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

TOPIC: TERRY LYNN NICHOLS' MEMORANDUM IN OPPOSITION TO CLOSED-CIRCUIT TELEVISING OF TRIAL PROCEEDINGS TO OKLAHOMA CITY

DOCKET-NUMBER: 96-CR-68-M

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

YEAR: Filed: May 30, 1996

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

ATTORNEY(S): Michael E. Tigar, Esq., Denver, Ronald G. Woods, Esq., Houston, N. Reid Neureiter Esq., Adam Thurschwell, Esq., Denver, For the Defendant Terry Lynn Nichols.

TEXT:

The government, invoking a statute that was designed to interfere with this Court's rulings in this pending case, wants to put a cart, cameras and other electronic gear in the courtroom and broadcast the proceedings to hundreds of people in Oklahoma City. Mr. Nichols' opposes the government's motion for three reasons:

. Section 235 of the Anti-Terrorism and Effective Death Penalty Act does not, under its own terms, apply to this case.

. If s 235 is held to apply to this case, the government has neither made nor offered to make the threshold showing required by s 235.

. Section 235 is unconstitutional, as a usurpation of the judicial function that violates the separation of powers doctrine, and because s 235 denies due process and equal protection of the laws.

We address these issues in turn:

SECTION 235 DOES NOT APPLY TO THIS CASE

Section 235 creates a narrow exception to Fed. R. Crim. P. 53, which prohibits photography and broadcasting of judicial proceedings. This Court has publicly noted the Rule 53 prohibition in responding to reporters' questions.

Section 235 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 key words are "venue" and "location," it being obvious that in this case the Court has changed venue from one State to another.

"Location" means "a position or site occupied or available for occupancy." Webster's Third New International Dictionary, p. 1327. The term is related to the Roman law bilateral contract locatio conductio, which was a means for placing a chattel or piece of realty in the hands of another for a defined term and on defined conditions. Id. Thus, location refers to a particular place.

"Originally"--to use the statutory term--the "proceedings ... would have taken place" in Oklahoma City. By stretching the statute, we might say they could also have taken place in Lawton, by virtue of Judge Alley's order.

*2 The statutory term "venue" is a word of art, with a settled meaning derived from two provisions of the federal constitution. There is the "venue" provision of article 3, s 2, p 3, and the "vicinage" provision of U.S. const., amend. 6. "Venue" refers to the forum of the trial and vicinage to the area from which jurors are to be selected. The sixth amendment has been interpreted as requiring that trials be held in the vicinage. See, e.g., Fed.R.Crim.P. 18, and the Advisory Committee Notes thereto. Under Fed. R. Crim. P. 18, the court shall fix the place of trial within the district.

In its February 19, 1996, Order, this Court granted a change of "venue" under Fed. R. Crim. P. 21(a), which authorizes transfer "to another district." We submit that the term "venue" has come to mean either the "State" in which the crime was allegedly committed, as required by Article III, or the "district" in which the crime was allegedly committed, as provided in the Sixth Amendment and in the federal rules. Given that the entire state of Colorado constitutes the judicial district, 28 U.S.C. s 85, the difference has no significance in this case.

Thus, the Court is confronted with two statutory terms, "location" and "venue." Location means a particular place. Venue describes an entire state-- in this case, Colorado. Let us track the statutory language precisely: The venue of the trial has been changed [from Oklahoma City or Lawton] out of the State where the case was originally brought and [a certain distance] from the location where those proceedings would originally have taken place. The new venue is Colorado, a judicial district comprising the entire State. 18 U.S.C. s 85. [FN1] We must therefore ask whether it is more than 350 miles from Oklahoma City (or Lawton) to the Colorado state line. We ask the Court to take judicial notice, Fed. R. Evid. 201, by looking at a road atlas, that the distances in question are less than 300 miles.

FN1. The Court could hold its sessions anywhere in the district if it chose. 28 U.S.C. s 141. See United States v. Haderlein, 118 F.Supp. 346 (N.D.Ill.1953).

End of FN.

Therefore, the statute does not apply to this case.

