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5/1/96 Gov't Brief In Support Of Closed-Circuit Televising Of Trial Proceedings To OKC

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UNITED STATES DISTRICT COURT
DISTRICT OF COLORADO

Chief Judge Richard P. Matsch

UNITED STATES OF AMERICA, Plaintiff

v.

TIMOTHY JAMES McVEIGH and TERRY LYNN NICHOLS, Defendants.

Crim. Action No. 96-CR-68-M
(formerly No. 95-110 MH WDOK)

MOTION AND BRIEF IN SUPPORT OF CLOSED-CIRCUIT TELEVISING OF TRIAL PROCEEDINGS TO OKLAHOMA CITY

On April 24, 1996, the President signed into law the Anti-Terrorism and Effective Death Penalty Act. A portion of that statute, Section 235 FN 1, requires the closed-circuit televising of trial proceedings in cases in which venue has been changed to a distant location. The purpose of the statute is to enable victims of crime who cannot travel to the distant venue to view the trial in the district in which the crime occurred. The provision applies to this case. Consequently, the United States moves this Court to apply Section 235 and provide for the closed- circuit televising of the trial proceedings to the United States District Court for the Western District of Oklahoma in Oklahoma City. The United States offers recommendations for implementing the requirements of the statute.

The clear import of Section 235 is to craft a limited exception to the general prohibition on the televising of court proceedings in Federal Rule of Criminal Procedure 53. Congress has essentially provided for an expansion of the courtroom, by technological means, to enable victims of crime who cannot attend the trial to view those proceedings in another courtroom. By providing only for closed-circuit television and by imposing a number of strict limitations on the procedures to be used, Congress has expressed its intent simply to allow more of those directly affected by the crimes involved to watch the trial, according to the same rules that apply in the courtroom in which the proceedings are actually taking place, and under the complete control and supervision of the presiding trial judge. The use of closed-circuit television in thin case, particularly when carefully limited and controlled by the trial court, will not endanger the defendants' right to a fair trial. The strictly controlled procedure mandated by this statute carries no risk of leading to unlimited media coverage of the type that could deprive the defendants of that "judicial serenity and calm to which [they are] entitled." Estes v. Texas, 381 U.S. 532, 536 1965).

Section 235 Applies to this Case.

Section 235 provides, in pertinent part:

(a) In General. -- Notwithstanding any provision of the Federal Rules of Criminal Procedure to the contrary, in order to permit victims of crime to watch criminal trial proceedings in cases where the venue of the trial is changed --

(1) out of the State in which the case was initially brought; and

(2) more than 350 miles from the location in which those proceedings originally would have taken place;

the trial court shall order closed circuit televising of the proceedings to that location, for viewing by such persons the court determines have a compelling interest in doing so and are otherwise unable to do so by reason of the inconvenience and expense caused by the change of venue. FN 2

The offenses charged in this case resulted in the deaths of 168 persons and injury to hundreds more. While the nation as a whole has a great interest in this case, there are certain individuals who have a much greater than generalized interest in satisfying themselves that justice is served. They are the hundreds of persons who were in the Murrah Building at the time of the explosion, and the many more who lost loved ones and suffered personal injuries in the bombing.

They were more than merely shocked by the crime. Their lives have been deeply and irreparably affected. Part of their recovery depends on their seeing -- first hand, if possible -- our system of justice at work. These people have "a compelling interest" in attending the trial.

Most of them, however, are "unable to do so by reason of the inconvenience and expense caused by the change of venue" to Denver, which is "more than 350 miles from" Oklahoma City. The Victim Assistance Unit of the United States Attorney's Office for the Western District of Oklahoma corresponds with more than 1200 people identified as victims of the Murrah Building bombing.

These include children who lost parents, parents who lost children, scores of men and women who lost spouses, and hundreds of people who suffered personal injury as a result of the bombing. As established at the venue hearing, virtually all of these victims live in the greater Oklahoma City area. Many of them have expressed an interest in attending the trial but are unable to travel to Denver for that purpose. Many have jobs; others have children in school or at home; some are in school themselves. Even if cost were not a consideration, many of these victims could not leave their homes overnight to attend the trial. Moreover, the seating capacity in the Denver courtroom is limited to only about 100, making it impracticable to accommodate more than a fraction of the victims in any event.

In its order changing the venue of this case to Denver, this Court noted its awareness of "the wishes of the victims of the Oklahoma City explosion to attend this trial" and the "hardship for those victims to travel to Denver." By providing for closed-circuit televising of the proceedings in cases such as this, Congress has addressed these types of concerns and offered another means of ensuring that victims have access to trials. Indeed, because of the one-hour time difference between Oklahoma City and Denver, closed circuit television broadcast of the trial proceedings to Oklahoma City will virtually assure that the vast majority of victims, including those who are employed, will have the opportunity to observe at least some portion of the proceedings.

