IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
Case No. M-95-98-H
UNITED STATES OF AMERICA
TIMOTHY JAMES MCVEIGH
DEFENDANT'S MOTION TO DISQUALIFY ATTORNEY GENERAL AND ALL OTHER OFFICERS AND EMPLOYEES OF THE DEPARTMENT OF JUSTICE FROM PARTICIPATION IN DECISION WHETHER TO SEER THE DEATH PENALTY, AND TO PRECLUDE SEEKING THE DEATH PENALTY UNTIL A LAWFUL PROSECUTORIAL DECISION CAN BE MADE WHETHER TO SEEK IT
TIMOTHY JAMES MCVEIGH, by counsel, respectfully requests that the Court
enter an order, (a) disqualifying the Attorney General and all other
officers and employees of the United States Department of Justice from
participating in the process of deciding whether to seek the death
penalty in his case, and (b) precluding the government from seeking the
death penalty until a lawful prosecutorial decision can be made whether
to seek it. In support of this request, Mr. McVeigh sets forth the
1. The Federal Death Penalty Act of 1994, 18 U.S.C. 3591 et seq.,
requires the government, in advance of a trial on a capital charge, to
give notice to the defendant that it intends to seek the death penalty.
Even though death is a possible punishment for any capital crime, the
government is never required to seek it. Hence, the statute requires
notice in any particular case. We have advanced sufficiently in our
evolution as a civilization to realize that the death penalty can never
be mandated for any crime -- no matter how offensive, frightening, or
enraging the crime may be -- because experience has taught us that once
we understand all that we can about the crime, the person who committed
it, the social context in which it occurred, and the consequences of both
the crime and the death sentence as a punishment, we may not be confident
that death is the appropriate sentence. In the nearly twenty-five years
since the Supreme Court declared the death penalty unconstitutional as it
was then applied, see Furman v. Georgia, 408 U.S. 238 (1972), the Court
has emphasized this theme time and again. If the death penalty is
mandatory, it destroys part of our humanity as a people, because "[a]
process that accords no significance to relevant facets of the character
and record of the individual offender or the circumstances of the
particular offense excludes from consideration in fixing the ultimate
punishment of death the possibility of compassionate or mitigating
factors stemming from the diverse frailties of humankind." Woodson v.
North Carolina, 428 U.S. 280, 304 (1976).
2. Attorney General Reno clearly appreciates these principles, for her
response to the death penalty notice provision of the new federal death
penalty statute was to formulate a deliberative, thoughtful procedure for
deciding in which cases the government would seek the death penalty.
Thus, before a decision would be made to seek the death penalty in any
particular case, a three-step level of review of each case would occur,
which attempted to assess the factors calling for the death penalty, as
well as those "compassionate or mitigating factors stemming from the
diverse frailties of humankind," Woodson, supra, that called for a
sentence less than death.
3. That process never took place in relation to the Oklahoma City
bombing case. On the day of the bombing, before any suspect had been
identified, Attorney General Reno announced that the government would
seek the death penalty against whoever committed the crime. Two days
later, on April 21, 1995, just moments after Mr. McVeigh became a
suspect, President Clinton reiterated that the government would seek the
death penalty. Later in the same day, an Assistant United States
Attorney in Oklahoma declared, during the course of a proceeding to
inform Mr. McVeigh of the charge against him and to appoint counsel, that
the government would seek the death penalty.
4. The visceral and reflexive decision to seek the death penalty against
Mr. McVeigh, made very publicly by the Attorney General and the
President, is quite understandable. The nation was in shock over an event
that seemed too horrible to be true. We were awash in anger, rage, and
pain so intense that it seared our souls. The intensity of the moment,
coupled with the enormity of the crime, evoked the announcement by the
General and the President.
5. The consequences of this prematurely-evoked judgment must now be
confronted. The Department of Justice has realized since then that it
must "go through the process" of deciding whether to seek the death
penalty against Mr. McVeigh. It has, accordingly, commenced the three-
step review process for "making" that decision -- "making," because the
decision has plainly already been made at the highest levels of the
government. The premature decision by the Attorney General and President
has defeated a valuable right that was available to Mr. McVeigh, and the
violation of that right cannot be remedied by a process that pretends the
decision has not already been made and announced to the world.
