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CNN Talkback Live

The McVeigh Case: What Went Wrong?

Aired May 14, 2001 - 15:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
BOBBIE BATTISTA, HOST: The worst terrorist act on American soil, Timothy McVeigh convicted in court, admitted his guilt in print. Now, forgotten FBI documents could change the case.

(BEGIN VIDEO CLIP)

ROBERT NIGH, MCVEIGH ATTORNEY: Right now, the process that convicted Mr. McVeigh and the process that allowed him to be sentenced to die is in serious question.

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(BEGIN VIDEO CLIP)

JOHN ASHCROFT, ATTORNEY GENERAL: Timothy McVeigh, by his own admission, is guilty of an act of terrorism that stole life from 168 innocent Americans, and these documents do not contradict the jury's verdict in the case.

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BATTISTA: But the execution has been delayed, a move that is troubling to some survivors, understandable to others.

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PAUL HOWELL, DAUGHTER DIED IN BOMBING: Why in the world did they wait for six years to come up with kind of evidence? Who are they trying to punish? The family members, or McVeigh, or what?

(END VIDEO CLIP)

(BEGIN VIDEO CLIP)

MARSHA KIGHT, MOTHER OF BOMBING VICTIM: I think it's crucial. I don't think anybody would feel good not having all the information out there and having Tim McVeigh put to death, and he would probably be laughing.

(END VIDEO CLIP)

BATTISTA: Even with the delay, others are promising justice.

(BEGIN VIDEO CLIP) GOV. FRANK KEATING (R), OKLAHOMA: Due process will take place. This individual will not be on this planet mocking us, and lecturing us, and hectoring us, and making fun of our children.

(END VIDEO CLIP)

BATTISTA: What went wrong, and what is next in the Timothy McVeigh case?

Good afternoon, everyone, welcome to TALKBACK LIVE. And FBI blunder means Timothy McVeigh's execution is delayed by at least a month. Could those misplaced documents move his case off death row and back into the courtroom?

Joining us today are criminal defense attorney Herald Price Fahringer and Morris Dees from the Southern Poverty Law Center

Morris, let me start with you. What would have to be in those documents in order for Timothy McVeigh to get a new trial, or to possibly question even his death penalty sentence?

MORRIS DEES, SOUTHERN POVERTY LAW CENTER: Well, there could be several things. One could be some exculpatory evidence showing that someone else played a major role, and his role was a minor role. That could be one thing. It could be used in his penalty phase of his trial, if he should get not a new guilt trial but a penalty phase trial.

These things are likely to happen, but from what little I know -- and I don't know the facts of the case as well as his own attorneys -- I think we are going to find that just basically, it will be miscellaneous John Dough sightings that he should have had but didn't.

BATTISTA: Just the fact, though, that defense attorneys were denied access to those 3,000 documents, let's say, I mean, isn't that enough right there for the judge to reconsider the possibility of a new trial?

DEES: Not necessarily. The basic law in this country is that if there's material that is exculpatory, is called Brady material, the case of Brady v. Maryland that says defendant in a criminal case has to be given material that intends to show that they are not guilty or lessens their guilt in some way.

But in this case, the judge ordered all records of the FBI to be turned over, exculpatory or not. In a typical case, and I'm sure it would be in this case -- and I know Herald could comment a lot better than I could, he's a much better criminal defense lawyer than I am -- but you have to show that the evidence, had it been in McVeigh's hands, would have made a difference, either in the guilt phase or the penalty phase of his trial.

BATTISTA: By the way, Herald will be with us here in a minute, we are trying to work out some audio problems with him.

DEES: Certainly. BATTISTA: The fact that Timothy McVeigh has admitted guilt, albeit it a book and not in a courtroom, is that relevant or not?

DEES: Well, it's relevant in the court of public opinion. I think something ought to be pointed out at the top of this hour, and maybe would elicit some interplay from the audience and callers: it's one thing to look at the FBI after the fact, and say that this federal law enforcement agency has made a real bad mistake.

I think the biggest thing that I see in this is it's a perfectly good example of why we should not have the death penalty. If this was your typical case, low profile, a lot of the information that some law enforcements have in the past -- state, federal and city -- wasn't turned over and the person went to his death.

