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OK City Bombing Case: 11/96 Hearing On Motions To Televise Trial
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,
Chief Judge Richard P. Matsch
IN THE MATTER OF PETITION OF OKLAHOMA MEDIA GROUP
(HEARING ON MOTIONS - VOLUME III)
Proceedings before the HONORABLE RICHARD P. MATSCH, Judge, United States District Court for the District of Colorado, commencing at 9:00 a.m., on the 14th day of November, 1996, in Courtroom C-203, United States Courthouse, Denver, Colorado.
Proceeding Recorded by Mechanical Stenography, Transcription Produced via Computer by Paul Zuckerman, 1929 Stout Street, P.O. Box 3563, Denver, Colorado, 80294, (303) 629-9285
PATRICK M. RYAN, United States Attorney for the District of Oklahoma, 210 West Park Avenue, Suite 400, Oklahoma City, Oklahoma, 73102, appearing for the plaintiff.
JOSEPH H. HARTZLER, SEAN CONNELLY, LARRY A. MACKEY, BETH WILKINSON, SCOTT MENDELOFF, and VICKI BEHENNA, Special Attorneys to the U.S. Attorney General, 1961 Stout Street, Suite 1200, Denver, Colorado, 80294, appearing for the plaintiff.
STEPHEN JONES, ROBERT NIGH, JR., ROBERT WYATT, Attorneys at Law, Jones, Wyatt & Roberts, 114 East Broadway, Suite 100, Post Office Box 472, Enid, Oklahoma, 73702-0472, and JERALYN MERRITT, 303 East 17th Avenue, Suite 400, Denver, Colorado, 80203, appearing for Defendant McVeigh.
RONALD G. WOODS, ADAM THURSCHWELL, and REID NEUREITER, Attorneys at Law, 1120 Lincoln Street, Suite 1308, Denver, Colorado, 80203, appearing for Defendant Nichols.
THOMAS B. KELLEY, Attorney at Law, Faegre & Benson, L.L.P., 2500
Republic Plaza, 370 17th Street, Denver, Colorado, 80202-4004, and
MICHAEL MINNIS, Attorney at Law, Michael Minnis & Associates, P.C., 100 North Broadway, Suite 3160, Oklahoma City, Oklahoma, 73102-8606, appearing for the media consortium.
* * * * *
(In open court at 9:00 a.m.)
THE COURT: We're resumed in 96-CR-68, and I think we have the same appearances as yesterday.
MR. HARTZLER: Yes, your Honor.
MR. JONES: Yes, your Honor.
MR. WOODS: Yes, your Honor.
THE COURT: As I indicated yesterday in suggesting the order in which we'll proceed in these hearings, we will take up the matter of the proposal by the Government for establishing criteria for admission to closed-circuit televised proceedings pursuant to the statute and also a collateral petition filed and designated as 96-X-134 as The Matter of Petition of Oklahoma Media Group, and I suggest that since that involves counsel representing that petitioner and not parties to the case that we take and hear from counsel for the petitioners first and then have responses to that from the parties, then go to the Government's motion.
So in that, Mr. Kelley, you're here on behalf of the petitioners along with Mr. Minnis?
MR. KELLEY: Yes, your Honor. Mr. Minnis will argue.
THE COURT: All right, Mr. Minnis, you may proceed. I take it you received the responses from the parties to the petition?
MR. MINNIS: Yes, sir.
THE COURT: All right.
MR. MINNIS: Thank you, very much. We have asked for, that when the broadcast is made to Oklahoma City, that in providing access, that preferences be given to a certain portion for the media as the representatives of the general community. In response to that motion, if we understand, the objections that have been raised by all parties really to the motion fall into two categories. One, that the statute is only meant for victims, and victims only. And in a very direct sense, not in an indirect sense. And second, that the media does not qualify for the second prong about inconvenience or expense. We would like to address each one of these in turn.
First, we would concede that the statute itself was motivated almost exclusively by concern for the victims. But we would suggest that the Act itself does not restrict itself to victims. The Act provides that this Court can provide access to anyone that the Court determines has a compelling interest in being there, and is otherwise unable to attend by reason of inconvenience or expense.
And we would suggest that the media has a compelling interest in attending based on its role as a surrogate for the general community. We would quote from Press Enterprise about one of the purposes for trials and the openness of trials. This openness is what is sometimes described as a community therapeutic value. Criminal acts, especially violent crimes, often provoke public concern, even outrage and hostility. This in turn generates a community urge to retaliate and desire to have justice. Whether this is viewed as retribution or otherwise is irrelevant. When the public is aware that the law is being enforced and the criminal justice system is functioning, an outlet is provided for these understandable reactions and emotions.
This Court has understandably, for very good legal reasons, moved this Court out of the community where the crime occurred. If the broadcast is going to be broadcast back to that community, we would suggest that a compelling interest is a compelling interest of the general community for these therapeutic reasons in the viewing process.
Second, if the Act is so narrowly interpreted as the parties have suggested, only to victims, then we would be establishing precedent in this case that's rather strange. And that is this case is an odd case in the sense of the number of victims. We may have hundreds, thousands of victims in this case. But in the normal criminal case, you may have only ten or 15. And if you restrict a closed-circuit broadcast only to victims, then in future cases, you may have a situation in which you're broadcasting back to five or ten people. We would suggest that that's not a rational interpretation or proper construction of the act.