6. As a result of the Attorney General's and President's premature
judgment concerning the death penalty in this case, the government must
be precluded from seeking the death penalty until a lawful prosecutorial
decision can be made to seek it. Mr. McVeigh had a right to have a
deliberative decisionmaking process determine whether the government
would seek the death penalty against him. Obviously, had the
decisionmaking process taken place as it should have, it would likely
have determined that death should be sought. But it may not have. The
enormity of the charge against Mr. McVeigh does not and cannot trump the
wisdom of humanity that underlies the rule that death can never be
mandatorily and automatically sought or imposed. Because of the Attorney
General's and President's premature judgments, however, the pursuit of
the conventional process for deciding whether the government will seek
death can now be nothing more than a charade. It is the equivalent of the
government automatically seeking death.
Factual Basis for the Motion
7. On April 19, 1995, just hours after the bombing of the Alfred P.
Murrah Building in Oklahoma City, the President and the Attorney General
held a press conference. At that time, no one had been identified as a
suspect or charged with the crime. Attorney General Reno was asked, "Ms.
Reno, the current crime bill that the president has signed includes a
death penalty provision. Assuming you do catch these people, will you go
for that?" Exhibit 1, attached hereto (LEXIS-NEXIS verbatim account of
press conference), at 3. General Reno responded, "18 USC, Section 844,
relates to those who maliciously damage or destroy a federal building. If
there is death -- if death occurs, the death penalty is available, and we
will seek it." Id. (emphasis supplied).
8. On April 21, 1995, President Clinton held an afternoon press
conference shortly after Mr. McVeigh had been identified as the initial
suspect in the bombing of the Murrah Building. At that conference, he
confirmed the government's earlier-announced decision to seek the death
penalty: "As I said on Wednesday, justice for these killers will be
certain, swift, and severe. We will find them. We will convict them. And
we will seek the death penalty for them." Exhibit 2, attached hereto
(excerpt from the Presidential Documents, Vol. 31, No. 16).
9. Later in the day on April 21, 1995, a complaint was filed against Mr.
McVeigh, and an initial appearance took place before the Honorable Ronald
L. Howland, United States Magistrate Judge. At that proceeding, an
Assistant United States Attorney for the western District of Oklahoma,
Arlene Joplin, informed Mr. McVeigh and the Court of the charge against
Mr. McVeigh in the following terms:
"The Defendant is charged with a violation of 18 U.S.C. Section 844(f).
Specifically, he is charged with maliciously destroying the property of
the United States through the explosion which destroyed the Murrah
"The penalty imposed by this Statute under these circumstances, where
there was a severe and causal loss of life, is the death penalty."
Exhibit 3, attached hereto (transcript of Initial Appearance Hearing in
United States v. McVeigh, No. M-95-98-H, April 21, 1995), at 5.
10. The statute under which Mr. McVeigh was charged, 18 U.S.C. 844(f),
provides for a wide range of sentences "if death results to any person
... as a direct or proximate result of conduct prohibited by this
subsection." They include "imprisonment for any term of years, or ... the
death penalty or ... life imprisonment." Id. The Assistant United States
Attorney's characterization of "the penalty imposed by this Statute under
these circumstances, where there was a severe and causal loss of life,"
as "the death penalty," Exhibit 3, at 5 -- without any reference to any
other available sentence -- thus reflects and reaffirms the Attorney
General's determination on April 19, 1995, that the death penalty, to the
exclusion of other available sentences, would be sought against anyone
charged with this crime.
11. Ms. Joplin's comments were clearly understood in this manner by the
Court. In an order entered April 26, 1995, concerning various defense
motions, Judge Howland recited the following historical facts about Mr.
Investigation resulted in the filing of a complaint, and an 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). Id. at 1-2.
12. Accordingly, there can be no doubt that by the time of Mr. McVeigh's
initial appearance on April 21, 1995, the President and the Department of
Justice, from the Attorney General to the Assistant United States
Attorney for the Western District of Oklahoma, had decided to seek the
death penalty against Mr. McVeigh.
13. This decision was made contrary to, and in the face of, the
mandatory procedure adopted by the Department of Justice for determining
whether to seek the death penalty in any particular case. That procedure,
prescribed in 9-10.000 of the United States Attorneys' Manual, a copy of
which is attached hereto as Exhibit 4, "sets forth policy and procedures
to be followed in all federal cases in which a defendant is charged with
an offense subject to the death penalty...," and "is designed to promote
consistency and fairness." Exhibit 4, at 1, 4. The procedure mandates (a)
that counsel for the defendant have an opportunity to be heard by the
United States Attorney and by a Department of Justice Review Committee as
to why the death penalty should not be sought, id. at 1-3, and (b) that
the decisionmakers in the Department of Justice consider, "in the light
most favorable to the defendant," id. at 4, any known reason not to seek
the death penalty, as well as the reasons to seek the death penalty, and
determine that the reasons to seek the death penalty predominate --
before the decision whether to seek the death penalty is made.
