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Nichols Reply Memo Re: Motion for Protection of Defense Rights

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The government's brief in opposition contains admissions that show the need for a hearing. On this basis, in addition to the reasons set forth in our Motion, the relief we seek is appropriate. The two issues -- violations and remedy -- should not be confused.

1. The FBI and Witnesses

The government admits that that an FBI agent told witnesses that their decision to "share their information with others" was their own. The government does not deny that the witnesses understood this to mean they should not talk to the defense. It embellishes its denial of wrongdoing with the admission that the FBI has since recontacted the witnesses and "confirmed" that they understand they are not under any obligation to talk to the defense.

Thus, the government admits that once witnesses have talked to the FBI, in an investigation portrayed as touching vital national interests, they are then told they need not talk to "others." It is true that a witness may voluntarily choose not to talk to anyone. This is a free country, and "anyone" includes the FBI. But the FBI is not telling witnesses that this is a free country and they don't need to talk to anyone. They are telling witnesses that they don't need to talk to "others" -- meaning "others than the FBI." None of the cases cited sustains such one-sided advice, and a witness's decision to talk to the FBI and not to the defense under such circumstances is not a free choice. It is not the "intentional relinquishment of a known right" of which the cases speak. See generally Johnson v. Zerbst, 304 U.S. 458, 464 (1938). Establishing whether a choice is free cannot be done in the abstract -- it requires evidence, including evidence of the personal circumstances of the person assertedly making the waiver. The government's pleading does not carry its burden of establishing waiver under the decided cases.

Troutman, 814 F.2d 1428, holds only that the court need not compel witnesses to be interviewed, and we have not sought that relief; the court reaffirms basic principles of disclosure on which we rely. Indeed, Troutman reaffirms the basic principle of Gregory, which we cited and which the government derides. In Pinto, 755 F.2d 150, an Assistant United States Attorney gave permissible advice on a witness's rights, which was not the case here. In Bittner, 728 E.2d 1038, the advice was limited to a neutral statement of rights -- although what business the FBI has in becoming a kind of legal services office for witnesses we cannot comprehend. We are asking that the Court, and not the government, be in charge of informing citizens of their rights, given the one- sided way in which the government admits to performing that task.

If the FBI can revisit the body shop witnesses, they can revisit them all, and this time with a proper statement of the applicable principles.

The government's admissions and its invocation of an improper legal standard shows the need for a hearing so that the Court can determine what all the witnesses are being told, and what directions the FBI agents are being given. The vague and generalized statements of a government lawyer -- though laden with admissions -- cannot take the place of a hearing. At a hearing, the FBI people in charge can give competent evidence of what statements are being made to witnesses.

2. Grand Jury Leaks

The government begins by invoking a broad protection for grand jury secrecy, ascribing a far-reaching role to that body. It made a similarly broad statement when seeking a delay in the indictment process. However, when the government concedes -- as it repeatedly does -- that its agents have handed over information to the media, it invokes a narrow interpretation of the grand jury's function in arguing that its own conduct has not violated Rule 6(e).

Having taken these inconsistent positions, perhaps the government seeks the solace of not being wrong more than once. The matter cannot so easily be resolved. The government's papers admit that it handed over amounts of evidence in Michigan. The government trivializes the "sources" of media stories, but does not deny that these sources are government employees. It then asks the court in the face of all this not to hold a hearing, because there is insufficient evidence of wrongdoing.

True, the cases have held that some leaks did not implicate grand jury material. In this case, however, the leaks implicate the very issues and witnesses that the government has -- in prior filings with this Court -- identified as at the core of the grand jury inquiry. Indeed, in Blalock itself, the court held that grand jury information includes "what will transpire" before the grand jury. 844 F.2d at 1551. Thus statements about leads being pursued, witnesses being prepared for the grand jury, and matters to be included or not included in an indictment are expressly covered. Anaya, 815 F.2d 1373, is inapposite, as the case involved a parallel IRS investigation, not the leaking of information about a solely criminal investigation with a goal of indicting Mr. Nichols and Mr. McVeigh and others.

The government minimizes the importance of cases such as Phillips, decided in this district. We cited these cases because they show that the grand jury is not the government's property. The government's citation of Lovasco, 431 U.S. 783 (1977) is misplaced. The case simply rejects a pre-indictment delay claim. Nothing in Lovasco undercuts the principle that the grand jury is the Court's to control.

3. Defense Counsel

The government cites Mr. Tigar's statement to the Washington Post, in which he clarified a contradiction between line 1 and line 4 of the detention hearing transcript, and Mr. Woods' statement that a motion for severance might be made in this case, given the Bruton issue. These statements are proper, limited, and wholly different in character from those of which we complain, and the government's invocation of them is a concession that its position is untenable.

4. Remedy

We maintain our view of the proper remedies, but stress that only a hearing will show the extent to which remedies need to be applied.

Respectfully submitted,

/s/Michael E. Tigar
P.O. Box 160037
Austin, Texas 78716-0037
(512) 461-4678 Fax (800) 416-4620

Ronald G. Woods
5300 Memorial, Suite 1000
Houston, Texas 77007
(713) 862-9600 Fax (713) 864-8738

Counsel for Terry Lynn Nichols
(Appointed by the Court)

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