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Tim McVeigh's Motion & Brief To Delay Destroying The Murrah Building

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[Here's Tim McVeigh's 5/95 motion to delay destroying the Murrah Bldg so that it could be searched for evidence to prove his innocence. However, the Judge didn't buy it and allowed the demolition.]

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA

) Case No. M-95-98-H
UNITED STATES OF AMERICA, )
Plaintiff, ) DEFENDANT'S MOTION TO PRESERVE
) EVIDENCE SCHEDULED TO BE DESTROYED BY
) THE GOVERNMENT, AND BRIEF IN SUPPORT
v. )
) IMMEDIATE RULING REQUIRED
TIMOTHY JAMES McVEIGH, ) CRIME SCENE SCHEDULED FOR
Defendant. ) DESTRUCTION AS EARLY AS MAY 18,
______________________________)

COMES NOW the Defendant, Timothy James McVeigh, by and through his undersigned counsel, and respectfully requests that the Court enter an order prohibiting the United States Government from destroying the Alfred P. Murrah Building, the site of the explosion that occurred on April 19, 1995, for not more than thirty (30) days in order for counsel for Mr. McVeigh to have adequate time to investigate the scene of the explosion and retain experts to conduct that investigation. Defendant further requests that the Court shorten the response and hearing times provided for in the Local Rules of the United States District Court for the Western District of Oklahoma for purposes of this Motion, or alternatively, that the Court order that any demolition of the Murrah Building be delayed pending the government's response and the hearing on Defendant's Motion. In support of this Motion the Defendant submits the following brief:

BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO PRESERVE EVIDENCE SCHEDULED TO BE DESTROYED BY THE GOVERNMENT

I. FACTS

On May 9, 1995, in response to the Defendant, Timothy James McVeigh's "Motion for Preservation of Evidence", this Court denied Defendant's request for oversight controls on the government's investigation of the site on which the explosion which gives rise to this matter occurred. In that Order, Magistrate Howland found that:

On April 19, 1995, at approximately 9:00 a.m., a bomb explosion extensively damaged the Alfred P. Murrah Federal Building in downtown Oklahoma City, and caused a large number of injuries and deaths. Investigation resulted in the filing of a complaint, and defendant's initial appearance on April 21, 1995, in accordance with Fed. R. Crim. P. 5.

The Assistant United States Attorney, Arlene Joplin, stated at this hearing that the United States would seek the death penalty as prescribed in the charge, 18 U.S.C. 844(f), and Susan Otto, Federal Public Defender, was appointed to represent defendant. Following the recommendation of the Federal Public Defender, the Court appointed John W. Coyle, III as co- counsel. Appointment of at least two attorneys is statutorily required and the selection of the specific attorneys is in the discretion of the Court in capital cases upon recommendation of the Federal Public Defender Organization, 18 U.S.C. 3005. On April 26, 1995, the Court denied without prejudice motions filed on behalf of defendant involving a motion to transfer, the application and motions of defense counsel to withdraw and for appointment of substitute counsel. The preliminary examination was held conjointly with the detention hearing at the El Reno Federal Correctional Institute on April 27, 1995. The Court found at that hearing that there was ample probable cause to find the defendant committed the offense alleged in the complaint, that defendant should remain in pretrial detention, and at this time the case awaits further proceedings in District Court. The motion to preserve eyewitness identification was initially presented orally at the preliminary examination and the Court requested a written motion, supporting brief and a response from the plaintiff.

The Court's Order was entered without prejudice to subsequent filings, and in that Order, the Court specifically stated:

In the "Motion for Preservation of Evidence", the Defendant seeks accessibility to material used by Government experts in testing including the residue remaining from government tests. The Defendant cites several state and federal cases in the American Bar Association Standards for Criminal Justice as supportive of this proposition. However, these cases analyze evidence, issues in a post-indictment setting. There is no factual basis or other specification of the mishandling of physical evidence under circumstances that would require some preemptory and unprecedented intervention by the Court. . .

May 9, 1995, Order at 5-6, [emphasis added]. See Order attached as Exhibit "A". [I-L Note: Not attached but file is available in Library.]

In the Government's Response to the Defendant's original Motion which gave rise to the Order just quoted, the Government specifically stated that:

The Government is fully aware of and fully intends to honor at the appropriate time its disclosure obligations under Brady and any applicable rule of discovery. Indeed as the party with the ultimate burden not only approving alleged crimes beyond a reasonable doubt, but also bringing to justice every perpetrator of the bombing of the Murrah Building, the Government has a vital interest in gathering and preserving all material evidence. . Government's Response at 4-5.

