UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Criminal Action No. 96-CR-68-M
UNITED STATES OF AMERICA
TIMOTHY JAMES MCVEIGH and
TERRY LYNN NICHOLS,
DEFENDANT TIMOTHY McVEIGH'S MOTION FOR
MEDIA ACCESS AND MEMORANDUM IN SUPPORT
Defendant Timothy James McVeigh, by counsel, respectfully requests the
Court to authorize and permit Mr. McVeigh, a pre-trial detainee, to have
reasonable access to members of the local, Oklahoma, national, and
European media as specified herein, including the opportunity to
participate in one videotaped interview with either Barbara Walters,
Diane Sawyer, Tom Brokaw, Dan Rather, Susan Candiotti or Jack Bowen, and
a videotaped interview with the BBC-TV (Documentary Division) "BBC".
A. Factual Background: Virtually every aspect of the April 19, 1995,
Oklahoma City bombing has generated unprecedented public interest
worldwide and a corresponding surfeit of international media attention.
As this Court's Memorandum Opinion and Order on Motion for Change of
Venue held, a fair and impartial trial in Oklahoma was impossible.
Memorandum Opinion and Order on Motions for Change of Venue at 10 (filed
April 19, 1996). United States v. McVeigh, 918 F. Supp.1467 (1996).
Evidence produced at the venue hearing demonstrated that an overwhelming
percentage of Americans believe Mr. McVeigh to be guilty of the Oklahoma
City bombing. Indeed, this Court found that the publicity concerning Mr.
McVeigh (and Mr. Nichols) had "demonized" the Defendant. Lengthy
articles appearing in the New York Times, The Washington Post and the
Dallas Morning News have presented false, misleading, or half truths
concerning the Defendant's background. A purported biography by Brandon
Stickney will be released in September by a well known publishing house,
and the demonization continues.1
The description of the book, as published in Publisher's Weekly (Exhibit
"A") indicates that it will be harsh in its treatment of Mr. McVeigh and
clearly one-sided, and present an unfair representation of his youth and
early years. The television Channel A & E produced, filmed and showed an
hour long biography of Mr. McVeigh, and that video biography is now
available in book stores across the United States in video cassettes.
Both CNN and ABC News likewise did lengthy video biographies or
purported biographies of Mr. McVeigh. Morris Dees has authored a book,
Gathering Storm, which contains an entire chapter arguing Mr. McVeigh's
guilt and outlining how his lawyer can save his life if he will only
follow Morris Dees' crusade against the author of The Turner Dairies,
William Pierce. Dees, a lawyer, promoted his book actively in Denver.
All of these films, books and television presentations, have received
widespread publicity. Many of them have relied upon interviews with
individuals who would not recognize Mr. McVeigh if he walked in the room
today, but for the publicity surrounding this case.
These interviews, which have been published, have had the effect of
"chilling" family, former employers, and former colleagues in the
military from a willingness to testify or to assist the Defendant until
recently when after repeated efforts by defense investigators, some, but
not all, family members, former employers, and military colleagues are
now willing to give a more balanced picture of Mr. McVeigh.
The juggernaut of guilt, supported in part, by the media has made the
work of the Defendant much greater. For example, Lea McGown, the owner
of the Dreamland Motel, has repeatedly been interviewed by national and
local television and the FBI, but to this day refuses to talk to any
defense investigator because, as she expressed it, fear of retaliation
against her. Numerous witnesses claim the FBI has advised them not to
talk with us (the FBI has denied this allegation), and some expert
witnesses simply will not aid the defendant's lawyers with their
expertise because of the widespread presumption of guilt.
From the beginning of counsel's appointment, radio and television
stations and newspapers from Brazil, Israel, Hong Kong, Great Britain,
the United States, France, Germany, and worldwide services such as the
Associated Press and Reuters have requested interviews with Mr. McVeigh.
Exhibit "C". Mr. McVeigh has granted only four (4) interviews to print
media. These interviews were submitted for approval to the Bureau of
Prisons before the interview and in each case approval was granted
during various periods of time when different judges had control of the
case, including Chief Judge Russell, Judge Alley and Chief Judge Matsch.
