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OK City Bombing Case: Gov't & Mcveigh's 6/96 Filings Re Televising Trial

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Criminal Action No. 96-CR-68-M




Chief Judge Richard P. Matsch



Section 235(a) of the Anti-Terrorism and Effective Death Penalty Act of 1996 requires "closed-circuit televising" of this case back to Oklahoma City so that "victims of [the] crime [may] watch criminal trial proceedings." Defendants nonetheless advance a number of arguments that, at bottom, urge this Court to disregard the plain statutory language and clear congressional intent. They argue that Section 235: does not apply to this case or at most requires broadcast to Lawton rather than Oklahoma City; violates the constitutional separation of powers; amounts to an ex post facto law and bill of attainder; and denies them equal protection, due process, and the right to a fair trial.

Contrary to defendants' arguments, Section 235 plainly applies to this case and requires closed-circuit televising of trial proceedings from Denver to Oklahoma City. There is nothing unconstitutional about the congressional judgment that victims should be able to view, without undue "inconvenience and expense," trial proceedings regarding a crime that caused them such compelling loss and suffering.



A. This Court Changed Venue "More Than 350 Miles From The Location In Which [Trial] Proceedings Originally Would Have Taken Place."

Section 235(a) applies to "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 first prerequisite, an out-of- State transfer, undeniably is satisfied. See DE 1516 at 2 (deeming it "obvious that in this case the Court has changed venue from one State to another"). Nichols argues, however, that Section 235 "does not apply to this case" because the second prerequisite is not satisfied. Id. at 2-5. This argument is in tension with Nichols' own alternative argument that "Congress enacted Section 235 to provide closed-circuit television in this case." Id. at 7. It is also at odds with McVeigh's position that section 235's "terms are undeniably mandatory: the Court must permit the closed-circuit broadcast of Mr. McVeigh's trial...." DE 1526 at 3; but see McVeigh Notice filed 6/19/96 "expressly join[ing]" Nichols' brief in opposition to closed-circuit televising.

Nichols' argument is that the 350-mile distance must be measured by two different terms: from the "location" where trial originally would have been held (which Nichols concedes was Oklahoma City) to the new "venue" (which Nichols suggests is the entire District of Colorado rather than Denver). DE 1516 at 2-4. According to Nichols, there is no basis for construing the statutory term "venue" as meaning anything less than "either the 'State' ... or the 'district' in which the crime was allegedly committed." Id. at 3. Under this construction, the second statutory prerequisite is not satisfied because "it is [not] more than 350 miles from Oklahoma City (or Lawton) to the Colorado state line." Id. at 4.

Nichols' premise that the term "venue" cannot mean anything less than the entire "State" or "district" (which in this case are one and the same) is conclusively contradicted by 18 U.S.C. Section 3235. That statute, entitled "Venue in capital cases," provides: "The trial of offenses punishable with death shall be had in the county where the offense was committed, where that can be done without great inconvenience." (Emphasis added.) It undeniably is more than 350 miles from Oklahoma County to Denver County.

More generally, Nichols' contention that there invariably is a legally significant distinction between a trial's "location" and its "venue" cannot be squared with common judicial treatment of those terms as synonymous. Indeed, Fed. R. Crim. P. 18, one of four Federal Rules under the broad heading of "VENUE," instructs courts to "fix the place of trial [i.e., the 'location'] within the district with due regard" to various prescribed factors. Likewise, the Supreme Court and other federal courts frequently treat the terms "location" and "venue" as meaning the same thing. See, e.g., Mercantile National Bank v. Langdeau, 371 U.S. 555, 565 (1963) (construing provision as "essentially a venue statute governing the proper location of suits"); United States v. Cofield, 11 F.3d 413, 416 (4th Cir. 1993) (discussing the proper "venue location" in a criminal case); United States v. Williams, 897 F.2d 1034, 1037 (10th Cir. 1990) ("change in venue" not required based on defendant's claim that "the trial location" was inconvenient).

