*1 TITLE: United States of America, Plaintiff v. Timothy James McVeigh and Terry Lynn Nichols, Defendants.

TOPIC: TERRY LYNN NICHOLS' OPPOSITION TO MEDIA REPRESENTATIVES' PETITION REGARDING LIVE AUDIO-FEED AND MOTION TO STOP DISTRIBUTION OF AUDIO-TAPES OF COURT PROCEEDINGS

DOCKET-NUMBER: 96-CR-68-M

VENUE: U.S. District Court for the District of Colorado.

YEAR: Filed: April 26, 1996

JUDGE: Hon. Richard P. Matsch, Chief District Judge

ATTORNEY(S): Michael E. Tigar, Esq., Austin, Ronald G. Woods, Esq., Houston, D. Kate Rubin, Deputy Federal Public Defender, Adam Thurschwell, Esq., Oklahoma City, For the Defendant Terry Lynn Nichols.

TEXT:

Terry Lynn Nichols emphatically opposes media representatives' petition for live audio feed from the courtroom to the courthouse press room (filed as a miscellaneous case No. 96-X-89, April 17, 1996). In addition, Mr. Nichols respectfully moves the Court to end the practice of distributing audio-tape recordings of hearings in the associated criminal proceeding which may then be rebroadcast.

This motion and opposition are based on the Rules of this Court, the Federal Rules of Criminal Procedure, and the principle embodied by the Federal Constitution that every criminal defendant is entitled to a fair trial, on evidence presented before impartial jury and judge in the solemn confines of a federal courtroom, not in a circus-like atmosphere before an audience of millions. There are no cognizable countervailing interests that militate in favor of granting media representatives' petition or continuing the practice of distributing audiotapes of these proceedings for rebroadcast. The right of the press to attend Mr. Nichols' trial is guaranteed. See Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980). But the press' right to learn of the proceedings does not extend beyond the right of any other member of the public. Neither the Constitution, the local or Federal Rules, nor logic provide any basis for permitting live broadcast or taped broadcast of these proceedings.

1. Relevant Facts.

A member of the Nichols defense team returned to Washington D.C. after the hearing of April 9th, 1996. See Declaration of N. Reid Neureiter (attached as Exhibit 1). During the day and evening of April 10th, Mr. Neureiter saw and heard numerous television and radio reports of the hearing. Other accounts of press reports of the hearing were related to Mr. Neureiter by friends and colleagues. That there was press coverage of the April 9, 1996 hearing was no surprise. What was unanticipated was that these reports should carry the actual words and voices of the defense counsel and prosecutors as spoken in court. When these carefully selected words were broadcast on television, they were superimposed over courtroom artist depictions of the speaker. The statement most often broadcast, which Mr. Neureiter heard repeated at least three different times on television and radio, was prosecutor Beth Wilkinson's prejudicial and inflammatory comment that the government has "no information showing anyone but Mr. Nichols and Mr. McVeigh were the masterminds of this bombing."

2. The Rules of This Court Prohibit Tape Recording of Court Proceedings.

*2 District Court of Colorado Local Rule 83.3 states explicitly,

"The possession or use of cameras or recording devices is prohibited in the United States courthouse or anywhere that a judicial officer is holding a court proceeding. This rule does not apply to court employees performing official duties"

D.C.Colo.L.R. 83.3. The purpose of this rule--the "fair and expedient administration of justice" [FN1]--is thwarted when the official tapes of proceedings are made immediately available to the press for national rebroadcast. The fact that the tape recording is being made by a court officer for distribution to the press does not make the procedure any less objectionable than if the press were to bring in its own equipment.

FN1. See Preface to D.C. Colo. Local Rules.

End of FN.

Mr. Nichols is aware that it has historically been the Court's practice to keep an official record of these proceedings on tape and that the local rules set a schedule of fees for the sale of these tapes. There are other United States District Courts that similarly permit audiotaping of criminal judicial proceedings by court personnel for official purposes, such as ensuring the accuracy of the record. But such courts usually qualify this exception by barring the rebroadcast of tapes. See, e.g., N.D. Ala. R. 83.2; M.D. Ala., R. 13; S.D. Ala., R. 16; D. Alaska, R. 82.1; D. Ariz., R. 14; D. Ark., R F-5; E.D. Cal. R. 173; S.D. Cal., R. 83-2; D. Md., R. 506; E.D. Mo., R. 13.02; W.D. Mo., R. 6; N.D. Ohio, R. 1:3.9.

