UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Richard P. Matsch
Criminal Action No. 96-CR-68-M (formerly No. 95-110 MH WDOK)
UNITED STATES OF AMERICA,
TIMOTHY JAMES McVEIGH and TERRY LYNN NICHOLS
BRIEF OF THE UNITED STATES IN OPPOSITION TO DEFENDANT McVEIGH'S MOTION
TO ALLOW REPRESENTATIVES TO ATTEND EXHUMATION AND EXAMINATION OF LAKESHA
The United States opposes defendant McVeigh's motion to allow three of
his representatives (an attorney, photographer and pathologist) to be
present at the exhumation and examination of bombing victim Lakesha
Levy. Exhumation, the disinterment of a corpse, is an exceedingly
delicate act that unfortunately is necessary here because there are
indications that Ms. Levy was interred with a left leg belonging to
another victim. Ms. Levy's family, specifically her husband Corey and
mother-in-law Joyce Davis, have not objected to exhumation but have
expressed a preference that representatives of the defense not be
allowed to attend. Unless this Court orders otherwise, exhumation will
occur sometime in the coming days in the presence of representatives of
the Orleans Parish Coroner's Office, the Oklahoma State Medical
examiner's Office, the FBI and Ms. Levy's family. As set forth below,
there is no basis in either Fed. R. Crim. P. 16 or in the Constitution
for McVeigh to insist on the additional presence of his own
On May 30, 1995, after the Alfred P. Murrah Federal Building had been
professionally imploded, a traumatically amputated left leg was
discovered for the first time in the building's rubble. A military
style black leather boot was on the leg. McVeigh's counsel Stephen
Jones, who announced the existence of this unidentified left leg to the
press in August 1995, speculated publicly that it may have belonged to
the "real bomber." See, e.g., L.A. Times, Aug. 8, 1995, at 4.
On August 30, 1995, the Oklahoma Medical Examiner's Office reported that
the FBI's DNA testing and hair examination indicated that, contrary to
that Medical Examiner's Office initial probability estimates, the left
leg belonged to a female of African ancestry. It was announced on that
date that the leg did not match any of the eight victims who were known
to, or could, be missing left legs.
On February 23, 1995, the Oklahoma Chief Medical Examiner held a press
conference announcing that the FBI's and his further testing of this
matter led him to conclude that the left leg belonged to Lakesha Levy, a
21-year-old Airman First Class in the United States Air Force who was
visiting the Murrah Building on April 19, 1995, to obtain a Social
Security card. This opinion was based on: 1) a footprint that matched
one taken from Ms. Levy at birth; and 2) DNA testing. The Medical
Examiner admitted that his Office was likely in error when, among other
things, it identified the left leg buried with Ms. Levy as being
attached to her body and being clad in a military boot. It is now
believed that only Ms. Levy's right leg in fact was attached to her body
and that the buried left leg belongs to another victim.
Lakesha Levy's remains are stored in an above-ground vault in New
Orleans, Louisiana, where her husband Corey Levy lives with the couple's
child. Exhumation is planned to occur sometime in the coming days in
the presence of representatives of the Orleans Parish Coroner's Office
(and possibly a representative of a funeral home), the Oklahoma State
Medical Examiner's Office, the FBI and Ms. Levy's family. It is
anticipated that the unattached left leg now placed with Ms. Levy will
be removed from the coffin, Ms. Levy's real left leg will be substituted
for it, and the coffin will be resealed in the vault. Ms. Levy's
family, specifically her husband Corey and mother-in-law Joyce Davis,
have not objected to exhumation but have expressed a preference that
defense representatives not be allowed to attend.
The previously unidentified left leg, which is now believed to belong to
Lakesha Levy, is being made available by the Oklahoma Medical Examiner's
Office for testing by defense experts. A pathology expert hired by
McVeigh's counsel is examining the previously unidentified left leg
today, February 26, 1996. An expert for Nichols is currently scheduled
to examine that same leg on Thursday, February 29, 1996. Moreover, the
unattached left leg that is expected to be removed from Ms. Levy's
coffin likewise will be made available for defense testing.
The only question presented is whether defense representatives have a
legal right under these circumstances to be present at the exhumation of
Ms. Levy's body. McVeigh claims such a right pursuant to Fed. R. Crim.
P. 16 and perhaps under the United States Constitution as well.
A. McVeigh Has No Rule 16 Right To Have Representatives Present At The
Rule 16(a)(1)(C), in relevant part, allows federal criminal defendants
access to "books, papers, documents, photographs, tangible objects,
[and] buildings or places" which are within government control and
"which are material to the preparation of the defendant's defense or are
intended for use by the government as evidence in chief at the trial."
