| MOTION TO STRIKE NOTICE OF INTENTION TO SEEK THE DEATH PENALTY AS TO DEFENDANT TERRY LYNN NICHOLS, AND MEMORANDUM IN SUPPORT THEREOF; ORAL ARGUMENT REQUESTED |
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– REPRINTED WITH PERMISSION Copr. (C) West 1999 No Claim to Orig. U.S. Govt. Works
1995 WL 697979
(Cite as: 1995 WL 697979 (W.D.Okla.Doc.))
*1 TITLE: United States of America, Plaintiff v. Timothy James McVeigh and Terry Lynn Nichols, Defendants. TOPIC: MOTION TO STRIKE NOTICE OF INTENTION TO SEEK THE DEATH PENALTY AS TO DEFENDANT TERRY LYNN NICHOLS, AND MEMORANDUM IN SUPPORT THEREOF; ORAL ARGUMENT REQUESTED DOCKET-NUMBER: CR 95-110-A VENUE: U.S. District Court for the Western District of Oklahoma. YEAR: Filed: November 20, 1995 JUDGE: Hon. Wayne E. Alley, Judge ATTORNEY(S): Michael E. Tigar, Esq., Austin, Ronald G. Woods, Esq., Houston, D. Kate Rubin, Deputy Federal Public Defender, Oklahoma City, For the Defendant Terry Lynn Nichols. TEXT: Michael E. Tigar Ronald G. Woods D. Kate Rubin Deputy Federal Public Defender Counsel for Terry Lynn Nichols TABLE OF CONTENTS I. Introduction 2 A. The Statutory Scheme--Notice, Gateway Findings, Weighing ..................... 3B. The Hearing Under s 3593 ................. 4 C. Administrative Procedures Leading To the Notice ................................. 5 D. Basic Principles of Capital Punishment Jurisprudence .......................... 6 II. The Statutory Notice 12 Provision Violates the Fifth Amendment Indictment Clause III. Even If the Notice 19 Provision Is Valid, This "Notice" Fails to Allege Aggravators With Sufficient Precision to Apprise the Defendant and the Court IV. The Notice and Statute 21 Allege Aggravators That Violate the Eighth Amendment A. Aggravators That Are Unconstitutionally Vague .................................. 21 1. Aggravator identified as 18 U.S.C. s 2332(a) (Use of a weapon of mass destruction) ........................... 22 2. Substantial planning and premeditation 23 3. Vulnerability of the victim ........... 23 B. Aggravators That Fail to Narrow the Class of Death-Eligible Persons .............. 25 V. The Notice Is Invalid 29 Because It Alleges Aggravators Not Authorized by the Statute A. Non-Statutory Aggravators Are Not Authorized ............................. 29 B. If s 3591 Is Read to Authorize Non-Statutory Aggravators, It is Unconstitutional ....................... 31 VI. The Prosecution Failed to 31 Comply With the Constitution, the Statute, and the Regulations In Issuing the Notice A. The Regulations Require Fairness and the Procedure Was Fundamentally Unfair ..... 31 B. The Notice Procedure Employed Violates Due Process of Law ..................... 34 C. Even If The Notice Provision Does Not Violate the Indictment Clause, It Delegates Authority Without Reasonable Standards For Its Exercise ............. 35 VII. Conclusion 35 TABLE OF AUTHORITIES CASES Aacen v. San Juan County Sheriff's Dep't, 944 F.2d 691 (10th Cir.1991) ............ 19, 34 Andres v. United States, 333 U.S. 740, 68 S.Ct. 880, 92 L.Ed. 1055 (1948) ............ 7 Arave v Creech, 113 S. Ct. 1534 (1993) ............ 9, 11, 23 Cabana v. Bullock, 474 U.S. 376 (1986) ............ 29 California v. Brown, 479 U.S. 538 (1987) ............ 12 Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) ............ 7 Connecticut v. Doehr, 501 U.S. 1 (1991) ............ 34 de la Liana Castellon v. INS, 16 F.3d 1093 (10th Cir.1994) ............ 19, 34 Eddings v. Oklahoma, 455 U.S. 104 (1982) ............ 24 Fourco Glass Co. v. Transmirra Products, Inc. 353 U.S. 222, 228 (1957) ............ 30 Furman v. Georgia, 408 U.S. 238 (1972) ............ 6, 15, 16 Godfrey v. Georgia, 446 U.S. 420 (1980) ............ 9, 11, 22 Greene v. McElroy, 360 U.S. 474 (1959) ............ 34 Gregg v. Georgia, 428 U.S. 153 (1976) ............ 6, 8 Gutierrez de Martinez v. Lamagno, 115 S.Ct. 2227 (1995) ............ 33 Gutknecht v. United States, 396 U.S. 295 (1970) ............ 34 Hurtado v. California, 110 U.S. 516 (1884) ............ 16 Johnson v. Texas, 113 S.Ct. 2658 (1993) ............ 6 Lewis v. Jeffers, 497 U.S. 764 (1990) ............ 8, 9, 22 Libretti v. United States, 64 U.S.L.W. 4005 (1995) ............ 16 Lowenfield v. Phelps, 484 U.S. 231 (1988) ............ passim Mathews v. Eldridge, 424 U.S. 319 (1976) ............ 34 Middlebrooks v. Tennessee, 840 S.W.2d 317 (Tenn.1992), cert. dismissed, 114 S.Ct. 651 (1993) ............ 27, 28 Penry v. Lynaugh, 492 U.S. 302 (1989) ............ 7, 8, 11, 35 Smith v. United States, 360 U.S. 1 (1959) ............ 14, 15 State v. Cherry, 257 S.E.2d 551 (N.C.1979), cert. denied, 446 U.S. 941 (1980) ............ 27 Stringer v. Black, 112 S.Ct. 1130 (1992) ............ passim Sumner v. Shuman, 483 U.S. 66 (1987) ............ 7, 16 Tison v. Arizona, 481 U.S. 137 (1987) ............ 4 Tuilaepa v. California, 114 S.Ct. 2630 (1994) ............ 8, 9, 10, 23 United States v. Chandler, 996 F.2d 1073 (11th Cir.1993) ............ 29 United States v. Cheely, 36 F.3d 1439 (9th Cir.1994) ............ 17, 18 United States v. Flores, 63 F.3d 1342 (5th Cir.1995) ............ 23 United States v. Seifuddin, 820 F.2d 1074 (9th Cir.1987) ............ 18 Woodson v. North Carolina, 428 U.S. 280 (1976) ............ 7 Zant v. Stephens, 462 U.S. 862 (1983) ............ passim STATUTES 5 U.S.C. s 551, et seq. ............ 3, 32, 34 18 U.S.C. s 33 ............ 25, 26, 27 18 U.S.C. s 844(d) ............ 25 18 U.S.C. s 844(f) ............ passim 18 U.S.C. s 844(i) ............ 25, 26 18 U.S.C. s 2332a ............ passim 18 U.S.C. s 2339 ............ 23 18 U.S.C. s 3591 ............ passim 18 U.S.C. s 3591(a) ............ 3, 4 18 U.S.C. s 3592 ............ passim 18 U.S.C. s 3593(a) ............ passim 18 U.S.C. s 3593(b) ............ 3 18 U.S.C. s 3593(c) ............ 30 RULES Fed.R.Crim.P. 7 ............ 1, 15, 18, 19 Fed.R.Crim.P. 7(c) ............ 18, 19 Fed.R.Crim.P. 7(f) ............ 19 CONSTITUTIONAL PROVISIONS U.S. Const., amend. V ............ 12, 17 U.S. Const., amend. VIII ............ passim U.S. Const., amend. XIV ............ 6 TREATISES Charles A. Wright, Federal Practice & Procedure, Criminal 2d, (Supp.1995) ............ 20 OTHER AUTHORITIES United States Attorney Manual s 9-10.000 ............ 