*1 TITLE: United States of America, Plaintiff v. Terry Lynn Nichols, Defendant.

TOPIC: RENEWED MOTION TO DISQUALIFY UNITED STATES ATTORNEY'S OFFICE FOR THE WESTERN DISTRICT OF OKLAHOMA BASED UPON NEW CIRCUMSTANCES

DOCKET-NUMBER: 96-CR-68-M

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

YEAR: Filed: August 27, 1997

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

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

TEXT:

We move to disqualify the United States Attorney's office for the Western District of Oklahoma. Since this Court ruled on August 13, 1997, on the prior motion, circumstances have changed. We ask for a hearing, because many of the relevant facts are in the hands of the government. We attach, as Exhibit A, the resume that Mr. Mackey tendered to the Court and counsel on August 22, 1997.

FACTS

The factual underpinning for this Court's August 13, 1997 ruling has been cut away by the government's own conduct.

On July 21, 1997, the Court asked Mr. Ryan "Are there others from your office coming?" Mr. Ryan replied: "No prosecutors. No lawyers, your Honor." Tr. 7/21/97 (in chambers), p. 6.

On August 13, 1997, the Court asked Mr. Ryan whether "decisions with respect to strategy and tactics and some other aspects of the presentation of the Government's case here will be made by people other than you?" Mr. Ryan answered "I think that's true, your Honor." Mr. Ryan also said that his role would be more limited in this case than in the last one, and that he would "discuss that" with Mr. Mackey. Tr. 8/13/97, p. 23.

All parties understood (as the government conceded) that "it was unwise, given the emotional toll of preparing and presenting the testimony, to assign the lion's share of Oklahoma City guilt-phase witnesses to Oklahoma City prosecutors." Government Opposition, July 23, 1997, p. 6. See also Tr. 7/21/97, p. 8, 11.9-21 (Mr. Mackey). In that Opposition, the government stated "The only member of the Nichols' prosecution team within that category [i.e., from the W.D. Oklahoma U.S. Attorney's office] is United States Attorney Patrick Ryan." Opposition, p. 1.

Also on August 13, 1997, Mr. Connelly said "That is correct" to the Court's comment that "only one person from the office; that is the United States Attorney from the Western District of Oklahoma, Mr. Ryan, ... intends to participate. Tr. 8/13/97, p. 15.

The Court stated its understanding that the "key decisions are expected to be made by someone other than Mr. Ryan." Id. at 27-28. Also at the August 13, 1997, there was discussion of a tragedy involving Mr. Ryan's office, and the "widely held feeling throughout our office," id. at 31, and we direct the Court to the sealed exhibit there under consideration. It was acknowledged that the bombing is "an emotional event for everyone in our office." Id. at 32 (Mr. Ryan).

*2 The Court's ruling was based on "the responses that Mr. Ryan has made here this afternoon as to what his anticipated role is...." Id. at 34.

Immediately after the assurances given on Thursday, August 13, Mr. Ryan recruited a senior lawyer on his staff and inquired about that lawyer's knowledge of any victims. See Exhibit A, p. 4 (dated Monday, August 18, 1997). We now understand that Mr. Ryan has decided that he wants this lawyer to join the prosecution team. Mr. Ryan is thus making personnel decisions for the prosecution.

The lawyer's resume is attached. He was a partner at Crowe & Dunlevy, an Oklahoma City law firm, before joining the United States Attorney's office. The Court may recall that Andrew Coats was (and may still be) a partner in that law firm. Mr. Coats testified at the severance hearing as a government witness. On cross-examination, he admitted that his firm has represented victims and victims' estates, that he had been asked to and had declined to represent Mr. McVeigh. Tr. 10/2/96, pp. 204-05.

As we told the Court in chambers, Crowe & Dunlevy was actively involved in representing victims and their families from the initial days after April 19, 1995. The Nichols team first rented Oklahoma City office space in the Mid- America Tower, where Crowe & Dunlevy also has several floors of office space. We inquired whether we could use the law firm's library. We were told that we could not enter those premises because the firm had such a relationship with victims and their interests that the principles of professional responsibility required that we not enter.

Crowe & Dunlevy partners have also been heavily involved with entities that are planning memorial activities and sites about the bombing. These laudable activities give the firm and its lawyers a personal and professional interest in the outcome of this case, inconsistent with the proper exercise of public duty. There is a "conflict" or at least "the appearance thereof." 28 U.S.C. s 528.

We cannot know the full details of the Crowe/Dunlevy conflict without a hearing. We can now report only what we have learned by happenstance. We have the spectacle of a private lawyer with a stake in the outcome--and special expertise in behavioral science--becoming a public prosecutor and then being named to a trial role in this case.

LAW

We need not--will not--repeat the legal arguments we advanced before. We incorporate them by reference here. The problem now presented by the government's conduct is basic to our system of justice. Due process concerns appear from the relevant case law.

