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Plaintiff, )
v. ) Case No. M-95-98-H
Defendant. )

HAD ON APRIL 27, 1995




Merrick Garland, Arlene Joplin,
United States Attorneys Office,
210 West Park Avenue,
Oklahoma City, OK 73102

Federal Public Defender,
Old Post Office Building,
Oklahoma City, OK 73102

MS. OTTO: Your Honor, if I may?

THE COURT: Yes, Ms. Otto.

MS. OTTO: I received the Court's order denying our request for transfer of this case yesterday.

THE COURT: I am sorry, the what?

MS. OTTO: I am sorry. Perhaps if I can step to the center it would be easier and I could get over the bird noise.

THE COURT: The birds are chirping away.

MS. OTTO: I might have to chirp a little more loudly than they do.

Your Honor, I received a copy of the Court's order yesterday denying our request for appointment of substitute counsel, and in the same order our motion to transfer this case was denied, and based on --

THE COURT: Would you hand me the Court's order?

MS. OTTO: Based on the Court's order and findings the Court made at that time.

THE COURT: Do you have a copy of it?

MR. COYLE: I have got it.

MS. OTTO: There we go, thank you.

THE COURT: I believe that is it.

MS. OTTO: I believe that it is appropriate as a preliminary matter to reurge our motion to transfer at this time. The substance of our motion to transfer went hand and glove with our request to have alternate counsel appointed to represent Mr. McVeigh. And our conflicts that arise, Mr. Coyle's and mine, in this case are inextricably involved with our motion to transfer.

This is a very unusual case and the government has relied essentially in its response on the Harrelson and Shagra cases which, of course, arose out of the assassination of Judge Woods down in Texas. And that is a primary authority on which the government relies in support of its argument that transfer is not warranted at this time.

The government's response, and I believe also the Court's order, does not address certain aspects of our motion, and that's why I wanted to touch on this point again at this time.

Your Honor, the essence of our motion to transfer, the essence of our motions to have alternate counsel appointed, is simply that this case has been so extraordinary, and has such extreme magnitude that it impossible for any of us who were in downtown Oklahoma City on the morning of April 19th to proceed in this case.

Judge Woods, for example, was shot at his home while he was on his way to work. There have been other attacks, the World Trade Center bombing, for example, and certain other events that occurred that certainly are equally traumatic events.

But I have found no case in the history of this country that is of such magnitude as the one we are involved in right now.

And certainly as lawyers one of the things Mr. Coyle and I have considered during our representation of Mr. McVeigh is not the actual provision of counsel in an appropriate and effective and zealous manner that is required by the Constitution, required by the cases effectuating the Constitution, but also the appearance of impropriety that might arise.

It is really that appearance of impropriety that prompted us to file our request for appointment of the substitute counsel and our request to transfer at this juncture.

Now, certainly the judge who presided in Judge Woods' case, the case involving the assassination of Judge Woods was an honorary Pall bearer and was a jurist who was well acquainted with Judge Woods. The Fifth Circuit found no flaw in that, but that is a far cry from a judge who is acquainted with a victim to a judge who actually witnessed the events as they occurred.

This record may be reviewed at some later time by people far removed from the events, both physically and temporally, and I think it is absolutely essential for the effective representation of Mr. McVeigh to have a clear record of exactly what it is we are talking about.

Now, the events of April 19th were obviously cataclysmic beyond definition. The A.P. Murrah Building, which is located directly across from the federal courthouse in Oklahoma City, was virtually destroyed, demolished, right on the spot, by a very powerful explosion.

The results of that explosion caused windows, doors, and other items within the federal courthouse building to be blown to pieces.

The judges' chambers on the north side of the federal courthouse building were shattered where the windows blew in, doors blew in, and people in the building were injured during that explosion.

On the first floor, jurors who were deliberating were physically injured. And one of the judges, the judge who was presiding over that trial, was out on the street assisting her jurors into ambulances.

Judge Argo, who is on the first floor at the northeast corner of the federal courthouse, was probably spared from certain death by the fact his windows on the ground floor are bulletproof glass. They appear to be sand-blasted.