2, 5 *2 Terry Lynn Nichols, by counsel, moves this Court under the Fifth and Eighth Amendments and Fed.R.Crim.P. 7, to strike the Notice of Intention to Seek the Death Penalty as to Defendant Terry Lynn Nichols, filed on October 20, 1995. [FN1] He also moves for production of the following documents: FN1. This notice is identical, except for the defendant's name, to that filed with respect to Timothy James McVeigh the same day. End of FN. 1. Any recommendation made by the United States Attorney concerning the death penalty decision, and all material submitted in support thereof; 2. Any decision by any Department of Justice reviewing or decisional body concerning the decision to authorize filing of the Notice. In order to inform the Court concerning the procedures leading up to filing the Notice, we have attached the following Exhibits: Exhibit A: Letter of Patrick Ryan to Michael E. Tigar, July 11, 1995 Exhibit B: Letter of Michael E. Tigar to Patrick Ryan, July 20, 1995 Exhibit C: REASONS WHY PATRICK M. RYAN SHOULD RECOMMEND AGAINST SEEKING THE DEATH PENALTY AGAINST TERRY LYNN NICHOLS, n.d., but submitted July 31, 1995 Exhibit D: United States Attorney's Manual s 9-10.000. As discussed below, we also adopt certain of the arguments and factual discussion contained in MOTION TO DISQUALIFY ATTORNEY GENERAL AND ALL OTHER OFFICERS AND EMPLOYEES OF THE DEPARTMENT OF JUSTICE FROM PARTICIPATION IN THE DECISION WHETHER TO SEEK THE DEATH PENALTY, AND TO PRECLUDE SEEKING THE DEATH PENALTY UNTIL A LAWFUL PROSECUTORIAL DECISION CAN BE MADE WHETHER TO SEEK IT, filed July 25, 1995, by counsel for Timothy McVeigh, and the supporting Memorandum filed therewith. I. Introduction The government has filed a Notice of Intention to Seek the Death Penalty As To Defendant Terry Lynn Nichols, under authority of 18 U.S.C. s 3593(a). This motion to strike the notice is filed under the Agreed Order of August 23, which requires us to file any "challenge to such notice" within thirty days of "receipt" of the Notice. Thus, this motion addresses primarily the facial validity of the notice, and the procedures by which it was issued. Some death penalty issues, such as objections to particular evidence, or to claimed standards of admissibility, must necessarily await a penalty hearing; no provision of the Agreed Order requires us to address such issues at this time. Moreover, we have this day filed or will shortly file a civil suit challenging the Notice under the Administrative Procedure Act, s U.S.C. s 551 et seq. This civil suit is parallel to this Motion to Strike, and is filed to avoid any claim that such a suit is the proper means to challenge the Attorney General's action in authorizing the Notice to be issued. A. The Statutory Scheme--Notice, Gateway Findings, Weighing The Notice provided in s 3593(a) is a prerequisite to the government seeking the death penalty. 18 U.S.C. s 3591(a) states that the penalty can be imposed only as the result of a "hearing held pursuant to section 3593." That section, in its turn, is entitled "Special hearing to determine whether a sentence of death is justified." Section 3593(b) repeats the threshold requirement of a Notice. *3 The death penalty is reserved, under s 3591(a)(2), for certain crimes that result in death. The defendant must have caused the death by one of the means set forth in that subsection, and the forbidden mental state must be proved "beyond a reasonable doubt." See Notice, pp. 3-4 (listing all four of the mental states without indication of which one the government intends to prove). The intent determination under s 3591(a)(2) has been referred to by government counsel as a "gateway" finding. BRIEF OF THE UNITED STATES IN OPPOSITION TO DEFENDANTS' MOTIONS TO DISMISS OR ALTER THE INDICTMENT, at 38- 44. By this, government counsel means to concede that the death penalty cannot be administered to anyone without proof that the defendant committed a homicide with at least the intent required at common law for depraved heart murder. See Tison v. Arizona, 481 U.S. 137 (1987). In addition to the "gateway" findings, the sentencing jury must engage in "weighing." This is a "weighing" statute, a fact that has constitutional significance. See generally Stringer v. Black, 112 S.Ct. 1130 (1992). 18 U.S.C. s 3591(a) mandates that the sentencing decision is made "after consideration of the factors set forth in section 3592 in the course of a hearing held pursuant to section 3593." Turning to s 3592, one finds a list of "mitigating and aggravating factors." The Notice refers to some of these, and the defects in the statute and Notice are dealt with in this Motion. B. The Hearing Under s 3593 Section 3591 et seq. envision a bifurcated hearing, and the Notice expressly envisions such a procedure. The hearing mandated by s 3592 is to be held without regard to "the rules governing admission of evidence at criminal trials." The defendant may present any information as to a mitigating factor. The government may present information only as to an aggravating factor as to which notice has been given. The government must establish any aggravating factor beyond a reasonable doubt to the satisfaction of 12 jurors. The defendant must establish a mitigating factor by a preponderance of the information presented. However, any individual juror must regard any mitigating factor as established if he or she finds it by a preponderance. Such factor is then "found" for that juror, "regardless of the number of jurors who concur that the factor has been established." The jurors must then perform a weighing under s 3593(e), finding whether the aggravating factors "sufficiently outweigh" the mitigating factors to justify a sentence of death, or if there are no mitigating factors whether the "aggravating factor or factors alone are sufficient to justify a sentence of death." C. Administrative Procedures Leading to the Notice The Attorney General has issued regulations governing the notice-giving function. United States Attorney Manual s 9-10.000. Exhibit D. The United States Attorney or other "attorney for the government" cannot issue the notice without giving the defendant the chance to present reasons why the penalty should not be sought. The attorney then makes a report to the Attorney General, who has established a committee to review these matters. The Attorney General may then authorize or not authorize the Notice. This procedure was followed in this case. We have attached to this motion copies of the relevant correspondence and other material. Exhibits A, B & C. *4 The Attorney General personally resolved the Notice issue, and authorized the Notice which is the subject of this motion. The regulations at issue emphasize that the decision to seek the death penalty is a serious one, and that merely being indicted for a crime that carries a potential death sentence takes one only a short distance towards having to face a "death-qualified" jury. D. Basic Principles of Capital Punishment Jurisprudence Prior to Furman v. Georgia, 408 U.S. 238 (1972), "sentencing juries had almost complete discretion in determining whether a given defendant would be sentenced to death." Johnson v. Texas, 113 S.Ct. 2658, 2664 (1993). [FN2] Furman held that a death sentence imposed by a jury exercising unbridled discretion as to whether death should be the penalty constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Capital punishment is unconstitutional when it is "wantonly and ... freakishly imposed," Furman, 408 U.S. at 310 (Stewart, J., concurring), pursuant to statutes that provide "no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not." Id. at 313 (White, J., concurring); see also Gregg v. Georgia, 428 U.S. 153, 195 n. 47 (1976) ("[W]here the ultimate punishment of death is at issue a system of standardless jury discretion violates the Eighth and Fourteenth Amendments.") (Stewart, Powell, and Stevens, JJ); Woodson v. North Carolina, 428 U.S. 280, 302 (1976) ("Central to the limited holding in Furman was the conviction that the vesting of standardless