Nowhere does the rule provide for access to a decedent's body; rather,
McVeigh apparently assumes that Lakesha Levy's physical remains are just
another form of the "Documents and Tangible Objects" governed by the
Rule. A leading California case rejected precisely this analogy because:
There is a clear distinction between examination of physical evidence
such as handwriting exemplars, fingerprints, written statements, and the
body of a human being. The former are susceptible of examination
without the likelihood of outrage to the emotional feelings of the
living. As reflected in our laws, our society extends more respect to a
dead body than to other physical evidence. People v. Vick, 11 Cal.
App.3d 1058, 1064-1065, 90 Cal. Rptr. 236, 240 (Cal. Ct. App. 1970).
The only federal decision we have found predates Rule 16 and arose in
District of Columbia courts, but is even closer on point. Laney v.
United States, 294 F. 412, 415 (D.C. 1923), held that "[i]t was not
error to admit testimony relative to the disinterment and post mortem
examination of the body of the deceased" because "[i]t was unnecessary
that notice should be given the defendant of the intention on the part
of the government to make the investigation." Most state cases are in
accord in holding that a defendant generally has no right to be present
at the disinterment of a victim's body. See generally Anno.,
Disinterment in Criminal Cases, 63 A.L.R.3d 1294, 1300, 1329-1330; see
also State v. Buchanan, 330 N.C. 202, 410 S.E.2d 832, 842 (1991) ("In
State v. Bowman, 80 N.C. 432 (1879), the Court declined to extend a
capital defendant's right to be present to include presence at the
disinterment of the remains of the deceased").
Even assuming Ms. Levy's body were a "Document or Tangible Object"
covered by Rule 16, however, McVeigh still would not be entitled to
access to it at the exhumation because Rule 16(a)(1)(C) is limited by
its terms to those objects "which are material to the preparation of the
defendant's defense or are intended for use by the government as
evidence in chief at the trial." The latter provision is clearly
inapplicable because the United States will not introduce Ms. Levy's
body at trial. (Ms. Levy's autopsy photographs already have been
provided to the defense, as will any photographs taken after the
exhumation.) Nor can McVeigh show the materiality of Ms. Levy's body to
his defense. It bears noting in this regard that McVeigh's claimed
right of access to the body is far weaker than even the claims rejected
in cases such as Laney and Vick, where the decedent was a murder victim
and there existed at least some dispute as to the cause of death.
The Federal Rules of Criminal Procedure do not allow a defendant to
insist that his representatives be present during scientific testing or
the evidence gathering process that precedes it. Instead, a defendant's
ability to defend against criminal charges is fully protected by his
right to material "results or reports... of scientific tests or
experiments" and "a written summary of [expert] testimony" that
"describe[s] the witnesses' opinions, the bases and the reasons
therefor, and the witnesses' qualifications." Fed. R. Crim. P.
16(a)(1)(D & E). The United States will fully comply with its Rule 16
obligations in this and all other respects.
Case law uniformly holds that Rule 16 obligations are not triggered
until after a scientific test has generated a "report or result" or
until after the prosecution has decided upon expert testimony to be
offered at trial. Thus, the Tenth Circuit has described Rule 16(a)(1)(D)
as imposing upon the government the obligation to "promptly disclose the
results" of any expert testing. United States v. Cowen, 32 F.3d 1466,
1470 (10th Cir. 1994). There is no right to discover scientific
procedures -- much less the evidence gathering process precedent to such
procedures -- that "do not have the requisite formality of finality to
be considered as either a 'report' or a 'record.'" United States v.
Iglesias, 881 F.2d 1519, 1923 (9th Cir. 1989). Specifically, Rule 16
does not extend to materials that "contain no results, conclusions,
diagnoses or summations." United States v. Dennison, 937 F.2d 559, 566
(10th Cir. 1991) (following Iglesias in deciding reciprocal discovery
obligations of defense pursuant to Fed. R. Crim. P. 16(b)(1)(B)).
These cases make clear that McVeigh has no right to advance notice of,
much less any right to attend, scientific tests before they have yielded
a final result. Instead, the thrust of Rule 16 provisions regarding
experts is that a defendant be provided discovery of completed tests in
"sufficient time to conduct his own independent tests and adequately
cross-examine any Government witnesses." United States v. Edmonson, 962
F.2d 1535, 1546 (10th Cir. 1992).
In contrast, the cases relied upon by McVeigh simply preclude "a trial
by ambush" because "fairness requires that adequate notice be given to
the defense to check the findings and conclusions of the government's
experts." United States v. Kelly, 420 F.2d 26, 29 (2d Cir. 1969). These
cases do not compel defense presence at evidence gathering and
government testing but merely require "a fair opportunity for the
defense to run its own "scientific] tests" if it so chooses. Id. See
also United States v. Stifel, 433 F.2d 431, 441 (6th Cir. 1970) ("if the
government sees fit to use this time consuming, expensive means of fact-
finding, it must both allow time for a defendant to make similar tests,
and in the instance of an indigent defendant, a means to provide for
payment of same"). Only one case cited by McVeigh suggests (in dicta)
that "[u]nder the circumstances [t]here, it is evident that the
preferred procedure under Rule 16, F.R.Crim.P. would be to permit the
defendant's expert to participate in the" government's testing. United
States v. Love, 482 F.2d 213, 220 (5th Cir. 1973). That case is clearly
distinguishable from this one, however, because the key "circumstance"
cited by the court was that the government's testing resulted in
"consumption of the acetone swabbings" taken from defendant's hands and
thus "the defendants' expert was unable to duplicate tests of the
swabbings." Id. at 215.
