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

TOPIC: SUPPLEMENTAL SUBMISSION OF TERRY NICHOLS IN SUPPORT OF MOTION TO DISQUALIFY OKLAHOMA PROSECUTORS

DOCKET-NUMBER: 96-CR-68-M

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

YEAR: Filed: August 1, 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:

Terry Nichols submits the results of an informal poll of former United States Attorneys in support of his motion to disqualify federal prosecutors from the Western District of Oklahoma. Over the period from July 23 through August 1, 1997, Defense co-counsel Ronald Woods contacted by telephone twenty-three (23) former United States Attorneys. Mr. Woods recited essentially verbatim the factual summary detailed below before asking for any opinion. The results speak for themselves.

INFORMATION CONVEYED TO FORMER UNITED STATES ATTORNEYS PRIOR TO SEEKING OPINION:

As you may recall in the Oklahoma City bombing case, the Attorney General appointed a lead prosecutor from the United States Attorney's Office in Springfield, Illinois to head up the prosecution team against the defendants Tim McVeigh and Terry Nichols. He in turn selected other prosecutors from other U.S. Attorney's Offices and the Department of Justice to assist in the prosecution.

The United States Attorney and one Assistant U.S. Attorney from Oklahoma City remained on the prosecution team which totaled nine lawyers.

During the course of the individual voir dire in the McVeigh trial, the United States Attorney from Oklahoma City was one of three prosecutors who conducted the voir dire for the government. He introduced himself to the potential jurors by informing them that he was the United States Attorney from Oklahoma City and that his office is located three blocks from the site of the bombing of the Murrah Federal Building.

During the course of the McVeigh trial, the U.S. Attorney and the Assistant U.S. Attorney from Oklahoma City presented witnesses from Oklahoma City that gave testimony about the deaths of the 168 individuals and the numerous people that were injured. This testimony often caused the two prosecutors from Oklahoma City to visibly and emotionally react in front of the jury, by sobbing, weeping and dabbing at the tears in their eyes. The Court cautioned the prosecution several times outside the presence of the jury by stating that he can't have counsel crying in front of the jury.

In the upcoming trial involving Terry Nichols we have filed a motion to disqualify the government lawyers from Oklahoma City. We have been advised that only the U.S. Attorney from Oklahoma City will participate in the upcoming trial. We have alleged two grounds for disqualification: 1) prosecutors from Oklahoma City have shown themselves to have a personal interest in the outcome of the case--constituting a conflict of interest mandating disqualification; and 2) the Oklahoma City prosecutors' actions and reactions cannot be viewed as anything other than highly prejudicial victim-impact testimony--by prosecutors--reinforcing trial witness testimony about the effect of the bombing on the people of Oklahoma City.

*2 In our motion, we have cited Section 1-3.170 of the United States Attorney Manual which states "If a conflict of interest exists because a U.S. Attorney has a personal interest in the outcome of the matter .. .... or for other good cause, he/she should recuse himself/herself." I have advised the Court that as a former U.S. Attorney, if I had the personal and emotional interest in a case as has been exhibited by the U.S. Attorney from Oklahoma City, I would feel that I should recuse myself. I have further advised the Court that I am taking an informal poll of other former U.S. Attorneys to see if they feel they should recuse themselves in such a situation.

THE OPINIONS OF EVERY FORMER UNITED STATES ATTORNEY WHO WAS CONTACTED ARE INCLUDED.

FORMER U.S. ATTORNEYS CONTACTED   SHOULD/SHOULD NOT RECUSE

--------------------------------  ------------------------

MIKE NORTON                       SHOULD

DISTRICT OF COLORADO

1988-1993

BILL BRANIFF                      SHOULD

SOUTHERN DISTRICT OF CALIFORNIA

1988-1993

BILL MC GIVERN                    SHOULD

NORTHERN DISTRICT OF CALIFORNIA

1990-1992

MIKE MC KAY                       SHOULD

WESTERN DISTRICT OF WASHINGTON

1988-1993

FRED FOREMAN                      SHOULD

NORTHERN DISTRICT OF ILLINOIS

1990-1993

GEORGE TERWILLIGER                SHOULD

DISTRICT OF VERMONT

1986-1991

DEPUTY ATTORNEY GENERAL

1991-1992

JOE WHITLEY                       SHOULD

MIDDLE DISTRICT OF GEORGIA

1981-1987

NORTHERN DISTRICT OF GEORGIA

1990-1993

EARL SILBERT                      SHOULD

DISTRICT OF COLUMBIA

1974-1979

HAL HARDIN                        SHOULD

MIDDLE DISTRICT OF TENNESSEE

1977-1981

DEBORAH DANIEL                    SHOULD

SOUTHERN DISTRICT OF INDIANA

1988-1993

FREDERICK HESS                    SHOULD

SOUTHERN DISTRICT OF ILLINOIS

1975-1993

KENNETH SUKHIA                    DOESN'T KNOW WITHOUT

NORTHERN DISTRICT OF FLORIDA      ADDITIONAL RESEARCH

1990-1993

MORT SUSMAN                       SHOULD

SOUTHERN DISTRICT OF TEXAS

1966-1969

ED MC DONOUGH                     SHOULD

SOUTHERN DISTRICT OF TEXAS

1974-1977

TONY CANALES                      SHOULD

SOUTHERN DISTRICT OF TEXAS

1977-1980

DAN HEDGES                        SHOULD

SOUTHERN DISTRICT OF TEXAS

1981-1985

LARRY FINDER                      SHOULD

SOUTHERN DISTRICT OF TEXAS

1993

RON EDERER                        SHOULD

WESTERN DISTRICT OF TEXAS

1989-1993

MIKE CARNES                       SHOULD

NORTHERN DISTRICT OF TEXAS

1976-1977

JIM ROLFE                         SHOULD

NORTHERN DISTRICT OF TEXAS

1981-1985

PATRICK MC LAUGHLIN               SHOULD

NORTHERN DISTRICT OF OHIO

1984-1988

PETER VAIRA                       SHOULD

EASTERN DISTRICT OF PENNSYLVANIA

1978-1983

JOHN VOLZ                         SHOULD

EASTERN DISTRICT OF LOUISIANA

1978-1991

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*3 The results of this poll confirm what the cases and argument presented in our initial motion make clear. Federal prosecutors from the Western District of Oklahoma should not be trying this lawsuit. We respectfully pray that the motion be granted.