A Newsweek interview was granted in the late Spring of 1995, a Time
Magazine interview on the first anniversary of the bombing, and
approximately two weeks later an interview with the Times of London
(Sunday edition). With the exception of two isolated portions taken out
of context, nothing in either interview violated the Court's guidelines
with respect to comment on this case, and those guidelines, in any
event, were not in effect at the time of interviews.
In an attempt to set the balance true and dispel the demonization
effects, counsel for Mr. McVeigh, has in addition permitted various
members of the media to talk to Mr. McVeigh, off-the-record, at the El
Reno Federal Correctional Institution. "Bomb Defendant's Lawyer Controls
Access by Press" The New York Times, June 2, 1996, attached as Exhibit
"D" hereto. These individuals who have talked with Mr. McVeigh agreed
that the conversations were off-the-record, not for publication, not for
attribution, that Mr. McVeigh could not discuss the facts of the case or
his strategy, and that Mr. McVeigh would neither be tape recorded nor
filmed, and no reference could even be made publicly to the fact that
the reporter had met with Mr. McVeigh. Reporters and/or media which were
granted this limited opportunity to talk to Mr. McVeigh, without
exception, honored the written requirements. That is to say no one of
them quoted Mr. McVeigh, referred to the meeting, tape recorded or
filmed him (again, with the exception of Time, Newsweek and The Times of
London). These other reporters included the following services: The
Associated Press, Reuters, The Dallas Morning News, Channel 4, 5 and 9
in Oklahoma City, Jack Bowen for Fox Television, Barbara Walters, Diane
Sawyer, Harry Smith of CBS Morning News, Dick Reavis, a well known
author, The Washington Post, The Los Angeles Times and the Wall Street
In addition, Mr. McVeigh did grant an interview, concerning only his
family and military background, to Media Bypass Magazine. Since Mr.
McVeigh's transfer to the Federal Correctional Institution at Englewood,
counsel for Mr. McVeigh has permitted Tom Brokaw from NBC News and Scott
Pelley from CBS News to meet, film and record a very brief casual
meeting with Mr. McVeigh. Portions of these brief meetings were
broadcast nationally as part of the evening news on April 18, 1996, and
neither lasted more than three minutes. The United States Attorney's
Office did not oppose these meetings or the interview with Time. No
facts of the case were discussed in these brief meetings.
Although all these media contacts occurred before this Court entered the
June 13, 1996 Memorandum Opinion and Order Regarding Extrajudicial
Statements by Attorneys and Support Personnel, none of these contacts or
interviews violates the spirit, much less the letter, of that Order
except for the single reference to Mr. McVeigh when he said he was
"innocent" as opposed to "not guilty" as reflected in the Time Magazine
interview and Time Magazine took one other brief statement out of
context, almost surely inadvertently.
This defense effort has sought to humanize Mr. McVeigh and stop the rush
to judgment of guilt by undermining the inaccurate impression of Mr.
McVeigh conveyed throughout the world by incessant repetition of a Noble
County Courthouse walk-out footage (and, sadly, the Oklahoma County Jail
We live in a time in which we as a nation are peculiarly vulnerable to
anger and hatred, a time in which we have a marked tendency to identify
certain people as enemies, then seek to eliminate them.
The government took advantage of this attitude from the day the Murrah
Building was bombed: Most people felt anger, bewilderment, and fear over
what happened in Oklahoma City. Tim McVeigh was then accused as the
person primarily responsible. He was portrayed-- falsely as a person who
refused to answer the questions of law enforcement officers and who
asserted he was a prisoner of war--a person who hated the government for
its actions at Waco and Ruby Ridge, whose hatred grew to encompass
anyone associated with the government, and who was willing to and did
kill many people as reprisal for what he perceived as the government's
misdeeds. Mr. McVeigh was then marginalized. He was characterized as an
aberration, "All American Monster" as the title of a recent biography
suggests (Exhibit "B"), as a person who lived alone and embittered on
the fringes of society, not bound by relationships to other human
beings, seething in misplaced and deluded anger at the federal
government, as a "loser" whose own inadequacies produced the tragedy.