Nichols' argument that the changed "venue" in this case must be the entire State and District rather than Denver is also at odds with this Court's Order changing venue. The Court concluded that: "Denver, Colorado meets all of the criteria that have been cited by past cases as relevant when selecting an alternative venue." United States v. McVeigh and Nichols, 918 F. Supp. 1467, 1474 (W.D. Okla. 1996). The Court specifically cited and relied on the many attributes of "Denver," a "large metropolitan community" that "is readily accessible ... from all relevant cities" and it stressed that "court facilities in Denver are well-suited for accommodating the special needs of this trial." Id. Hence, for reasons unique to the city, this Court changed venue for this trial to Denver -- not to some hypothetical site on the Colorado- Oklahoma border.

Nichols' argument that the Court could have held trial "anywhere in the district if it chose" (DE 1516 at 4 n.1) proves nothing, as there is no reason to believe that Congress somehow conditioned section 235 on theoretical places where trial could have been held. To the contrary, Congress clearly wrote Section 235 to assist those individuals who could not attend a trial because it had been moved a considerable distance away. It does little good to imagine where this trial could have been held when it in fact will be held in Denver, and the statute should be construed to the situations as it exists rather than as it could have existed.

Finally, even if Nichols' reading of the statute were plausible, it would collide with the principle that "courts will adopt a more sensible statutory construction" where a "literal reading of the statutory language would produce an absurd result -- particularly one clearly not contemplated by Congress." United States v. Gonzales, 65 F.3d 814, 819 (10th Cir. 1995) (citing Public Citizen v. United States Department of Justice, 491 U.S. 440, 454-55 (1989)), cert. granted on other grounds, 1996 WL 183394 (June 17, 1996). The legislative history removes any possible doubt that section 235 was intended to apply to this case. Senator Hatch, the Chairman of the Judiciary Committee and the law's chief sponsor, explained that "by providing for closed-circuit viewing of the Oklahoma City trial by the bombing's victims and survivors, this bill also will ensure that these courageous people can observe justice being done, while still ensuring a fair and just trial for the accused." 142 Cong. Rec. S3476 (daily ed. April 17, 1996). Likewise, other remarks on the Senate and House floors during consideration of the anti- terrorism bill confirmed that section 235 was intended to apply to this trial. See, e.g., id. at S3477 (Sen. Nickles) (bill "does allow closed- circuit TV for families in the Oklahoma City bombing"); 142 Cong. Rec. H2141 (daily ed. March 13, 1996) (Rep. Lucas) (urging "[s]upport [of] closed-circuit broadcasting of the Oklahoma City bombing trial").

B. The Closed-Circuit Broadcast Must Be To Oklahoma City Rather Than To Lawton.

McVeigh suggests that Section 235 requires closed-circuit televising to Lawton, Oklahoma, and not to Oklahoma City. DE 1526 at 43. The statute provides that the trial will be televised to the location "in which those proceedings originally would have taken place." Clearly, these proceedings "originally" would have occurred in Oklahoma City, the site of the crime. All preliminary proceedings -- pre-indictment litigation, grand jury investigation, indictments and arraignments, and court proceedings through this Court's venue change -- took place in Oklahoma City rather than Lawton. Judge Alley designated Lawton as the trial site only because he deemed the "United States Courthouse in Oklahoma City" (the normal location for criminal trials in the Western District of Oklahoma) "too close to the bombing target" and believed that "[j]ury selection from a pool in the Oklahoma City area would be chancy." DE 311 at 20. These considerations show that the Lawton designation was the equivalent of a venue change from the "original" trial location. See 1966 Advisory Committee Notes to Fed. R. Crim. P. 18 ("the court may, of course, fix another place of trial within the district (if there be such) where such prejudice does not exist. Cf. Rule 21 dealing with transfers between districts"). There can be no doubt Congress deemed Oklahoma City the "original location" to which proceedings would be broadcast. See, e.g., 142 Cong. Rec. H2165 (daily ed. March 13, 1996) (Rep. Istook) (bill provides for "a closed circuit rebroadcast back to the original location, to Oklahoma City").

C. The Court Need Not Prematurely Decide Which Victims Will Be Entitled To View The Broadcast In Order To Decide That The Statute Applies To This Case.