In meeting the second prong; that is, about the expense of travel and what have you, we would agree with that and we would suggest to the Court that there are members of the media who can meet that test. The communities in Oklahoma -- although some of the major newspapers, the major television stations are and may be part of the pool provided access here at the criminal location, there are many members of the media who cannot afford this expense: radio, television, and mostly also small newspapers.
There are communities like Edmond just to the north of Oklahoma City who have lost many people in the tragedy and who have been terribly affected. Midwest City, Norman, each one of these cities has a newspaper who would have a different angle and a different message to bring to their community based on the trial. In addition, the presence at the trial would be giving an opportunity for these people to observe what takes place in a public forum.
We would suggest also that when you have the Government providing this type of a forum, that it should not be restricting it just to very limited numbers of people but that it serves a very wide and broad purpose. And that we shouldn't be establishing small little classes of people that they're the only ones that get to attend certain publicly sponsored functions.
In this case, the attendance will serve very compelling interests. The media as a surrogate, when you have limited seating, is someone that should be granted some preferential access if the seating is to be limited. In addition, we would suggest that the access shouldn't in general be restricted because you may have -- this trial may last -- I don't know -- six months, a year, who knows. But during that period of time, we would suggest that the courtroom or wherever the closed-circuit broadcast may be taking place may not always be filled and what reason is there possibly for restricting access to what is a public trial or at least a broadcast of a public trial. So we would respectfully urge the Court that when it enters its order, that it provides some preference for the local media in Oklahoma City. Thank you, your Honor.
THE COURT: Let me ask you a couple of questions based on the filing that you made here, the written submission. As I understand it, you differ from the parties with respect to where the viewing should be in Oklahoma City. The context here of the parties' submission has been to a courtroom. And you're suggesting here, as I understand it, that it need not be a courtroom but could be a place with greater seating capacity; is that right?
MR. MINNIS: Yes, sir. Yes, sir.
THE COURT: And the statute doesn't say one way or the other.
MR. MINNIS: That's correct.
THE COURT: You also, as I understand it, have raised the question of the constitutionality of the Act if it's interpreted as narrowly as the parties have done. Because, as I understand your position -- and you've, of course, relied here in your oral argument on precedent -- is that we -- that the televised trial proceedings should be considered in the same fashion as the proceeding here in the courtroom.
MR. MINNIS: Yes, your Honor.
THE COURT: What -- I have difficulty with that part of it, the constitutionality of it, and that constitutionality has been attacked upon other grounds here, but we were already past that. You know, the trial proceeding is in the courtroom in Denver.
MR. MINNIS: Yes, sir.
THE COURT: And all that we have then transmitted is, as you say, an extension of the courtroom, but I'm not sure it is an extension of the courtroom. It's communication, direct communication, but it's not the courtroom, as you seem to suggest when you say that it could be in some other setting, with greater seating.
MR. MINNIS: Yes, sir.
THE COURT: It's a limited broadcast, really, of the trial. I'm not sure that the, you know, your argument that it doesn't have to be in a courtroom and so forth squares with the concept that it's a trial proceeding and, therefore, subject to constitutional access.
MR. MINNIS: Well, as it was framed -- perhaps we're mixing and matching. As it was framed by the suggestions by the United States, it would have taken place in a courtroom and it would have had a judge. As I understand it, that's what they've suggested.
THE COURT: Judicial officer.
MR. MINNIS: Yes. And if that is so, then that comes closer to the paradigm that you suggested. But I was going to suggest that under these circumstances -- which is that we've taken the trial out of the community where the crime has been committed and we've moved it to another location and then we're going to broadcast it back -- that really what we're doing is we're serving the same therapeutic value that was discussed in Press Enterprise for the local community who is not given the opportunity, other than through the national media or through the big chains that attend the trial in Denver.
THE COURT: Now, would you have -- under the matter of inconvenience and expense, would you have applications made by the particular media entities showing a financial inability?
MR. MINNIS: Yes, sir. That would meet that prong. Each one would have to meet that prong. Just like I would suggest that the same thing would be true of any of the people that are going to -- to -- every person, as I understand it, has to meet that test that would be given access.
THE COURT: All right. And what you're telling me is there are those there who could meet the test?
MR. MINNIS: Yes, sir, I do believe they can.
THE COURT: Now, if I were to go with your view that because the statute does not require transmission into a courtroom, that it could be to some other locale, what would you suggest?
MR. MINNIS: In terms of --
THE COURT: -- the place in Oklahoma City where the transmission would go to. I mean, obviously, if we were to attempt to accommodate all who may meet the criteria under the statute of having a compelling interest and so forth, you know, it's been represented to me here that in the United States Attorney's office, they have the names of several thousand.
MR. MINNIS: Yes, sir.
THE COURT: And I'm concerned in creating some sort of a theater or arena type atmosphere for these proceedings then to be viewed. What are you suggesting if it isn't a courtroom?
MR. MINNIS: Well, I have not done a survey of the available places, but it occurs to me that there are locations other than a courtroom where you could have an orderly situation where you could view the trial.
THE COURT: You mention here a court-martial proceeding out at Tinker Air Force Base that apparently was broadcast.
MR. MINNIS: Yes, sir. In that case, it was a controversial case having to do with a shootdown of our own planes by an AWACS pilot, and there was a lot of national, international interest in it. And what happened, they broadcast it on a small little TV in a -- basically, a warehouse. And they had guards outside that searched you and they had people inside to make sure that the decorum was maintained, but other than they allowed perfect access and therefore no circus-like atmosphere.
THE COURT: That was done by order of the Court?
