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[McVeigh's counsel also filed to withdraw from his defense. According to a spokesman for Mr. Coyle's office, there were no attorneys in Oklahoma not directly or indirectly affected by bombing events.]

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA

UNITED STATES OF AMERICA, FILED
Plaintiff APR 24 1995
v. ROBERT D. DENNIS, CLERK
U.S. DIST COURT, WESTERN DIST OF OKLA
TIMOTHY JAMES McVEIGH, BY ______________, DEPUTY
Defendant
Case No. M-95-98-H

MOTION TO TRANSFER

The accused, Timothy James McVeigh, by and through his counsel, tenders this motion to transfer this case from the Western District to a district outside the State of Oklahoma. Counsel submit this Court should consider the merits of this motion, but that the designation of the district to which the case is transferred should be determined by the Chief Judge of the Court of Appeals for the Tenth Circuit. This motion is submitted under the ambit of Rule 22, Fed.R.Crim.P. In accordance with Local Rule 14(F), a brief in support is being submitted simultaneously with this motion and a proposed order granting the relief requested is also tendered.

Respectfully Submitted,

/s/ Susan M. Otto
SUSAN M. OTTO
Federal Public Defender
Western District of Oklahoma
Suite 524 215 Dean A. McGee
Oklahoma City, Oklahoma 73102
405-231-5725
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BRIEF IN SUPPORT OF MOTION TO TRANSFER

Counsel for Defendant Timothy James McVeigh submit this brief which is being submitted simultaneously with Mr. McVeigh's Motion to Transfer this case to a federal district outside the State of Oklahoma.

Facts

1) At approximately, 9:00 a.m., on Wednesday, April 19, 1995, the Alfred P. Murrah Building federal office building , a nine storey structure in Oklahoma City, Oklahoma, was shattered by an explosion. A car bomb is alleged as the source of the explosion. The defendant, Timothy James McVeigh, is accused of planting the bomb;

2) Rescue efforts began moments after the explosion and have continued, virtually uninterrupted, for the past four days. The death toll has steadily increased. Hundreds of people are wounded. The shock and outrage experienced by the City of Oklahoma expanded to the State and the nation as news of the bombing has become an international event. Continuous press and broadcast coverage has resulted in a contemporaneous record of the tragic events;

3) The United States District Court for the Western District is located in a four storey structure directly across the street from the Murrah building. The courthouse sustained damage and people inside the courthouse were injured;

4) The office of the Federal Public Defender Organization for the Western District of Oklahoma is located on the fifth floor of the Old Post Office building. The Old Post Office Building is a nine storey structure which shares the city block with the United States Courthouse. The Old Post Office tenants include the bankruptcy court and court services related to the function of the United States District Court. The Old Post Office Building; including the office of Federal Public Defender, sustained damage in the explosion and the occupants were evacuated during the emergency;

5) A criminal complaint was filed Friday, April 21, 1995 charging Timothy McVeigh with violating Title 18, United States Code, 844(f). United States Magistrate Judge Ronald L. Howland authorized the filing of the complaint and issued the warrant for Mr. McVeigh. The complaint accuses Mr. McVeigh of causing the explosion which destroyed the A.P. Murrah Federal Building; damaged the Federal Courthouse and the Old Post Office, killed over a dozen children, scores of adults, injured hundreds and subjected the occupants of downtown Oklahoma City to unprecedented terror and carnage;

6) Mr. McVeigh appeared before United States Magistrate Judge Ronald L. Howland at approximately 8:45 p.m., Friday, April 21, 1995, for purposes of an initial appearance. Mr. McVeigh requested the appointment of counsel. Susan M. Otto, Federal Public Defender, was appointed by the court. Based on the allegations in the complaint, Miss Otto requested the appointment of cocounsel, citing Title 18, United States Code, 3005. Miss Otto submitted Mr. John W. Coyle III as an attorney qualified for appointment in a federal death penalty case. Magistrate Judge Howland granted the request and appointed Mr. Coyle;

7) A combined preliminary and detention hearing is scheduled for 2:00 p.m., Thursday, April 27, 1995.