Nichols next argues that section 235 does not apply in this case because the government has failed to establish that victims of the worst act of domestic terrorism in the history of the United States have a "compelling interest" in viewing the proceedings, or that they are "unable to do so by reason of the inconvenience and expense caused by the change of venue" to Denver. DE 1516 at 5-7. The United States has no such burden. The statute specifies that "the court" shall designate "such persons." Nichols is also wrong to assert that the "compelling interest" standard established by Section 235 does not provide sufficient guidelines for the Court to select those individuals who should be permitted to watch the closed-circuit televised proceedings. Section 235(a) must be construed in light of its express purpose of "permit[ting] victims of crime to watch criminal trial proceedings." This Court too "is acutely aware of the wishes of the victims of the Oklahoma City explosion to attend this trial and that it will be a hardship for those victims to travel to Denver." McVeigh and Nichols, 918 F. Supp. at 1474. The Court need not determine which victims ultimately will be allowed to view the broadcast before it decides if and under what conditions the broadcast will occur.

Finally, contrary to Nichols' unfounded suggestion, the Court is not required to hold an "adversary hearing" (DE 1516 at 6) prior to determining which individuals may view the closed-circuit televised proceedings. Nichols lacks standing to object to anyone's right to watch those proceedings, for Section 235 does not provide him with any enforceable rights. Quite obviously, Nichols is not the intended beneficiary of the statute. See generally Wilder v. Virginia Hospital Association, 496 U.S. 498, 509 (1990).

In a related vein, Nichols argues that section 235 violates Fed. R. Evid. 615 by allowing victims who may testify in the penalty stage of this proceeding to view the trial itself. DE 1516 at 12-14. This argument is flawed for several reasons. First, it is by no means clear that Rule 615 applies to witnesses who will testify only at sentencing. By requiring the court to "order witnesses excluded so that they cannot hear the testimony of other witnesses," the Rule codifies the common-law tradition of sequestering witnesses during a trial "as a means of discouraging and exposing fabrication, inaccuracy, and collusion." Fed. R. Evid. 615 and 1972 Advisory Committee Notes; see also United States v. Johnson, 578 F.2d 1352, 1355 (10th Cir.), cert. denied, 439 U.S. 931 (1978). These concerns are simply not present where victims will not testify at trial about facts relevant to guilt, but rather will offer testimony at sentencing regarding the impact of the crime on their lives. See generally United States v. Jackson, 60 F.3d 128, 135 (2d Cir.) (listing factors relevant to a Rule 615 ruling, including "how critical the testimony is, that is, whether it will involve controverted and material facts" and "whether the information is ordinarily subject to tailoring"), cert. denied, 116 S.Ct. 487 (1995); United States v. De Jongh, 937 F.2d 1, 3 (1st Cir. 1991) (courts possess "considerable discretion" to fashion sequestration orders under Rule 615). Moreover, although Nichols complains that a victim's testimony at sentencing would be "magnified or otherwise affected" by watching the trial (DE 1516 at 13), he does not explain how those proceedings could cause more distress to the victims than the hundreds of deaths and injuries caused by the crime itself.

In any event, there is no conflict between Section 235 and Rule 615. Section 235 explicitly provides that the Court may exclude anyone from viewing the closed-circuit televised proceedings who "would be materially affected if that person heard other testimony at the trial." Even if this Court ultimately excluded some victims from viewing the closed-circuit broadcast, there are many others who would not be so barred.


A. Section 235 Does Not Violate Separation of Powers.

Defendants argue that section 235 violates the separation of powers. DE 1516 at 7-11; DE 1526 at 6-14. This constitutional principle "safeguard[s] against the encroachment or aggrandizement of one branch at the expense of the other." Buckley v. Valeo, 424 U.S. 1, 122 (1976). To prevail on their claims, defendants must show that section 235 "impermissibly threatens the institutional integrity of the Judicial Branch." CFTC v. Schor, 478 U.S. 833, 851 (1986). The Supreme Court has cautioned that "[w]hen this Court is asked to invalidate a statutory provision that has been approved by both Houses of Congress and signed by the President, particularly an Act of Congress that confronts a deeply vexing national problem, it should only do so for the most compelling constitutional reasons." Mistretta v. United States, 488 U.S. 361, 384 (1989) (internal quotation marks deleted).