McVeigh's Rule 16 claim thus fails because he has not shown that his
representatives' presence at the exhumation is necessary to provide him
access to any tangible object that is material to his defense.
McVeigh's claims of materiality is strained even with respect to the
underlying issue of whether the leg in question belongs to Lakesha Levy
(as we now believe) or to some other victim. Even assuming this issue
were material, however, McVeigh's Rule 16 rights are fully protected by:
1) his access to both that leg and any leg removed from Ms. Levy's
coffin (which will allow him to conduct any of his own testing he sees
fit); 2) his access to all autopsy photographs; and 3) his access to all
government reports of scientific testing.
B. McVeigh Has No Constitutional Right To Have Representatives Present
At The Exhumation.
In making a claim that "the leg and all evidence concerning the leg are
exculpatory" (Motion at 3 Paragraph 5), McVeigh apparently invokes what
the Supreme Court has referred to as "the area of constitutionally
guaranteed access to evidence." Arizona v. Youngblood, 488 U.S. 51, 55
(1988) (internal quotes omitted); see generally Brady v. Maryland, 373
U.S. 83 (1963). There is no indication, however, that the left leg in
question (regardless of to whom it belongs) in any way exculpates
McVeigh. While McVeigh originally offered speculation that the leg may
have belonged to the "real bomber," a Brady claim may not be based on
"mere speculation" that evidence might help the defense. Wood v.
Bartholomew, 116 S. Ct. 7, 10 (1995); see also Youngblood, 488 U.S. at
58 (due process prohibits only bad faith destruction of evidence);
California v. Trombetta, 467 U.S. 479, 491 (1984) ("the Due Process
Clause... does not require that law enforcement agencies preserve breath
samples in order to introduce the results of breath-analysis tests at
trial"); United States v. Valenzuela- Bernal, 458 U.S. 858, 872 (1982)
(courts should not intervene to upset "the Executive's good-faith
determination" that the evidence in question would not be "favorable to
the defendant in a criminal prosecution"). In any event, McVeigh's
rights are fully protected by his access to the left leg (and to any leg
removed from Ms. Levy's coffin) for his own scientific testing.
McVeigh nonetheless claims entitlement to attend the exhumation to
observe (and apparently participate in) the "very delicate determination
about whether the leg buried with Ms. Levy was 'attached'" because he
"should not have to accept the Government's conclusions in this regard."
Motion at 3 Paragraph 4. Even where the identification process is far
more critical to the defense than here -- for example, where witnesses
identify the defendant from a photospread -- defendant and his
representatives have no right to be present. See United States v. Ash,
413 U.S. 300, 321 (1973). Indeed, while a defendant is entitled to
counsel where he is the subject of a live lineup, there is no
constitutional right for defense representatives to attend "various
other preparatory steps, such as systematized or scientific analyzing of
the accused's fingerprints, blood sample, clothing, hair, and the like."
United States v. Wade, 388 U.S. 218, 227 (1967); see United States v.
Cotner, 657 F.2d 1171, 1173 (10th Cir. 1981) ("The Supreme Court has
likewise held that the taking of a handwriting exemplar is not a
'critical' stage in criminal proceedings which requires the presence of
counsel"). The reason is that "knowledge of the techniques of science
and technology is sufficiently available, and the variables in
techniques are few enough, that the accused has the opportunity for a
meaningful confrontation of the Government's case at trial through the
ordinary process of cross-examination." Wade, 388 U.S. at 267.
McVeigh suggests his representatives are entitled to be present at the
exhumation because there are no "compelling circumstances" why they
should not be. This argument reverses the proper inquiry, which is
whether there is any legal right of defense representatives to attend
the exhumation. But even accepting McVeigh's argument on its own terms,
there are compelling circumstances -- namely, the privacy interests of
the victim's family, who do not want McVeigh's representatives present
at a very traumatic event -- why his representatives should not be
allowed to attend the exhumation
For the above reasons, McVeigh's representatives have no right, under
either Rule 16 or the Constitution, to attend the exhumation of Lakesha
HENRY L. SOLANO, United States Attorney
JOSEPH H. HARTZLER, Special Attorney to the U.S. Attorney General
SEAN CONNELLY, Special Attorney to the U.S. Attorney General
210 W. Park Avenue, Suite 400
Oklahoma City, Oklahoma 73102
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