But I think the important thing to look at here, not lose focus in this last-minute panic. The Federal Bureau of Investigation in this case did an excellent job. Within hours after this bombing, Timothy McVeigh was locked up. The state trooper that caught him on the side of the highway certainly was doing his job, but because he saw a car with no license tag and he saw a gun and he put the man in jail -- had no idea he was connected with this.

The FBI moved quickly. They got the serial number off of the axle of the car -- the truck. They traced where the truck was rented. Sent an FBI sketch artist there on the spot, took a composite sketch of him, put it on the television, put it on the Internet. Somebody found out -- recognized his name and he was caught.

He was 20 minutes from walking away. Had he not been caught, he may never have been caught. I mean, if the FBI had not caught him, he could have bombed another federal building, and another one -- and then, some lucky break and he was caught, like Theodore Kaczynski was caught, and then we'd be pointing the finger at the FBI and saying, wait why didn't you catch him the first time around? Your sketch artist didn't do a gob job, and why didn't you find that axle number? It was there for everybody to see, you just didn't find it.

BATTISTA: I understand what you're saying, and I'm not slamming the FBI, but at the same time, there are some people who would say that Timothy McVeigh did just about everything possible to get caught, that he wanted to get caught, that he took that license plate off the car himself, and so he made the FBI's job perhaps a bit easier.

DEES: No, I don't think Timothy McVeigh intended to be caught at all, and I'm not sure he took the license tag off. It may have fallen off.

I don't think he intended to be caught, because if he intended to be caught, like most terrorists who want to take credit for what they do, he simply would have checked in a motel at the edge of town, called the FBI and said, here I am.

No, he ran like a rabbit. And during his trial, he pled not guilty. He didn't even come close to admitting his guilt until his death was a fait accompli. BATTISTA: Let me bring Herald into the conversation here now. Herald, can you hear us OK?

HERALD PRICE FAHRINGER, CRIMINAL DEFENSE ATTORNEY: Yes.

BATTISTA: If you were Timothy McVeigh's defense attorney, what would the finding of these documents mean to your case?

FAHRINGER: Well, obviously, what's so distressing about this, is that the information wasn't revealed when it should have been, and this is not a situation that is isolated. Unfortunately, what we have seen throughout the country now are some very disappointing episodes where documentation was not turned over when it should have been.

If I were his lawyer, I would go through these 3,135 documents to determine whether there is something there that might have had some influence on the outcome of the trial. And the likelihood is that a diligent attorney, who went through that much material, will find something that will arguably require a new trial.

BATTISTA: I asked this question of Morris a few moments ago, the fact that he has admitted his guilt, and we know that was not in the court of law. Does that have any bearing on this case at all, or perhaps future cases, because if a federal death penalty conviction, where the person is admitting guilt, they can go to this extent to get it delayed, then what about a person who maintains they're innocent?

FAHRINGER: Well, I think that the admission -- and I haven't read his book -- will have a psychological impact, but what the judge is obliged to do is investigate the case from the standpoint of what evidence was presented at trial, and determine whether or not, based on that evidence, there should be a new trial in my view.

And the likelihood here, with the death penalty looming and lurking over the head of this case, he will scrutinize the evidence most carefully.

BATTISTA: Were either one of you surprised by the fact that it would seem that Timothy McVeigh is going to change his mind about his appeal process now, and that he is probably not going to stand in the way of some appeals? I mean, it does make you wonder how sincere he was in that sort of death wish that he had.

DEES: Well, I think -- if I might answer this briefly -- I think that Timothy McVeigh was -- does not like the American system of government, of justice or anything. His favorite book was the "Turner Diaries" of the revolution in this country, a fictional revolution, where Jews and blacks and others he believe controlled this government, was killed. That was exhibit number one in his trial.

He only decided to admit his guilt when he thought he was going to be dead. I think he would very much like the put the FBI on trial, put the court system on trial, and I think he may well do that.

In the end though, the trial will probably last -- could last less than a week, because they will introduce the admissions of guilt he made to at least six people so far, and I think that would speed it up.