McVeigh repeatedly argues that section 235 violates the separation of powers because it requires broadcasting "even if the Court is convinced that Mr. McVeigh's constitutional rights will be sacrificed" and it thus "leave[s] federal judges without power to remedy constitutional violations." DE 1526 at 3, 21; see also, e.g., id. at 4, 13, 16. Not at all. Section 235 obviously must give way if its application would violate defendants' constitutional rights. Plaut v. Spendthrift Farm, Inc., 115 S. Ct. 1447, 1459 (1995) (reaffirming "'judicial power' to disregard an unconstitutional statute"; citing Marbury v. Madison, 1 Cranch 137, 177 (1803)). McVeigh is not entitled, however, to attack section 235 as contrary to his own or others' notions of sound policy. DE 1526 at 7-14 (discussing various views supporting ban on cameras in courtroom); see Carlisle v. United States, 116 S. Ct. 1460, 1468 (1996) ("we are not at liberty to ignore the mandate of Rule 29 in order to obtain 'optimal' policy results"). Congress has decided that sound policy favors, in these special circumstances, the closed-circuit broadcast of trial proceedings to victims. As long as that congressional judgment does not violate defendants' constitutional rights (and it does not for reasons discussed below), McVeigh may not ask a court to second- guess it.

The Supreme Court has "recognized Congress' power to create the Judicial Conference of the United States, the Rules Advisory Committees that it oversees, and the Administrative Office of the United States Courts whose myriad responsibilities include the administration of the entire probation service." Mistretta, 488 U.S. at 388-89. Defendants' separation of power arguments are particularly unavailing because Congress has almost plenary power to regulate the manner in which federal trials are conducted. Sibbach v. Wilson & Co., 312 U.S. 1, 9-10 (1934) ("Congress has undoubted power to regulate the practice and procedure of federal courts"). Although Congress has delegated the authority to promulgate and amend the Federal Rules of Criminal Procedure to the Supreme Court, it retains the power to reject any proposed changes. 28 U.S.C. Sections 2071 et seq.; see also Mistretta, 488 U.S. at 386-88. Congress may, of course, also directly amend the Federal Rules of Criminal Procedure by statute. See, e.g., Pub. L. 99- 570, Title X, Section 1009, 100 Stat. 3207-08 (amending Rule 35).

Defendants' suggestion that Congress cannot constitutionally amend Rule 53 is also at odds with this Court's May 29, 1996 opinion, holding that it could not release audio tapes of court proceedings. The Court explained that "[i]n providing the statutory authority for the making of the official record by means of an electronic sound recording system under 28 U.S.C. Section 753(b), Congress in effect modified Rule 53." DE 1498 at 6. The Court's opinion further recognized that the Judicial Conference -- the very body whose policy views McVeigh suggests should trump those of Congress in section 235 (e.g., DE 1526 at 12-13) -- operates "under statutory authority given [by Congress] in 28 U.S.C. Section 753(b)." DE 1498 at 1.

Congress properly exercised its authority in enacting section 235 and providing for closed-circuit televising "[n]otwithstanding any provision of the Federal Rules of Criminal Procedure to the contrary." Defendants cannot show that requiring closed-circuit televising of a trial threatens the institutional integrity of the judiciary any more than a host of other congressionally prescribed conditions including: what evidence is admissible, e.g., Fed. R. Evid. 802; what number of peremptory challenges shall be permitted, Fed. R. Crim. P. 24; and what a defendant's sentence will be. See Mistretta, 488 U.S. at 380.