This case is different from the standard case. Unlike in the standard case, it is a certainty that the press, given the opportunity, will edit and broadcast selected portions of the proceedings. The notoriety of the allegations ensures that particularly inflammatory statements will be played over and over again. The practice of distributing tapes, while perhaps appropriate for a standard civil case which is of interest only to the parties involved, should not be continued in this case. [FN2]

FN2. Even the recently passed Terrorism Prevention Act of 1996, which deals with closed circuit television coverage, is explicit that there should be "no public broadcast or dissemination of the signal" and that any tapes produced in carrying out the closed circuit coverage shall "be the property of the court and kept under seal." It runs contrary to this legislation to permit wide distribution of audio tapes of the proceedings when the congressionally mandated video tapes are to be kept under seal protected by the threat of contempt. See Terrorism Prevention Act of 1996, Section 235(c)(1)-(3). Of course, reference to this legislation in this motion should by no means be deemed an admission of its applicability in this case. Mr. Nichols reserves the right to challenge the application of this legislation at the appropriate time.

End of FN.

3. Federal Rule of Criminal Procedure 53 prohibits the broadcasting of judicial proceedings from the courtroom.

*3 Fed. R. Crim. Proc. 53 explicitly states that "radio broadcasting of judicial proceedings from the courtroom shall not be permitted by the court." This Rule was adopted in 1944 and has held the federal courts in good stead since that time. See United States v. Edwards, 785 F.2d 1293 (5th Cir.1986) (upholding constitutionality of Rule 53 and denying journalist's application to broadcast Louisiana Governor's racketeering trial); United States v. Hastings, 695 F.2d 1278 (11th Cir.1983) (affirming denial of request to broadcast trial of former Federal Judge Alcee Hastings). The rule is important to "the preservation of the courtroom as a place of dignity, where the quest for truth goes on quietly and without fanfare and where utmost precautions are taken to keep all extraneous influences from making themselves felt." Charles Alan Wright, Federal Practice and Procedure: Criminal 2d s 861 (1982). As recently as October 1994, the Advisory Committee on the Federal Rules of Criminal Procedure specifically "declined to approve a proposed amendment to Rule 53 which would have authorized" broadcasting of federal criminal trials. Judicial Conference of the United States, Minutes of the Advisory Committee on Federal Rules of Criminal Procedure, Oct. 6-7, 1994.

Petitioners' proposal to permit live audio feed directly from the courtroom to the press room, where television and radio technicians would be free to beam the signal across the globe, flies in the face of this explicit prohibition. Similarly, the current practice of making available to the press tapes of the proceedings for broadcast runs counter to the spirit, if not the precise letter of Rule 53. The Court by its own procedures should not facilitate for the press what it would be unlawful and prejudicial for the press to do on its own--broadcast the proceedings.

4. Mr. Nichols' constitutional right to a fair trial is threatened by broadcast of these proceedings.

There are multiple dangers associated with permitting news media to broadcast (either live or after some delay) pretrial and trial proceedings in a highly publicized criminal case. The Supreme Court has recognized on numerous occasions the inherent tension between the goal of a healthy and robust press and the judiciary's obligation to insure that the truth-seeking process not be distorted. See Chandler v. Florida, 449 U.S. 560, 573, n. 8 (1981) (describing circumstance where press coverage results in an "utterly corrupted" trial atmosphere, explaining that the volume of publicity, the judge's failure to control the proceedings and the telecast of the hearing can "prevent[ ] a sober search for the truth"). It is in a trial like the present one where the dangers of excessive media coverage are the greatest. The "sensational" criminal trial is subjected to "extensive media coverage by news media, sometimes seriously interfering with the conduct of proceedings and creating a setting wholly inappropriate for the administration of justice." Chandler v. Florida, 449 U.S. at 562.