But I agree with Herald. The judge in this case has to look at it, not only would it affect his guilt, but would it maybe get him a lesser sentence in the penalty phase? I think if McVeigh tries this case again, he'll try it like he understand he wanted to try with his lawyers, and that would be to commit -- to have a defense of necessity.

In other words, his belief was that Waco and Ruby Ridge, and our evil government caused him to do all this, and he would probably try that case this time, and hopefully he'd get his story across, like so many other political trials.

FAHRINGER: One of the things that I think we have to keep in mind -- and I know Morris agrees with me on this -- and that is that one the most cherished policies of this nation is that everyone, no matter what he stands for, no matter what he has done, is entitled to a fair trial, and an essential ingredient of a fair trial is that the government is obliged to turn over to a defendant all information that may prove, in some respect, helpful to the defendant, so that every time a person goes on trial in this country, we all, in a sense, have a stake in that, because the criminal justice system goes on trial as well.

And what distresses me about this case is that we have seen one episode after another now throughout the country of critical evidence being withheld in cases where it should have been turned over to the defense. And that shatters, in a way, our confidence in the law enforcement aspect of our government.

BATTISTA: Well, we just heard allegations about that in connection with the Birmingham church trial a couple weeks ago -- that was 40 years-old, even.

DEES: That wasn't material withheld from the defense. That was material withheld from the prosecution. In this case, J. Edgar Hoover did not like Dr. King and he did not a trial that was shown that King's church was being bombed by Klansmen.

Hoover had put out the word that the blacks were burning their own churches, and the communist conspiracy involved. That was a case of double devilment, there. He didn't give the evidence to anybody. The attorney general in Alabama in 1977 convicted a man who bombed the church and he had to almost sue the FBI to get the information.

But I have to say this -- and I don't know if Herald would agree with me -- I think that we are dealing with a different FBI and I see -- before you came on, I talked about the fact of how the FBI caught this man quickly. And saw this crime, I think America owes the FBI and state and federal law enforcement a debt of gratitude, because this man could have gone on like Theodore Kaczynski for 15 years, killing people and eluding being caught.

FAHRINGER: I want to respond by simply saying this: of course, I think the reputation of the FBI 20 years ago, 15 years ago was impeccable. What's happened recently, and I don't suggest for a moment it's typical, but certainly we have seen some distressing episodes where the FBI -- two FBI agents indicted in Boston, here in New York. One of the prosecutorial officers was rocked to its very foundations by a scandal where an FBI agent was involved with informants that were actually out-committing murders.

And all of that is distressing. I don't know what to say, except that I think there is an attitude today in this country, that has changed law enforcement, that it's more to get the conviction where the end justifies the means, and that's not purpose of law enforcement.

The law enforcement agency is to see that justice is done, and sometimes that means that people, in marginal cases, go free. But that's the way our system works.

BATTISTA: I have to take a quick break. I will let you respond to that in just a few moments. Let me go first to the audience to Sharon, who is an attorney, who has been listening and wanted to make a comment.

SHARON: I do want to make a comment. I'm very concerned, bothered, distressed to borrow the term of one of your speakers, that these documents, the number of documents has just been discovered just a few days before this execution is supposed to take place.

We are not talking about three or four documents, we are talking about thousands of pieces of paper. And I think that for all of us to rest better with the conclusion that this whole matter is moving forward too, we need to know what is in those documents, we need to know why they are just coming to light, and we need to know where they have been and we need to get those questions answered.

BATTISTA: All right, we have to take a break here. As we do, take part in our online viewer vote at cnn.com/talkback, AOL keyword, CNN.

Today's question: Does Timothy McVeigh deserve a new trial? We'll go inside the FBI right after the break.

(COMMERCIAL BREAK)

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MARY ANDERSON, BROKEN ARROW, OKLAHOMA: I would really have liked to have seen Mr. McVeigh executed soon, so that all the victims' families could have closure. We need to have closure of this thing.

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PAUL HEATH, SURVIVOR: I'm fully confident in this country's ability to complete this judicial process. If we have to have a delay, that's fine.

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PAUL HOWELL, LOST DAUGHTER IN BLAST: The man's already said he is guilty. He wants to die. There is going to be some delays. Whether it's 11th of June or maybe a little bit later than that, we know it will happen. There is no way around it.