Through this process, Tim McVeigh came to symbolize our nation's worst
fears, our own worst enemy. Who he was portrayed to be readily confirmed
the accusations of guilt. Very quickly. Mr. McVeigh was tried. convicted
(before the first piece of evidence was admitted at trial) and condemned
in the minds of many, and he became "the most hated man in America." If
there was ever an accused tried and convicted in the media, it was Tim
This is the process of demonization about which we have complained from
the time we became Mr. McVeigh's counsel. The Court recognized it as a
reason for changing venue from the Western District of Oklahoma to the
District of Colorado. It is insidious and can never be fully overcome.
In the few cautious attempts counsel for Mr. McVeigh have made to allow
the national media access to Mr. McVeigh, counsel have been accused of
"dressing him up"--trying to portray him, falsely, as a likeable, fully
human young man, rather than allowing him to be seen as the demon that
he really is.
If Mr. McVeigh is to receive a fair trial, one of the things that must
be done is to present information that will begin to counter the false
view that he is a demon. Allowing limited access to him for interview on
a respected, nationally televised program will contribute to such a;
process. It can be accomplished without transgressing in any way the
Court's guidelines for media contact. Moreover, it can serve the same
goal--assuring a fair trial--that the Court sought to serve in its media
Shortly after counsel was appointed, and he became aware of the
worldwide interest in Mr. McVeigh, counsel was approached by Mr. Neil
Grant of the BBC Television, Documentary Division, and ask whether
counsel would permit the BBC-TV to film an interview with Mr. McVeigh,
with counsel, and some footage of counsel at work as a part of an
overall one or two hour documentary on this case. Counsel interviewed
the BBC-TV in Enid, Oklahoma, together with numerous other organizations
that made a similar or the same request.
After reviewing about 20 tapes of similar interviews or programs
including three (3) submitted by the BBC-TV, counsel decided in his mind
that he would cooperate with one, and only one, documentary and that
would be the BBC-TV. That decision was made for the following reasons:
1. Counsel relies upon the worldwide reputation established over 70
years of the fairness, balance, proportion and integrity of the BBC- TV.
Counsel is a regular listener of the BBC World Service and for a period
of two years subscribed weekly to a video cassette program of the Best
of BBC Television, and counsel watches BBC-TV when in the United
2. Counsel was furnished three tapes of BBC-TV documentary programs: an
extended program on Terry Waite, a program entitled "Fourteen Days in
May" and one entitled "Caroline's Baby." The documentary of Terry Waite
could only be described as moving and eloquent. Although counsel is
opposed of the imposition of the death penalty in this case, counsel was
convinced that "Fourteen Days in May" was the finest portrayal of the
death penalty judgment at work that he had ever seen. It is the story of
the last fourteen days in the life of young black male in Mississippi
sentenced to die and the program ends five minutes before the execution
takes place. The BBC-TV had the cooperation of the Mississippi State
Department of Corrections and filmed the Warden and his staff preparing
for the execution, various prison staff meetings, the security
considerations, the young man's family, and the young man and his
lawyer. Counsel believes that "Fourteen Days in May" is a positive
contribution to the debate and discussion on capital punishment in this
country and shows the Department of Corrections of a state at its finest
in implementing a Court's judgment under sad and tragic circumstances.
"Caroline's Baby" is a documentary on a trial in New York State Court
where a young British woman was charged, and ultimately acquitted, of
murdering her infant child. In addition, counsel learned that the United
Kingdom Ministry of Defense had authorized Mr. Grant and the BBC- TV
Documentary Division to film an unprecedented documentary of life on a
British nuclear Trident submarine: Trident Countdown. The documentary
concludes with an equally unprecedented filming of a live firing, from a
submerged nuclear submarine, of a Trident (unarmed) nuclear missile. Mr.
Grant also produced, with the permission of the Ministry of Defense, a
second video documentary: Phantom Platoon.