*4 There are three distorting influences that may flow from the broadcasting of criminal proceedings resulting in a denial of due process. First is the physical disruption that the presence of broadcasting equipment can cause within the courtroom. Second is the in-court psychological impact that knowledge of broadcasting has on the players: witnesses, counsel, jurors, and even judge. Third is the out-of-court impact of broadcasts.

a. Distracting Influence of Broadcasting Equipment.

The Supreme Court's opinions in Chandler, Estes v. Texas, 381 U.S. 532 (1965); and Sheppard v. Maxwell, 384 U.S. 333 (1966) explain that the physical presence of broadcasting equipment, material and crews could tend to have a distorting influence on trial proceedings. Mr. Nichols concedes that modern miniature broadcasting equipment has alleviated many of the concerns on this area, excepting one that is highlighted by the media representatives' Petition. The Petition makes clear that the Court will have to become an electronic umpire, and master "a fully functional electronic system that would permit the Court to delay transmission of a live signal from the courtroom to the press for a period of seconds or even minutes, as the Court desires, and permit the Court to interrupt the transmission during the delay period as the Court deems fit." Petition at 3, p 6.

Mr. Nichols respectfully submits that the Court will have more important things to worry about. As explained in Estes, broadcasting a trial results in the trial judge's attention being divided. Additional responsibilities are placed on the judge to supervise the broadcasting, which the Supreme Court explicitly directed was not a trial court's job. "His job is to make certain that the accused receives a fair trial. This most difficult task requires his undivided attention." Estes, 381 U.S. at 548. Judge John Onion, former presiding Judge of the Texas Court of Criminal Appeals who ruled last year that the trial of United States Senator Kay Bailey Hutchinson should not be broadcast, used a hypothetical dialogue in a recent article to illustrate that the distractions of attending to the press' needs and desires, including the necessity of learning to monitor and control the electronic broadcasting equipment, can cause the trial judge to ignore the true task at hand--trying the case. See John F. Onion, Jr., Mass Media's Impact on Litigation: A Judge's Perspective, 14 Rev. Litigation 585, 587-88 (1995) (attached as exhibit 2).

Moreover, defense counsel, who needs to stay alert to all the other threats to his client's cause, does not need the added distraction of worrying about when audio coverage should stop and start.

b. The Heisenberg Principle: In-court psychological impact on trial participants.

The very knowledge that a trial participant's words will be heard by or played back to millions of listening ears may alter what is said. This could be best referred to as the Heisenberg principle of courtroom taping and broadcasting: the very act of observing a particle affects the behavior of the particle. The Scopes monkey trial was the first American trial to be broadcast on radio. It is also possibly the first trial to have been a true media circus. The lawyers played to the microphone. The same could be said for the more recent O.J. Simpson spectacle. Lawyers and witnesses, and perhaps judge and jury, played to the microphones and the nationwide audience rather than concentrating on the task at hand. [FN3] This was predicted by Justice Harlan's influential concurrence in Estes which spoke specifically of television broadcasting but the logic of which is equally applicable to the present circumstances:

FN3. Many critics of broadcasting trials have cited the Simpson case as an example of media coverage gone amok. See, e.g., Gail D. Cox, Lights!, Camera, Justice?, Nat'l L.J. Jan. 29, 1996, at A1; Wendy Kaminer, No: Tabloid Television Does Not Belong on Trial, A.B.A J. Sept. 1995, at 37; Rory K. Little, That's Entertainment!: The Continuing Debate Over Cameras in the Courtroom, Fed. Law., July 1995, at 28; Henry J. Reske, Critics Say Simpson Case Demonstrated Why Trials Should Not Be Televised, A.B.A.J., Nov. 1995, at 48D.

End of FN.