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BATTISTA: That's an interesting question on the Internet -- before I bring in our guest from the FBI.

Herald, do you want to handle that one. Somebody wondered that if the book confession could be used as evidence, if there is a new trial?

FAHRINGER: I would have to say tentatively, yes. Any statement a person makes voluntarily could be used. And I have actually been involved in cases where clients wrote books against my advice, because of this very hazard. And, unless he could explain in some plausible way what's said in the book was changed or edited by the editor, why I'm -- I'm of the view that it will be admissible.

BATTISTA: Joining us from Washington now is Ron Kessler, author of "The FBI; Inside The World's Most Powerful Law Enforcement Agency."

In Dallas, Oliver "Buck" Revell, former assistant director of the FBI, and author of "A G-Man's Journal". Thank you for joining us.

Buck, let me start with you. I think a lot of people have a hard time understanding how any documents associated with a case of this magnitude and this high profile a case where you would expect every T to be crossed and every I to be dotted, could be misplaced and handled that way. What do you think happened to these documents? Where did it fall apart?

OLIVER "BUCK" REVELL, FORMER FBI ASSISTANT DIRECTOR: I think it was the magnitude of the case the widespread nature of the case and the fact that the task force that was established in Oklahoma City called the Oak Bomb Task Force went to a fully automated system where everything that was collected in the case was put into the automated data base, and they worked from that data base in developing the investigation and ultimately the prosecution.

While out in the other 55 field offices, information was being received, was being reviewed, and then, either sent to the task force if it was deemed relevant or simply filed away, as being non relevant, in the field office. Somewhere in that process in using this automated data base, these documents that were viewed to be not relevant were filed away in the field offices, and for reasons that are beyond my understanding, not forwarded to the Office of Origin in Oklahoma City at the time they were requested.

BATTISTA: And Ron, you feel like it goes beyond the process and really kind of goes all the way to the top. RON KESSLER, AUTHOR, "THE FBI": Yes, I do agree with Mr. Dees that the FBI did wonderful work in apprehending this person. And in fact, every day the FBI does great work in apprehending kidnappers, terrorists, and the cases go to trial and there's no problem.

But as soon as Louis Freeh came in, he saw these embarrassments occurring every six months. In this case the computers have been known for some time to be totally unreliable. This happens over and over again. And yet Freeh was totally disinterested in upgrading the computers several years ago. In fact, people in that area said he didn't even want to be briefed on the subject. He's been very fixated on burnishing his own image and manipulating Congress and the press, and was not that interested in something like computers.

In addition, you have the fact that given that it was known that the computers don't work, that Freeh didn't order a manual search as finally was done.

BATTISTA: And Buck, as I understand it, though, the realization that these documents were missing began several months ago. Louis Freeh says he was never told about it -- or, are we to believe that he didn't know that this was going on, particularly in light of the fact that he resigned a couple of weeks ago? Is there any connection, do you think?

REVELL: Well, I don't he did know about it. I think if he had known about it he would have acted on it much sooner, because it obviously affects his reputation as well as the reputation of the entire Bureau. I think one of the most important issues to be determined is: When did they find out the documents hadn't be been forwarded and turned over; and why did they not then bring that information to the director and to the attorney general, and, obviously, to the prosecutors?

I think that's the crux of it. I do not believe that they will find in these documents any exculpatory information, or anything that will in essence help Timothy McVeigh. But the fact is they put the Bureau and the prosecution and the government in a state of question because of the way that they were handled. And I think that's going to be the crux for finding out exactly what went on and why.

BATTISTA: Dave is on the phone from Kentucky with a comment. Dave, go ahead.

CALLER: Hi. I'd just like to simply ask a question. OK, everybody's not perfect and yes, what he did was the wrong choice, but the files were tampered, and what if that information right there that was tampered with is something that says that he wasn't main person right there? Have you guys ever thought about that?

BATTISTA: Well, you're talking about the fact, I think, that a lot of reports have it that these documents hold a fair amount of information concerning John Doe No. 2, which leads back to...

KESSLER: Well, under this conspiracy theory, the FBI would have covered this up and never revealed that in fact they found these documents. The FBI knows exactly what is in the documents, it's simply following leads immediately after the bombing. And at first they thought there was another suspect. So there's no question about what the outcome is going toot be here, that in fact McVeigh was guilty.