Argument and Authorities

At this procedural juncture, the Magistrate Judge is required to conduct a preliminary hearing, in accordance with Rule 5.1, Fed.R.Crim.P., to determine whether there is probable cause to believe a crime has been committed and that Mr. McVeigh committed the offense. In the event probable cause is found, the Magistrate Judge will be required to consider conditions of release or detention pursuant the Bail Reform Act. This critical procedural threshold is a prerequisite to holding Mr. McVeigh to answer these charges. In turn, the United States Attorney must present the case to the federal grand jury within the time limits prescribed by the Speedy Trial Act. A grand jury empaneled in this district will be composed of citizens who meet the same qualifications as jurors empaneled to try the case.

Rule 219(a), Federal Rule of Criminal Procedure, provides, in part:

The court upon motion of the defendant shall transfer the proceeding as to that defendant to another district whether or not such district is specified in the defendant's motion if the court is satisfied that there exists in the district where the prosecution is pending so great a prejudice against the defendant that the defendant cannot obtain a fair and impartial trial at any place fixed by law for holding court in that district.

Rule 22, Fed.R.Crim.P., provides, in part, that the motion to transfer "may be made at or before arraignment". Counsel submit the unique facts of this case warrant its transfer prior to the combined preliminary and detention hearing.

Mr. McVeigh is entitled to have the threshold probable cause determination decided by a Magistrate Judge who was not a percipient witness to the events and who is not personally acquainted with many of the law enforcement and citizen victims. Concomitantly, Mr. McVeigh is entitled to have his case presented to a grand jury composed of qualified citizens who are not living in the community or the State which has suffered the events. The Federal Rules of Criminal Procedure and case precedent support Mr. McVeigh's request.

The Fifth Amendment guarantees Mr. McVeigh will not be held to answer for any "capital, or otherwise infamous crime' except by indictment by a grand jury. Implicit in this Fifth Amendment guarantee is the right to have one's case considered by a fair and unbiased grand jury. The mission of the grand jury is "to clear the innocent, no less than to bring to trial those who may be guilty." United States v. Dionisio, 410 U.S. 1, 16-17 (1973). The Supreme Court has consistently and unequivocally affirmed the critical function served by the grand jury to "provide a fair method for instituting criminal proceedings," Costello v. United States, 350 U.S. 359, 362 (1956), to serve as a "protector of citizens against arbitrary and oppressive governmental action," United States v. Calandra, 414 U.S. 338, 343 (1974), and to assure the "protecting of citizens against unfounded criminal prosecutions." Branzburg v. Hayes, 408 U.S. 665, 686 (1972). To achieve these purposes, the grand jury must act as an investigating body, independent and informed, acting independently of either the judge or the prosecuting attorney. See Wood v. Georgia, 370 U.S. 375, 390; Stirone v. United States, 361 U.S. 212, 218 (1960). Since the grand jury will be composed of persons possessing the same qualifications as petit jurors, the same standards for evaluating the impact of publicity obtain.

In Irvin v. Dowd, 366 U.S. 717 (1961), the Supreme Court that, in some cases, publicity may be so widespread that courts can presume actual prejudice. The news coverage thusfar has, for the most part consisted of factual accounts of the progress of the case. Nevertheless, prejudice must be presumed. The media reports have been so continuous and extensive, and the subject matter so deeply disturbing, that impairment of the grand jurors' judgment is inescapable.

Applications of this principle by lower courts are instructive. In United States v. Green, 373 F.Supp. 149, 151 (E.D.Pa. 1974), the court said:

Considering pretrial publicity in Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), the Supreme Court held that a defendant must be protected from massive pervasive and prejudicial news coverage which prevents a fair trial. A trial court can continue the case until a later date or transfer it to prevent prejudice to the defendant. Id. at 363 86 S.Ct. at 1522. 373 F.Supp. at 151.

Similarly, in Troiani v. Poole, 858 F.Supp. 1051 (S.D.Cal. 1944), the federal district court was reviewing a state prisoner's habeas petition. The language with regard to the change of venue issue is pertinent in this situation. The court set forth the following factors to consider in determining whether there was a reasonable likelihood the petitioner could bit obtain a fair trial in the judicial district: (1) the gravity and nature of the crime; (2) the extent and nature of the pretrial publicity; (3) the size and nature of the community; (4) the statue of the victim and the accused; and (5) the presence of political overtones. Id at 1061.

When one reviews these factors, it is apparent this court should transfer the case at this time. The gravity and nature of the crime is unsurpassed. The extent of the pretrial publicity only days after the crime is unparalleled in Oklahoma history and rivals any other crime committed in the United States, except, perhaps, the assassination of President Kennedy.