*5 In the context of a trial of intense public interest, there is certainly a strong possibility that the timid or reluctant witness, for whom a court appearance even at its traditional best is a harrowing affair, will become more timid or reluctant when he finds that he will also be appearing before a "hidden audience" of unknown but large dimensions. There is certainly a strong possibility that the "cocky" witness having the thirst for the limelight will become more "cocky" under the influence of television. And who can say that the juror who is gratified by having been chosen for a front-line case, an ambitious prosecutor, a publicity-minded defense attorney, and even a conscientious judge will not stray, albeit unconsciously, from doing what "comes naturally" into pluming themselves for a satisfactory ... performance.

Estes, 381 U.S. at 591-92. [FN4] The gist of that holding was that, especially in the high profile case, courtroom broadcasting "introduces into the conduct of a criminal trial the element of professional 'showmanship,' an extraneous influence whose subtle capacities for serious mischief in a case of this sort will not be underestimated by any lawyer experienced in the elusive imponderables of the trial arena." Estes, 381 U.S. at 591. Or, as the Court said in Chandler: "Inherent in electronic coverage of a trial is a risk that the very awareness by the accused of the coverage and contemplated broadcast may adversely affect the conduct of the participants and the fairness of the trial, yet leave no evidence of how the trial's fairness was affected." Chandler, 449 U.S. at 577.

FN4. It is true that Estes dealt primarily with the dangers of television coverage. But the same dangers exist with radio broadcasting as well. In both media it is the soundbite--the inflammatory word, the spiteful accusation, and the exaggerated appeal that will be captured and repeated incessantly across the national airwaves. Thoughtful, subtle, and even moderate argument will likely be ignored by a press looking for the catchy headline as a lead-in to the evening news.

End of FN.

This may have already come to pass. Ms. Wilkinson's well-delivered line was just the type of sound bite the electronic media craves. Counsel and witnesses now know that the more inflammatory the language and the more stinging the accusation, the more likely it is to be repeated on the national news. Consciously or unconsciously, the lawyers and witnesses will tend to become more like actors in a drama than servants in the halls of justice--more likely to play to the broader audience rather than concentrate their efforts on persuading those few listeners who really matter--judge and jury.

c. Out-of-Court Impact of Broadcasts

Broadcast and distribution of tapes of these proceedings may taint the jury pool. That we are concerned at this stage with the broadcast and taping of pretrial proceedings, rather than trial proceedings, makes the threat to Mr. Nichols rights no less severe. "Pretrial can create a major problem for the defendant in the criminal case. Indeed, it may be more harmful than publicity during the trial for it may well set the community opinion as to guilt or innocence." Estes, 381 U.S. at 536. No jury has yet been selected in this case. The Court must assume that repetitive broadcasts of inflammatory statements made by counsel, frequently taken out of context, and edited for maximum tabloid television impact, will be heard time and time again by members of the prospective jury pool. The Supreme Court has often commented on the pernicious effect of such coverage. See, e.g., Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 564 (1976); Sheppard v. Maxwell, 384 U.S. 333 (1966); Irvin v. Dowd, 366 U.S. 717 (1961); Marshall v. United States, 360 U.S. 310 (1959).

*6 While it is true that the Supreme Court has ruled that broadcasting of trial proceedings is not per se unconstitutional, see Chandler v. Florida, 449 U.S. 560 (1981), in that very decision the Court noted the special dangers of broadcasting high profile cases and the need for extra watchfulness on the part of the Court to guard against potential threats to a fair trial:

Any criminal case that generates a great deal of publicity presents some risks that the publicity may compromise the right of the defendant to a fair trial. Trial courts must be especially vigilant to guard against an impairment of the defendant's right to a verdict based solely upon the evidence and relevant law.

Id. at 574.

In this case, the threat of excessive publicity to Mr. Nichols' right to a fair trial is great. The Court has already recognized as much by changing venue to Denver from Oklahoma. The cost of that move was great in monetary terms, but the benefit--ensuring a fair trial for men accused of the worst act of terrorism in United States history--is worth the cost. Direct audio feed from the courtroom and distribution of tapes of the proceedings threatens to cancel out many of the benefits gained from the change of venue. This Court has already once declared that "[t]he news media and the public are spectators, not participants, in the process of adjudication." Memorandum and Order on Media Motions, No. CR-95-110 MH (filed Jan. 24, 1996). Granting the present media petition and continuing the current practice of distributing tapes of these proceedings for rebroadcast threatens to elevate the press to participants whose prejudicial distorting influence on the proceedings and participants, while incalculable, is undeniable.