3. The BBC-TV advised counsel that it was filming for history, not for
news and that sensationalism and conflict, were being avoided, and that
the BBC-TV wished that 25 or 50 years from now its' documentary would
survive as a balanced, proportioned, and accurate account of what the
BBC-TV described as an "unprecedented" criminal trial in the United
4. Meetings with the BBC's personnel convinced counsel of their
resourcefulness, professionalism and integrity and on that basis,
counsel recommended to Mr. McVeigh that he cooperate with the
understanding that (1) Judge Matsch's guidelines must be followed, (2)
the program would not be released to an American broadcasting unit in
advance of the trial, and (3) that it would not be shown in the United
Kingdom before the commencement of the trial. The BBC-TV was agreeable
to all but the last consideration, i.e. the showing in the United
Kingdom. BBC-TV said that it would certainly try to honor that request,
but in any event would not release it to any American broadcaster in
advance of the trial. BBC-TV does have a contractual relationship with
the Discovery Channel which presumably would air the documentary in the
United States, but after the trial.
Counsel discussed the matter with Warden Perrill who advised counsel
that all organizations which had a right to comment on such an interview
had no objection to the interview except that he had not yet heard from
the United States Marshal's Office and the Marshal's Office was waiting
on approval from the Court.
Counsel submitted to the Marshal's Office copies of "Fourteen Days in
May" and "Caroline's Baby."
Aside from the proposed BBC-TV program, which is a documentary, counsel
was also besieged with requests for media interviews with Mr. McVeigh
which would be shown in this country. Counsel met with all those who
requested such interviews including Diane Sawyer, Dan Rather, Peter
Jennings, Tom Brokaw and Barbara Walters. Each of their representatives
met with Mr. McVeigh, as indicated above, and in addition, Harry Smith,
Tom Brokaw, Barbara Walters and Diane Sawyer met personally with Mr.
Mr. McVeigh, on his own election, has decided that he would choose one
from among the following individuals, subject to Court authorization, to
conduct one (1) national television interview: Barbara Walters of ABC,
Diane Sawyer of ABC, Susan Candiotti of CNN, Dan Rather of CBS, Tom
Brokaw of NBC, and Jack Bowen of Fox Television. Counsel has concurred.
In face-to-face meetings with these individuals and several meetings
with their very competent staffs, counsel of Mr. McVeigh have become
convinced that each has a high degree of professionalism, will not
exploit or sensationalize the interview, will not "browbeat" the
Defendant, or expect him to answer questions which he cannot answer, in
advance of trial. The national reputation of these individuals is well
established. Ms. Walters has interviewed a large number of prominent
personalities including several involved in the criminal justice
process, including Jean Harris and the Menendez Brothers, as well as
interviews with Christopher Reeves, the actor, the General Secretary of
the Central Committee of the Communist Party of the People's Republic of
China, Dr. Fidel Castro, and the former president of Poland, Field
Marshal General Wojecht Jaroulski. Mr. Rather has interviewed presidents
and vice presidents of the United States and Dr. Castro, and Mr.
Brokaw's interview with the Communist Party General Secretary and
President of the Soviet Union, Mikhail Gorbachev, received widespread
praise. Susan Candiotti is a well known journalist who has covered a
variety of major news events in 1995 and 1996, including the Montana
Freeman siege, the crash of the Value Jet in Florida, and the Oklahoma
City bombing. Diane Sawyer is a well known commentator on Prime Time for
ABC and Jack Bowen is well known to Defendant's counsel because of the
interview that he did with Oklahoma City convicted serial killer, Roger
Dale Stafford2, shortly before his execution. What we are asking for is
authority of the Court to choose from one of these individuals to
conduct one television interview. The Defendant will not grant any other
television interviews before trial other than the two (2) requested
herein: the BBC-TV and the American television interview.
Warden Perrill has indicated, informally, no objection whatsoever to the
We believe that the public interest is served by such interviews in
that, at a minimum (but at an important minimum) the interview and
documentary will serve the public interest and the mission of the
Department of Justice, Bureau of Prisons, in establishing that Mr.
McVeigh is well protected, and maintained in adequate physiological and
physical conditions and that the federal government is not abusing its
custodial holding of Mr. McVeigh. Counsel certifies to the Court, based
upon his experience in this case, that it is absolutely essential that
such an image continue. The possibility for exploitation, politically,
or in a more dangerous and adventuresome ways, by those who believe that
Mr. McVeigh is a "political prisoner" and that the federal government is
"evil" simply cannot be discounted. Public safety is not an unimportant
consideration and access to Mr. McVeigh by television is an important
contribution to the confidence of the public and to circumstances in
which Mr. McVeigh is being held.
