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Gov'ts 2/96 Opposition To McVeigh's Request To Have Representatives Present At Exhumation Of Woman Killed In The Ok City Bombing

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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,
Plaintiff v.

TIMOTHY JAMES McVEIGH and TERRY LYNN NICHOLS
Defendants.

BRIEF OF THE UNITED STATES IN OPPOSITION TO DEFENDANT McVEIGH'S MOTION TO ALLOW REPRESENTATIVES TO ATTEND EXHUMATION AND EXAMINATION OF LAKESHA LEVY

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 representatives.

I. Background

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.

II. Argument

A. McVeigh Has No Rule 16 Right To Have Representatives Present At The Exhumation.

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

III. Conclusion

For the above reasons, McVeigh's representatives have no right, under either Rule 16 or the Constitution, to attend the exhumation of Lakesha Levy.

Respectfully Submitted,

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
(405) 231-5281

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