In my building, my office windows on the north floor were completely destroyed. Fortunately, I wasn't sitting at my desk at the time. Fortunately for all of my staff, none of us were injured.

We evacuated the building as everyone else did. One of my lawyers was missing. She was in court. And I spent probably five to ten minutes running up and down the street in front of the federal courthouse trying to find my lawyer who was lost. Once I located her, one of my other lawyers informed me that his child was supposed to be at the YMCA Day Care Center, and he couldn't find his child. We spent the next 45 minutes trying to locate his child.

I am aware that you, Judge Howland, were also present during the events and that you witnessed what went on.

I think the record should also reflect that I am personally acquainted on a professional basis with the following people: Cynthia Lynn Campbell Brown, a special agent with the Secret Service. She was over in our offices discussing a case with our investigator shortly before she left to get married.

Aaron Coverdale and Elijah Coverdale, ages 5 and 2 are the children of one of our former clients.

Steve Curry, who worked for General Services Administration as an inspector, assisted us in the renovation of our offices.

Christi Jenkins, is an employee at the Federal Employees Credit Union where I had two accounts, and I have done business with her on many, many occasions.

Donald Ray Leonard, special agent with the Secret Service, I am personally acquainted with him in a professional capacity.

Michael Loundenslager, a planner/estimator for General Services Administration, also assisted us with our renovation in our building.

Mickey Bryant Maroney is a Secret Service agent with whom I have handled maybe twenty cases in the past few years.

Kenneth Glenn McCullough, special agent with the Drug Enforcement Administration, with a very important case pending with us in our office.

Paul Ice, who is listed -- all of those people are dead. Paul Ice, a senior special agent with the Customs Service. I am also well-acquainted with him as a result of his professional capacity and mine. He is listed as missing, and this morning's casualty list, it's my understanding that they have recovered his body, and he is dead.

Tresia Worton, another Federal Employees' Credit Union worker is still missing. I am unaware of her status.

I am personally acquainted with every one of these people. I have been down to the federal courthouse, starting now on my 11th year. I know these people. I have done business with these people, and although certainly we don't work in the same agency, we have had a cordial, working relationship that places me in the position of knowing on a first-name, by-sight basis, victims of these events.

I do not believe this is a case that falls within the ambiance of Harrelson and Shagra. This is a case of extraordinary proportions. Mr. Coyle was personally acquainted with an attorney who has also been killed as a result of this bombing incident.

I was certainly present during most of the events in the early morning of April 19th, and at one point in the afternoon I could no longer find my investigator because a man with whom he had been associated with for a number of years, who is on special assignment with the Drug Enforcement Administration, was unaccounted for, and my investigator was down at the building looking for him.

When I couldn't find my investigator after two hours, I went back down to the scene and went looking for him. Fortunately I found my investigator, and his friend was also unharmed during these events.

This is not an instance where publicity has been limited. I respectfully disagree with the Court's characterization that the principal portion of the publicity has been about the factual circumstances surrounding the bombing and the attempted recovery of victims and potential survivors.

I don't have all the papers nationwide. Certainly I have been contacted by virtually every print media and video media person or seems like I have been, requesting information about this case. But I do have the last seven editions, I don't have the Sunday edition of The Daily Oklahoman, and I would like to place these of record as well.

THE COURT: Do you want to use those at this time?

MS. OTTO: I do, Your Honor.

THE COURT: Do you have them numbered?

MS. OTTO: Yes, I do. Exhibit No. 1 -- Defendant's Exhibit No. 1, is Thursday, April 20, 1995, the banner headline is "Morning of Terror, City Struggles With Shock of Deadly Bombing."

The very next day, Friday, April 21st, this would be Defendant's Exhibit No. 2. "FBI Seeks Two in Terrorist Blast," and this is the first day we have a composite photograph of the men who are identified by the FBI as suspects.