The statute should be read and applied literally, for three reasons:

First, "in interpreting a statute a court should always turn first to one, cardinal canon before all others. We have stated time and time again that courts must presume that a legislature means what it says in a statute and means in a statute what it says there." Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253 (1992). See also Iselin v. United States, 270 U.S. 245, 251 (1926) (Brandeis, J.) (judicial enlargement of a statute to cure legislative inadvertence is "transcends the judicial function").

*3 Second, the statute is in derogation of a consistent and uniformly applicable Federal Rule of Criminal Procedure, which is subject to an interpretive canon mandating "fairness" and "simplicity." Fed. R. Crim. P. 2.

Third, the interests at stake are vital. Fed. R. Crim. P. 53 has a special function in high-visibility criminal trials, where the risk of a media feeding frenzy is high. We have already, in our media motions, cited the relevant caselaw. We note that two federal courts of appeals have endorsed the wisdom behind Fed. R. Crim. P. 53 in celebrated trials. United States v. Edwards, 785 F.2d 1293 (5th Cir.1986) (trial of former Louisiana governor); United States v. Hastings, 695 F.2d 1278 (11th Cir.1983) (trial of federal district judge).

THE GOVERNMENT HAS NOT MADE THE THRESHOLD SHOWING REQUIRED FOR APPLICATION OF

SECTION 235

Section 235 provides for televising only for those "whom the court determines have a compelling interest" and "who are otherwise unable to do so by reason of the inconvenience and expense caused by the change of venue." The government has not presented a single item of evidence that either of these conditions is met. Its motion rightly recounts the tragedy visited upon many Oklahomans by virtue of the events being tried. The motion recites technical wizardry and estimates the cost. But of evidence there is none.

What might the compelling interest be, that could not be satisfied by media accounts, which are the means by which most people get news of trials? Who are those with such an interest? The victims' rights advocates most prominent in the press have been in Denver, and have themselves made regular media appearances. The statute mandates that any compelling interest must yield when a potential viewer is a witness whose testimony may be affected. The risk of conversation about the case, and exposure to publicity in Oklahoma surrounding any closed-circuit telecast, compounds this risk, and must bear upon any individual decision about compelling need. s 235(b)(2).

The statute does not define "compelling interest." The government does not provide a definition. It proposes setting up an application procedure, and that an Assistant United States Attorney work with the Court to identify persons who meet the statutory criteria. That is, the Court is being asked-- without any guidelines or standards--to set up a procedure to read and rule upon hundreds of applications. This burden is to be imposed in addition to those involved in running this trial, and in being Chief Judge of the district. The government admits that it has not tried to meet the statutory requirements. It simply tells us that there should be "criteria established by the Court." Motion, p. 7. But of suggested criteria, there are none. The Court, we suggest, deserves better. It deserves a showing of what compelling interest ought to mean, and what persons might meet that standard. That showing should then lead to a hearing. On this record, the government's application should simply be dismissed. [FN2]

FN2. We would certainly argue that "compelling interest" would not include someone who wished to use the television broadcast as the occasion for a daily press interview on issues related to the case.

End of FN.

*4 The "otherwise unable" language also mandates that there be evidence presented by the proponent, so that an adversary hearing can take place. Many people would have been unable to drive to Lawton or Tulsa, or even downtown Oklahoma City to view the trial every day, because their work or home responsibilities would have precluded their attendance. More likely, some interested persons would attend the trial sporadically, when their schedules permitted. There has been an uneven pattern of attendance at the sessions thus far held, in Oklahoma City and Denver. In short, inability to attend the trial every day is more likely attributable to other factors than the change of venue.

In addition, one must consider that private and public funds are available for many persons to attend trial sessions in Denver, thus alleviating the inconvenience and expense to particular persons made eligible under the statute. Once again, the government has provided neither a useful definition nor a factual basis for action.

The government rightly notes that the Denver courtroom seats only 100 persons. A courtroom in Lawton--where the government once ardently wanted this trial to be--would have seated far fewer. These numbers are significant. In our constitutional history, courtroom size limited the number who could attend in person. The rest of the community--no matter how great their interest-- relied on the media.