Federal Rule of Criminal Procedure 53 provides that "[t]he taking of photographs in the court room during the progress of judicial proceedings or radio broadcasting of judicial proceedings from the court room shall not be permitted by the court." The Rule has been construed to apply to television broadcasting as well. See United States v. Hastings, 695 F.2d 1278, 1279 n. 5 (11th Cir.), cert. denied, 461 U.S. 931 (1983).

No case has held that Rule 53 also applies to closed-circuit televising to another courtroom; but, even assuming that Rule 53 does apply to prohibit closed-circuit televising of court proceedings, Congress specifically provided that Section 235(a) controls over "any provision of the Federal Rules of Criminal Procedure to the contrary[.] FN 3

Section 235 Applies Only to Victims of Crime.

Only victims should be permitted to view the closed- circuit televising of the proceedings in this case. Congress expressed its intent to limit access to the closed-circuit viewing to victims when it titled Section 235 "Closed Circuit Televised Court Proceedings for Victims of Crime" and when it declared that the purpose of the provision is "to permit victims of crime to watch criminal trial proceedings" in certain specified classes of cases, where the victims have "a compelling interest in doing so and are otherwise unable to do so by reason of the inconvenience and expense caused by the change of venue." Thus Congress's clear aim was to benefit victims, and the Court should limit the expanded access to the trial authorized by this statute to members of that group. Other persons including the press, of course, retain their right to attend the trial proceedings in Denver.

By limiting access to the closed circuit broadcast in City to victims in Oklahoma City, this Court will substantially avoid one of the principal disadvantages of allowing cameras in the courtroom -- that is, the incentive that a camera provides for an attorney or witness to "play to" the television audience. The closed circuit broadcast will not vastly expand the trial audience; it will simply extend the courtroom to people who would have observed the trial in person had venue not been changed. The incentives for the participants in the trial should not appreciably change as a result of such an extension.

The determination of which persons qualify as victims who have a "compelling need" to view the trial proceedings by closed-circuit television is a matter entrusted to the Court's discretion (see Sec. 235(a)(2), (b)(1), (b)(2)); the statute is not intended to create a cause of action against the United States or any of its officers or employees by virtue of the manner in which the Court implements its responsibilities under the Act (Sec. 235(e)). The United States suggests that, in order to identify those persons who qualify under the statute as having a "compelling interest" in viewing the trial and who "are otherwise unable to do so," the Court should set up a specific procedure for selecting those eligible to view the trial in Oklahoma City. Applications to attend the closed circuit television viewing of the trial could be processed through the clerk's office for the United States District Court for the Western District of Oklahoma. Ms. Lynn Anderson, Assistant United States Attorney for the Western District of Oklahoma, and the Victim Assistance Unit which she heads, would be available to assist the Court in notifying and certifying those who are considered "victims" of the Murrah Building bombing, according to criteria established by the Court.

Section 235 Requires the Trial Court to Maintain Control over the Closed-Circuit Televising.

Section 235(c)(1) of the Act requires that

[t]he signal transmitted pursuant to subsection (a) shall be under the control of the court at all times and shall only be transmitted subject to the terms and conditions imposed by the court. To ensure compliance with this provision, we suggest that the signal from this Court be transmitted in encrypted form, over a secure, direct line, to the United States Courthouse in Oklahoma City, for viewing by persons designated by the trial court in one or more courtrooms; and that the District Court's officers and security personnel in Oklahoma City perform the same monitoring functions that they would perform in a courtroom in which a trial were being held. To guarantee that the signal remains "under the control of the court at all times," this Court should direct that cameras and all other equipment be purchased with court funds, and that court personnel operate the cameras -- in short, that the entire operation of the closed-circuit televising remain exclusively a function of the court, without the involvement of any private parties or business entities.

For the same reason, all costs associated with the closed-circuit televising should be borne by the government, not any private parties. By deleting a previous provision that would have prohibited the use of appropriated funds, FN 4 and requiring the courts to carry out the statute's mandate (Sec. 235(a) & (d)), Congress has further indicated its intent to have the courts exercise complete control over all aspects of the closed-circuit televising. While Congress apparently intended to place on the courts themselves the primary responsibility for funding the closed-circuit televising required by Section 235, the statute provides for the Administrative Office of the United States Courts to accept donations "to enable the courts to carry out subsection (a)" (Sec. 235(d)). Any such donations, however, should be restricted to cash only; allowing any private persons or entities to donate equipment or services in connection with the closed-circuit televising could effectively surrender the court's control over these procedures and thereby violate the statute's specific requirement that the signal remain under the court's control at all times. The Department of Justice will provide, through the Office for Victims of Crime, any necessary funding that cannot be met by the resources of the courts or other donations.