Cases in which a change of venue was, or should have been, granted, militate in favor of the instant motion:

In Coates v. State, 773 F.3d 1281 (Okl.Cr. 1989), the Oklahoma Court of Criminal Appeals reversed convictions for business crimes committed by a county treasurer. [FN1] The court ruled that the trial court had erred in improperly denying the defendant's request for change of venue based upon extensive pretrial publicity and the juror's knowledge of the case. The Coates opinion vividly illustrates how those facts, which warranted reversal of criminal convictions, pale in comparison to the present case:

Next appellant asserts that the trial judge erred in refusing to grant her request for a change of venue. The record reflects that this was a highly publicized incident which involved over thirty (30) newspaper articles and eight (8) television news stories. Both the Wagoner and Tulsa newspapers covered the incident. The Tulsa newspaper has a circulation of fifteen surrounding counties, including Wagoner county. Coates, 773 p.2d at 1286. The Coates decision mirrored the Supreme Court's reasoning that prejudice to the defendant's Constitutional rights may be presumed when the facts reveal "the influence of the news media, either in the community at large or in the courtroom itself, pervaded the proceedings." Murphy v. Florida, 421 U.S. 794, 798-99 (1975).

The broadest canvass of state court decisions reveals uniform application of the Supreme Court's standards across the nation.

In Swindler v. State, 569 S.W.2d 120 (Ark. 1978), the Arkansas Supreme Court reversed a murder conviction based on the failure of the trial court to grant a change of venue. In a concurring opinion, Chief Justice Harris wrote:

From the outset, this homicide received tremendous publicity, as would be expected. The newspapers gave front page headlines, and television and radio likewise gave extensive publicity. It would have been almost impossible for people who read or listened to the reports not to have formed an opinion. 569 S.W.2d at 126

Similarly, the California Supreme Court considered the effect of enormous publicity on the accused's right to a fair trial:

The prisoner, whether guilty or not, is unquestionable entitled by the law of the land to have a fair and impartial trial. Unless this result be attained, one of the most important purposes for which government is organized and Courts of Justice established will have definitely failed. Cases sometimes occur, and this would appear to be one of them, in which the very enormity of the offense itself arouses the honest indignation of the community to such a degree as to make it apparent that a dispassionate investigation of the case cannot be had. Under such circumstances the law requires that the place of trial be changed. [citations omitted]

In short, "It would be judicial murder to affirm a judgment thus rendered, when the reason of the people of a whole country was so clouded with passion and prejudice as to prevent mercy and deny justice." (quoting People v. Lee, 53 Cal. 566, 571) People v. Tidwell, 473 P. 2d 748, 758 (1970). (quoting People v. Yoakum, 53 Cal. 566 571)

Subsequently, in People v. Williams, 774 P. 2d 146 (1989), the California Supreme court reversed a capital case, holding the defendant was entitled to a change of venue. A key element in the appellate court's decision was that "any doubt as to the necessity of removal [to another venue] should be resolved in favor of venue change." 745 P.2d at 153. The California appellate court acknowledged a criminal defendant is not guaranteed a jury totally ignorant of the facts of a case. However, the court reasoned that fact should not be used to deny a person a trial in a venue tainted by pretrial publicity and public knowledge. The court said:

To be sure, perfection is not required; some knowledge of the case on the part of some jurors is often unavoidable. Here, however, a brutal murder had obviously become deeply embedded in the public consciousness (half of the jurors questioned knew something about the case). Thus, it is more than a reasonable possibility that the case could not be viewed with the requisite impartiality. 774 P.2d at 155-156.

An accused need not establish the existence of a lynch mob atmosphere to merit a change of venue:

It is not necessary, however, that defendant demonstrate overt hostility. As we have explained, "When a spectacular crime had aroused community attention and a suspect has been arrested, the possibility of an unfair trial may originate in widespread publicity describing facts, statements and circumstances which tend to create a belief in his guilt." 774 P.2d at 155.

Although not required, it is probable, that Defendant here could satisfy such a requirement.