Now, however, the Government is undertaking to destroy not just certain physical evidence relating to the crime or certain physical evidence relating to the bomb site, but instead what is perhaps the single most important item of evidence in this case, the Alfred P. Murrah Building itself. Further, the Government has undertaken to contract for the destruction of the Murrah Building [FN1] without defense counsel for Mr. McVeigh ever having been provided an opportunity to conduct any measurements, analysis or other investigation of the site. According to reports in the Daily Oklahoman, including a report on Tuesday, May 9, 1995, demolition of the Murrah Building could occur as early as May 18, 1995. It is in light of the pending destruction of what may be the single most important item of physical evidence in this case that the Defendant files this Motion.

II. ARGUMENTS AND AUTHORITIES.

A. RESPONSE TIMES PROVIDED FOR UNDER THE LOCAL RULES FOR THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA SHOULD BE SHORTENED FOR PURPOSES OF THE GOVERNMENT'S RESPONSE TO THIS MOTION.

Rule 14 of the Local Rules for the United States District Court for the Western District states that parties opposing motions shall be provided fifteen (15) days in which to respond to those motions. The rule also states in relevant part that "the Court may, in its discretion, shorten or lengthen the time in which to respond." Local Rule 14(A). It is respectfully requested that the Court order that the Government respond no later than 4:00 p.m. on May 17, 1995. In order to facilitate such a response, the Defendant has delivered by hand a copy of this Motion to United States Attorney, Arlene Joplin, and has further sent by facsimile a copy of this Motion to Mr. Merrick Garland, Associate Deputy Attorney General for the United States (see Certificate of Service). This reduced response time is necessary in the context of the current motion because if the Government delays its response for the full fifteen (15) days provided for in Rule 14 this action would virtually assure that the Murrah Building would be destroyed before the Motion could be decided by the Court, thereby potentially prejudicing both the Defendant and the Government's case against the Defendant in this matter.

In the alternative to the relief requested above, in the event the Court determines that additional response time over and above that suggested by Defendant is required, the Defendant requests that the Court enter a temporary order precluding the Government from taking any further action to destroy the Murrah Building pending resolution of this Motion, and that the Court set such further briefing schedule on this Motion as the Court deems appropriate.

B. PRESERVATION OF THE CRIME SCENE IS NECESSARY TO ASSURE THAT EXCULPATORY EVIDENCE IS NOT DESTROYED OR OTHERWISE NOT MADE AVAILABLE TO THE DEFENDANT AND TO ASSURE A FULL, FAIR AND ADVERSARIAL TRIAL FOR THE DEFENDANT.

This case presents the Court with the unusual circumstance in which not simply an item of evidence is to be destroyed by the Government without access to that evidence having been provided to the Defendant but instead the very scene of the crime itself will be destroyed without the Defendant's counsel or experts ever having had an opportunity to evaluate it. Evaluation of the crime scene here is particularly important as it is virtually certain that this case will present issues of the nature of the explosion and any explosives that were used to create that explosion which caused the damage to the Murrah Building itself. Reports in the news media have repeatedly indicated that the Government law enforcement agencies have conducted extensive testing with regard to the crime scene itself and have reached conclusions concerning the nature of the explosives used, the amount of the explosives used, and the compounds from which these explosives were derived. In addition, the crime scene presents evidence of where the explosives may have been placed. If defense counsel and experts for the defense are not given an opportunity to inspect the crime scene, make their own measurements and analysis and otherwise investigate an area that the Government has already had in excess of twenty-five (25) days to investigate, the defense at trial will be severally prejudiced and will potentially be unable to refute the conclusions drawn by the Government and experts for the Government as to the cause and nature of the explosion.

This Motion has not been brought in a vacuum where there is no "factual basis or other specification of the mishandling of the physical evidence," but instead is filed in the context of an explicit determination by the Government to destroy the single most important piece of physical evidence in the case. the entire crime scene itself.

The problems created by the impending destruction of the Murrah Building are compounded by the fact that counsel for the Defendant was appointed pursuant to the provisions of 18 U.S.C. 3005 and 3006. Under the provisions of 18 U.S.C. 3006A(e), counsel is expressly restricted from retaining providers of expert, investigative, or other services costing in excess of $300 without prior authorization. [FN2]

In Kyles v. Whitley, 63 U.S. Law Week 4303 (April 19, 1995), the United States Supreme Court stated that:

Unless indeed the adversary system of prosecution is to descend to a gladiatorial level unmitigated by any prosecutorial obligation for the sake of truth, the government simply cannot avoid responsibility for knowing when the suppression of evidence has come to portend such an effect on a trial's outcome as to destroy confidence in its result.