The third came Saturday, April 22nd, is Defendant's Exhibit No. 3, "Bomb Suspect Charged," and a large picture of Mr. McVeigh and the escort of -- well, I can recognize one FBI agent right off the bat, and appears to be several others and several sheriff's deputies, Defendant's Exhibit No. 3.

Defendant's Exhibit No. 4 is the Monday April 24th, newspaper, "A Time to Grieve." It's the banner headline. This is photograph of the memorial services with President Clinton and Governor Keating. But below the fold, we have "Search Continues For Second Suspect. Man Questioned In The Investigation Of This Case Figures Prominently" on the first page of the paper.

Defendant's Exhibit No. 5, "FBI Combs Through Leads In Bombing Case" and the coverage generally continues with the FBI ongoing investigation of this case and contains some information about additional suspects who have been identified.

On Wednesday, April 26th, Defendant's Exhibit No. 6, we have the lead which is "Chemical Test Point to McVeigh." And I guess it would be the lead story: "FBI theorizes John Doe 2 May Be Dead." We have specific information about Mr. McVeigh, specific information about this case, specific information about incriminating evidence that the FBI is alleging links Mr. McVeigh to these incidents.

THE COURT: Is that 6?

MS. OTTO: Yes, this is Exhibit No. 6, correct. Defendant's Exhibit No. 7 is today's newspaper and it contains banner headline: "Friend puts McVeigh in City on Easter. Bomb Suspect Talked About Something Big."

This is an article that primarily reports the events in Terry Nichols' court hearing had in Wichita yesterday. Again, it is all information directly concerning Mr. McVeigh.

We do not have, and as I am sure the Court has reviewed the cases that have been cited, publicity cases do generally turn on the degree of saturation of the media, the length of time that has elapsed since the events, and the court proceedings, and the nature of the communications that have been conveyed in the courts.

Now, certainly I will agree with the Court's characterization that a great deal of the media focus was initially on rescue efforts, the suffering of the victims and the victims' families, and the heroic efforts of all parties in attempting to find survivors as quickly as possible. But it would be very disingenuous to behave as if the identification of Mr. McVeigh as a suspect has been some minor sideline in these stories. It has been the story.

Mr. McVeigh has been the story since he was moved from Perry, Oklahoma; and certainly since his apprehension, the papers and video media have been saturated with stories about him, about the militia, about his family, about other groups all tending to lead or lend some larger conspiracy or larger connection, which is the tendency of all of these facts, that are being presented as fact in various media.

Your Honor, it would be very difficult, I think even under the best of circumstances, if we all were from some place else and, well, all been dropped here in the middle of Oklahoma City to conduct these proceedings, to be unaware of what has been going on in Oklahoma for the last week or week and a day. It would be very, very difficult to find anyone in America who doesn't know something, at least, about this.

But to say that the publicity is not a factor, to say that publicity is not a factor right at this point, just simply is untenable. That is a tenable position to take and tenable position to maintain.

Further compounding that is the fact that we don't really have to rely on all of this media coverage. We don't have to rely on the video pictures and on television and Connie Chung standing there with a bombed-ut building in the background. We know what it looks like because we were all there and we all saw it. We heard it. We smelled it. We lived through it. We are percipient witnesses. Every one of us is a percipient witness to this event. And Mr. McVeigh has the right to have his case heard even at this initial proceeding. This is not some sideline, some procedural sideline.

This is an essential part of this criminal case, and Mr. McVeigh is entitled under the Federal Rules of Criminal Procedure and under the Constitution to have his case heard from the very first instance by neutral and detached people who were not themselves percipient witnesses.

The government says, "You can't cite any cases. You can't cite any cases." You are darned right I can't cite any cases because this hasn't happened before.

You must not let the fact that this is a unique situation in which there is no case precedent cripple us to the obvious and indisputable facts. We are not people who come to this with perhaps some notion of what went on. Because we are percipient witnesses, we have our own very personal idea of what happened because we saw it, and we were there. That is why Mr. Coyle and I filed the motion to transfer at this time, so that this preliminary hearing could be conducted in another venue, in front of another magistrate, in front of another judge, one who wasn't run out of the courthouse by this blast, and Mr. McVeigh to be represented by lawyers who do not personally know victims involved in this, to be represented by a lawyer whose office wasn't largely destroyed by this blast, and to be heard in a truly neutral and detached forum.

