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OK City Bombing Case: Mcveigh's 8/96 Filing For Access To The Media
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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 Journal.
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 walk-out footage).
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 McVeigh.
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 contact Order.
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 Kingdom.
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 States.
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. McVeigh.
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 interview.
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 statements.
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 interview.
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 commercials);
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 Marshal Service;
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 following:
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 hereto);
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 hereto);
vi. The headline in the New York Times on Sunday, December 31, 1995, was "Oklahoma Bombing Suspect: Unraveling of Frayed Life" (See Exhibit "J" attached hereto);
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 of Nevada:
He sought only to counter publicity already deemed prejudicial. The Southern Nevada Disciplinary Committee so found. It said petitioner attempted:
(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 others.
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 upon it.
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 relief:
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 Colorado;
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, Mr. Stafford.
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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