Gone, But Not Forgotten

#405304: Timothy McVeigh headshot, defendant in Alfred Murrah Federal Building bombing, photo AP (file)

CBSNews.com legal consultant Andrew Cohen's regular CourtWatch column of analysis and commentary:
He's gone but he won't be forgotten. By the survivors and family members of his victims. By the federal law enforcement officials he despised so much. By the journalists and historians who now will have to write his story without him. By the anti-government zealots who call him hero. And by the legal system.

Indeed, Timothy McVeigh and his crime will continue to haunt the legal system for years to come. Long after his ashes are scattered somewhere — my guess is over the land in New York State he once purchased to get away from it all — McVeigh's name will come up in court and in Congress; in judges' chambers and lawyers' lounges.

His case will be cited by prosecutors looking to clinch the deal with jurors and by defense attorneys looking to make their guy look better.

From the Hereafter, McVeigh will in particular haunt his old friend and conspirator, Terry Nichols, to whom all the attention surrounding the Oklahoma City bombing will turn.

In his case now before the Supreme Court, Nichols argues that he deserves a new trial because the FBI belatedly produced thousands of pages of documents.

Now he will be able to argue, too, that since these documents were not fully evaluated by McVeigh's lawyers prior to his execution, they ought to be fully evaluated by the Nichols' team. It will be months before the high court even decides what to do with the case.

And in his looming state prosecution in Oklahoma, where Nichols sits in a federal jail, both prosecutors and defense attorneys will take McVeigh's name in vain, each hoping to gain an advantage from it. For prosecutors there, the mantra will be that Nichols deserves to die for murdering 160 people — all the non-federal victims of the blast — because his partner, McVeigh, was also executed.

For the defense, they will use McVeigh as a foil, as someone who clearly was more culpable than their client. This defense didn't work in 1997 and 1998, when Nichols was convicted in federal court in Denver. But it could work the second time around with additional documents just provided by the feds. And if the documents cannot get Nichols the new trial he is asking for, at least they might give him a new sentencing hearing.

But of all the issues McVeigh's legacy will touch, his shadow will fall longest and darkest on the death penalty.

It says something about how Americans in general feel about that ultimate punishment that even this guy, for this crime, generated no small amount of ambiguity among bombing survivors and the family members.

If McVeigh, the biggest mass murderer in American history, couldn't generate near unanimous support for the death penalty, then who will? And since he didn't, what does that tell us about how comfortable we really feel about the state sanctioning murder?

Already, the publicity surroundng the execution, and its initial delay, have greatly increased public awareness about the issue.

Think we all would be talking about the death penalty this week if it weren't for McVeigh? Think we all will be talking about it next week, when these same prison officials who today executed McVeigh will execute Juan Raul Garza, who apparently will be the second federal prisoner executed in the past 38 years?

And, while we are at it, how many of us will be talking about the death penalty the next time a person of color is executed in Texas or Florida or Virginia?

No, the McVeigh execution is different — much, much different than any that have come before. So perhaps one of the few positives that could come out of this horrible story is a renewed interest in and a fresh look at the death penalty. If that occurs, it would be one of the more lasting and unintended legacies for a man who figured he would be leaving one.


By ANDREW COHEN
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  • CBSNews.com staff CBSNews.com staff

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