Lastly, Nichols incorrectly cites the Supreme Court's decision in Plaut as supporting a claim that section 235 unconstitutionally directs the Court to decide a specific issue in only this case. DE 1516 at 8. Plaut ruled that a statute that "retroactively command[ed] the federal courts to reopen final judgments" violated separation of powers. 115 S. Ct. at 1458. The unconstitutional flaw in Plaut "consist[ed] not of the Legislature's acting in a particularized and hence (according to the concurrence) nonlegislative fashion; but rather of the Legislature's nullifying prior, authoritative judicial action." d. at 1462-1463. The Plaut majority added that "[e]ven laws that impose a duty or liability upon a single individual or firm are not on that account invalid -- or else we would not have the extensive jurisprudence that we do concerning the Bill of Attainder Clause, including cases which say that it requires not merely 'singling out' but also punishment, and a case which says that Congress may legislate 'a legitimate class of one.'" Id. at 1463 n.9 (citations omitted).

In any event, section 235 does not, as Nichols claims, apply only to this case but instead applies by its terms wherever venue is changed out of the State and more than 350 miles from the location where the crime occurred. That the plight of the numerous victims in this case prompted Congress to enact Section 235 does not, of course, limit its application to this case. Prominent events that highlight shortcomings in the law often cause Congress to enact corrective legislation; this process is not unconstitutional. Through Section 235, Congress has fashioned a rational procedure by which the victims of crimes where venue has been changed may view the proceedings.

B. Section 235 is Not a Bill of Attainder, Nor Does it Violate the Ex Post Facto Clause.

McVeigh argues that section 235 is an unconstitutional bill of attainder and that it violates the Ex Post Facto Clause. DE 1526 at 16-25. As Section 235 does not prescribe any "punishment," these claims lack merit. Jones v. Heckler, 774 F.2d 997, 998 (10th Cir. 1985) ("Essential to the success of [the bill of attainder and ex post facto] arguments is the validity of characterizing the [complained condition] as punishment.")

For Section 235 to be a bill of attainder, it must "inflict punishment on the specified individual or group." Selective Service System v. Minnesota Public Interest Research Group, 468 U.S. 841, 851 (1984). The Supreme Court, "[i]n deciding whether a statute inflicts forbidden punishment," conducts "three necessary inquiries: (1) whether the challenged statute falls within the historical meaning of legislative punishment; (2) whether the statute, viewed in terms of the type of severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes; and (3) whether the legislative record evinces a congressional intent to punish." Id. at 852 (internal quotation marks deleted). Although McVeigh asserts that "[t]he punitive quality of Section 235 is obvious" (DE 1526 at 21), he cites no case holding that televising trial proceedings somehow constitutes punishment. Compare INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) (deportation not punishment); Artway v. Attorney General of State of New Jersey, 81 F.3d 1235, 1267 (3d Cir. 1996) (requirement that convicted sex offenders register before moving into a community not punishment). McVeigh further fails to establish that Congress passed section 235 with the intent to punish him; to the contrary, he concedes that "the Anti- Terrorism Act has nonpunitive objectives." DE 1526 at 22.

For the same reason, section 235 also does not violate the Ex Post Facto Clause, which prohibits statutes that "punish as a crime an act previously committed, which was innocent when done; [] make more burdensome the punishment for a crime, after its commission; [or] deprive one charged with crime of any defense available according to law at the time the act was committed." Collins v. Youngblood, 497 U.S. 37, 52 (1990). McVeigh does not explain how the closed-circuit televising of his trial to a select number of viewers in Oklahoma City violates any of these prohibitions, nor could he. Having such a limited audience view his trial can hardly amount to punishment prohibited by the Constitution; under McVeigh's logic, he would also be unconstitutionally punished if his trial were held in a larger courtroom where more victims could attend. Far from being a vehicle designed to punish criminal defendants, Section 235 implements Congress' humane desire to permit victims of a crime to view that trial when venue has been changed to a distant locale.

C. Section 235 Does Not Deny Defendants Equal Protection Or Due Process.

There is no basis for defendants' claims (DE 1516 at 11; DE 1526 at 41- 42) that section 235 violates the equal protection component of the Fifth Amendment. To the extent that McVeigh and Nichols argue that the statute treats them differently from other criminal defendants, the equal protection guarantee provides them no relief. A law like Section 235 that "neither burdens a fundamental right nor targets a suspect class" does not violate equal protection "so long as it bears a rational relation to some legitimate end." Romer v. Evans, 116 S.Ct. 1620, 1627 (1996). The statute furthers the legitimate (indeed, compelling) interest of "permit[ting] victims of crime to watch criminal trial proceedings," and Congress rationally determined that closed-circuit broadcasting was necessary to further this interest in cases where venue of the trial is changed a great distance.