MR. MINNIS: The Court, I think, did that.
THE COURT: Just to accommodate, essentially, the great public interest?
MR. MINNIS: The great public interest and the fact that not everybody could attend the trial.
THE COURT: So in a sense, are you saying that the media groups who could meet the -- or entities who could meet the criteria for inability, inconvenience, and expense are surrogates for the victims?
MR. MINNIS: The general community as a victim. Every crime has an impact on the community as a whole. The idea that a crime only affects the particular victim is -- I think is not supported by the case law.
THE COURT: In a very legal sense, the fabric, the community of the United States is a victim.
MR. MINNIS: That's correct.
THE COURT: That's why the cases are prosecuted in the name of the United States.
MR. MINNIS: That's correct, exactly.
THE COURT: But there would be no limitation, then, and what the Government has suggested is that when the Congress has used the term "victim" in this statute, they are using it in the same sense as in the 1990 Victim Rights and Restitution Act.
MR. MINNIS: Yes, sir, they did, but in the statute, itself, in establishing the criteria, they didn't use the word "victim." They used "compelling interest." And I think that --
THE COURT: In the legislative purpose as described in the statute, they used "victim."
MR. MINNIS: Yes, sir. Yes, sir. As I said, I concede right off the bat that the driving force for this act was for victims.
THE COURT: Yeah.
MR. MINNIS: Victims of crimes. But if you limit it just to victims, you're going to have a closed-circuit broadcast, I would suggest, to a handful of people which I don't think makes any sense, nor is it something that would be really the purpose of it.
THE COURT: Thank you.
MR. MINNIS: Thank you, very much.
THE COURT: Who is going to argue this for the Government? Ms. Behenna?
MS. BEHENNA: Yes, your Honor. I want to first, your Honor, address the constitutional issue because I really don't think the issue raised by Mr. Minnis and the media group on the constitutional level is applicable in this case. And the Court has gone to unprecedented lengths to make sure that the media has access to this trial. I think it's clear from a reading of the statute, your Honor, that the intended group that this legislation was supposed to provide for -- it says it in its heading and it says it numerous times throughout the statute -- and that is to permit victims of a crime to watch criminal proceedings in cases where, you know, venue has been changed to a location more than 350 miles from the place where the trial was originally set.
I am concerned, your Honor, if the media is allowed access to the closed-circuit TV, it is not the trial, it is not what's happening in the well of this courtroom that the media is going to be reporting on. What they're going to be reporting on is what the victims are seeing and saying about what they view in the closed-circuit TV courtroom in Oklahoma City. That is not their right.
THE COURT: They can be talking about the trial, too. They will be observing two things: They will be observing the television transmission of the trial, and they will be observing the audience reaction.
MS. BEHENNA: But they have a right to observe the trial here, your Honor. There is a press pool. Information is spread out throughout all national, local, and even small press in Oklahoma City. I can pick up numerous papers every time I go to Oklahoma City and find articles about what's happened in the trial in those papers. So they have access. I'm just concerned that the primary motivation for being in the closed- circuit room with the victims is so they can watch their reactions to what's going on and report that. And that is not their right.
As a matter of fact, I think the U.S. Attorney's Office under the Victims Bill of Rights has an obligation to protect the dignity and privacy of the victims. The statute kind of aligns with that. It is very clear that it is supposed to be for victims of crime. Victims of crimes have a right to view these proceedings. We all agree on that. And they also have a right to view that in the dignity and privacy of their own group without having media persons watching them and reporting on what their reactions are.
THE COURT: I suppose there will be those outside of the building -- wherever it is that the transmission goes to -- that do the same thing, to ask them their reactions.
MS. BEHENNA: I assume, and there's nothing we can do about that, your Honor.
THE COURT: And it's up to them whether to respond or not.
MS. BEHENNA: Exactly. I'm saying for the dignity and privacy of these victims and to maintain decorum of the courtroom proceeding, which is important to all of us, that the media should not be allowed access to the closed-circuit TV.
THE COURT: You view this, really, as a private showing.
MS. BEHENNA: Yes, for victims of crime that meet the statutory requirements established by Congress.
THE COURT: So it's not an extension of the courtroom. It is an opportunity for viewing by a limited number of -- by people who can qualify under the statutory standard which you say includes victim, compelling interest of victims.
MS. BEHENNA: Yes, your Honor.
THE COURT: I think I understand your position.
MS. BEHENNA: Yes, your Honor.
THE COURT: For Mr. McVeigh. All right, Mr. Nigh.
MR. NIGH: Thank you, your Honor. In reference to the points raised by the media group, the first one primarily was the community therapeutic value of being able to attend the proceedings, and I would submit on behalf of Mr. McVeigh that that therapeutic value, of course, can be met through the reporting of the proceedings that occur here in Denver and not necessarily through the proceedings that occur in Oklahoma. We would view the proceeding as an extension of the courtroom designed specifically for the purposes identified by Congress for a very limited group. And I think that the victims are the identified group and that the interest doesn't descend beyond that, but we would --
THE COURT: So you agree that it's really a private showing for persons particularly to be identified?
MR. NIGH: Yes, your Honor, but I also view it as an extension of the courtroom and a --
THE COURT: Those are not the same thing, really. I think that the media has an argument if you look at it as simply an extension of the courtroom because then we are talking about a public forum. But if we look at it as a very limited opportunity for private viewing, then I think we don't encounter the constitutional issues that are generated by looking at it as a public forum, an extension of a public forum.