BATTISTA: Morris, he brings up a point, though. The realization of this information is going to resurrect all kinds of past and future, I'm sure, conspiracy theories about how that entire terrorist act went down, and whether or not the government even was involved in it in any way, shape or form.

(CROSSTALK)

DEES: Let me say, McVeigh was the worst enemy to the conspiracy theory because when he finally admitted doing it, that blew the conspiracy theory apart. The theory was the FBI blew up the building in order to bring heat on this new militia patriot movement. Now, when you have a conspiracy theory, any fact that you find out adds fuel to the conspiracy fire. There are these who are saying now the FBI will go to any length to hide stuff. Like their failure to turn over the information about the incendiary device down at Waco -- just another fact in the conspiracy.

BATTISTA: Well, you know, but interestingly enough. McVeigh's former lawyer, Stephen Jones, has maintained that this went way beyond Tim McVeigh. You don't think it's possible Tim McVeigh is just sort of claiming credibility for the whole thing in the last days before his death?

DEES: You know, I don't really think so. I think Mr. Jones was going all over the world, as any good defense lawyer should, looking in Germany and other places. Certainly there could be a person or two that helped McVeigh, but this is a relatively simple crime. You fill a truck full of ammonium nitrate fertilizer, soak it with diesel fuel, and drive it up in front of a federal building with an explosive cap and explode it. It wasn't like sneaking in a hydrogen bomb or some complicated massive explosive. That's not the case.

I think I want to make sure that my point is clear. I don't believe in the death penalty. I don't think McVeigh should be executed. I've represented over 60 people facing the death penalty, and like Harold, I've had cases that I have had reversed. And one, even where the person was guilty, where the evidence was hidden, and police misconduct and prosecutorial misconduct was punished.

All I'm saying, in this case, is that certainly the stuff should have been turned over. McVeigh got a carte blanche to everything the FBI had. We don't get that in criminal cases. We only get exculpatory evidence. The fault I find with that is the prosecutor and the law enforcement is looking at the evidence to make the decision for me, as a criminal defense lawyer, whether it's exculpatory. I don't think that should be the case. I think this -- every document in the hands of police should be turned over in every criminal case, regardless of whether it's capital punishment or simply a normal felony.

BATTISTA: All right. I have to take a quick break here. We'll come back and do e-mails and the audience after this.

(COMMERCIAL BREAK)

BATTISTA: A federal court sentenced Terry Nichols to life in prison in 1997 for involuntary manslaughter and conspiracy for his role in the bombing. In Oklahoma, prosecutors charged Nichols with 160 counts of first-degree murder and plan to seek the death penalty. Michael Fortier is serving 12 years for failing to tell authorities about the bombing plan.

E-mail: Stephen Boston says: "The FBI blew it on purpose. They are trying to flush out co-conspirators."

Hassan in Mays Landing, New Jersey, says: "Even monsters deserve to be treated fairly in the eyes of the law."

And up to Steven, here in the audience. Go ahead, your comment?

STEVEN: I'd just like to comment that the FBI has never shown us any sort of trustworthy action as long as they've been around. And if they had any documents, whether there were 3,000 documents, whether there was 20,000 documents, they're not going to let a man like Timothy McVeigh get off. Because there are so many people in the country that care so deeply about this issue, and it would, basically, completely ruin any sort of reputation the FBI has. Regardless of -- obviously, he's most likely guilty, but yet how do we know if those documents or any further documents ever show any sort of wavering on his guilt or not?

BATTISTA: Buck, there -- the agency clearly has a PR problem, to put it mildly these days, and can you sort of understand how -- I think it was 43 percent of the people surveyed in a CNN/"USA Today" poll thought the agency lost these files intentionally.

REVELL: Well, that's very unfortunate. I think that's simply not going to be the case. I was retired before this, and I'm not speaking from knowledge of the case, but of knowledge of the organization. That is just not going to be the case. I don't think that there was anybody in a responsible position in the FBI that would withhold evidence.