I urge the Court to reconsider its position with regard to the motion to transfer. This is not an instance where Mr. Coyle and I are saying we want to be released because we were upset.

We want to be released because we believe it is Constitutionally required. Right from the very beginning, Mr. McVeigh is entitled to have this case considered by someone other than the persons who lived through these events.

It's the thrust of our motion. It wasn't really addressed by the government in its response, and I certainly wanted to clarify those points in the Court's order where I felt the Court might have been lacking some additional information. I strongly urge the Court to reconsider all of these matters.

THE COURT: Any objections to Defendant's Exhibit Nos. 1 through 6?

MR. GARLAND: No, Your Honor.

THE COURT: The same are admitted without objection.

Does the United States have any response to the Defendant's counsel's statement?

MR. GARLAND: Yes, Your Honor, with respect to the Motion to Transfer, as the Government's papers show, the rule is only for transfer from the district for trial.

As Charles Allen Wright wrote in his seminal book, Federal Practice and Procedure, the District Court is not authorized by this rule to transfer proceedings before the return of the Indictment.

No case, no Court has ever made such a transfer that has ever been recorded. Part of the reason may well be that because, although Mr. McVeigh may wish to transfer, there are others who are still being sought. Those people have the Constitutional right to a trial in the state where the crimes have been committed, by the jury in the state and in the district where the crimes were committed. Without their waiver it would make it impossible for the grand jury to proceed against those individuals. For that reason, then, we believe the Court's decision against transfer at this time is correct.

However, Your Honor, in light of the attorney's statement, I have to once again ask the Court on the record to ask the Defendant whether or not he objects to continuing with this hearing with his current lawyers.

I am concerned, Your Honor, that at some later time he will say that he did not consent; that she has made statements today that some day would be used to suggest later that the hearing went along without his consent. He does not have any right to not make a statement with respect to whether he consents to going forward at this time. At the least Your Honor ought to advise the Defendant that if he does not object, his objection will be taken as consent to continuing with these attorneys for whatever purposes for today.

THE COURT: The Court has carefully considered the statements of counsel here today and oral statements which supplement the motion which they previously filed. The Court, as I tried to indicate in my statement earlier about the relationship between the retained counsel and appointed counsel, the Court has to exercise oversight in connection with that. The Court has no question that the present counsel who are appearing for the Defendant will serve very professionally and respectfully and competently.

The Court's order stated that their Motion to Withdraw was overruled without prejudice, so that matter can be reconsidered. Other than that, in connection with the evidence which has been introduced, the Court believes the order satisfactorily resolved those issues. I tried to be as specific as I could in connection with the order in the limited amount of time that we have all had to work on all of this, and I believe the order is sufficiently dispositive to deal with those issues. The record has been made, as far as I'm concerned, on those points. The order that I previously entered is sustained and will continue in effect.

If there is nothing further, I will consider evidence on the probable cause issue.

MR. GARLAND: Your Honor, I still think we need to know whether the Defendant consents to going forward with these attorneys at this time.

THE COURT: Well, it is basically the Court's responsibility to, as I said, exercise oversight in connection with the appointment of counsel. As compared to an entry of appearance by a privately-retained attorney, the Court has little or no discretion in connection with that matter. You heard the positions of the attorneys who are present and the Court has exercised its judgment and oversight, which I think I'm required to do in connection with 3005. Ms. Otto and Mr. Coyle meet every qualification. The Court believes that they are professional-enough attorneys that they will competently represent the Defendant throughout this proceeding, which we all agree is narrowly focused. The only issue at this time is probable cause. We are not going to determine whether the Defendant is guilty or innocent; simply probable cause and reasonable basis.

MR. GARLAND: May I state for the record that I have heard no objection to the Defendant proceeding with these counsel.

THE COURT: Basically it is the Court's decision. The Court believes that the representation will be both professional and competent.

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