MR. NIGH: I recognize that, and I think that that's the problem that's created by the statute.
THE COURT: You still think the statute's unconstitutional. I realize that.
MR. NIGH: Certainly, that's correct. But I think that the statute puts us in that dilemma, but the statute -- the way that it's drafted and the legislative history of the statute, I think, makes it relatively clear who it was designed to service and to serve. But in the context of what we're doing here, I think it also has to be viewed as a judicial proceeding because of the other interests that are at stake and because of the other rules that are involved in order to maintain its constitutionality.
THE COURT: All right. Thank you.
For Mr. Nichols.
MR. NEUREITER: Reid Neureiter for Mr. Nichols, your Honor.
THE COURT: Good morning.
MR. NEUREITER: The Congress, when it created this statute, was clearly struggling with the conflict between giving access to victims from Oklahoma who could not otherwise attend the proceedings and ensuring that the defendants' fair trial rights would not be infringed because of excessive publicity, principles imposed by Rule 503 which the statute overrules to a certain extent. Thus, the statute allows for closed- circuit television transmission to a select group of viewers found by the Court to have a compelling interest in observing the proceedings while also ensuring that any tapes of the broadcast will remain under seal of the Court and ensuring that the signal would not be publicly disseminated.
The press has two constitutional arguments, essentially, for why they should be allowed access. The first is the general proposition that wherever public -- the public is allowed on public property, the press should also be allowed in. And the second is that this is like a courtroom and anything that happens in a courtroom is public property and, therefore, they should be allowed in for that reason.
Well, the Congress is constitutionally entitled to limit public and press access to Government property if the limitation is rational and underinclusive; that is to say, the Congress can create a limited public forum as long as the limitation does not extend beyond the purpose for which the forum was created.
Cases that affirm such limitations are legion. Cox vs. Louisiana, for example, makes reference to the kinds of limits that may be properly placed on demonstrations outside a courtroom.
As the Court said in Houchin vs. KQED, The press has no special right of access to prison facilities under the constitution.
Quoting Chief Justice Warren's words from Zummell vs. Rusk, the Court there said, There are few restrictions on actions which could not be clothed in the ingenious argument in the guise of decreased data flow. For example, the prohibition of unauthorized access to the White House diminishes the citizen's opportunities to gather information he might find relevant to his opinion of the way the country is being run, but that does not make entry into the White House a First Amendment right. The right to speak and publish does not carry with it the unrestrained right to gather information.
Thus, it is apparent that Congress may constitutionally limit public or press access to otherwise public property for rational reasons. An imminently rational reason in this case is to provide victims with a remote viewing area for the trial without unduly infringing on the defendants' fair trial rights.
Then we get to the second argument; that this is somehow an extension of the courtroom. The press argues that because of the qualified First Amendment and common-law rights of access, courtrooms are always presumptively open to the press. In citing Craig vs. Harney, they say whatever happens in the courtroom is public property. But fortunately, whenever the Supreme Court uses a pithy statement like that, it explains what it means by giving reasons. And there are reasons why. The reasons why the public tradition of openness in courtrooms are enunciated in the Richmond Newspapers case. The many benefits of the Anglo-American tradition of public trials
include giving assurance that all the proceedings are being conducted fairly to all concerned, to discourage perjury, to discourage misconduct of trial participants, to discourage decisions based on secret bias or partiality. And these justifications are reiterated in the Press Enterprise case. The key point is all these justifications refer to what's happening on this side of the bar --
THE COURT: Well, in a sense, though, and this -- here I am operating under a congressional mandate to make this viewing opportunity available to the persons qualifying under the statute.
MR. NEUREITER: Yes, your Honor.
THE COURT: So I suppose, in a way, there's a public interest in making sure I'm doing that.
MR. NEUREITER: Yes, your Honor.
THE COURT: And that argument hasn't been especially made by the media group here, but I suppose you could say that they have an interest in seeing that what is being done in the receiving room in Oklahoma City is consistent with the statute.
MR. NEUREITER: That is true, and that would impose a slippery slope that would require every potential aspect of this case, including many of the proceedings that go on in chambers, also to be open to the public. Here, however --
THE COURT: I'm sure they would join you in saying that's true.
MR. NEUREITER: The point is, though, that it's a qualified First Amendment access. And there are numerous Supreme Court cases that talk about limitations involving the fair trial rights of the defendant and that permit some of the proceedings to happen back in chambers. Here, the Congress has enunciated specific reasons why this should be a limited area for the sake of the victims, while at the same time ensuring that although Rule 53 has been violated to a certain extent in our view, it isn't completely violated by having that message beamed to everyone simultaneously. So it isn't a truly national broadcast. This isn't a black or white situation.
Congress tried to balance the interests at stake, taking into account the interests of the victims; and I think this is one of those rare situations so far in this case where the interests of the victims truly do coincide with the victims (sic) of the defendants; and Congress has agreed that those are legitimate interests served by narrowly construing the statute to allow only those who have been directly affected by the blast into the viewing area. So that's our position, and we believe the press should be denied access.
THE COURT: All right.
Well, Mr. Minnis, do you have some rebuttal you wish to make?