Unfortunately, this very tragic mistake is going to convey that, and the most important thing is it's going to, for the victims' families, it's going to continue the difficulty they have in coming to grips with this whole thing.

There were literally hundreds of thousands of FBI agents and personnel who poured themselves into this without any reservation. They worked around-the-clock, they gave extraordinary effort. To see their effort now reflected on badly by some unintentional, but still very grievous mistakes is I think the real tragedy in this circumstance for the Bureau.

BATTISTA: Morris, I want to ask you about one more thing, since we have to let go of you in just a few minutes. We had an e-mail here from somebody in California, Mike, who says: "McVeigh's execution date could easily become a rally date. McVeigh will be regarded as a martyr by militia members and anti-federalists."

In your research, what are you seeing to document that? What sort of activity is going on out there?

DEES: No, I think that is absolutely wrong. When McVeigh killed children, when this nation saw that dying, bleeding baby in the arms of that firemen, especially the militia members, they said: "Hey, look, this is not what we signed up to." McVeigh is, as far as these -- what's left of this movement that's really going down with him, McVeigh is kind of like, unfortunately, dog poop. None of them want to get it on their feet.

BATTISTA: Herald, do you think that the June 11th date will come or go? I mean, how many delays do you think there might be?

FAHRINGER: Well, I think there are going to be extensive delays now. The normal course, in a case of this kind, if it follows the routine, the lawyers will be allowed time to put together what they consider to be material aspects of these 3,135 documents, which is, you know, almost incomprehensible as to how that could have been overlooked.

They will then go before a judge. The judge will have to hear them. Briefs will be submitted. The judge will then have to make a determination, keeping in mind that he's going to scrutinize it most carefully in light of the death penalty. My estimation is that there will be a number of extensions that will prolong the execution, as there should be.

BATTISTA: Let me go to the audience quickly, as we go to break again. Steve, you had a comment you wanted to make?

STEVE: Yes, I think the FBI should be thoroughly investigated in this, but I also think that we need to keep in mind that there is 168 people who lost their lives as the result of the actions of this man. He has admitted to it, and it would be a travesty of justice for the delay to go on and on and on.

When -- I believe those families, those people, do need an opportunity to receive closure.

BATTISTA: We will ask Congresswoman Sheila Jackson-Lee about an investigation in just a few moments. Morris Dees, we thank you for being with us.

DEES: Thank you.

BATTISTA: We appreciate your insight into this.

DEES: Thank you, Bobbie.

BATTISTA: And when we come back, we will talk to Representative Sheila Jackson-Lee and find out what the lawmakers want to do to get the FBI back on track. Stay with us.

(COMMERCIAL BREAK) BATTISTA: Welcome back. Before we get into a discussion about investigating the FBI and who should conduct those investigations, Ron Kessler, let me ask you about a quote that we heard yesterday from Senator Charles Grassley about the mentality of the FBI, where he said: "I think there's management culture here that is at fault. I call it a cowboy culture.

It is a kind of culture that puts image, public relations and headlines ahead of the fundamentals. I don't think Louis Freeh has been willing to challenging that management culture." What does that mean, that cowboy culture?

KESSLER: I don't see it that all. The FBI is very responsive to the director, whatever he wants he gets, and until Freeh took over, you had very few problems, as I said. And all of a sudden, when he took over, the first thing he did was promote Larry Potts who had been involved in the Waco problem. That sent a message that this kind of thing can be tolerated.

He also conveyed the impression that he didn't want to hear countervailing opinions, he didn't want to hear bad news. And all these things -- you know, if your boss conveys these impressions, do filter down to the whole bureaucracy. And I think that that is, in part, responsible for these problems.

In addition, if you look at the particular problems, you'll see that he became involved to the point where he actually caused the problems. For example, in the FBI laboratory case, he moved out 150 experienced examiners over the protests of the laboratory director, who resigned over this. And sure enough, all of a sudden, he started finding mistakes on tests, backlogs on tests.

Then in the Wen Ho Lee case, he did the same thing. He moved out all the experienced Chinese counterintelligence supervisors, so all of a sudden you nobody knew how to investigate this case, and then he recommended the indictment of Wen Ho Lee, when it was clear that there was not sufficient evidence.