sentencing power in the jury violated the Eighth and Fourteenth Amendments.") (Stewart, Powell, and Stevens, JJ., concurring). FN2. For example, this jury instruction was approved by the Supreme Court in a 1948 decision: [Y]ou may return a qualified verdict in this case by adding the words "without capital punishment" to your verdict. This power is conferred solely upon you and in this connection the [c]ourt can not extend or prescribe to you any definite rule defining the exercise of this power, but commits the entire matter of its exercise to your judgment.... [Y]ou are authorized to add to your verdict the words "without capital punishment," and this you may do no matter what the evidence may be.... Andres v. United States, 333 U.S. 740, 743-44 & n. 4, 68 S.Ct. 880, 881-82 & n. 4, 92 L.Ed. 1055 (1948). End of FN. In obedience to Furman's teaching, the Supreme Court has identified the basic principles that limit the government's power to seek, and the sentencer's power to impose, the ultimate penalty. Beyond the threshold requirement that death must be a penalty proportionate to the crime, [FN3] a capital penalty statute (1) must "genuinely narrow the class of persons eligible for the death penalty and ... reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder," Zant v. Stephens, 462 U.S. 862, 877 (1983), and (2) must not "prevent the sentencer from considering and giving effect to evidence relevant to the defendant's background or character or to the circumstances of the offense that mitigate against imposing the death penalty." Penry v. Lynaugh, 492 U.S. 302, 318 (1989). FN3. See, e.g., Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) (death is disproportionately severe penalty for rape of adult woman). End of FN. *5 Put another way, the Supreme Court has rejected efforts to limit sentencer discretion by making the death penalty automatic, Sumner v. Shuman, 483 U.S. 66 (1987), thus eliminating the categorical imperative of death. The life vs. death determination must be a "reasoned moral response" by the sentencer. Penry at 304. The Court noted in Lowenfield v. Phelps, 484 U.S. 231 (1988), that the requisite narrowing could be accomplished in one of two ways: either "[t]he legislature may itself narrow the definition of capital offenses ... so that the jury finding of guilt responds to this concern," or "the legislature may more broadly define capital offenses and provide for narrowing by jury findings of aggravating circumstances at the penalty phase." Lowenfield at 246. In addition to the elements cited above, the Eighth Amendment imposes these limits on death penalty sentencing schemes: . The sentencer's "discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action." Lewis v. Jeffers, 497 U.S. 764, 774 (1990), citing Gregg, 428 U.S. at 189. . In a homicide case, the trier of fact must convict the defendant of murder and then find an aggravating circumstance or circumstances that are sufficient to justify death. Tuilaepa v. California, 114 S.Ct. 2630, 2634 (1994). . An aggravating circumstance must genuinely narrow the class of persons who are death eligible and thus apply to only a subclass of convicted defendants. Tuilaepa, citing Arave v. Creech, 113 S. Ct. 1534, 1542 (1993). "To pass constitutional muster, a capital sentencing scheme must 'genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.' " Lowenfield v. Phelps, 484 U.S. 231, 244 (1988), quoting Zant v. Stephens, 462 U.S. 862, at 877. . The state must "channel the sentencer's discretion by 'clear and objective standards' that provide 'specific and detailed guidance,' and that 'make rationally reviewable the process for imposing a sentence of death.' " Jeffers, 497 U.S. at 774, citing Godfrey v. Georgia, 446 U.S. 420 (1980). . Aggravating circumstances, as provided for in the applicable sentencing statute, must be fashioned in order to guide the sentencer. Defining these aggravating circumstances is critical. "A State's definitions of its aggravating circumstances--those circumstances that make a criminal defendant 'eligible' for the death penalty--therefore play a significant role in channeling the sentencer's discretion." Lewis v. Jeffers, 497 U.S. at 774. *6 . There are two permissible methods of supplying the aggravating circumstances, "in the definition of the crime or in a separate sentencing proceeding (or in both)." Tuilaepa v. California, 114 S.Ct. 2630 at 2634, citing Lowenfield v. Phelps, 484 U.S. at 244-46. . Statutes that defer the decision to the sentencing phase are called "weighing statutes." As noted, sections 3591-94 comprise a weighing statute. The difference between a weighing statute and a non-weighing statute is of great importance regarding the significance and use of aggravating and mitigating factors. Stringer v. Black, 112 S.Ct. 1130 (1992) distinguished the two types of death penalty statutes. In Stringer, the issue was the impact of a vague aggravating factor that had been employed in the penalty phase where it was determined that the defendant should be executed: [t]he difference between a weighing State and a nonweighing State is not one of 'semantics,' as the Court of Appeals thought, ... but of critical importance. In a nonweighing State, so long as the sentencing body finds at least one valid aggravating factor, the fact that it also finds an invalid aggravating factor does not infect the formal process of deciding whether death is an appropriate penalty. Assuming a determination by the state appellate court that the invalid factor would not have made a difference to the jury's determination, there is no constitutional violation resulting from the introduction of the invalid factor in an earlier stage of the proceedings. But when the sentencing body is told to weigh an invalid factor in its decision, a reviewing court may not assume it would have made no difference if the thumb had been removed from death's side of the scale. When the weighing process itself has been skewed, only constitutional harmless-error analysis or reweighing at the trial or appellate level suffices to guarantee that the defendant received an individualized sentence.... Thus, the principal difference between the sentencing systems of Mississippi and Georgia: the different role played by aggravating factors in the two States, underscores the applicability of Godfrey and Maynard to the Mississippi system. Stringer, 112 S.Ct. at 1137. . Stringer teaches us that invalid aggravating circumstances in ss 3591-94 cannot simply be disregarded, either now, at trial, or in the event of an eventual appeal. They must be confronted, addressed, and rooted out before they taint the decisional process. . In performing the job that Stringer imposes on the court, the statute must meet a basic test of clarity and precision. The statute may not be vague and subject to widely varying interpretation, which could result in capricious selection of those defendants who are sentenced to death. Godfrey v. Georgia, 446 U.S. 420, 428 (1980). See also Arave v. Creech, 113 S.Ct. 1534 (1993). *7 . At the penalty phase, the sentencer must make an individualized determination on the basis