It is possible to construe defendants' briefs as also raising an equal protection challenge to the statutory distinction between victims (who are most likely to have a compelling interest to view the closed-circuit broadcast in Oklahoma City) and other members of the general public (who are less likely to meet the statutory criteria for closed-circuit viewing). McVeigh and Nichols, however, lack standing to assert the equal protection rights of the general public. See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 474 (1982) (litigant "must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties" (internal quotation marks deleted)).

There would be no merit to any equal protection challenge to Section 235 by members of the general public. The category of people who are not victims does not comprise a suspect class, nor is the ability to watch televised trial proceedings a fundamental right. Congress legitimately tailored Section 235 to victims because they stand on separate footing from other individuals. Indeed, this Court has recognized that they are in this case the "members of the public who have been most directly affected by the explosion which is the basis for the pending criminal charges." DE 1625 at 2; cf. The Florida Star v. B.J.F., 491 U.S. 524, 537 (1989) (state's interests in shielding names of rape victims were "highly significant"). As such, Congress properly enacted Section 235 to provide only for victims of a crime, and closed-circuit televising of the proceedings rationally furthers its goal of permitting them to watch the trial proceedings.

D. The Presence of Cameras in the Courtroom Does Not Violate Defendants' Right to a Fair Trial.

McVeigh incorrectly relies on Estes v. Texas, 381 U.S. 532 (1965), to support his argument that televising his criminal trial would deny him due process and a fair trial. DE 1526 at 26-29. In Chandler v. Florida, 449 U.S. 560 (1981), the Supreme Court stated "that Estes is not to be read as announcing a constitutional rule barring still photographic, radio, and television coverage in all cases and under all circumstances," id. at 573, and further, declined to promulgate such a rule. Id. at 579. The Court noted that "[o]ther courts that have been asked to examine the impact of television coverage on the participants in particular trials have concluded that such coverage did not have an adverse impact on the trial participants sufficient to constitute a denial of due process." Id. at 579 n.12 (citing Bell v. Patterson, 279 F. Supp. 760 (D. Col.), aff'd, 402 F.2d 394 (10th Cir. 1968), cert. denied, 403 U.S. 955 (1971)). This reasoning applies with even greater force here because Section 235 only provides for the closed-circuit broadcast of trial proceedings -- in effect, an expansion of the courtroom -- not the public broadcast approved by the Supreme Court in Chandler.

McVeigh objects (DE 1526 at 32-33) that the specter of public observation brought to the jurors' attention by the mere presence of cameras in the courtroom will prejudice his ability to obtain a fair trial. See also DE 1516 at 15-16. He does not explain how the cameras themselves will result in such prejudice, when the very nature of the trial itself, including a courtroom and court plaza filled daily with reporters, will not. In any event, this argument was rejected by the Court in Chandler. "To demonstrate prejudice in a specific case a defendant must show something more than juror awareness that the trial is such as to attract the attention of broadcasters." Chandler, 449 U.S. at 581 (citing Murphy v. Florida, 421 U.S. 794, 800 (1975)). Indeed, the jurors in this case surely will be instructed to disregard the presence of the camera(s) in the courtroom, and to decide the case based only on the evidence presented in court. See United States v. Lonedog, 929 F.2d 568, 576 (10th Cir.) (jurors presumed to follow their instructions), cert. denied, 502 U.S. 854 (1991). Moreover, potential jurors can be asked during voir dire, as they were in Chandler, "if the presence of the camera[s] would in any way compromise their ability to consider the case." Id. at 581.