In East v. Wood, 55 F.3d 996 (5 th Cir. 1995), the court held that the defendant had made a prima facie case of due process violation. A private lawyer joined the prosecution team, and participated in significant decisions and activities in the trial. This Court can--and we ask that it--take judicial notice of the many important decisions Mr. Ryan has already made about Terry Nichols. Among these is the decision to seek the death penalty, and a personal visit to Washington to lobby for upholding that decision. Mr. Ryan proposes-- now with the help of an additional lawyer--to focus on voir dire and the life phase (which the prosecution calls the penalty phase) of the case. In that phase, emotions are apt to run highest and testimony heavily accented with tragedy and sorrow may well be received. The Oklahoma team plans to play a heavy role at that time.

*3 Bringing emotional and professional conflicts to the life phase is anathema to the reasoned moral response that all must seek if and when that troubling time comes. As this Court has said, "A penalty verdict of life or death is an act of conscience." Hopkinson v. Shillinger, 781 F. Supp. 737, 743 (D.Wyo.1991) (Matsch, J.), aff'd, 954 F.2d 609 (10 th Cir.), cert. denied, 502 U.S. 1067 (1992).

East becomes more relevant now because the overall plan of the United States Attorney's office to run a significant part of the case is now revealed.

A second important case is Young v. United States ex rel. Vuitton et Fils, S.A., 481 U.S. 787 (1987). In Vuitton, the Court exercised its supervisory power in express reliance upon statutory guidelines, the Model Code of Professional Responsibility, the Code of Federal Regulations, and the U.S. Attorney's Manual. 481 U.S. at 801-02, 803-804. These are the very provisions of law on which we rely, and which we ask this Court to apply.

Vuitton teaches that the books containing these provisions of law are not simply embossed, leather-trimmed expensive baggage. Rather, these provisions help us to see what is very wrong with what the government wants to do here. "The concern that representation of other clients may compromise the prosecutor's pursuit of the Government's interest rests on recognition that a prosecutor would own an ethical duty to those other clients." 481 U.S. at 804. The Court cites at this point the eloquent due process analysis of the late John R. Brown, in Brotherhood of Locomotive Firemen & Enginemen v. United States, 411 F.2d 312, 319 (5 th Cir. 1969). As Judge Brown says, private lawyers have an obligation to pillory their adversaries by every means, and by raising every contention that "they may legitimately and honorably" employ. Government lawyers have an equally great--and often contradictory-- duty to see "that the [defendant's] rights [are] scrupulously preserved." [FN1]

FN1. As Judge Brown said in the Brotherhood case, we are not attacking these distinguished lawyers. They are bound--or at least permitted--by their oaths to behave in a certain way. That "way" is inconsistent with due process in this case. This is an institutional and not a personal consideration. To paraphrase St. Thomas More, speaking of the role of judge and counselor, one must "ever tell [the prosecutor] what he ought to do, but never what he is able to do.... For if a lion knew his own strength, hard were it for any man to rule him." Quoted by St. Thomas's son-in-law, William Roper, in his biography, pp. 56-57.

End of FN.

*4 Dr. Sengel cannot perform this public duty because of the mantle of duty that the law of professional responsibility places on him--to serve his firm's clients. Mr. Ryan cannot do it because he has donned that mantle by his own act, and shown by his conduct that he wears it as a preferred garb.

Vuitton tells us eloquently that the public prosecutor must be "disinterested." 481 U.S. at 807. As for Dr. Sengel, there is little question that a guilty verdict in this case would benefit his firm's private clients. This alone makes his participation impermissible. 481 U.S. at 805 (citing 18 U.S.C. s 208(a)). We have addressed Mr. Ryan's case ere now, but his unwavering commitment to the victims was again expressed on August 13, 1997, and he now assumes a greater role than he had promised he would.

Vuitton underscores that the role of public prosecutor is affected by many of the same considerations as that of a judge. 481 U.S. at 807. In this connection, it must be noted that Dr. Sengel could not become a judge in this matter, given 28 U.S.C. s 455(b)(2). The language of 28 U.S.C. s 528 should be construed to mandate the same result.

The issues we raise have been ruled upon by the Tenth Circuit in language that suggests we should prevail. In United States v, McVeigh, 106 F.3d 325 (10 th Cir. 1997), victims sought an independent voice to obtain appellate review of this Court's orders. The Tenth Circuit held that the public prosecutor is the only representative of a party to this criminal case.

That holding reflects a deeper truth about our justice system, and tells us why due process is at issue. In an important way, due process means adherence to traditional procedures. Honda Motor Co. v. Oberg, 512 U.S. 415,430 (1994) ("traditional practice provides a touchstone for constitutional analysis"). At common law, private parties could bring and control prosecutions for crime. Except for cases of murder, these "appeals"--as private prosecutions were called--fell one by one into desuetude. 1 James Fitzjames Stephen, A History of the Criminal Law of England 247-48 (1883).