SECTION 235, IF CONSTRUED AS THE GOVERNMENT WISHES, IS UNCONSTITUTIONAL

Because Congress enacted s 235 to provide closed-circuit television in this case, the section is unconstitutional. There is ample evidence that the Justice Department and victims' groups lobbied for this statute because it was designed to tell this Court how to rule in this pending case on an issue that had already been publicly aired. [FN3] We have shown above that the statute's literal language makes it inapplicable to this case. The only escape from this logic is to argue--based on legislative intent--that indeed Congress intended this kind of incursion on the decisional powers of an article 3 court in this case, and that the statute must be applied to us despite its language. The government comes close to admitting this at p. 4 of its motion, characterizing the statute as a response to this Court's venue ruling.

FN3. We recall that this Court publicly said there would be no television, relying on the express terms of Fed. R. Crim. P. 53. Attached as Exhibit A are representative newspaper articles containing statements by supporters of the legislation, making clear that s 235 was designed for this case. Indeed, the articles quote "an aide" to the Court as saying that "he doubts" the Court would allow a closed-circuit telecast. Whether this quotation is accurate or not, it is evidence that s 235 was directed at controlling judicial action in this case.

End of FN.

But Congress cannot tell this Court--nor any Court--how to decide a specific issue in a pending case. An attempt to do so violates the most fundamental principles of separation of powers enshrined in the Constitution.

*5 Article 3 establishes a "judicial department" with the "province and duty ... to say what the law is" in particular cases and controversies. Plaut v. Spendthrift Farms, 115 S.Ct. 1447, 1453 (1995), quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). The constitution gives federal courts the power to decide cases, subject only to the appellate review procedures authorized by article 3. As the Supreme Court said in Plaut, quoting Thomas Cooley, "the legislature cannot [control the action of the courts] .. . by ... directing what particular steps shall be taken in the progress of a judicial inquiry." 115 S.Ct. at 1456.

In Plaut, the Congress overstepped by directing reopening of closed securities fraud cases under certain circumstances. The legislative history of the invalid statute made clear that Congress intended to affect the results in only "a few individual instances." 115 S.Ct. at 1465 (Breyer, J., concurring) (noting that the legislative history listed just 15 cases whose course was to be affected by the statute). If a statute designed to affect just 15 cases crosses the barrier erected by the constitution, one tailored for just one case surely goes too far.

Our argument traces deep roots in constitutional history and theory. Justice Scalia has chronicled the relevant history in Plaut, 115 S.Ct. at 1453-56. He shows that the Framers observed the intermingling of legislative and judicial functions, and sought to prevent the oppression that would result if the majoritarian institution--the Congress--could reach out and decide issues affecting individuals. Madison promised that the new constitution would prevent recurrence of abuses in the colonies, whereby "cases belonging to the judiciary department [had been] frequently drawn within legislative cognizance and determination." Quoted id. at 1454.

The Supreme Court has applied a number of tests to determine whether a legislative act exercises powers committed to another branch. Justice Powell, concurring in Chadha v. INS, 462 U.S. 919, 962 (1983), spoke of the Framers' "concern that a legislature should not be able unilaterally to impose a substantial deprivation on one person." In Fletcher v. Peck,--U.S. (6 Cranch) 87, 136 (1810), Chief Justice Marshall said "It is the particular province of the legislature to prescribe general rules for the government of society; the application of those rules to individuals in society would seem to be the duty of other departments."

The bill of attainder clause expresses the same idea: "Congress must accomplish [its desired] results by rules of general applicability. It cannot specify the people upon whom the sanction it prescribes is to be levied." United States v. Brown, 381 U.S. 437, 461 (1965) (invalidating provision aimed at small group of Communists in labor union leadership). This principle has been applied repeatedly when Congress has targeted despised individuals or groups for disparate treatment. See, e.g., Cummings v. Missouri, 71 U.S. 277 (1866); Ex parte Garland, 71 U.S. 333 (1866) (sympathizers with the Rebel states); Pierce v. Carskadon, 83 U.S. 234 (1872) (semble); United States v. Lovett, 328 U.S. 303 (1946) (bar on paying salaries to government employees suspected of subversion).

