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The McVeigh Trial's March 31, 1997, Opening Day Explanation Of Jury Selection Procedure By Judge Matsch

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Criminal Action No. 96-CR-68


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 31st day of March, 1997, in Courtroom C-204, United States Courthouse, Denver, Colorado.


PATRICK M. RYAN, United States Attorney for the Western 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, AITAN GOELMAN, 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 and ROBERT NIGH, JR., Attorneys at Law, Jones, Wyatt & Roberts, 999 18th Street, Suite 2460, Denver, Colorado, 80202, appearing for Defendant McVeigh.

* * * * *

THE COURT: Please be seated.
We're convened in 96-CR-68, United States vs. Timothy James McVeigh, which is called for trial.
Appearing for the Government?

MR. HARTZLER: Good morning, your Honor.

THE COURT: Mr. Hartzler?

MR. HARTZLER: Seated with me at the front table is Ms. Wilkinson, Mr. Ryan and Mr. Mackey. Your Honor, there is a second table which is outside the sight of the jury. Seated there is Mr. Mendeloff, Mr. Connelly, Ms. Behenna, and Mr. Goelman.

THE COURT: Good morning.

MS. WILKINSON: Good morning, your Honor.

THE COURT: And for Mr. McVeigh, Mr. Jones?

MR. JONES: Good morning, your Honor. The defendant is present and ready. Seated with me at this table to my left is Mr. Nigh.

THE COURT: All right. Good morning.

MR. NIGH: Good morning, your Honor.

THE COURT: The -- there is a motion here that Mr. Jones filed this morning with respect to some exception to the sequestration rule. Is that objected to?

MR. RYAN: No, your Honor.

THE COURT: All right. That motion is granted.

I'll -- I think I should begin with some explanation of the procedures that will be followed for the selection of the jury of 12 persons and 6 alternate jurors for the trial of this case.

We followed the usual procedure here of sending out jury summonses in accordance with the jury plan which provided for the random summoning of jurors pursuant to the usual program whereby the names of persons were taken from a database that included voter registration and driver's license information from the 23 counties that constitute the Denver jury pool; and along with the summonses went the usual qualification questionnaire. The difference was that the persons summoned were told what trial it was that the summons was issued for.

And the responses to those questionnaires, as is the usual case, were reviewed for the statutory qualifications. Some persons were excused because they didn't meet the statutory qualifications, some for medical hardship. The usual type of exclusions were considered.

Then a second step was that a -- members of the jury pool were gathered together at a nonpublic meeting on March 19 at the Jefferson County Fairgrounds, at which place and time I met with the pool in two sections, one in the morning, one in the afternoon. At that time and place, I explained the case, the charges, the background of the case, and distributed rather lengthy questionnaires to the persons in the jury pool.

This is a questionnaire that was developed by the lawyers for both sides and by me to obtain rather detailed information about the persons who were in the jury pool. And the proceeding there was essentially an administrative one to get these questionnaires completed.

Then when they were completed, copies of them were made and distributed to counsel for both sides and to me under a protective order that directed that these questionnaires and the answers not be made public and be used solely for the purpose of this jury selection process; and that, of course, was necessary because the information asked was rather invasive of privacy.

And after receipt of the completed questionnaires, we went through another randomization process whereby all of the persons, names, and numbers of the jurors were, through a computer process, gone through what I'm told are called "loops," so that the names were shuffled, I guess you could say in more prosaic terms, over 800 times, so that we get a randomization, a chance process here. And then as a result of that, we have available to us, to complete voir dire here, jurors selected in an order, as I say, through this chance process.

Now, we're going to proceed with individual questioning of these persons, and their names will not be used. It is my belief that some privacy is still an entitlement of persons who are not volunteers but who are here under their responsibility as citizens to perform their duty of jury service; and consistent with that, I believe that they are entitled to some protection of their privacy.

Now, their names and information about them are known to the counsel here; but as I've already indicated, they're under restrictions that they may not disclose them. So as these people come in this morning, we will be referring to them by a number that is assigned to them as members of the jury.

This questioning will proceed with me doing the questioning based on these questionnaires and some other questions that I have of them, and then counsel for the Government, counsel for the defendant, will be entitled to ask additional questions. The persons will then be excused for the day after their individual questioning is completed.

This process will, of course, be reported, as all trial proceedings; but different from what has happened here in motions and other pretrial proceedings, where transcripts of the proceedings have been made available on the same day as the court hearing, that will not be done with the -- as we call it the voir dire, the questioning of these individual jurors. In fact, those transcripts are not going to be made public. This proceeding will be conducted in public, but the transcripts are not going to be provided.