In a very conservative application of these principles, the New Jersey appellate court reversed even though the offending publicity was not about the case at issue. In State v. Jasuilewicz, 501 A.2d 538 (N.J.Super.A.D. 1985), the defendant entered a plea of not guilty by reason of insanity. During the trial, the John Hinckley case resulted in a decision: Mr. Hinckley was acquitted of the attempted assassination of President Reagan on the basis of an insanity defense. The New Jersey appellate court considered whether the publicity concerning Mr. Hinckley and the insanity defense had affected the defendant's trial. Finding the affirmative, the court wrote:

In the face of substantial publicity (whether or not concerning the trial itself), it is well settled that a criminal defendant is entitled to an impartial jury. Sheppard v. Maxwell, 384 U.S. 333, 362-63, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600, 620 (1966); State v. Williams, 93 N.J. 39, 60, 459 A.2d 641 (1983). The rule should be no different where the publicity concerns outside events which might bear upon the trial. The trial judge acknowledged that the jury had been and was subjected to the extensive publicity concerning the Hinckley case. We assume, ad did he, that he could not have obtained a jury untainted by the pervasive publicity accompanying the Washington proceedings. the principal question before the court should have been whether the proceedings still could have been conducted in a fundamentally fair manner before an impartial group. 501 A.2d at 587.

In Harvey v. State, 887 S.W.2d 174 (Tex.App. 1994), the court held the district court abused its discretion in denying the defendant's motion for change of venue, holding:

The right to a change of venue is a constitutional right. If it is improbable that a fair and impartial trial can be given to the defendant, the court may not refuse the motion. Handy v. State, 139 Tex.Crim. 3, 138 S.W.2d 541 (1939). The question is not whether it is possible to select a jury whose members were not subject to challenge for cause if the defendant can show that there were influences in the community that would affect the answerers on voir dire, or the testimony of witnesses at the trial, or that for any other reason a fair and impartial jury cannot be had. Henley v. State, 576 S.W.2d 66 (Tex.Crim.App 1978). 887 S.W.2d at 175-76

Finally, State v. James, 767 P.2d 549 (1989), the Utah Supreme Court considered the propriety of changing venues, holding:

defendant's right to a fair and impartial trial need not be exposed to risks which would attend the calling of the jury from Cache County. This is a capital case. Not only will the jury be required to determine the guilt of innocence of defendant, but if guilt is found, the jury will probably be urged by the prosecution to impose the death penalty. On deciding whether to impose the death penalty, the jury must weigh aggravating circumstances against mitigating circumstances. This is the most momentous judgment a jury can be asked to make. The judgment should be free from any taint of bias or prejudice as is reasonably possible. Because of the unique circumstances of this case, it would not be fair or wise to either defendant or the residents of Cache County to require a Cache County jury to make that decision. 767 P.2d at 555.

The coverage in the instant case is unparalleled. the events have been reported matter by newspapers worldwide. Every television station in the Oklahoma City area has provided continuous coverage since the event, providing live links for national broadcast channels. The publicity has continued unabated through the President of the United State's attendance at a prayer service in Oklahoma City for the victims on Sunday, April 23, 1995. Applying the reasoning of the United States Supreme Court, as well as the highest state appellate courts, transfer of this case is the only appropriate relief.

Conclusion

Counsel for Timothy McVeigh request this Court enter an order directing the transfer of this case for all further proceedings at this time. The case should be transferred to a federal district outside the State of Oklahoma, but within the jurisdiction of the Tenth Circuit. the magnitude of the issues presented in this case and the need to ensure its orderly management from this, the first critical stage of this capital case, will make this case difficult in any court. Every federal judicial officer in the Western District of Oklahoma had been affected by these events. Most of the judicial officers were witnesses to the event. Counsel submit the decision of to which district this case should be transferred should be referred to the Chief Judge of the Tenth Circuit Curt of Appeals.

Respectfully submitted,

SUSAN M. OTTO
Federal Public Defender
Suite 524 215 Dean A. McGee
Oklahoma City, Oklahoma 73102
(405) 231-5725

JOHN W. COYLE III
COYLE & McCOY
119 N. Robinson Suite 320
Oklahoma City, Oklahoma 73102
(405) 232-1988

END NOTE

1 The Coates decision is consistent Oklahoma Court of Criminal Appeals precedent. See Scott v. State, 448 P.2d 272 (Okl.Cr. 1968); Rawls v. State, 190 P.2d 159 (1948); Quinn v. State, 16 P.2d. 591 (Okl.Cr. 1932).

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