McVeigh lacks standing to argue (DE 1526 at 31-32) that section 235 is unconstitutional because it may be applied in other cases where the presence of cameras would deny some hypothetical defendant the right to a fair trial. See County Court of Ulster County, New York v. Allen, 442 U.S. 140, 155 (1979) ("if there is no constitutional defect in the application of the statute to a litigant, he does not have standing to argue that it would be unconstitutional if applied to third parties in hypothetical situations"); United States v. Mendes, 912 F.2d 434, 439-40 (10th Cir. 1990) (defendant lacks standing to challenge an allegedly unconstitutional aspect of 21 U.S.C. 841(b) because the statute was constitutional as applied to him). Because defendants have not demonstrated that the presence of cameras in the courtroom would deny them their rights to a fair trial, Section 235 is constitutional.


Section 235 clearly, and constitutionally, applies to this case. The Court should schedule a hearing to deal with the technological issues involved in establishing closed-circuit broadcasting of the trial proceedings back to Oklahoma City.

Respectfully Submitted,

Special Attorney to the U.S. Attorney General




Criminal Action No. 96-CR-68-M


Chief Judge Richard P. Matsch


Counsel for Timothy McVeigh files this memorandum with the Court supplementing his Response to the Government's Motion For Closed-Circuit Televising of the Trial Proceedings. Additional authority is given to establish that Section 235 of the Anti-Terrorism and Effective Death Penalty Act is unconstitutional because it violates the separation of powers doctrine and it denies Timothy McVeigh equal protection of the laws.

The effect of Section 235 is a commandment by Congress that this Court decide an issue in this case, that is, the issue of providing closed- circuit television, in a particular way. As early as 1872 it was decided that if a legislative act orders a court to decide a pending case in a particular manner, then this enactment violates the constitutional doctrine of separation of powers. United States v. Klein, 80 U.S. (13 Wall.) 128 (1872).

The plaintiff in Klein sued to obtain the return of his property based under a statute which gave confederate landowners the ability to recover their property upon proof of loyalty to the federal government. Prior decisions by the Supreme Court held that a presidential pardon was sufficient proof of loyalty under the statute, so the lower court held for the plaintiff. The government appealed this decision and while the case was on appeal, Congress changed the effect of a presidential pardon by passing a statute which provided that a presidential pardon was, under most circumstances, conclusive proof of disloyalty. The Supreme Court declared this new statute unconstitutional because Congress had "passed the limit which separates the legislative from the judicial power" by commanding a court to decide a pending case in a particular manner. 80 U.S. (13 Wall.) at 146-147. The Court ruled that Congress could not prescribe rules of decision to the Judicial Department in cases pending before it. Id. at 146. It found that the statute's "great and controlling purpose [was] to deny to pardons granted by the President the effect which this Court had adjudged them to have." Id. at 145 (emphasis added).

"The great and controlling purpose" of Section 235 is for this court to disregard, in this case, the rules prohibiting broadcasts of criminal trials.

The legislative history to Section 235 illustrates that it was tailor- made for those victims affected by the Oklahoma City bombing, regardless of whether or not it will actually apply. In fact, in the initial offering of this amendment to the House, Representative Frank Lucas said it was specifically enacted because this Court had ruled that in this case, cameras would be impermissible in the courtroom. Representative Lucas said:

I support this amendment because among other things, it provides for closed-circuit broadcasting of court proceedings in cases where a trial has been moved out of State, and more than 350 miles from the location where the proceedings would have taken place. I appreciate the chairman and his staff's efforts on this provision.

As the Member of Congress who represents downtown Oklahoma City, I believe this provision is crucial, especially in light of the upcoming trial of the suspects in the bombing of the Alfred P. Murrah building. Recently, this trial was moved from Oklahoma City to Denver. and the judge ruled cameras impermissible in the courtroom.

For the victims and survivors of this, the worst terrorist attack to occur on U.S. soil, the trial and any subsequent punishment of those who committed this heinous crime are part of the healing process. For most, this is a time to rebuilt their lives, therefore the upheaval of going to Denver to watch the trial seems cruel and unfair. See Exhibit A (142 Cong. Rec. H 2165-2166 [daily ed. March 13, 1996] [emphasis added]).

