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20 Years Ago and Today


It was 20 years ago today that a domestic terrorist murdered 168 people in Oklahoma City, setting off a vehicle bomb in front of the federal building.  In this famous photograph by Charles Porter IV, fireman Chris Fields cradles infant Baylee Almon, who did not survive.

Timothy McVeigh was sentenced to death for this crime on August 14, 1997.  He was executed June 11, 2001, less than four years later.  Why so quickly?  What lesson is there for those seeking justice in the present day?
McVeigh's crime provided the political force needed to pass the landmark reform of federal habeas corpus law, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).  The most immediately effective aspect of that reform was the limit on successive petitions.  If a state prisoner has had one federal habeas corpus petition or a federal prisoner has had one "motion to vacate" (28 U.S.C. §2255), the criteria for getting a second are very strict, and few petitioners even qualify to have a successive petition seriously considered.

McVeigh had his direct appeal on the trial record.  The Court of Appeals for the Tenth Circuit affirmed on September 8, 1998, only a little over a year from the judgment.  United States v. McVeigh, 153 F.3d 1166 (10th Cir. 1998).  The Supreme Court denied a writ of certiorari (i.e., declined to review the Court of Appeals' decision) on March 8, 1999.

McVeigh filed for collateral review, i.e. a §2255 motion at which a prisoner is permitted to bring in facts outside the record, on March 6, 2000.  The then-new AEDPA statute of limitations forced him to file within a year of the Supreme Court's denial.  Previously, the standard tactic was to stall the filing.  The District Court denied the motion on October 12, 2000, just nine months after it was filed and a little over three years from the judgment.

McVeigh did not appeal this decision.  That is the only part of the review process that he waived.

As his execution approached, McVeigh reconsidered.  He asked for a stay of execution invoking the All Writs Act and Federal Rule of Civil Procedure 60(b), which allows civil judgments to be reopened in certain circumstances.  The District Court denied the order, holding that McVeigh had failed to show a "fraud on the court," assuming that such an exception exists.  The Court of Appeals affirmed and also noted:

In an abundance of caution, this court alternatively treats McVeigh's notice of appeal as a request to file a second or successive motion under § 2255. We deny that request, noting our complete agreement with McVeigh's candid concession in his district court filings that the newly produced materials do not satisfy the standard set out in § 2255 para. 8 and § 2244(b).
United States v. McVeigh, 9 F. App'x 980, 983 (10th Cir. 2001).  Paragraph 8 is now subdivision (h).

AEDPA did matter in the case that was instrumental in bringing it about.  Under the law as it existed before AEDPA, McVeigh would surely have filed a successive petition.  But there is more to it.

McVeigh's waiver of the §2255 appeal did make a difference, but it was not the primary reason that justice was carried out in a timely manner.  If that appeal had been heard as expeditiously as the other proceedings in this case, it might have added a year or two, no more.

The primary reason that this case proceeded as expeditiously as it did is that the prosecutors and the judges had the will to make it move.  We saw the same thing in the D.C. Sniper case.  These cases can move, even the most complex ones, if the will is there.  In the absence of a realistic claim of innocence, and most capital cases have none, there is no good reason not to.

And now we have the Boston Marathon bomber case entering the penalty phase.  The parents of the youngest victim, Bill and Denise Richard, have a piece in the Boston Globe asking the federal prosecutors to "taking the death penalty off the table in exchange for the defendant spending the rest of his life in prison without any possibility of release and waiving all of his rights to appeal."  Their reason is not opposition to the death penalty or any belief that the bomber does not richly deserve it, but rather because

"the continued pursuit of that punishment could bring years of appeals and prolong reliving the most painful day of our lives. We hope our two remaining children do not have to grow up with the lingering, painful reminder of what the defendant took from them, which years of appeals would undoubtedly bring."
That position is completely understandable given the extended delays typical in capital cases.  But this case, or any case with no doubt of guilt, need not take so long.  If a death sentence is rendered, the government can and should push for prompt resolution of the direct appeal.  If a §2255 motion is filed, the government should forcefully remind the court of the statutory command that such cases "shall be given priority by the district court and by the court of appeals over all noncapital matters."  See 28 U.S.C. §2266(a).

The position of a victim's family should be given considerable weight, but this case, of course, is not a single-victim case.  Further, it was an attack on our nation as well as on the direct targets, which is why it is properly in federal court.  The prosecutors should respectfully decline.  They and the courts should help the Richard family, the surviving victims, and the families of the other deceased victims by moving this case to final resolution as rapidly as due process will allow.  It is their duty to do so, see 18 U.S.C. §3771(a)(7), a duty too often neglected, particularly by judges.

One final thought.  For anyone who wants to claim that the Richards' position is an argument for repeal of the death penalty, note that there would be no reason for the defendant to agree to life in prison with no possibility of release and no appeal if the jurisdiction had no death penalty, e.g., if this case had been prosecuted in Massachusetts state court.


This masterful piece should be re-printed in every legal journal and blog in the United States.

I will add only two points.

First, there is an obvious way, consistent with the death penalty, to avoid years of appeals and the turmoil to the family that may go with them: Tsarnaev could, for once, show an ounce of humanity and waive further litigation.

Second, while victims' families sometimes say that taking the DP off the table will allow "closure," I have doubts. I know from experience that inmates serving long sentences can pursue endless appeals, file ad infinitum motions, become media celebrities (Mumia Abu-Jamal), and of course write the family and others hate mail.

When you lose your son, there is no such thing as closure. If there were, the legal system would not be able to provide it, no matter what punishments it allows.


Would 37 years from murder conviction to latest habeas petition constitute "closure"? (See Boles v. Hoffner, No. 2:15-CV-10908 (E.D. Mich. March 19, 2015)

Just one of hundreds (if not thousands) of cases where habeas proceedings are still taking place more than 25 years after murder (and non-murder) convictions.

I think "closure" is one of those terms that means different things to different people (and in different contexts).

At the end of the day, each victim will be able to address the court on their thoughts on why the death penalty is appropriate or not and the jury can figure it out. That is the best system can really do.

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