of the character of the individual defendant and the circumstances of the offense. Zant v Stephens, 462 U.S. at 879. This vital function is accomplished through consideration of mitigating factors. See Penry v. Lynaugh, 109 S.Ct. 2934, 2945-47 (1989), citing California v. Brown, 479 U.S. 538, 545 (1987) (O'Connor, J. concurring). With this introduction, we are going to show that this statute fails a number of constitutional tests. In addition, we will show that the procedure leading to the Notice was invalid under the constitution, statute and regulations. II. The Statutory Notice Provision Violates the Fifth Amendment Indictment Clause The Fifth Amendment states that "no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury." This Court has already held that an indictment is an essential step, in the Court's order denying Mr. Lighter's motion to intervene. This was not a capital case until the government filed its notice. The United States Attorney purported to make this a capital case by invoking the notice provisions of s 3593. The statute violates the Fifth Amendment indictment clause because it arrogates to a prosecutor a decision that the law reserves to an independent grand jury. This point appears in several ways. First, in this weighing statute, as the government has conceded, the "gateway" determination that the defendant is guilty of culpable homicide is made--at least as to Counts One, Two and Three--in the penalty phase. That is, neither 18 U.S.C. s 2332a nor 18 U.S.C. s 844(f) require, on their face, any particular mental state with respect to the resulting deaths. Thus, an element of the offenses that is necessary to sustain these statutes against Eighth Amendment proportionality attack was not present in the case until the Notice was filed. The government invokes the "gateway" function of 18 U.S.C. s 3591 by alleging in its Notice every one of the four intent elements in that statute, without so much as a conjunctive or disjunctive "and" or "or" to guide the court, the defendant and the jury. Thus, this is not a case in which the offense itself narrowly describes a class of murderers, leaving only consideration of strictly sentence-related aggravators to the penalty phase. Second, defense counsel attempted at the very earliest moment to focus the government's attention on the potentially capital case issues here. His approach was rejected by government counsel, Mr. Merrick Garland of the Justice Department: At the preliminary hearing on May 18, 1995, defense counsel said: *8 And there is a third question to which the government has not averred and as to which the government has presented absolutely no evidence whatever, and that is the question raised by the Congress's amendment to the statute to make this a capital offense; and that is whether, under the Supreme Court's decision in Tyson [sic] vs. Arizona, 481 U.S. 137, there is evidence to believe or probable cause to believe that Mr. Nichols had such role in the offense that he is, within the Supreme Court's Eighth Amendment jurisprudence, death-eligible. Preliminary Hearing, 5/18/95, p. 30. Mr. Garland responded: On the question of reckless disregard and death eligibility, Your Honor, respectfully, that is simply not relevant at this time. The government does not have to file a notice with respect to that until after the arraignment, some reasonable time before the trial. Your Honor, I think there can be no question that if the jury were to find that Mr. Nichols was responsible for the death of those 167 people and those children, there would be no problem for a jury also concluding reckless disregard and any degree of intent necessary. But that is not where we are here at this point, Your Honor. The notice of death eligibility is not required at this point. Id. at 33. At arraignment, Ms. Joplin iterated that the statutes in question provided for a "maximum potential punishment" of death, and implicitly acknowledged that the government could not seek the death penalty without a Notice. Arraignment, August 15, 1995, pp. 2-3 (as retrieved from WESTLAW) (emphasis supplied). Thus, the government has all along taken the position that the death penalty charging decision is to be made only by the Notice to which this motion is addressed. Indeed, the government stated in Brief of the United States in Opposition to Motion to Disqualify the Attorney General and All Officers of the Department of Justice and to Preclude the Government From Seeking the Death Penalty, filed August 9, 1995, p. 14, that "she [the Attorney General] will make a determination as to whether the death penalty should be sought." Against this factual background, the caselaw is instructive. The leading modern case is Smith v. United States, 360 U.S. 1 (1959). In Smith, the Court held that an offense under the Kidnapping Act which might have been punished by death had to be prosecuted by indictment of a grand jury, even if the government did not intend to seek the death penalty in the particular case. The Court noted that under Fed.R.Crim.P. 7(a), indictment cannot be waived in a death penalty case. Smith stands for the proposition that the grand jury's action is essential anytime death may possibly be sought as a penalty. One might ask whether the Smith test is satisfied by having an indictment under statutes that carry death as "potential" punishment. The answer must be no, not since Furman, and particularly not with a weighing statute in the picture. As we noted above, in the pre-Furman days the indictment would be for an offense potentially punishable by death, and the jury would be given unbridled sentencing discretion. *9 Thus, prior to Furman it was enough for the grand jury to indict under a statute carrying death as a possible punishment. There was no further statutory provision in existence that set forth elements that have to be proved in order to hold the accused to answer for a capital crime. Since Furman, the capital sentencing decision has been bifurcated, and a defendant is not--as Justice Department lawyer Garland intimated--death- eligible unless other significant factors are pleaded and proved. So the application of Smith in a post-Furman situation requires that the grand jury and not the Attorney General makes the determination that the defendant is to stand trial for his life. [FN4] FN4. This issue has not come up in state death penalty jurisprudence because the indictment clause is not applicable to the States. Hurtado v. California, 110 U.S. 516 (1884). End of FN. Put another way, after Furman there are no offenses that carry the penalty of death simply because one is convicted of the conduct made criminal by a statute. The Supreme Court has said so. In Sumner v. Shuman, 483 U.S. 66 (1987), the Supreme Court held that it violates the Eighth Amendment for the legislature to provide that one convicted of a crime shall receive the death penalty, no matter how heinous that crime may be. The defendant cannot receive the capital penalty until additional facts are proved, so as to narrow the class of those who are eligible for death beyond the narrowing provided by requiring conviction of the