Throughout the debates it was argued that the closed-circuit provision needed to be passed so that the victims in Oklahoma City could view the trial without traveling to Denver. Representative Hyde, who originally sponsored the closed-circuit amendment to the Anti Terrorism Bill, said this amendment would allow the victims in Oklahoma City to view the trial in Denver. See Exhibit A (142 Cong. Rec. H 2165-2166 [daily ed. March 13, 1996]).

Oklahoma Representative Istook further argued in support of this section: "Fortunately, Mr. Chairman, this portion of the amendment specifies that [it] shall be a closed-circuit rebroadcast back to the original location, to Oklahoma City, for the benefit of those who are victims...." Id. (emphasis added). Interestingly, Representative Istook incorrectly stated that "the Judicial Conference of the United States has endorsed this approach". Id. The Judicial Conference specifically stated "that Section 235, if enacted, should be modified to provide that any requirement that courts order closed-circuit televising of criminal proceedings should be made discretionary with the judge." News Release, Administrative Office of the U.S. Courts, March 12, 1996 (emphasis added).

Senator Hatch added: "[B]y providing for closed-circuit viewing of the Oklahoma City trial by the bombing's victims and survivors, this bill also will ensure that these courageous people can observe justice being done, while still ensuring a fair and just trial for the accused." See Exhibit B (142 Cong. Rec. S 3476-3477 [daily ed. April 17, 1996]). Senator Nichols said,

It does allow closed-circuit TV for families in the Oklahoma City bombing. Right now the trial, regrettably, is going to be in Denver. That is over 500 miles from Oklahoma City. They want to be able to view the trial and not have to move their families to Denver. We requested assistance from Justice' but they did not make it happen. We make it happen in this legislation.... Id. (emphasis added).

In a letter to President Clinton urging that he sign this legislation, Governor Keating described Section 235 as "a provision allowing for the closed-circuit viewing of the trial by families and victims who cannot be accommodated by the courtroom in Denver". Id. Instead of describing the bill in its technical terms, Congressman Lucas simply said, "Support closed-circuit broadcasting of the Oklahoma City bombing trial for its victims. Support H.R. 2703". See Exhibit C (142 Cong. Rec. H 2141 [daily ed. March 13, 1996]).

Members of Congress announced publically that Section 235 was enacted to "allow for closed circuit TV so that the families of the victims won't have to incur the inconvenience and expense of going all the way to Denver." See Exhibit D (Oklahoma City media transcript, Channel KWTV, 4/18/96, 5:00 p.m. & 10:00 p.m. and Oklahoma City media transcript, Channel KFOR, 4/18/96, 5:00 p.m.).

There is not one element of this section which does not attempt to fit the specific facts of this case. After it was reported to Congress that cameras had already been disallowed in the courtroom in this case, Congress objected to this perceived legal decision and told this court how to decide the issue of cameras in the courtroom in this case. Section 235 does not permit this court to exercise its constitutional powers of independent adjudication as to issues pending before it. Congress has passed the limit which separates legislative duties from judicial duties by commanding this court to decide this issue in a particular manner. Congress has impermissibly invaded the province of the courts and has eroded the institutional integrity of the judiciary.

Section 235 violates equal protection guarantees, as incorporated in the due process clause, because its intent is to favor a certain class of people, that is, victims who reside in the state of Oklahoma, over a disfavored class, that is, family members of the defendants who are also victims of this offense. "Victim" is expansively defined in 42 U.S.C. Sec. 10607(e)(2) as a person who has "suffered direct physical, emotional, or pecuniary harm as the result of commission of a crime ...." (emphasis added). One cannot doubt the fact that regardless of whether Timothy McVeigh and Terry Nichols are ultimately acquitted, their family members are actual victims of this offense.

It was an obvious aim of Congress to adversely impact a disfavored class - family members of the defendants. This impartiality has always been suspect. Romer v. Evans, 64 U.S.L.W. 4353, 1996 U.S. LEXIS 3245 (1996)(citing United States Railroad Retirement Bd. v. Fritz, 449 U.S. 166 (1980) [Stephens, J., concurring]).

Justice Kennedy explained:

A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense. Romer v. Evans, 1996 U.S. LEXIS 3245, at 23.

Stephen Jones, OBA #4805
et al


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