Again, in the Hanssen spy case, he turned down a recommendation to have polygraphing of all agents on a regular basis back in 1994. I think if Hanssen had been polygraphed, it's very likely that he would have been caught.

BATTISTA: Joining us on the telephone now is Congresswoman Sheila Jackson-Lee, she's a Democrat from Texas. We thank you for joining us.

REP. SHEILA JACKSON-LEE (D), TEXAS: Thank you.

BATTISTA: We were just discussing Director Freeh there, based on a quote that Senator Grassley made yesterday about this mentality, this cowboy culture that he thought existed at the FBI, and Ron Kessler was disagreeing with that. What does Congress feel they need to do in order to get the FBI back on track?

JACKSON-LEE: Well, Bobbie, first of all, I think, as this ties into the McVeigh potential execution, I think the greatest trauma and tragedy and stress that has been created is on the families and victims that have now had one further delay, but more importantly to have Mr. McVeigh pronounce in the news and the media constantly.

I think we have to look and find out what we have learned, what are the instructions that we've gotten from this incident, and we should take those instructive lessons and try to both reform and enhance the FBI. We know at this point that they represent, obviously, that it was not intentional. But I think when you look at the importance of law enforcement as they help to make a case, and then the prosecutors present the case, they are all part of the justice system, they're integral wheels of the justice system. They must be above reproach.

So, first of all, I think it's important to note that every law enforcement, including the FBI, has to be at its highest level of performance. I think the FBI needs an overhaul as it relates to technology, and as it relates to technology, and as it relates to the kind of sophisticated techniques we must have in the modern day enforcement of the laws, because their work is what the prosecutors base their work on.

With that in mind, I think it is appropriate, first of all, for the Department Of Justice to go forward with an investigation. Taking a, if you will, blank page and be open to ways of solutions, but also to determine what happened. I think it is appropriate for Congress as well.

BATTISTA: Do you think that having the Justice Department investigate the FBI, some people might think that's the fox investigating the hen house. Do you feel like there should be an independent investigation or a special commission?

JACKSON-LEE: Well, I think we have had a great deal of faith in the inspector general's office of the Department Of Justice, and I think it would be appropriate for that investigation to start there, that's an independent arm.

And then, yes, I think that, not necessarily a blue ribbon committee, I think Congress is well prepared through the Government Operations Committee as well as the Judiciary Committee, we are the authorizing committee of the Department Of Justice, and we certainly need to look at it.

This ties all in into the overall question of course, of dealing with the death penalty and the necessity for accuracy, and as well, the issue of moratorium that Governor Ryan has implemented. I certainly want to not hold up Mr. McVeigh as a symbol of moratorium. It's a heinous act that he perpetrated. But I think, what is important out of this lesson or this incident is to realize that we must have every T crossed and every I dotted to ensure this system works for all Americans.

BATTISTA: Can you stay with us, Congresswoman or do you need to go?

JACKSON-LEE: Yes, I'll stay with you.

BATTISTA: I was going to ask Buck, and Ron also, a lot of this is going to fall on the shoulders of the next director at the FBI; would you agree? Any possible names you could throw out there? This poor guy's responsibility going in is an onerous one.

REVELL: Well, you might find out those that thought they were interested aren't interested, because obviously, this is going to carry over for some time, and it's a very difficult time for Louis Freeh to leave, but it's just as difficult for anyone to come in to take charge and responsibility.

I do agree with the Congresswoman's approach, I think that (UNINTELLIGIBLE) investigation by Justice with the full cooperation and support of the bureau is required. I think Congressional hearings, both judiciary and the oversight committees would also be appropriate.

It is extremely important for the American public, one, to realize this was not an intentional act, two, that the problems are going to be fixed, and three, that the agency will have taken lessons from this and go forward to ensure it cannot and will not happen again.

BATTISTA: Ron, your thoughts.

KESSLER: Well, the problem is if you look at the clips, these things keep happening, and people keep saying whenever they happen, we will fix it, it won't happen again, Louis Freeh will go to Congress and give them a few tidbits about some investigation, Congress will be one of his supporters again.