underlying offense. It is true that there is no right of jury trial with respect to punishment. Libretti v. United States, 64 U.S.L.W. 4005 (1995). The government might therefore argue that there is no right to grand jury indictment under the circumstances of this case. Such an argument would be wrong, however, because the issue is not how punishment is determined, but eligibility for a particular punishment. That is, if the defendant were charged for a crime that potentially carried either a misdemeanor or felony punishment, he would not be subject to the felony punishment unless the formal charge were made by indictment. Thus, one is not "held to answer" for a capital crime until it is alleged in a formal pleading that one meets some additional standards, beyond those set out as elements of the offense charged. In this case, these additional standards are contained in the penalty statute, 18 U.S.C. ss 3591-94. Under the Fifth Amendment indictment clause, the allegation of facts that, if proven, will justify a capital penalty is uniquely the function of an independent body of citizen grand jurors. In violation of this elementary principle, the Congress has passed the death penalty statute at issue and left it to prosecutors to allege the existence of those facts said to justify a capital sentence. *10 This is not a situation in which the answer is "prosecutorial discretion." If a grand jury validly makes the defendant death-eligible, the prosecutor may decline to seek that penalty. That is discretion. The function of choosing death is, however, a responsibility squarely put on the prosecutor according to defined principles that relate to the defendant's conduct. Findings with respect to those standards are the grand jury's province. The same point can be seen by examining United States v. Cheely, 36 F.3d 1439 (9th Cir.1994), upon which we relied in arguing that 18 U.S.C. s 844(f) is unconstitutional, in our Motion to Dismiss Count Three. The government responded that the Cheely issue is no longer present because of s 3591's "gateway" provisions. This is an implicit concession that this case was not a constitutionally-permissible "death penalty case" until the government formally invoked s 3591--which it did by means of the Notice and not by grand jury action. It is surprising that the Congress and the government have not grasped this simple principle, since it has been reflected in the Criminal Rules with respect to forfeitures since 1972. In that year, Fed. R. Crim. P. 7(c)(2) was added to implement the criminal forfeiture provisions of RICO and the drug legislation. Fed. R. Crim. P. 7(c)(2) honors the constitution by saying "No judgment of forfeiture shall be entered in a criminal proceeding unless the indictment or the information shall allege the extent of the interest or property subject to forfeiture." The rule reflects the principle that criminal in personam forfeitures are punishments that can be inflicted only in harmony with the constitution. See generally, United States v. Seifuddin, 820 F.2d 1074 (9th Cir.1987) (difference between penal and remedial forfeitures; the former require adherence to constitutional criminal procedure guaranties). Events in this case amply show the need for independent grand jury consideration of life vs. death issues. We refer the court to our pleadings on the grand jury matters now under consideration. Because s 3593 prescribes a constitutionally impermissible mechanism for holding the defendant to answer for a "capital" crime, the Notice must be stricken and the case tried as noncapital. III. Even If the Notice Provision Is Valid, This "Notice" Fails to Allege Aggravators With Sufficient Precision to Apprise the Defendant and the Court The word "Notice" implies that someone is giving information and someone is being informed. Fed. R. Crim. P. 7 applies to both indictments and informations. It requires a "plain, concise and definite written statement of the essential facts." Fed.R.Crim.P. 7(c)(1). Fed.R.Crim.P. 7(f) goes further, and mandates additional details at the defendant's option. Nowhere in federal procedure, civil or criminal, is so sloppy, generalized and uninformative a document as this "Notice" regarded as permissible pleading. *11 "Notice" of what one must meet is a basic element of due process of law, even where all that is proposed is a civil penalty. See, e.g., Aacen v. San Juan County Sheriff's Dep't, 944 F.2d 691 (10th Cir.1991); de la Llana Castellon v. INS, 16 F.3d 1093 (10th Cir.1994). Tested by these principles, this "Notice" is a cruel joke. It is word-for- word the same as the Notice filed with respect to defendant McVeigh, even though the government will concede that the nature of the two defendants' alleged participation and activities was quite different. It simply recites alleged "factors" without the benefit of any detail. The defendant is supposed to prepare to defend his life, yet the government fails to identify the issues on which his life is to be subject to loss. Paragraph 1 of the Notice lists 5 statutory offenses, "during the commission of which" the "deaths or injuries" took place. The dates, places, personnel and factual circumstances of these alleged crimes are entirely missing. In an indictment or information, it is settled that mere citation of the statute without alleging the essential facts is grounds for dismissal. Charles A. Wright, Federal Practice & Procedure, Criminal 2d, s 125, at 98 (Supp.1995). This principle is not based on technical, rule-based considerations, but upon the practical necessity that the accused be informed of the "nature and cause of the accusation." Paragraph 2 cites a "grave risk of death to one or more persons in addition to the victim(s) of the offense(s)." The Notice is silent as to the names of these persons, or even a hint as to the scope of danger the government will allege to have existed. Are they saying that tollbooth operators on the interstate between Oklahoma City and Kansas were at risk--or only those closer to the site, such as those in an adjacent building? The same defect appears in the succeeding paragraphs. Paragraph 3 does not allege the nature of the planning, nor inform the defendant whose death was planned nor what was the "act of terrorism." Paragraph 4 speaks of "various" victims, without identification of who they are. Paragraph 5 alleges that some victims had a federal connection, again without any detail. We cannot begin to prepare to meet such charges without knowing where to look for evidence. The Notice then lists "nonstatutory" aggravators. Among these is paragraph 2, which alleges "physical and emotional injury" without any specification of the type of injury or those allegedly injured. Paragraph 3 alleges "acts of burglary, robbery, and theft," again without dates, places and personnel. These allegations are all the more vague, because it is alleged that some of them were committed as an aider and abettor and not as a principal. Finally, the Notice throws in all the intent elements of s 3591, without a hint of which element the government will rely upon at trial. The Notice gives no notice, and