Now, these trial proceedings, this part of it, as well as the entire trial, are being and will be transmitted by closed circuit television link-up to the auditorium at the headquarters building at the Mike Maroney Aeronautical Center in Oklahoma City, Oklahoma, for viewing by persons shown to have a compelling interest and/or otherwise unable to be here at the trial by reason of the order changing venue of this case to this location.

This procedure is being carried out in compliance with a federal statute which amended Rule 53 of the Federal Rules of Criminal Procedure, which prohibits the taking of photographs and broadcasting of trial proceedings in Federal Court.

Now, the statute that is being implemented is very limited, both with respect to the purpose and the scope of it. The Congress designed this for a particular purpose; that is, as already announced, for the persons who are in the original venue and who for whatever reasons are unable to attend at the changed venue and who will also have a compelling interest in viewing the proceedings.

Essentially, the matter is designed, or the procedure is designed to give those persons an opportunity to observe these proceedings insofar as we can do so in the same way as those who are seated here in this courtroom -- in the public area of this courtroom this morning.

So there is a camera at the back of the room in the wall, and it is a camera that's in a fixed position and a fixed focus.

There will be no closeups, no changes in the focus. You'll see, or you are seeing, I trust, there in Oklahoma City what the people here in the courtroom in Denver are seeing; that is, the well of the court, the lawyers, Mr. McVeigh, and me. You will not be viewing the jury; and there is here in the courtroom in Denver a jury box that has partial screening, which is again designed to attempt to accommodate the privacy interests of the jurors.

The -- as I say, the effort here is to simply extend the courtroom electronically to accommodate your interests there in Oklahoma City.

Now, if I may address a moment the people who are there in Oklahoma City, we ask that you follow the directions in the March 21 letter for making reservations, using the reservations system that you were advised about from the United States Attorney's office there and Ms. Anderson and also consult the information packets that have been provided to you and follow the instructions there.

Judge Gaspar Perricone is there with you, and he will preside there in the auditorium, which is for now recharacterized as a courtroom instead of an auditorium; and this is not -- although that's a sort of theater-type arrangement, this is not theater, this is a trial. And we expect that you will conduct yourselves just as those who are here in the courtroom conduct themselves with appropriate demeanor and courtroom manner.

Judge Perricone is authorized to enforce the Court's orders, and I'm sure he will do so.

This is a relatively new technology that is being employed to transmit the audible and visual parts of this trial proceeding. There are procedures that are in place to protect the integrity of this transmission.

Congress provided that it would be closed circuit and available only to the persons who have the compelling need, as have been determined by the Court.

Additionally, it is not to be recorded; and of course, closed circuit means it's not available for retransmission or rebroadcast. To be candid, I am concerned that the signal not be pirated, as they say; that is, intercepted and rebroadcast or retransmitted by anyone, and there are procedures in place to avoid that.

Several different organizations are involved in this process to be able to send and receive the signal; and also, we are receiving a signal back from Oklahoma City so that we can see you there as well; but I want to emphasize that if something goes wrong with the technology -- and we hope it doesn't; and of course, a lot of people have made a great effort to avoid anything going wrong -- but if something does go wrong and the signal goes down, the trial proceeding will continue. And we'll try to inform you there as to what the problem is and who is assigned to correct it, whose responsibility it is.

But I'm not going to interrupt the trial because of some glitch, if it happens -- I hope it won't -- in this transmission.

In addition, of course, if there were to be any violations, if we discover that somebody has cracked the code, as it were, found a way to rebroadcast what is happening here, we will, of course, interrupt the closed circuit transmission until whatever steps are necessary to stop that are taken and then resume.

In the examination of these persons now, the questioning, we will complete the questioning of each individual; and then, as I've already said, excuse that person and go to the next person. No rulings are going to be made with respect to these jurors as they appear today.

I will be meeting with the lawyers in the case on tomorrow morning and early and each morning thereafter to review the persons who were brought in as potential jurors on the preceding day and determine whether there are challenges for cause at that time.

Decisions on challenges for cause will not be announced until later. We're not going to do this in a manner in which these decisions are disclosed as we go. There will be ultimately, of course, a panel or panels of jurors who will then be reviewed for the exercise of what are called peremptory challenges.

Now, peremptory challenges, which are 20 in number for each side in this case because this has the potential for death penalty sentence -- under the rules, there are 20 peremptory challenges for each side. And those are simply opportunities for the sides in the case to excuse persons without giving reasons for that, a very vital and important right that both sides have in a criminal trial.

We will also then be proceeding to the selection of six alternate jurors; and with respect to that, each side has three peremptory challenges; so that's the process that we'll be following.

Prepared by the Library from the Official Court Reporters' (Paul Zuckerman & Pam Andasola) Transcript

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