14. Indisputably, this procedure was not followed in Mr. McVeigh's case.
15. Recently, however, the Department of Justice has sought to "follow"
this procedure as if the decisions announced on April 19 and 21, 1995 had
not been made. On July 11, 1995, Patrick M. Ryan, the United States
Attorney for the Western District of Oklahoma, wrote a letter to counsel
for Mr. McVeigh in which he explained the procedure under 9-10.000 of the
United States Attorneys' Manual and invited counsel for Mr. McVeigh to
present any facts -- "orally, in writing, or both" -- that he would like
the Department of Justice to consider as to "why the death penalty should
not be sought with respect to your client." Exhibit 5, attached hereto.
Counsel for Mr. McVeigh responded that the process in which Mr. Ryan
invited counsel's participation was meaningness, because the decision to
seek the death penalty against Mr. McVeigh had already been made, and
that if there were to be a genuine process to make the decision anew, he
would have to be assured of that by the President and the Attorney
General. See Exhibit 5, attached hereto (letter of Stephen Jones to
Patrick M. Ryan, July 11, 1995). Mr. Ryan's reply strikingly omitted any
response to the concern expressed by counsel for Mr. McVeigh. See Exhibit
7, attached hereto (letter of Patrick M. Ryan to Stephen Jones, July 13,
16. As fully argued in the accompanying memorandum in support of this
motion, this state of affairs has deprived, and is depriving, Mr. McVeigh
of due process:
(a) Section 9-10.000 of the United States Attorneys' Manual establishes
a mandatory procedure for determining whether the government will seek
the death penalty in a federal prosecution. The procedure affords the
defendant the right to be heard and requires the consideration of reasons
not to seek the death penalty and a determination that the reasons to
seek the death penalty predominate, before the decision to seek the death
penalty can be made by the Attorney General. The procedure reserves no
discretion in the Department of Justice to make the decision to seek the
death penalty in any other fashion. It has no exceptions.
(b) Accordingly, the 9-10.000 procedure is not merely "policy" or
"simple procedural guidelines," Hewitt v. Helms, 459 U.S. 460, 471
(1983) Rather, the languaqe of 9-10.000 "has used language of an
unmistakably mandatory character, requiring that certain procedures
'shall,' 'will,' or 'must,' be employed, ... and that [a decision
adverse to the defendant] will not occur absent specified substantive
predicates." Id. at 471-72. Such language "demands a conclusion that ~the
[government] has created a protected liberty interest." Id. at 472.
(c) Mr. McVeigh has been deprived of this procedure. The decision to
seek the death penalty against him was made by the Attorney General
before he was ever identified or charged, was reiterated by the President
as soon as he became a suspect, and was reaffirmed at his initial
appearance at the same time he was first provided counsel.
(d) This deprivation denied Mr. McVeigh his right to due process. The
Department's current attempt to un-do what it has already done cannot
remedy this violation of rights. The Department has pre-judged the issue
of whether to seek the death penalty and is therefore disqualified from
now "making" this decision in accord with its mandatory procedure. Unless
and until the government proposes a process that has integrity, assures
that an independent de novo decision whether to seek the death penalty
will be made, and protects the rights that Mr. McVeigh has under 9-
10.000 -- and indeed affords him the additional rights available under
the Administrative Procedure Act, U.S.C. 554 et seq. [FN1] -- The
government must be precluded from seeking the death penalty.
Prayer for Relief
WHEREFORE, Mr. McVeigh respectfully ~requests that the Court enter an
order disqualifying the Attorney General and all of her subordinates from
making the determination whether to seek the death penalty against him,
and precluding the government from seeking the death penalty unless and
until it proposes and effectuates a lawful process for determining
whether to seek the death penalty.
STEPHEN JONES, OBA #4805
ROBERT NIGH, JR, OBA #011686
JONES, WYATT, & ROBERTS
114 East Broadway, Suite 1100
Enid, Oklahoma 73702-0472
(405) 242-5500 fax (405) 242-4556
Counsel for Timothy J. McVeigh
Robert L. Wyatt, OBA # 13154
Michael D. Roberts. OBA #13764
James L. Hankins, OBA # 15506
Julia A. Sims, OBA # 16305
1 We adopt and incorporate herein by reference the argument concerning
the applicability of the Administrative Procedure Act made by counsel for
Terry Lynn Nichols in his letter to Patrick Mr. Ryan, July 20, 1995, a
copy of which is attached hereto as Exhibit 8.
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