must be stricken. IV. The Notice and Statute Allege Aggravators That Violate the Eighth Amendment A. Aggravators That Are Unconstitutionally Vague *12 The Supreme Court has taught us: Although our precedents do not require the use of aggravating factors, they have not permitted a State in which aggravating factors are decisive to use factors of vague or imprecise content. A vague aggravating factor employed for the purpose of determining whether a defendant is eligible for the death penalty fails to channel the sentencer's discretion. A vague aggravating factor used in the weighing process is in a sense worse, for it creates the risk that the jury will treat the defendant as more deserving of the death penalty than he might otherwise be by relying upon the existence of an illusory circumstance. Because the use of a vague aggravating factor in the weighing process creates the possibility not only of randomness but also of bias in favor of the death penalty, we cautioned in Zant that there might be a requirement that when the weighing process has been infected with a vague factor the death sentence must be invalidated. Stringer v. Black, 112 S.Ct. 1130, 1139 (1992). In Godfrey v. Georgia, 446 U.S. 420 (1980), the term "outrageously or wantonly vile" was held unconstitutionally vague. Vagueness prevents the statute from doing its constitutionally-mandated job of channeling the sentencer's discretion by clear and objective standards. See Lewis v. Jeffers, supra. Guided by Godfrey, Stringer and their progeny, we look at some aggravators relied upon by the government. 1. Aggravator identified as 18 U.S.C. s 2332a (use of a weapon of mass destruction) The government has woven this aggravator together from disparate provisions of 18 U.S.C. s 3592(c), then added something that Congress did not at all provide. Thus, this alleged aggravator combines impermissible vagueness with plain invention of terms that do not appear in the statute. The statute sets forth aggravators, among which s 2332a is noticeably absent. The statute does mention "section 2332 (terrorist acts abroad against United States nationals)" and "section 2339 (use of weapons of mass destruction)." Section 2339 does not exist. So the government has simply taken a little language here, a little language there, and dropped the letter "a" into the mixture. Result: the statute as thus construed fails to give notice, and the executive branch has turned to enacting statutes--a function that belongs to a coordinate branch of government. 2. Substantial planning and premeditation This term is without meaning. [FN5] "Substantial" can mean something of great magnitude or something that is not imagined or fanciful. The term "premeditation" has a common-law meaning in the law of homicide, but yoking it to "planning" is a significant defect. Premeditation can occur in a relatively brief time. How does "substantial" modify it. The word "terrorism" has no fixed meaning. It lacks the historic and common-sense roots necessary to sustain an aggravator against attack on vagueness grounds. Compare Arave, 113 S.Ct. at 1541. FN5. We acknowledge that the Fifth Circuit has upheld this factor with respect to another statute. United States v. Flores, 63 F.3d 1342 (5th Cir.1995). This case was decided September 1, 1995. Much of the Flores analysis is contrary to that in this Motion. Flores will undoubtedly seek certiorari. End of FN. 3. Vulnerability of the victim *13 18 U.S.C. s 3592(c)(11) identifies people who are vulnerable due to old age, youth, or infirmity. We recognize that "age" as a factor has been the subject of considerable Supreme Court discussion. Tuilaepa v. California, 114 S.Ct. 2630, 2637-38 (1994). In Tuilaepa, the jury was directed to consider "the age of the defendant." Compare Eddings v. Oklahoma, 455 U.S. 104, 115-17 (1982) (youthful age must be a factor in sentencing decision). Tuilaepa upheld this sentencing factor, acknowledging that it might be argued as cutting for or against imposition of the death penalty, but saying that such argument would "bring perspective to [the] problem." Here, however, the thrust is all one way. The statute says that some people are "vulnerable," and that this vulnerability is an aggravating circumstance. The factor is thus robbed of any mitigating content that might be furnished by argument or evidence. The category "old age" has no fixed or settled meaning, and the Notice does not identify any persons as being in this category. One can join the American Association of Retired Persons at age 50. A "senior citizen" discount is available at Mr. Gatti's Pizza buffets and Act III theatres to persons 55 or over. Federal judges are not usually "senior" until age 70, but may not take office as "chief judge" past 65. Retirement annuities may be taken under most circumstances at age 55, and the threshold occurs no later than 59- 1/2. Contrast this with "youth." One's "youth" may end at different times, for different purposes, and for some active people it blends--with a "middle age" of uncertain duration--into "old age." Again, the Notice does not seek to make the statute more precise. Such an effort would not save the statute, but the government's failure to make it shows the difficulty that even they must have with these concepts. Similarly, vulnerability due to "infirmity" is without settled meaning. The Notice makes no effort to say which infirmities might be at issue. The vagueness of this aggravator may be seen in the context of the offense alleged by the indictment. How are particular persons more or less vulnerable due to these factors when they are confronted with a truck bomb? If the statute has any meaning, it must be that the defendant selected victims with knowledge of their condition and desire to cause harm to vulnerable persons. The statutory language contains no such rational limitation or distinction. B. Aggravators That Fail to Narrow the Class of Death-Eligible Persons Section 3592(c)(1) lists various crimes as aggravators, duplicating all elements of these offenses in its list. Duplication of elements of the crime, and of entire crimes as aggravating factors, unconstitutionally puts a thumb on the scales in favor of the death penalty. *14 The Notice lists as statutory aggravating factors 18 U.S.C. ss 33, 844(d), 844(f), 844(i), and 2332a. [FN6] In addition, the notice, recites that the "the defendant committed the offense(s) after substantial planning and premeditation," relying on s 3592(c)(9). We have also mentioned above the aggravator allegation that the victims were vulnerable due to youth and age. FN6. As we pointed out above, s 2332a is not listed in the statute as an aggravator, so that one is invalid. End of FN. Sections 844(f) and 2332a are offenses charged in the body of the indictment. Count One charges a conspiracy, with dozens of allegations extending over more than a six month period. The indictment alleges that the bomb was set off "during regular day care hours," an allegation that the government claims is not mere surplusage that may be stricken. Sections 844(d) and 844(i) refer to conduct directed at federal facilities; the