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Mcveigh's Motion To Deny Justice Dept Any Role In Seeking Death Penalty

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

Case No. M-95-98-H

UNITED STATES OF AMERICA

v.

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 following:

Introduction

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 Attorney

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 Building.
"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. McVeigh's case:

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, 1995).

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.

Respectfully submitted,

STEPHEN JONES, OBA #4805
RICHARD BURR
ROBERT NIGH, JR, OBA #011686

JONES, WYATT, & ROBERTS
114 East Broadway, Suite 1100
Enid, Oklahoma 73702-0472
(405) 242-5500 fax (405) 242-4556

By Counsel for Timothy J. McVeigh

Of Counsel
Robert L. Wyatt, OBA # 13154
Michael D. Roberts. OBA #13764
James L. Hankins, OBA # 15506
Julia A. Sims, OBA # 16305

END NOTE

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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