The Court has had a limited opportunity to observe Mr. McVeigh, in other
than in a purely formal Courtroom setting, and can judge for itself
whether Mr. McVeigh is mature, mentally and emotionally fit, articulate,
and capable of conducting himself as an interview subject in the manner
that the Court would expect. That is to say, that the Defendant would
not exploit the situation or make unreasonable, untrue or inflammatory
An honest, but limited, television access to Mr. McVeigh is desirable to
offset numerous stories, which we would contend, are untrue about his
background and also to offset the continuing parade of survivors who
speak about "clawing out his eyes" or "coming over the bar and hitting
him" or mocking his receiving a shirt for his birthday when one survivor
"celebrated Christmas at the graves of her grandchildren." Mr. McVeigh
is entitled, at least for a total of one hour, to be interviewed and to
be seen for what he is.
In addition, the Defendant seeks permission to authorize the following
interviews not to exceed one hour and to be published at least sixty
(60) days in advance of the case being called to trial, but after the
national television interview.
1. One interview with a national print media from among the Boston
Globe, the New York Times, the Wall Street Journal or the Los Angeles
Times. Mr. McVeigh has interviewed representatives of each of these
organizations except the Boston Globe and the New York Times. No further
access to the Defendant is necessary except for the interview.
2. One print media from the Southwest including Oklahoma which will come
from one of the following media organizations: the Tulsa World, the
Dallas Morning News, the Oklahoma Gazette. No additional media access is
necessary for Mr. McVeigh to see other than the choice he makes of the
person to do the interview.
3 . One interview conducted with a representative of the Associated
Press, or Reuters, or United Press International. No further media
access is necessary except for the interview.
4. One interview with a Denver media (print): the Rocky Mountain News.
On Saturday, August 17, 1996, the Denver Post decided it would not
submit to an off-the-record pre-interview meeting.
5. One local Denver television interview limited to 15 minutes air time,
to be chosen from Channel 4, 7 and 9. Channel 2 has advised counsel it
does not wish to be considered. Mr. McVeigh would like to meet briefly,
no more than 30 minutes apiece, with a designated reporter for each of
these three channels so that he can make an informed opinion as to which
one he would choose for an interview, should the Court authorize such an
6. One television interview of no greater than 15 minutes with one of
the Oklahoma City stations: Channel 4, 5, 9 and Oklahoma Educational
Television authority. No additional media contact is necessary as Mr.
McVeigh has met with representatives of those channels interested in
pursuing the interview.
The net effect if the Court were to grant the entire relief here would
be the following:
1. A documentary to be shown to British audiences;
2. One national American television broadcast limited to no more than 30
minutes commercial air time (actually closer to 22 minutes because of
3. One print interview in Denver;
4. One national print interview with a newspaper;
5. One national print interview with a wire service;
6. One Oklahoma print interview;
7. One 15 minute Oklahoma City television interview (with the
understanding that the interview could not be shown in Denver); and
8. One Denver, Colorado, television interview of 15 minutes.
Each of these interviews would be subject to the following:
1. All Rules and Regulations of the Bureau of Prisons and United States
2. The Court's guidelines one extrajudicial statements; and
3. The total amount of television time for all interviews would not
exceed one (1) hour.
B. Legal Standards: As a pre-trial detainee, Mr. McVeigh retains at
least those constitutional rights that are enjoyed by convicted
prisoners. Bell v. Wolfish, 441 U.S. 520, 545 (1979). Thus, Mr. McVeigh
has "a First Amendment right to be free from governmental interference
with [his] contacts with the press if that interference is based on the
content of the speech or proposed speech." Kimberlin v. Quinlan, 774 F.
Supp. 1, 34 (D.D.C. 1991), rev'd on other grounds, 6 F.3d 789 (D.C. Cir.
1993). Nonetheless, Mr. McVeigh recognizes that the First Amendment is
not violated by denying a prisoner permission to conduct a face-to-face
interview with a television news program if doing so would disrupt the
orderly operation of the prison. Saxbe v. Washington Post, 417 U.S. 843
(1974); Johnson v. Stephan, 6 F.3d 691, 692 (10th Cir. 1993).