MR. MINNIS: One of the things I think we've lost sight of here -- and it's puzzled me when I saw all the objections that have been raised -- is what's the great concern about more of the public seeing what takes place in a courtroom. After all, what is going to be broadcast is what's taking place in the courtroom; and I'm at a loss to understand what harm is done by allowing a liberal interpretation of who should have been provided access to see what essentially is a public trial. One of the things that --
THE COURT: I don't know that, you know, that the case, the issue, should be decided on the basis of harm or prejudice. What is of concern here is that, as you well know, Rule 53 is there that prohibits the broadcast of federal criminal trials. Here we have a modification of that for purposes of cases where there has been the change of venue, and so forth. And I think that the public policy that is involved and has to be a concern to the Court is that that modification be kept to a minimum.
MR. MINNIS: Yes, your Honor. I understand that. But I was suggesting that within the parameters that have been established here, as I understand Rule 53, one of the motivating forces for that was to make sure there is a fair trial to all concerned. And if that's what's underlying that, we would suggest a broadcast back to Oklahoma City doesn't have the same problems that would be engendered, we would suggest, as if you had the trial itself taking place in Oklahoma City. Some of those have been mitigated by the moving of the trial.
THE COURT: Yeah, but it is not for me to determine broad issues of policy. It is for me to determine what are the limits of this statute.
MR. MINNIS: Yes, your Honor. And I think within the limits of the statute, there is a compelling interest that's being shown by the media and that the Government sponsored events such as this, which is going to be paid for by the Government, should not be, as the counsel has admitted now -- they want a private showing. I think access certainly can be limited when seating is limited, but the idea that the Government is going around and sponsoring for special groups special showings, I think, is contrary to -- contrary to law.
THE COURT: Okay. Well, I want to go forward and hear, to the extent that there is disagreement on what should be the Court's order with respect to the transmission based on the Government's motion and the responses that have been made to that -- some disagreements have been shown in these papers. So perhaps the best way to approach that is to ask for the disagreements to be argued first and then for the Government to respond to that, unless there's objection, because I think in this motion -- I guess it's called a proposal -- the Government's position has been made pretty clear. And that includes how a compelling interest should be identified and the use of the definitions in the 1990 statute and how applications might be made, and so forth.
So I think it would be, as I say, more efficient to start with the differences and hear from counsel for the defendants first.
MR. NIGH: Thank you, your Honor. The -- I think the first problem that we have with the Government's proposal is related to the argument that the proceeding will be an extension of the courtroom here and it's related to Rule 615. And we are concerned with a mechanism for ensuring that Rule 615 of the Federal Rules of Evidence is not violated and ensuring that people who observe the proceedings are not witnesses because of the clear impact that observing the proceedings might have upon their testimony. And we've briefed that elsewhere. So our first concern is a procedure to ensure compliance with Rule 615.
The second issue relates to actually a matter that was discussed yesterday in reference to discovery. We do not oppose the Government's proposal concerning identification of the victims and people eligible to attend. But right now that is entirely a one-sided proposition in terms of information. We do not have access to the information; and as we set forth yesterday in the discovery arguments, we believe that we're entitled to it. And I assume that that issue will be briefed as well by the Government in reference to the discovery issue.
THE COURT: How much are you entitled to? Names and addresses is I thought what you were asking for.
MR. NIGH: That's correct, your Honor, but right now we don't even have that.
THE COURT: Yeah.
MR. NIGH: And I think in order to evaluate or at least to be cognizant of what's going on in Oklahoma City, we're entitled to that information at a minimum and certainly in reference to our view of Rule 615.
The third difference is that in the Government's proposal, there is no provision made for a defense representative being present, and that again is related to the proceedings being an extension of the courtroom in Denver. And we believe the reason for the importance of the defense representative being present is because things might occur which the defense is uniquely in a position to evaluate which might have an impact upon the proceedings here.
THE COURT: For example?
MR. NIGH: The presence of a witness perhaps or --
THE COURT: Well, there could be, you know, sign-in, sign-out. There could be a log maintained as to who's present. I think all that could be accommodated, and I am of the view and agree with the Government that there should be a judicial officer designated by me there.
MR. NIGH: Certainly, your Honor.
THE COURT: So that the rules of decorum and so forth that this Court would establish would be enforced through that person.
MR. NIGH: Certainly, your Honor, and that takes care of the major concern.
THE COURT: Also, I have indicated in my oral ruling on the constitutional objections to this statute that when the Congress says under the control of the trial court, I intend to have a view of what's going on in that other courtroom, if it be a courtroom, which seems to me it makes some sense to match the concern about the dignity and the interests of privacy interests of the people who have the compelling interest. But I intend to have a view right here of what's going on down there.
MR. NIGH: Certainly, your Honor. And that gives us, I think, all the reassurance that we need. I would point out that there -- on occasion there have been things that have transpired in the auxiliary courtroom here where the audio feed goes that were noticed by representatives of the defense but perhaps not noticed by other persons.
THE COURT: Are you talking about a lawyer when you say a representative of the defense?
MR. NIGH: I think it would be an investigator, would be our proposal.
THE COURT: All right.
MR. NIGH: Rather than having actually a lawyer attend the proceeding there.
And finally, your Honor, the only other objection we have to the Government's proposal is the way that they have defined the inconvenience as being persons outside the state of Colorado instead of inside the state of Oklahoma. And I would submit that the statute was designed to accommodate those persons who reside in the transferring venue as opposed to people who reside outside the receiving venue.
THE COURT: I don't know how many people we might be talking about. Obviously from the evidence that was presented in the change of venue hearing, the impact was primarily within several counties there around Oklahoma City, as I recall that evidence. So I don't know that this is a major problem, but logically it strikes me that if someone were, example a family member of one of the deceased, and that person lives in Kansas or Nebraska or somewhere and could demonstrate that while they might have been able to go to trial if it had been held in someplace within the Western District of Oklahoma, that they couldn't come to Denver. I mean I think the logic of it is there, and I don't see why this should be an issue. If they can demonstrate that, why does it make any difference where they live.