The U. S. Marshal's Service should also be available to the Court to assist in carrying out the technical aspects of the required closed- circuit televising. A preliminary study conducted by the Department of Justice/Executive Office for United States Attorneys Video Teleconferencing Laboratory has determined that a secure video/audio transmission could be accomplished between the two sites at a reasonable cost. Since this would be a one-way transmission only, it is recommended that a dedicated T-1 digital line be installed between the two points by Sprint, the Network B FTS-2000 network carrier. It has been established that this line would travel between Denver and Oklahoma City strictly on fiber and would at no time route through any other wireless or land connections. The "codec" FN 5 and associated broadcast equipment could be located on a cart in a position or location designated by the court. It is estimated that the cost of the broadcast equipment would not exceed $75,000, with an additional expense of approximately $100,000 for adequate monitors in Oklahoma City. Line costs are anticipated not to exceed $1500 per month for unlimited use. The United States has indicated that it may be able to provide the necessary encrypters from its existing inventory. The Executive Office for United States Attorneys (EOUSA) currently manages a contract under which all of the requisite equipment could be obtained; and at the conclusion of the trial all of the necessary equipment could be redesignated for videoconferencing purposes.

Section 235 Forbids Any Broadcast or Dissemination of the Closed- Circuit Television Signal

Section 235(c)(2) of the Act states that

No public broadcast or dissemination shall be made of the signal transmitted pursuant to subsection (a). In the event any tapes are produced in carrying out subsection (a), such tapes shall be the property of the court and kept under seal.

The best way to carry out the intent of this provision is not to make a tape in the first place. The signal should be transmitted but not videotaped. The statute's preclusion of any "public broadcast or dissemination" of the signal, coupled with the requirement that "in the event" any tapes are made, "they shall be the property of the court and [be] kept under seal," reflects Congress's intent to allow closed- circuit television only as a means of allowing more of the victims of crimes to view the trial from another location -- not to provide for the broadcast of the trial to the general public, and not to produce any additional public record of the trial beyond the official trial transcript that is normally made. The court can ensure that it carries out the statute's mandate not to allow broadcast or dissemination of the signal simply by prohibiting the production of any videotapes of the televised proceedings.

Section 235 Will Not Affect the Defendants' Right To a Fair Trial.

The televising required by Section 235 will not have any adverse impact on the rights of the defendants to a fair trial. The television cameras can be placed in an unobtrusive location and operated in a manner that will not distract the jury or witnesses. FN 6 The participants in the trial will have no incentive to conduct themselves in any way other than they would in a larger courtroom in Oklahoma City. Those viewing the closed-circuit television signal will see no more than what the jury and members of the public in the courtroom can see. And the statute provides that the Court may exclude from the closed-circuit television viewing anyone whose testimony "would be materially affected if that person heard other testimony at the trial." Sec. 235(b)(2). As long as the Court implements this statute in the very limited manner contemplated by Congress, the interests of the victims will be substantially furthered while the rights of the defendants remain unaffected.

ACCORDINGLY, pursuant to Section 235, the Court should provide for the closed-circuit televising of the trial proceedings in this case to the United States Courthouse in Oklahoma City, according to the recommendations outlined above.

Respectfully submitted,

JOSEPH H. HARTZLER
Special Attorney to the U.S. Attorney General

SEAN CONNELLY
Special Attorney to the U.S. Attorney General
U.S. Department of Justice
1961 Stout Street, Suite 1200
Denver, Colorado 80294
(303) 313-2500
===============

FN 1 The full text of Section 235 is attached to this motion.

FN 2 The Act went into effect on April 24, 1996. By its terms, Section 235 applies only to cases filed after January 1, 1995. The offenses in the instant case were committed on April 19, 1995, and the indictment was filed on August 10, 1995.

FN 3 This Court's Local Rule 83.3 bans "[t]he possession or use of cameras or recording devices . . . in the United States courthouse or anywhere that a judicial officer is holding a court proceeding," except by "court employees performing official duties." Rule 83.3 is consistent with Section 235, which makes closed-circuit televising in these circumstances an "official dut[y]."

FN 4 See Conference Report on S. 735, Terrorism Prevention Act, H. Rep. No. 518, 104th Cong., 2d Sess., 142 Cong. Rec. H3334 (daily ed. April 15, 1996).

FN 5 "Codec" is an acronym for COder/DECoder, a video teleconferencing unit which performs coding/decoding of audio and video.

FN 6 In fact, the Court may wish to consider formulating specific guidelines for use of the cameras so as to ensure that they will not distract the jury or witnesses or call undue attention to the lawyers. Thus, for example, the court could decide that the cameras should only view the lawyers during opening statements and closing arguments; that the cameras should never show the jury or any juror; that the cameras should show the trial judge whenever he is speaking; and that during witness testimony, the cameras should show only the witness or a relevant trial exhibit being displayed to the jury.

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