*6 The Congressional trespass here is all the more egregious because the Justice Department--a party to this controversy--encouraged and abetted it. The case is thus redolent of United States v. Olein, 80 U.S. 128 (1871), the fount for much separation of powers doctrine. See, e.g., Plaut, 115 S.Ct. at 1452. In Klein, Congress passed a statute purporting to dictate proceedings on appeal in cases won by claimants in the Court of Claims, in proceedings to which the United States was a party. The Supreme Court held the statute unconstitutional. The Court summarized the statute's infirmities thus:

What is this but to prescribe a rule for the decision of a cause in a particular way? In the case before us, the Court of Claims has rendered judgment for the claimant and an appeal has been taken to this court. We are directed to dismiss the appeal, if we find that the judgment must be affirmed, because of a pardon granted to the intestate of the claimants. Can we do so without allowing one party to the controversy to decide it in its own favor? Can we do so without allowing that the legislature may prescribe rules of decision to the Judicial Department of the government in cases pending before it?

80 U.S. at 146.

Besides violating the separation of powers, s 235 denies equal protection of the laws, as incorporated in the due process clause. It singles out this trial and these defendants for deprival of the protections vouchsafed by Fed. R. Crim. P. 53, without any rational basis and in a hostile spirit. See Romer v. Evans, 1996 WL 262293 (1996); Yick Wo v. Hopkins, 118 U.S. 356 (1886); Oyler v. Boles, 368 U.S. 448 (1962). In papers filed on the subject of taping and broadcasting, we have shown the dangers to a fair trial of television coverage. These dangers inhere in a case of this kind, and the only two courts of appeals to have considered the issue have said that broadcasting should not occur. Hastings, supra; Edwards, supra. In the face of such evidence, and at the urging of special interests, this case alone among all other federal cases is singled out, and this Court told to disregard the dangers. One defies the government to come up with another case to which the statute would apply.

This Court, in its venue ruling, spoke of the ways in which the fairness and integrity of proceedings had been jeopardized by the sale of T-shirts and other souvenirs in the federal courthouse, and by the Marshal Service permitting Mr. Nichols and Mr. McVeigh to be photographed in shackles. Now it is proposed to turn over the control of this video signal to personnel far from the court's immediate control and acting in the same environment that produced these earlier episodes.

In yet another provision of the Act, s 235(b)(2) establishes a lower threshold for the "rule on witnesses" than mandated by Fed. R. Evid. 615. Section 235(b)(2) bars attendance at television sessions only if the judge finds that the testimony of a person would be "materially affected."

*7 Thus, the statute abrogates an important, common-law-based protection of defendants' rights on a one-case basis. This provision as well violates separation of powers, due process and equal protection guaranties. Indeed, the purpose of s 235 is "to permit victims ... to watch criminal trial proceedings." s 235(a).

Pending before the Court is our motion concerning the government's announced intention to present victim impact evidence in the form of "oral testimony." See Notice of Intention to Seek the Death Penalty As to Defendant Terry Lynn Nichols, at 3, filed October 20, 1995. Regardless of how that motion is decided, there may well be testimony by persons identified as "victims" on issues in the case. [FN4]

FN4. One way to address this problem would be to hold that Congress did not intend to abrogate Fed. R. Evid. 615, and that s 235(b)(2) simply applies that rule of evidence. Such a ruling would obviate some of the problem that we address.

End of FN.

Fed. R. Evid. 615 has a distinguished past. [FN5] "Invoking 'the rule' and ordering the exclusion of witnesses while other witnesses testify is a time- honored practice." Charles Alan Wright, Federal Practice and Procedure Criminal 2d s 415 at 529; see also Advisory Committee Notes to Rule 615 (noting efficacy of excluding witnesses as means of discouraging fabrication, inaccuracy, and collusion and taking position that sequestration is a matter of right).

FN5. Fed. R. Evid. 615 reads in part, "At the request of a party, the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion."

End of FN.