MR. NIGH: If they can demonstrate that, your Honor, I don't think it does make a difference.
THE COURT: Okay.
MR. NIGH: That's the only issues that I see that we have disagreement about.
THE COURT: Thank you. Mr. Neureiter, are you going to comment on this?
MR. NEUREITER: Your Honor, we have really nothing more to add to our written submission unless your Honor has any specific questions. There were very minor differences, some of which have been articulated by Mr. Nigh. One was on the issue of what constitutes pecuniary harm.
THE COURT: Yeah.
MR. NEUREITER: But I think that's adequately described in our papers.
THE COURT: And, you know, I think it's secondary with Mr. Nichols', of course, because now that we have separate trials, we're talking about what we're going to do with Mr. McVeigh's case.
MR. NEUREITER: Yes, your Honor.
THE COURT: And we may learn from that.
MR. NEUREITER: Yes, your Honor.
THE COURT: So I understand. All right.
MS. BEHENNA: Your Honor, with regard to the Rule 615 issue and victim witnesses coming in and viewing the closed-circuit TV, in the Government's proposal, we propose that those victims that qualify under the statute should be given some type of photo identification much like the Court has suggested in this case. I think what we can do, your Honor, is limit those victim witnesses -- well, they just won't be given a photo ID. If they're not given a photo ID, they won't have access.
THE COURT: Easily done.
MS. BEHENNA: And we would be willing to work with the Court on that in identifying the witnesses that would not be able to have a photo ID, so I think that's easily revolved.
The defense representative, I agree with the Court that a judicial officer that will ensure the rights of the defendant. If there's a defense representative, the prosecution is going to want a representative. I see it getting out of control. I have faith in the Court in the judicial officer you pick to oversee the closed-circuit TV. So I think there is no need for a defense representative.
THE COURT: Or a Government representative.
MS. BEHENNA: Absolutely. In regard to the inconvenience of the victim, I think the Court -- I want to point out for the record, there are victims in Texas, there are family members in Arkansas and Kansas. And it might have been more convenient to come to Oklahoma. If it's more convenient to come to Oklahoma to view the closed-circuit TV, I think they should be entitled to do that, so long as they meet the qualifications of the statute.
There is one challenge that Nichols made, and I don't know if you want to address that right now, and that's seating inside the well.
THE COURT: No, as I said, we will have Mr. McVeigh's trial done and have the experience of that before we need to address the issues -- that type of issue raised by Mr. Nichols' counsel.
MS. BEHENNA: Okay. That leaves the issue of access of the names of our victims.
THE COURT: Well, you're going to brief that.
MS. BEHENNA: We're going to brief that. I just wanted the Court to be aware that we object to any access to our names.
THE COURT: That's part of the scheduling that we're going to do today.
MS. BEHENNA: Yes.
THE COURT: But I have some questions that weren't raised here and they're matters of concern to me. You know, I think that one thing obviously is that we would have to develop some form of application.
MS. BEHENNA: Yes.
THE COURT: So that the necessary information can be provided. And it may be that your -- the data base you have could be used, and I'm sure you would use it consistent with your obligations under a different statute to notify the victims of the opportunity.
MS. BEHENNA: Certainly.
THE COURT: I mean you have to comply with the Victims Rights Act of 1990. And then it seems to me that the applications have to come here. I'm the one who has to rule on them under the Act. You agree?
MS. BEHENNA: Yes.
THE COURT: All right. And the parties may participate in that. I don't know. We can deal with that later.
MS. BEHENNA: Right.
THE COURT: But you have proposed -- well, I've already identified that the chief judge in the Western District of Oklahoma has designated a room in the courthouse there for this viewing which is of limited seating capacity.
MS. BEHENNA: Right.
THE COURT: We can -- there's no objection to increasing that capacity with the temporary seating in the well.
MS. BEHENNA: Right.
THE COURT: So whatever the total number is, obviously it's going to be less than the number of applicants, I presume.
MS. BEHENNA: Yes.
THE COURT: Now, you've indicated a first-come, first-served approach to that. That troubles me because one of the purposes to be served here of course is to attempt to meet some of the needs of persons who are emotionally damaged by this. And it strikes me that if they're in some kind of a -- you know, having to come to the courthouse down there in predawn hours to try and queue up to try to get a seat is actually destructive and counterproductive. And I'm wondering if we could think of some kind of rotating opportunity or something like that or whether there should be some priorities. You know, we don't know what the demand will be and how it may vary throughout the trial proceedings. There will be some days, perhaps, with minimal interest. Who knows?
MS. BEHENNA: Right.
THE COURT: But the statute, if I interpret it in the fashion that you've suggested which seems to me imminently reasonable to use the description in the other statute, the 1990 act, and also to use the physical, emotional, and pecuniary loss, I would think the people who have a pecuniary loss only -- and I don't know how many of them there might be, but my recollection is some of the businesses in the area were interrupted or destroyed --
MS. BEHENNA: Absolutely.
THE COURT: But it seems to me that those persons have a lesser need to view these proceedings than persons who were individually maimed or injured and those who lost members of their family.
MS. BEHENNA: I just --
THE COURT: Couldn't we establish some priority there?