indictment alleges that the Murrah Building was a federal facility, and that is an element of the offense under s 844(f). Section 844(d) replicates Counts Four through Eleven. Section 33 refers to motor vehicles and vehicle facilities; the indictment alleges that the device was a truck bomb. Thus, each of these elements simply duplicates something that the indictment alleges and that may be proven in the guilt phase. In considering this point, we note that s 3592(c)(1) does not simply duplicate elements of the underlying offense, which may be permissible under some circumstances--but not these. See, e.g., Lowenfield v. Phelps, 484 U.S. 231 (1988). Rather, the penalty statute here at issue duplicates entire statutory offenses that are either the same as those alleged in the indictment, necessarily included in those offenses (as with s 33), or that significantly overlap the charged offenses. [FN7] FN7. Non-statutory aggravator 1 suffers from a similar infirmity. Counts One, Two and Three each list multiple alleged victims. Non-statutory aggravators 2, 3, and 4 also duplicate, completely or almost completely, matters pleaded in the indictment. Some of the duplicated matter has been challenged by motion, but the government has insisted that it belongs in the indictment. Non-statutory aggravators 2 and 4 also duplicate each other, a prohibited form of double-counting. End of FN. It is unconstitutional to employ aggravating factors in a weighing statute which duplicate elements of the crime and/or duplicate entire crimes because it unfairly pre-weighs the scales in favor of death. Put another way, use of duplicative aggravating factors make it impossible for the sentencer to narrow genuinely the class of persons who should be selected for the death penalty. Two state Supreme Courts have so held. In Middlebrooks v. Tennessee, 840 S.W.2d 317 (Tenn.1992), cert. dismissed, 114 S.Ct. 651 (1993), the Tennessee Supreme Court held that under the Tennessee version of the Eighth Amendment, it was unconstitutional to make commission of a certain felony an aggravating circumstance where that felony was the predicate for the underlying felony murder conviction. This, said the Court, is "double-counting" and is forbidden. *15 In State v. Cherry, 257 S.E.2d 551 (N.C.1979), cert. denied, 446 U.S. 941 (1980), similar duplicative aggravating circumstances were held to constitute an unconstitutional thumb on the scales. The Middlebrooks court relied upon Zant v. Stephens, 462 U.S. 862 (1983), to which we have referred above. One might argue that Lowenfield undercuts our argument. Not so. Lowenfield involved a non-weighing statute, in which the predicate crimes for the death penalty represented a small category of aggravated homicides. In Lowenfield, the penalty statute duplicated only one element of the underlying crime. The contrast here is dramatic. The government, if it obtains a conviction, rolls into the penalty phase with an argument that the decision is already made because the jury has found that the defendant committed all elements of several aggravators. In the terms adopted by the Supreme Court, Lowenfield involved a non-weighing statute. However, ss 3591-94 constitute a weighing statute, and the importance of the penalty hearing is far greater. Therefore, Lowenfield is inapposite. See Stringer v. Black, supra; [FN8] Clemons v. Mississippi, supra. FN8. The holding of Stringer deals with vagueness of aggravators, not duplication. However, the rationale of Stringer controls here. An entirely duplicative factor fails to narrow in the same way that a vague factor fails to do so. End of FN. The government knows this is a weighing statute, and indeed has already set store by this distinction in resisting our constitutional attack on s 2332a in its brief in opposition at pp. 38-44. Wait until the penalty hearing, the government told the Court in its reply to our motion. That's when you will see the narrowing. Now the Notice has arrived, and the narrowing is yet to appear--indeed, the government places its greatest emphasis in the Notice on the very statutory provisions that by their text fail to narrow. The state can narrow in the guilt phase, or in the sentencing phase, Cabana v. Bullock, 474 U.S. 376 (1986), but it must do so someplace. The breadth of s 2332a and s 844(f), to which we have already pointed in our motions to dismiss the indictment, makes them obviously inappropriate as devices for performing the narrowing function. [FN9] FN9. We are aware of United States v. Chandler, 996 F.2d 1073 (11th Cir.1993). The statutory scheme in Chandler required at least two aggravating factors for a death finding, which makes the issue of vagueness and duplication less significant. End of FN. V. The Notice Is Invalid Because It Alleges Aggravators Not Authorized by the Statute A. Non-Statutory Aggravators Are Not Authorized The Notice recites "non-statutory aggravating factors," at p. 3, and lists four such factors, including multiple deaths, serious physical and emotional injury, other crimes, and "victim impact evidence." *16 No doubt, the government, in alleging these factors, relies upon s 3591(c), which states that "the jury ... may consider whether any other aggravating factor for which notice has been given exists." See also s 3593(a), which speaks of notice of victim impact. The difficulty with the Notice, and with the quoted passage from s 3592(c), is that they contradict the plain language of s 3591, which states that the defendant "shall be sentenced to death if, after consideration of the factors set forth in section 3592 ... certain things are proved." Apparently, the Congress did not see that by adding a "catch-all" to s 3593(c), it was contradicting the mandate of s 3591 that an aggravator must be "set forth" in s 3593. The term "set forth" is often used in legal writing and almost universally with the same meaning--it means to list, to enumerate, to specify. For instance, a WESTLAW search in the CTA10 database, asking for " 'set forth' & date (1995)" yields almost 400 hundred documents, and a quick survey shows that the term is used in the way we have defined it. Thus, the effective, operative part of the statute--that defines who may be sentenced to death and how--is inconsistent with the remaining parts. The general catch-all cannot supersede the specific limitation of s 3591. Specific terms prevail over the general, in the same or another enactment. Fourco Glass Co. v. Transmirra Products, Inc. 353 U.S. 222, 228 (1957). The nonstatutory aggravators must be stricken. Moreover, the notice provisions limit the prosecutor's discretion. He can issue the notice only if he believes that "the circumstances of the offense" justify it, s 3593(a). Impact on the victim's family is not a circumstance of the offense. The death of the victim is such a circumstance, but that is already alleged in the indictment itself. B. If s 3591 Is Read to Authorize Non-Statutory Aggravators, It is Unconstitutional In order to preserve this issue, and acknowledging the authority of Zant v. Stephens, 462 U.S. 862, 878 (1983), we make this point to preserve our record. If the statute