Mr. McVeigh need not rely upon the Constitution, however, because
federal regulations and United States Department of Justice policies
both recognize and regulate inmates' rights to contact with news media,
including interviews which are videotaped for subsequent broadcasts. 28
C.F.R. Section 540.63(h)(4) (authorizing the Warden to limit the amount
of video equipment or number of medial personnel allowed to enter the
institution to prevent a disruption). See also, United States Department
of Justice, Federal Bureau of Prisons Program Statement 1480.03 (Oct. 7,
1994) (News Media Contracts).
The Code of Federal Regulations acknowledges the desirability of
providing public information about its operations via the news media. 28
C.F.R. Section 540.60. More specifically, the Code endorses, while
closely regulating, personal interviews between inmates and media
representatives. 28 C.F.R. Section 540.63 (personal interviews).
As a pre-trial detainee, Mr. McVeigh falls within the scope of 28 C.F.R.
Section 540.63(g)(6). That section requires "unconvicted persons . . .
held in federal institutions" to seek "clearance with the court having
jurisdiction" prior to arranging media interviews.3 This motion seeks
this Court's clearance. Although this Court's Memorandum Opinion and
Order Regarding Extrajudicial Statements by Attorneys and Support
Personnel (filed June 13, 1996) does not by its terms specifically apply
to statements by the Defendants in this case, any interviews granted
pursuant to Court authorization would comply with that directive.
Judicial clearance for Mr. McVeigh to grant a videotaped interview
either to Barbara Walters, Tom Brokaw, Dan Rather, Susan Candiotti, Jack
Bowen or Diane Sawyer, as well as the limited interviews with other
media representatives, is consistent with existing federal regulations
and Department of Justice policies. Granting this motion is entirely
consistent with the Fair Trial and Free Press standards promulgated by
the American Bar Association. ABA Standard 8- 2,1(b)(ii) explicitly
endorses the right of a person in custody to consent to or request a
televised interview by news media representatives. American Bar
Association Standards on Criminal Justice, Commentary on 8-2.1.
III. DEFENDANT McVEIGH'S RIGHT TO BE SEEN.
The process of the demonization of Timothy McVeigh undertaken by the
government and some media in this case was proven at the hearing upon
the Defendant's Motion of Change of Venue. The evidence included
statements from the President and the Attorney General that the death
penalty would be sought. The evidence proved the Department of Justice
officials had made extrajudicial statements concerning Mr. McVeigh's
character as a "drifter" and "militia member" and had detailed the
supposed evidence against him. Evidence at the hearing tended to prove
that federal officials speaking on condition of anonymity had stated
that chemical traces were found upon McVeigh's clothing, that McVeigh
had refused to provide any information to Government officials (except
name, rank and serial number) and claimed to be a prisoner of war, that
Mr. McVeigh's fingerprint was found upon a receipt for the purchase of
fertilizer, and that Mr. McVeigh had authored a diary indicating
bombings would take place in three other cities. During the hearing upon
Motion for Change of Venue itself, Department of Justice officials
allowed media representatives to take video footage of Timothy McVeigh
and Terry Nichols shackled, in prison garb and under heavy guard. The
Government did not make a motion to the Court to allow for this action
and Timothy McVeigh did not have the opportunity to resist such an
exhibit which even today is repeatedly shown on national television. The
Government and press has succeeded in convincing the public that not
only is Timothy McVeigh guilty, but he deserves to die. He is less than
human. This tactic has been extremely effective and can be proven by the
i. The New York Times headline on May 4, 1995, in reference to McVeigh
was "Life of Solitude, Obsession and Anger" (See Exhibit "E" attached
ii. The Washington Post headline on July 2, 1995, was "An Ordinary Boy's
Extraordinary Rage" (See Exhibit "F" attached hereto);
iii.The Star Tribune reported on July 9, 1995, that "Investigators