The appeal of murder as a routine matter lasted a little longer--until the end of the fifteenth century. Id. at 248. They fell into disuse, but were not formally abolished in England until the reign of George III. The appeal of murder, as an artifact, gave victims a veto power on the criminal justice system. Indeed, the last such appeal in England was in 1818. One Thornton was acquitted of murder at a criminal trial upon an indictment returned by the grand jury and prosecuted by the public prosecutor. The victim's family was permitted to lodge its appeal, but lost its right to a trial on technical grounds.

*5 To illustrate how distant the appeal for felony is from the public prosecution of offenses, one must recall that trial of appeals was by battle, while that in criminal cases was then as now by jury. Id. at 249.

CONCLUSION

For the foregoing reasons, and those in our initial motion, we ask that the U.S. Attorney's Office for the Western District of Oklahoma be disqualified.

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 A

Memorandum

Subject Personal Knowledge of Victims in the Oklahoma City Bombing

Date August 18, 1997

To Patrick M. Ryan U.S. Attorney

From Randal A. Sengel Asst. U.S. Attorney

In response to your inquiry, I did not lose any personal friends or professional associates in the Oklahoma City Bombing. There is only one victim that I believe I may have met before the bombing. He was the father of a classmate of one of my children whose name was Gene Hodges. I believe that we may have met, however, when you asked I was unable to recall his name and had to find out his name from my child. Otherwise, I do not know of any other victim with whom I am acquainted.

Attachment

RANDAL A. SENGEL

737 SOUTH LAHOMA

NORMAN, OKLAHOMA 73069

PERSONAL DATA

Date of Birth: January 8, 1948

Marital Status: Married, 3 children

EDUCATION

Legal:

The University of Oklahoma College of Law, Norman, OK 73019; J.D. with Honors, December 1985

National Institute for Trial Advocacy Program, Hofstra University School of Law, August 7-17, 1986

Non-legal:

University of Oklahoma Health Sciences Center, Oklahoma City, OK; Ph.D. in Behavioral Sciences related to medicine, School of Public Health, December 1976

University of Oklahoma, Norman, OK 73019; MA. in Anthropology, May 1973

University of Oklahoma, Norman, OK 73019; B.A. in Political Science, May 1970

Postdoctoral Fellowship, National Institute of Health National Research Service Award from the National Institute of General Medical Sciences, 1980

BAR MEMBERSHIPS

Oklahoma Bar Association; United States Court of Appeals for the Tenth Circuit; United States District Court for the Western District of Oklahoma; United States District Court for the Eastern District of Oklahoma; United States District Court for the Northern District of Oklahoma

WORK EXPERIENCE

LEGAL:

Assistant United States Attorney, Western District of Oklahoma, September 1995 to present; Team Leader Drug Task Force

Crowe & Dunlevy, 1800 Mid-America Tower, 20 N. Broadway, Oklahoma City, OK 73102; Associate, December 1985 to 1992; Director, 1992 to 1995; Civil litigation with particular emphasis in tort litigation including products liability, personal injury, and bad faith insurance litigation.

Non-legal:

*6 Research Health Scientist, Behavioral Sciences Laboratories, Veterans Administration Medical Center, Oklahoma City, OK 73104, 1981-1983.

Adjunct Instructor, Department of Psychiatry and Behavioral Sciences, University of Oklahoma Health Sciences Center, Oklahoma City, OK 73190, 1982- 1983.

Research Associate, Behavioral Sciences Laboratories, Veterans Administration Medical Center, Oklahoma City, OK 73104, 1977-1980.

PROFESSIONAL ACTIVITIES

Workshop faculty and team leader, Oklahoma College of Advocacy-basic course in Trial Advocacy presented by The Oklahoma Trial Lawyers Association and the University of Oklahoma College of Law, 1991, 1992, 1993, 1994.

Presentation: "Folklore of Depositions, Discovery from Testifying Experts, and Liability for Discovery Abuses", Oklahoma County Bar Association CLE, Discovery Code Update and Brush-Up, December, 1991.

Presentation: "Evidentiary Foundations of Real and Demonstrative Evidence", Oklahoma Trial Lawyers Association and Oklahoma City University School of Law CLE, Evidence, April 1993.

Presentation: "Causation: The Overlooked Defense", Oklahoma Trial Lawyers Association and University of Oklahoma College of Law CLE, Oklahoma Products Liability Forum, September 1993.

Presentation: "Demonstrative Evidence and Use of Exhibits", Oklahoma Bar Association and Oklahoma Trial Lawyers Association CLE, Essential Ingredients for Winning at Trial, March 1997.

Consultant, Task Force on Ecopsychiatric Data Base, American Psychiatric Association, 1977-1978.

Society of Sigma XI (scientific research society)

New York Academy of Sciences

PUBLICATIONS

Author or co-author of 19 scientific publications or presentations

U.S. v. Nichols