It's just not enough to say that this is going to be stopped, more has to be done, not only in the way of investigating, but in the way of having a new director who has management experience, something that Louis Freeh never had, who obviously has some understanding of the FBI and who will start focusing the FBI simply on obeying the law, which was what William Webster did when he was director, instead of simply trying to burnish the image of the director.

Louis Freeh has spent a lot of time being interviewed by people whom he thinks are friendly in the media, spending a lot of time with Congress, but when it comes to something like the computer system, he's shown no interest whatsoever.

BATTISTA: I've got to take -- I'm sorry. Hold that thought just a moment. I have to take a quick break here. Then we will continue on.

(COMMERCIAL BREAK)

BATTISTA: Since the Supreme Court reinstated the death penalty in 1976, about 10 percent of the 7,000 death sentences ordered have been carried out.

Those executed in 1999 spent an average of 11 years and 11 months on death row.

Before we went to the break, Congresswoman Jackson-Lee wanted to comment and react to some comments that Ron Kessler just made. Go ahead.

JACKSON-LEE: Thank you very much. I clearly hope that the sense of outrage is very much present in Congress, and members of Congress. I for one will be calling for a congressional investigation, but more importantly, quickly, expeditiously, not six months away from now, but now. I think the IG, the independent inspector general can, as well, do a parallel investigation.

I think the point is well taken that the FBI has not been a studied organization in technological sophistication, a lot of the administrative aspects of their business have been left unattended to, and we have to demand excellence.

And out of the Congressional investigation, I don't think Congress will look lightly upon some of the issues that have to be fixed. We've had a series of unfortunate circumstances from the Las Alamos, to the spy case, to the lost documents that we have now, and we realize that if the FBI will continue as a premier law enforcement agency, that it must have to face in confidence of all Americans.

So I believe that A Congressional investigation is imperative and it must be done now. And I am simply outraged, but I believe it is important to go into the investigation open minded. And there has been no indication that the document loss has been intentional, but we should pointedly ask those questions.

Because what I'm most concerned about is how we have impacted so negatively on the victims and the families of victims out of the Oklahoma circumstance. This is a tragedy in and of itself and I hope that we will put a silence on McVeigh, as to his ability to make further comments, because I don't think it is enhancing or educational for any of us to hear from him at this time.

FAHRINGER: My I add something to that? I think it's important.

BATTISTA: I'm going to say good-bye first to Representative Jackson-Lee, because I know she has to go. So we thank you very much for your time.

JACKSON-LEE: Thank you for having me.

BATTISTA: Herald, go ahead.

FAHRINGER: What I think is important is, these are all short- term measures. Investigations and matters of that kind will perhaps correct technological problems. What we need is leadership, a director who will inspire in the FBI what I think is the traditional concept of justice in this country. And that is that law enforcement agencies are not out there to get convictions, but to do justice.

When the term "cowboy" is used, what I read into that is riding roughshod over the rights of those in this country who share with us the protections that the Constitution provides. So that we have to have someone who can inspire law enforcement, U.S. attorneys and other people to do what they're obliged to do -- to come to court, exonerating those who they have evidence that will show they're not guilty, and convicting those who are guilty.

That's what is needed, and that is long-term, and that's going to require a great deal more than a Congressional investigation.

BATTISTA: I have to take a break and, Bob in the audience, I'll get to your comment when we come back.

(COMMERCIAL BREAK)

BATTISTA: Quick look at our poll says 37 percent of you think Tim McVeigh deserves a new trial. Up to Bob in the audience, quickly.

BOB: I just wanted to say I abhor what Tim McVeigh did, but we mustn't forget his motivation for doing it. At Waco, 81 people, men, women and children, were burned to death. I sat in a lounge with my employees watching that tank punch holes on the windward side of that building so that the fire could get going even better. Our government also killed a woman holding a child and had to settle for $2.5 million to pay that. Something is wrong in our government and it needs to be corrected.

BATTISTA: All right, Bob. Thank you very much. And we'd like to thank all of our guests for joining us today. Ron Kessler, thank you for joining us. Harold Fahringer, thank you. And Buck Revell, we appreciate you coming in as well.

And we will see you again tomorrow. Next on NEWS SITE, Kyra Phillips talks with Senator Arlen Specter about what's going on at the FBI. We'll see you tomorrow.

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