speculate that the 27-year-old veteran of the Persian Gulf War had come
to see himself as a soldier in his own strange war against the United
States." (See Exhibit "G" attached hereto); iv. Journalistic cartoons
consistently portray McVeigh as a demon with such characteristics as
pointed ears and fangs (See Exhibit "H" attached hereto);
v. The headline in the "Star" Magazine for May 16, 1995, complete with a
picture of McVeigh's image superimposed over the rubble of the Murrah
Building was "I Was Evil Bomber's Lover" (See Exhibit "I" attached
vi. The headline in the New York Times on Sunday, December 31, 1995, was
"Oklahoma Bombing Suspect: Unraveling of Frayed Life" (See Exhibit "J"
vii. The headline in the Dallas Morning News on Monday, May 1, 1995, was
"Sales Slip May Link Nichols to McVeigh, Blast Ton of Ammonium Nitrate
Purchased at Kansas Store" (See Exhibit "K" attached hereto);
viii. The headline in the Washington Post on Wednesday, April 26, 1995,
was "Two Brothers Face Explosives Charges, McVeigh Won't Talk, Claiming
He's a POW" (See Exhibit "L" attached hereto);
ix. The headline in the Tulsa World on Thursday, February 1, 1996, was
"Tulsa May Get Bomb Trial" (See Exhibit "M" attached hereto);
x. Photograph appearing in the Daily Oklahoman on April 22, 1995, of FBI
officials escorting Timothy McVeigh at the walk-out at the Noble County
Jail on April 21, 1995 (See Exhibit "N" attached hereto); and
xi. Statement by the President on July 18, 1996 stating that Timothy
McVeigh and Terry Nichols are guilty (See Exhibit "O") attached hereto.
A fair trial presupposes that the public perception of the defendant has
not been so skewered, distorted or prejudiced by the media or leaks so
as to render the trial a meaningless ritual where all parties are simply
going through the motions.4 We seek to avoid a Sam Shepherd type trial.
Mr. McVeigh, at the minimum, is entitled to be seen as a human being and
to the extent that any interview or meeting halts the rush to judgment
in advance of trial, the interests of justice are served. There is no
"selling of McVeigh". There is no press spokesman for the McVeigh
defense team except his lawyer, and there is no public relations
consultant. The McVeigh defense has not contacted a single media
representative to suggest an interview with either counsel or client. We
are not in the "favored circle" of Washington "insiders" whom the press
is dependent upon for information off-the-record or guidance or tips.
When the media contacts us we attempt to stay within the guidelines, but
we recognize that some steps are necessary to prevent a prejudgment. The
abuse, distortion, calumny heaped upon our client from the very front
steps of the courthouse will ultimately influence the reporting and the
jury unless there is some modicum of balance.
As the Supreme Court has clearly stated:
'With his life at stake, it is not requiring too much that petitioner be
tried in an atmosphere undisturbed by so huge a wave of public passion.
. . '
Shepherd v. Maxwell, 384 U.S. 333, 351 (1966) quoting Irvin v. Dowd, 366
U.S. 717 at 728 (1961).
Our motivation in putting a picture of Timothy McVeigh before the public
is identical to the motivation of the petitioner in Gentile v. State Bar
He sought only to counter publicity already deemed prejudicial. The
Southern Nevada Disciplinary Committee so found. It said petitioner
(i) to counter public opinion which he perceived as adverse to Mr.
Sanders, (ii). . . to refute certain matters regarding his client which
had appeared in the media, (iii) to fight back against the perversive
efforts of the prosecution to poison the prospective jury pool and (iv)
to publicly present Sanders side of the case. app 3-4
Far from an admission that he sought to 'materially prejudice an
adjudicative proceeding', petitioner sought only to stop a wave of
publicity he perceived as prejudicing potential jurors against his
client and injuring his client's reputation in the community.
Gentile v. State Bar of Nevada, 501 U.S. 1030, 1042 and 1043 (1991).
There is not, in the United States of America in the year 1996, one
First Amendment for the Department of Justice, the survivors, and the
media and another for Timothy McVeigh. Under the circumstances of the
gross distortion of Mr. McVeigh which has been permitted to appear, Mr.