Here, it is respectfully submitted that the Government cannot avoid responsibility of knowing that the destruction of the Alfred P. Murrah Building without the defense ever having been given an opportunity to investigate the crime scene would not only destroy confidence in the trial's result from the Defendant's standpoint and from the standpoint of the system, but will destroy the confidence of the public in the result of the trial. There is a strong public interest to be served by providing confidence in the result of a criminal trial of this nature, and this interest will not be served if defense counsel is denied access to the very evidence on which the prosecution is certain to base its allegations that a crime was committed by the Defendant.

Although the Defendant recognizes that this Motion is filed prior to any indictment having been issued by the Grand Jury, in this particular instance both the Motion and the Court's ruling on this Motion simply cannot wait for indictment. The destruction of the Murrah Building is impending and could occur within the next 2 to 3 days. Waiting for indictment to issue would have the effect of denying the Defendant his right to observe and review evidence of the crime.

Where defense counsel is prohibited from conducting necessary investigation into the facts underlying the crime, justice suffers. The Defendant should provided with the most detailed information possible in order to ensure a fair and adversarial proceeding. Pierce v. State, 786 P.2d 1255, 1263 (Okl. Crim. 1990). An Order directing that the Defendant be provided an opportunity to inspect the crime scene prior to its destruction will help ensure that the Defendant will have a fair trial, and indeed the absence of such an order may prevent such a fair trial from occurring. In Goodwin v. Balkum, 684 F.2d 794, 805 (11th Cir. 1982), the Court of Appeals stated that, "at the heart of effective representation is the independent duty to investigate and prepare." There is precedent for entry of such an order in the United States District Court for the Western District of Oklahoma. Attached as Exhibit "C" is an Order of this Court in another case in which this Court has ordered that evidence in the Government's custody and control be preserved and maintained in an unaltered condition. [FN3] Further, a delay in destruction of the Murrah Building will help preclude the imposition of both a situation in which a defense could be raised to the effect that the Government has destroyed potentially exculpatory evidence, see Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), and will further help in preventing the raising of what is perhaps a much more serious issue that being that the Government has intentionally directly interfered with the investigation being conducted by defense counsel with the intent of preventing counsel from adequately defending the Defendant. It is important to note here that this is not a situation in which the Government has made a determination that the evidence which Defendant requests be preserved is not potentially exculpatory but rather the Government has made an independent determination simply that the building should be destroyed upon its own investigations having been completed.

WHEREFORE, it is respectfully requested that the Court enter an Order prohibiting the Government from destroying the Alfred P. Murrah Building for more than thirty (30) days from the date of this Motion and further directing that the Government permit defense counsel and such investigators and experts as defense counsel deems necessary to conduct investigation and analysis of the crime scene.

Because defense counsel is sensitive to concerns that the building may at some point become unstable, because of danger, counsel has requested "not more than thirty (30) days." In that regard, counsel is working as quickly as possible toward assembling the necessary investigators and experts and will make a concerted effort to complete all investigation of the building without having to delay demolition of the building for the full thirty (30) day period.

DATED this 16th day of May, 1995.

Respectfully submitted,

STEPHEN JONES, of Jones & Wyatt 114 East Broadway, Suite 1100 Post Office Box 472 Enid, Oklahoma 73702-0472 Attorney for Defendant

END NOTES

1 See Biltmore Razor, "Local Company Gets Contracts". Friday, May 12, 1995, The Daily Oklahoman, attached as Exhibit "B".

2 There are provisions for subsequent approval of services where time will not allow prior authorization, but there is no guarantee that such services will be paid for in the sheer scope of the services contemplated here including engineering, explosives and other forensic services which will involve substantial expenditures and make retention of experts without prior authorization a practical impossibility.

3 We would emphasize that our request is merely to preserve evidence currently in existence. Thus, such cases as United States v. Martin, 565 F.2d 362 (5th Cir. 1968) are not germane. The Defendant in Martin filed no motion to preserve evidence and then sought reversal of his conviction complaining that an FBI agent acting in good faith following then routine practice has destroyed his handwritten notes of a witness interview after the using the notes to prepare the standard FBI interview reports Form "FD- 302."

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