with Federal Law Enforcement, and How to Fix It" and research director of Independence Institute.

We can't know whether there was a deliberate coverup or just incompetence, and I think both are possible, given recent events. I think this reinforces the concerns that people on the right and on the left have had about the FBI for many years. Skepticism about FBI misdeeds is a fairly bipartisan idea.

This could have a very negative effect on other FBI cases, and on prosecutions as a whole. The thinking among juries could be this: "If you can't trust the FBI, then who can you trust?" The fact that juries are less credulous of the FBI and law enforcement officers in general is part of the reason for rising acquittal rates in some jurisdictions.

Though the FBI under Clinton has been particularly bad, with the deaths at Waco, the complaints about the lab and other problems, the preceding administration wasn't very good itself. The Ruby Ridge incident actually happened under Bush I. The agency actually reached its height of competence under Reagan.

When you look at how federal law enforcement -- not just the FBI -- is so far removed from practical democratic control, you can see how these incidents happen. There's just no oversight of the FBI. Compare that to local law enforcement: Many large cities have police oversight commissions, and there are plenty of cities where, if the police were getting out of hand, a regular citizen could go in and talk to the mayor about it. A regular citizen just can't do that with the FBI.

Congress has not done its job. There's nothing more important that Congress should do than executive oversight, but they've gotten so rolled by the FBI. Their response and the president's to terrorist acts is to have a major expansion of FBI powers like surveillance of political groups and warrantless wiretaps.

The public reaction plays a role in that. McVeigh thought he was going to address Waco in a way that the government refused to do and start a second American Revolution. But his actions didn't avenge the dead at Waco, and even people who agreed that the government shouldn't be trusted found McVeigh and his actions despicable. And now the government has given people a new reason to distrust it all over again.

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