MS. BEHENNA: Well, I understand the Court's concern, and I spent a lot of time thinking about this along with Lynn Anderson in the victim witness unit. We can certainly revisit the issue and try to come up with something. I'm concerned about setting priorities among victims.
THE COURT: Well, so am I. I'm trying to accommodate, you know, the supply and demand curves here, which I think are going to be a problem.
MS. BEHENNA: I just feel uncomfortable saying that you have more priority because you had physical injuries as opposed to somebody who lost their business.
THE COURT: You won't have to say it. I'll be the one who takes the responsibility.
MS. BEHENNA: I know. Maybe that's why we left it out of our proposal because we were trying to put the monkey on your back. I'll be happy to sit down with Lynn Anderson and some of the other members of the prosecution team and see if we can come up with a proposal. There is sort of a lotto system that we have devised for the twelve seats that we have here in the courtroom and we might be able to do something like that on a rotating basis.
THE COURT: I sure want to try to avoid having people scramble for seats.
MS. BEHENNA: I understand that.
THE COURT: That's just not, I think -- as I said, that's counterproductive of what the legislative purpose of this is.
MS. BEHENNA: With that understanding, then, can the Court give us -- I don't know -- just a few days to sit down and try to come up with something in writing that we can propose to the Court?
THE COURT: Sure.
MS. BEHENNA: I do have one suggestion that might accommodate significant trial days those days where, you know, the Government is putting on, you know, significant evidence, whatever that might be. I have talked to Chief Judge Russell, and he has agreed to allow us to use his ceremonial courtroom, the courtroom where we had the venue hearing.
THE COURT: It's got to be one room. We can't put equipment in and move it around.
MS. BEHENNA: I thought there might be -- I talked to the technical advisers. They advised me that there might be the ability to have the TVs on carts and move around --
THE COURT: Whose technical advisers --
MS. BEHENNA: The people that I'm talking to.
THE COURT: Your technical advisers.
MS. BEHENNA: Yes, the expert that I'm consulting with.
THE COURT: Well, all right, but I have to look at that in terms of controlling access to the signal.
MS. BEHENNA: Absolutely.
THE COURT: I don't know if that's the word.
MS. BEHENNA: If what I understand --
THE COURT: The worst thing is somebody pirates the signal -- we're all concerned about that -- so that this private viewing suddenly becomes a public viewing or, indeed, recorded later for viewing by someone viewing. Those are things that we have to protect against. And the primary thing is going to be -- and this is a technical issue, technological issue -- whether you can move it from one room to another in the middle of the trial. In the absence of very clear proof that you can do that, I'm not inclined to do it. We use one room and one room only.
MS. BEHENNA: I understand, and maybe that's something we should address in chambers when we're talking about the technical aspect and I can advise the Court how that might be done so we don't have pirating. But that might be a way of accommodating it on opening, closing, and other significant events. With those considerations, then, your Honor, I will be happy --
THE COURT: I'm not sure that it's a good thing to highlight particular portions of the trial, you know.
MS. BEHENNA: That's a consideration, as well.
THE COURT: I think for persons to understand the proceeding, they need to understand it in its context, the entirety of it.
MS. BEHENNA: I don't disagree.
THE COURT: One of the arguments against televised trials that has been made and the debates about the policy, as you well know, is that you take a 30-second segment out of a case and that misrepresents what is actually going on in a trial.
MS. BEHENNA: No doubt. With those considerations, then, we'll get another proposal to the Court --
THE COURT: All right.
MS. BEHENNA: -- in the next couple days. Were there any other questions about our proposal that I could answer?
THE COURT: Not at the moment.
MS. BEHENNA: Thank you.
MR. HARTZLER: Your Honor, may I ask a point of clarification?
THE COURT: Yes, Mr. Hartzler.
MR. HARTZLER: As you appreciate, I'm sure, we regard ourselves as representing all of the victims and in terms of making a proposal, we're obviously more than willing to do that, but I understood you to be directing us to prioritize those that have suffered physical injury or family --
THE COURT: No, I'm asking for your view with respect to it. I will determine whether such prioritization will take place.
MR. HARTZLER: Very well.
THE COURT: But I'm not making you responsible for that. That's my responsibility in interpreting this act. I'd like to have the Government's view of it. That's all.
MR. HARTZLER: Thank you.
THE COURT: But you see, I'm drawing a distinction here. While I believe that, as I've already indicated, it is appropriate to use the 1990 act as, in pari materia definition of victim as to what the legislative purpose of this statute is, I do not believe that this statute should be read in connection with what the role of the prosecution is under the 1990 act.
To make this clear, the transmission is for the Court to decide. And the rules of who will attend and so forth is for the Court to decide as a part of this criminal proceeding. It is not for the United States Attorney in the Western District of Oklahoma or the Department of Justice to decide under its obligations under the 1990 act. Those are two different things.
MR. HARTZLER: We understand.
THE COURT: Okay. Then I'm going to reflect on this and write an opinion on it. I think it's a matter that deserves consideration, careful consideration and also an advised ruling rather than attempting to do it from the bench. So if you can have whatever else you're going to submit on this by next Monday, that will help. And we'll get a ruling out rather soon.
So these matters are formally under advisement. Will be as soon as the opportunity for any additional submission.
I don't know, would you, Mr. Nigh, want to have a chance to respond to that? We're really talking about whether the Court should consider the pecuniary loss people different from the physical and emotional loss.
MR. NIGH: I don't suspect that we will want to respond, your Honor.
THE COURT: All right.