McVeigh's limited, restrained, responses in the requested interviews
would not even begin to bring the scales into balance, nor do we seek to
bring them into balance. What we do seek is to prevent a juggernaut of
prejudgment conviction which even today exists (see Gallup Poll, Exhibit
"P") and we simply try to chip it away slowly and carefully, with
dignity, with individuals such as Time, Newsweek, and Tom Brokaw and
Barbara Walters, and others. Timothy McVeigh has a right to appear in
Court as an accused defendant in something other than sackcloth and
ashes and the Government does not have a role in determining what he
does to remove that incredibly false image, and we respectfully submit
the Court's role in it is extremely limited. Although saying that, we
certainly recognize the Court's concern about prejudicial publicity, but
we respectfully submit that the concern arises from the actions of
There is absolutely nothing that Timothy McVeigh can do or say in an
interview which would prejudice the fairness of this criminal
proceeding. He does not intend nor will he say anything about the facts
of the case nor will he make statements which violate any of the Court's
directives concerning extrajudicial statements. What he might be able to
do in some very limited sense would be to soften the less than human
sculpture that the Government has chiseled into the consciousness of the
nation. That would be completely consistent with Mr. McVeigh's First
Amendment rights and the Government does not have the right to comment
The only possible restriction that might be applied in addition to the
Court's Memorandum Opinion would be a restriction upon timing. A trial
date has not yet been set, but the Court might well impose a moratorium
which prevents the interviews sought for a period of three months prior
to trial. Government input into such a restriction is not necessary,
because Timothy McVeigh consents.
For these reasons, Counsel respectfully requests that the Court grant
the Motion for Access to the media.
Mr. McVeigh respectfully requests that this Court grant judicial
clearance under 28 C.F.R. Section 540.63(g)(6) and grant the following
1. Authorize the BBC-TV, Documentary Division, through its
reporter/producer, Neil Grant, to film an interview with Mr. McVeigh at
Englewood Federal Correctional Institution during the week of October 7,
1996. This week is important given the scheduling commitments of the BBC
and the necessity to transport a crew from London and elsewhere to
2. That Mr. McVeigh and his counsel be permitted to choose among Barbara
Walters, Diane Sawyer, Tom Brokaw, Dan Rather, Susan Candiotti and Jack
Bowen for one (1) television interview which must be filmed and
completed in the month of October-1996, to be aired no later than the
week of Thanksgiving; and
3. That the limited other interviews outlined herein be authorized.
DATED this 19th day of August, 1996.
/s/ Stephen Jones, OBA #4805
Richard Burr, FBA #407402
Robert Nigh, Jr., OBA #011686
Jeralyn E. Merritt, CBA #5288
JONES, WYATT & ROBERTS
114 East Broadway, Suite 1100
Post Office Box 472
Enid, Oklahoma 73702-0472
Phone: 405/242-5500 Fax: 405/242-4556
Robert L. Wyatt, IV, OBA #13154
Michael D. Roberts, OBA #13764
James L. Hankins, OBA #15506
Randall T. Coyne, OBA #549013
Amber L. McLaughlin, TBA #13740980
Robert J. Warren, OBA #016123
Andrew P. Murphy, OBA #16702
Mandy Welch, TBA #21125380
ATTORNEYS FOR DEFENDANT TIMOTHY JAMES MCVEIGH
1. The publisher has cornrnitted a "$75,000.00 national marketing
budget, national media appearances, national advertising and an author
tour." Exhibit "B". Undoubtedly, Denver will be on this tour.
2. Counsel for Mr. McVeigh represented, by appointment of Judge West,
3. That same provision recites that judicial clearance is "ordinarily
[obtained] through the U.S. Attorney's Office." 28 C.F.R. Sec.
540.63(g)(6). This motion seeks judicial clearance without intervention
of the U.S. Attorney's Office. Because the U.S. Attorney is presently
prosecuting Mr. McVeigh for a capital offense, Mr. McVeigh respectfully
submits that his case is "extraordinary." Allowing the U.S. Attorney to
deny unilaterally Mr. McVeigh the right to grant personal interviews
with the media makes no more sense than suggesting that Mr. McVeigh's
defense counsel should have the power to veto interviews contemplated by
Attorney General Janet Reno or other Justice Department officials.
4. A guest on the nationally televised cable program "Politically
Incorrectt' referred to our client as "garbage" at which point the
audience burst into applause. (Exhibit "Q").
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