4. There are no cognizable countervailing interests at stake here.

This trial is a newsworthy event and the press (including the electronic media) has every right to attend the proceedings and report what they see there. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555. But the press is entitled to no special favors. In Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978) the Supreme Court explicitly held that the press was not entitled to copies for later broadcast of tape recordings which were introduced into evidence. The press was entitled to attend the trial and listen to the evidence presented, but distribution of tapes to the press was not required:

In the first place, ... there is no constitutional right to have [live witness] testimony recorded and broadcast. Second, while the guarantee of a public trial, in the words of Justice Black, is a 'safeguard against any attempt to employ our courts as instruments of persecution' it confers no special benefit on the press. Nor does the Sixth Amendment require that the trial--or any part of it--be broadcast live or to the public. The requirement of a public trial is satisfied by the opportunity of the public and the press to attend the trial and report what they have observed.

*7 Id. at 610. See also United States v. Hastings, 695 F.2d at 1284 (noting that media access in order to broadcast proceedings "would advance First Amendment concerns only to a minimal degree, if at all"). There is no special circumstance in this case that compels either audiofeed or distribution of tapes. "[R]eporters of all media, including television, are always present if they wish to be and are plainly free to report whatever occurs in open court through their respective media." Estes v. Texas, 381 U.S. at 542.

5. Conclusion

"A criminal trial is not designed as a forum in which entities of the news media can flex their First Amendment muscles. Nor is it a device attuned to the task of educating absent members of the public to what occurs in a particular criminal case, selected by broadcasting companies in accordance with their standard of what is newsworthy." United States v. Torres, 602 F.Supp. 1458, 1463 (N.D.Ill.1985). Mr. Nichols is entitled to his day in court, "not in a stadium, or a city or nationwide arena." Estes, 381 U.S. at 549.

Mr. Nichols respectfully opposes Media Petitioners' request and asks that the Court stop the practice of selling tapes of these proceedings for rebroadcast.

Respectfully submitted,
__________________________
Michael E. Tigar
150 East Tenth
Denver, CO 80203

Ronald G. Woods
5300 Memorial, Suite 1000
Houston, TX 77007

Adam Thurschwell
N. Reid Neureiter
Jane B. Tigar
1120 Lincoln, Suite 1308
Denver, CO 80203

(303) 831-4059
Fax (303) 831-6232

Counsel for Terry Lynn Nichols
(Appointed by the Court)

EXHIBIT 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Chief Judge Richard P. Matsch

Criminal Action No. 96-CR-68-M

UNITED STATES OF AMERICA, Plaintiff,

v.

TIMOTHY JAMES MCVEIGH and TERRY LYNN NICHOLS, Defendants.

Declaration of N. Reid Neureiter with Respect to Broadcasting of Proceedings

N. Reid Neureiter declares under penalty of perjury:

1. I am co-counsel for Terry Lynn Nichols and make this declaration in support of the annexed motion and opposition.

2. On April 9, 1996 I attended a public hearing in the United States Courthouse in the above captioned matter.

3. I returned to Washington, D.C. the evening of April 9th. The day and evening of April 10th 1996, I saw and heard numerous television and radio reports of the April 9 hearing. Most of these reports replayed the actual spoken words of counsel as delivered in Court. When played on television, the words were superimposed over courtroom sketches of the speaker. Other accounts of the hearing were relayed to me by friends and colleagues, who also had heard the actual words of counsel replayed on national television and radio.

4. Three times, twice on the local Washington, D.C. television news, and once on a national radio program, I heard replayed the words of Prosecutor Wilkinson that the government "has no information showing anyone but Mr. Nichols and Mr. McVeigh were the masterminds of this bombing."

*8 Signed under penalty of perjury, this 6th day of April, 1996.

/s/Reid Neureiter

U.S. v. McVeigh and Nichols

D.Colo.Doc., 1996.

END OF DOCUMENT