MR. NIGH: If there's something in the Government's brief that we think demands attention, we'll --
THE COURT: -- ask for leave to --
MR. NIGH: -- opportunity to --
THE COURT: So I'll feel free to reflect on the matter as soon as next Tuesday. That doesn't mean that's when the ruling will come out. But, you know, among other things, we're talking about something that truly is unprecedented in the federal court system, a statute that is a new and different attempt by the Congress to accommodate competing interests.
Now, I think that the next area of discussion necessarily will have to be done nonpublic. There are two things really to be addressed. One is several motions that raise concerns which include not only access to classified information in the hands of other Government agencies and also includes some degree of speculation and conjecture about the availability of evidence. It would be, I think, irresponsible for me to have counsel discuss that in open court where misinterpretation could easily happen.
The other is that I must talk with the lawyers in the case very candidly on scheduling matters. There are a number of things that did come up in the course of our hearing yesterday and the rulings made that require some additional submissions. We need to set times for that. And we also are going to be discussing the trial date. So I can't do that responsibly in open court, either.
Recognizing that we have counsel for the media here and also many members of the media as well as I'm sure those who also could qualify as having a compelling interest in the case being in the courtroom, I am always a bit concerned when I announce that we're going to do something in chambers, in secret and all that, but I hope you will understand the importance of some ability to discuss some of these things very candidly and openly with counsel and without having them broadcast.
So what I'm going to, unless we have some further matters that follow up from yesterday or some -- yes, Mr. Woods.
MR. WOODS: Your Honor, may it please the Court. Counsel for Mr. Nichols filed a motion requesting the names of attendees in the meeting in Oklahoma City, and we can hear that tomorrow at your pleasure.
THE COURT: I'd like to defer it right now, and I don't know what your interest in, is in the scheduling conference that we're about to do.
MR. WOODS: We're very interested in that, your Honor.
THE COURT: All right. You may attend it. And so will Mr. Nichols and Mr. McVeigh.
MR. WOODS: Secondly, in connection with the request yesterday on discovery wherein Mr. Jones made a request for copies of tapes of Mr. Nichols, we had responded to that and then also requested a modification of Judge Alley's orders wherein the Government is recording the conversations and providing them to us, but they're going one step further in summarizing them in 302's and then distributing them to all the agents, all the prosecutors involved in the case, and we don't see the need for that. These are private conversations wherein Mr. Nichols is talking to members of his family. He's trying to keep his family in existence --
THE COURT: Monitoring Bureau of Prisons' policy compared with Department of Justice in its prosecutorial role.
MR. WOODS: We understand that the Bureau of Prisons has a right to monitor those conversations and keep a recording of it.
THE COURT: Yeah.
MR. WOODS: But like in the Noriega case, when they start sharing those tapes with the Government and the Government uses those tapes, we're concerned. There's a privacy interest.
THE COURT: I understand.
MR. WOODS: That the Government has no interest in, there's nothing investigative concerning them. They're merely personal conversations; they're distributing them.
THE COURT: I understand what you're saying. Is this disputed?
MR. HARTZLER: No, it's not.
THE COURT: All right.
MR. HARTZLER: There is a matter regarding a subpoena for some other tapes. But I believe we got into this dilemma of some sort because we received a request for the tapes -- there was a request for the tapes many months ago and the order was entered. It will probably come as no surprise to you or defense counsel that we'd be pleased not to have to review those tapes.
THE COURT: Yes. You know, that's why I said this is Bureau of Prisons policy and it's a matter of simply maintaining security and not of any investigative interest. Shouldn't be --
MR. WOODS: But we request the tapes, however.
THE COURT: -- to counsel for Mr. Nichols.
MR. WOODS: Nichols, yes, your Honor.
THE COURT: Well, if they're in agreement with that -- I presume they are, or you wouldn't be asking for. I don't have any problem with that, do you, Mr. Hartzler?
MR. HARTZLER: It's just the mechanism. Bureau of Prisons tapes that are created for security purposes, I don't know what the relevance to defense would be. It's obviously their client speaking, and I'm troubled by the prospect that somehow these would find their way into the courtroom. 'Cause, I mean our discovery policy --
THE COURT: They won't find their way into the courtroom unless they're shared with the Government's counsel, that's clear.
MR. HARTZLER: Could I just have an opportunity to discuss with counsel for the Bureau of Prisons. For our purposes, prosecution purposes, obviously the defense receives the tapes and listens to them for whatever purposes they have, and they're not going to be introduced in the courtroom, that's up to them, and it really should be up to them and the Bureau of Prisons. I'd like to have an opportunity to discuss with the Bureau of Prisons.
THE COURT: It seems to me very reasonable to make the change in Judge Alley's order that really accommodates the legitimate Government interest with respect to the place in which they're held and yet protects the privacy of these conversations that are social, for want of a better adjective. Okay.
MR. WOODS: Thank you, your Honor.
MR. HARTZLER: We'll be able to get back to you within 24 hours, I'm sure.
THE COURT: All right.
MR. WOODS: Thank you.
THE COURT: Well, what I propose, then, is that we meet about ten- thirty.
MR. KELLEY: Your Honor, I hope you'll permit me just to formally object to the determination of a motion in chambers. I believe I have to do that or it might be considered waived.
THE COURT: Sure. Your objection is noted. And overruled. I'll see counsel and also Mr. McVeigh and Mr. Nichols at ten-thirty.
MR. JONES: In this room, your Honor?
THE COURT: No, in the conference room. Recess.
(Recess at 10:02 a.m.)
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