is construed to permit nonstatutory aggravators, it does so in a way never permitted by the Supreme Court, for it purports to vest unlimited discretion in the prosecutor to invent them and allege them. We have seen the dangers of such discretion in this case, where the prosecutor has simply replicated elements of the charged offenses. This activity calls to mind Lord Chief Justice Holt's maxim that "discretionary is but a softer word for arbitrary." VI. The Prosecution Failed to Comply With the Constitution, the Statute and the Regulations In Issuing the Notice A. The Regulations Require Fairness and the Procedure Was Fundamentally Unfair The notice provisions of 18 U.S.C. s 3593(a) are carried into force by regulations issued by the Attorney General. These regulations are discussed in detail in MOTION TO DISQUALIFY ATTORNEY GENERAL AND ALL OTHER OFFICERS AND EMPLOYEES OF THE DEPARTMENT OF JUSTICE FROM PARTICIPATION IN THE DECISION WHETHER TO SEEK THE DEATH PENALTY, AND TO PRECLUDE SEEKING THE DEATH PENALTY UNTIL A LAWFUL PROSECUTORIAL DECISION CAN BE MADE WHETHER TO SEEK IT, filed July 25, 1995, by counsel for Timothy McVeigh, and in the MEMORANDUM in support of that Motion. They are also cited in Exhibit C hereto, and are attached as Exhibit D. *17 In connection with a discussion of this point, we will require access to the material listed at the beginning of this motion. We adopt the due process and statutory analysis of the McVeigh motion cited above, but only in the alternative to our argument that the statute is unconstitutional in vesting notice-giving procedure outside the grand jury itself. We also make the argument as an alternative to our contention that the Attorney-General's determination is reviewable under the Administrative Procedure Act, 5 U.S.C. s 551 et seq. [FN10] FN10. As mentioned above, we have filed or will shortly file a civil suit on this issue. End of FN. If, however, the notice-giving function is valid, an important social interest is here involved. The Attorney General receives a recommendation. The defendant is to make a presentation to the United States Attorney and to a group within the Department of Justice. The Attorney General issues her decision. This is not an exercise of prosecutorial discretion, such as would be involved in declining to seek the death penalty when the grand jury indicts for a capital crime and invokes the death-penalty statute. Rather, the Attorney General is purporting to make a formal decision, on a record, after some sort of hearing, and involving an important interest. The exercise of this power must be accompanied with due regard to constitutional, statutory and regulatory principles of legality. The decision, when made, is subject to judicial review by this Court. Clear authority for our position is Gutierrez de Martinez v. Lamagno, 115 S.Ct. 2227 (1995). In that case, citizens of Colombia sued a DEA agent in tort. The United States Attorney certified under the Westfall Act, on behalf of the Attorney General, that the DEA agent was acting in the course of his employment at the time of the accident. The effect of this certification was to transform the case into one under the Federal Tort Claims Act; under the facts of Gutierrez de Martinez, this meant that the plaintiff would be out of court. The Supreme Court held that the Attorney General's determination was subject to judicial review. The opinion answers the government's contentions the Justice Department's litigation decisions lie outside the realm of judicial inquiry. Passing the threshold issue of reviewability, we turn to the procedure itself. Here we again adopt and incorporate by reference the motion filed by Mr. McVeigh, and the arguments made in Exhibits B and C. . The Attorney General and the President announced that the death penalty would be sought before these defendants were even charged. Yet the Attorney General sat in judgment as to whether the notice should be issued. . The United States Attorney's office should have recused itself. . The government refused to give Mr. Nichols notice of the basis on which it would recommend issuance of a notice. Thus, his meetings with the government in Oklahoma City and Washington were a mere formality, for he had no idea of what he was supposed to rebut or comment upon. See, e.g., Aacen v. San Juan County Sheriff's Dep't, 944 F.2d 691 (10th Cir.1991); de la Llana Castellon v. INS, 16 F.3d 1093 (10th Cir.1994). *18 . Because the hearing mandated by the regulations, United States Attorney's Manual s 9-10.000, leads to an administrative decision, the procedural rights set out in the Administrative Procedure Act and Open Meetings Act are applicable, but were not followed in this case. 5 U.S.C. s 551 et seq., 5 U.S.C. s 552b. When Congress authorizes administrative action, it does so under a presumption that the decider will afford elementary due process protections. Gutknecht v. United States, 396 U.S. 295 (1970); Greene v. McElroy, 360 U.S. 474 (1959). Mr. Nichols was not accorded such protections. B. The Notice Procedure Employed Violates Due Process of Law If the statute and regulations are construed to authorize the procedures here employed, they violate the due process clause. A biased decision-maker who refuses to give notice of what is at issue, conducts the proceedings in secret, and then issues an essentially uninformative "Notice" as a form of decision is behaving unconstitutionally. Such disregard of basic rights would not be tolerated in issuing a pretrial writ of attachment for property, much less when life itself is at stake. See Connecticut v. Doehr, 501 U.S. 1 (1991) (setting out basic due process standards); Mathews v. Eldridge, 424 U.S. 319 (1976) (due process when governmental interest is at stake). C. Even If The Notice Provision Does Not Violate the Indictment Clause, It Delegates Authority Without Reasonable Standards For Its Exercise Section 3593(a) is plainly intended to satisfy Eighth Amendment standard by ensuring that the death penalty is sought only in proper cases. Yet it limits prosecutorial discretion to "the circumstances of the offense." Thus, the entire process of prosecutorial decision-making is based upon a formulation that the Supreme Court has held constitutionally inadequate. The death penalty may be imposed only after considering evidence relevant to the defendant's background or character or to the circumstances of the offense that mitigate against imposing the death penalty. Penry v. Lynaugh, supra, 492 U.S. at 318. The entire decision to issue the notice is based upon an unduly crabbed vision of death penalty jurisprudence and the prosecutor's responsibilities to defend the Constitution. VII. Conclusion For the foregoing reasons, the Notice must be stricken. Respectfully submitted, Ronald G. Woods Adam Thurschwell Kate Rubin (303) 831-4059 Counsel for Terry Lynn Nichols Counsel gratefully acknowledge the assistance of the following law students in the preparation of the motions filed today: *19 Jane Blanksteen, 3L, Columbia University Seeshaya Kalapatapu, 2L, The University of Texas U.S. v. McVeigh and Nichols W.D.Okla.Doc., 1995. |