The Supreme Court has spoken of reasons for the ancient custom:

Wigmore notes that centuries ago the practice of sequestration of witnesses "already had in English practice an independent and continuous existence, even in the time of those earlier modes of trial which preceded the jury and were part of our inheritance of the common Germanic law." 6 J. Wigmore, Evidence s 1837 p. 348 (3d ed. 1940). The aim of imposing "the rule on witnesses," as the practice of sequestering witnesses is sometimes called, is twofold. It exercises a restraint on witnesses "tailoring" their testimony to that of earlier witnesses; and it aids in detecting testimony that is less than candid. See Wigmore, supra, s 1838; F. Wharton, Criminal Evidence s 405 (C.Torcia ed. 1972).

Geders v. United States, 425 U.S. 80, 87 (1976); see also, 488 U.S. 272, 281 (1989) (purpose of sequestration of witnesses is "to lessen danger that their testimony will be influenced by hearing what other witnesses have to say); United States v. Johnston, 578 F.2d 1352, 1355 (10th Cir.1987) (exclusion of witnesses from courtroom a "time-honored practice designed to prevent the shaping of testimony by hearing what other witnesses say); Frideres v. Schiltz, 150 F.R.D. 153, 158 (S.D.Iowa 1993)(sequestering witnesses "is at least as old as the Bible").

*8 It would be counter to this long-standing tradition, and a violation of Rule 615 to allow prospective witnesses to attend closed-circuit broadcasts of the trial. Indeed, one of the original objections to television broadcasting of court proceedings articulated by the Supreme Court in Estes v. Texas, 381 U.S. 532 (1965), is that the "rule against witnesses is frustrated." Id. at 547. [FN6]

FN6. If the Court does allow televising, the marshals in Oklahoma City should maintain a list of those attending. Appearance of one's name on the list would bar appearance as a witness in this case.

End of FN.

Another due process concern is raised by the government's blithe and unsupported statements that televising will not harm Mr. Nichols' rights. The government proposes a live video signal, with coverage of the court's statements, counsel's remarks during opening statements and closing argument, the faces of witnesses who are testifying, and of exhibits being shown to the jury. Motion, p. 11 n. 6. Thus, the government proposes multiple cameras. It intends that there will be a "cart" with broadcast equipment. The question of wiring is unaddressed. The government does not tell the court that such a setup requires that there be a producer/director, with video screens, choosing which camera image to transmit. These decisions are made on a split-second basis, out of the court's control. The selection of views can of course bias the coverage, as every movie fan knows from watching the "cuts" and "shots" of chosen by the great (and not-so-great) directors. The government proposes that there be no record kept of any bias or error in the selection process, because there is to be no videotape.

In short, it is proposed to put a TV studio inside the courtroom, with multiple cameras, microphones and all the other trappings. There will have to be microphones at counsel table, to pick up any lawyer remarks. In the proposal, neither lawyers nor the court will have the ability to control those microphones. As Judge Onion noted in an article attached to one of our earlier pleadings, it is unfair to make the court a TV director by mounting the switches at the bench. And Mr. Nichols' right to consultation with his counsel is seriously compromised by the ever-present microphone. All counsel now know that these risks are real, because of Mr. Hartzler's forgetting that his microphone was on, and his being overheard remarking to Ms. Wilkinson about his underwear.

In prior pleadings, we have outlined the dangers to a fair trial of such trappings. We add this observation. The courtroom spectacle of these cameras would be a continual, dramatic, visual reminder that the victims are present in their capacity as victims. Jurors would surely be aware of why the cameras and microphones are present, and in whose interest. The emotional impact on jurors would be no different than a courtroom demonstration by victims, or the wearing of buttons or uniforms. This Court has already banned such displays in their overt form. Victims have a right to attend, and to sit with other spectators as spectators. That is the accommodation of rights counseled by the constitution. See generally United States v. Yahweh, 779 F.Supp. 1342 (S.D.Fla.1992) (supporters of defendant wearing distinctive garb; court cites cases concerning courtroom displays by victim supporters). The government's proposal thus trespasses upon traditional fair trial rights, and violates due process of law.

CONCLUSION

*9 The Court should deny the government's motion. If the Court determines s 235 is constitutional and potentially applicable, it should hold a hearing to test the government's proffered evidence that the statute applies.