| ADDITIONAL MOTION AND PROPOSED ORDER OF TERRY LYNN NICHOLS TO REQUIRE THE BUREAU OF PRISONS TO MAKE TAPES OF SOCIAL TELEPHONE CALLS AVAILABLE TO THE NICHOLS DEFENSE FOR REPRODUCTION |
| FOR EDUCATIONAL USE ONLY
– REPRINTED WITH PERMISSION Copr. (C) West 1999 No Claim to Orig. U.S. Govt. Works
1996 WL 681268 (D.Colo.Doc.) (Cite as: 1996 WL 681268 (D.Colo.Doc.))
*1 TITLE: United States of America, Plaintiff v. Timothy James McVeigh and Terry Lynn Nichols, Defendants. TOPIC: ADDITIONAL MOTION AND PROPOSED ORDER OF TERRY LYNN NICHOLS TO REQUIRE THE BUREAU OF PRISONS TO MAKE TAPES OF SOCIAL TELEPHONE CALLS AVAILABLE TO THE NICHOLS DEFENSE FOR REPRODUCTION DOCKET-NUMBER: 96-CR-68-M VENUE: U.S. District Court for the District of Colorado. YEAR: Filed: November 20, 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: Unsatisfied with the Court's oral directive on the subject of Mr. Nichols' attorneys' access to his recorded telephone calls, the United States by letter dated November 18, 1996 insists that Mr. Nichols file an additional petition with the Court. See Letter of Mr. Larry A. Mackey to Ronald G. Woods, Attached as Exhibit 1. We view any additional petition as unnecessary, but comply with the request nonetheless, in order to satisfy the Bureau of Prisons bureaucracy. Background On November 12, 1996, Mr. Nichols by written motion (D.E. 2492) asked that the Court modify the November 1, 1995 order of Judge Alley (D.E. 563) to allow Mr. Nichols' counsel to have access to the recorded conversations of Mr. Nichols' social telephone calls, without these tapes being funnelled through the F.B.I. and the prosecution team. At the public hearing of November 14, 1996, the Court agreed that it would be "very reasonable to make a change in Judge Alley's order that really accommodates the legitimate Government interest with respect to the place in which [Mr. Nichols is] held yet protects the privacy of these conversations that are social." Transcript of November 14, 1996 Hearing on Motions, Vol. III at 267. During the in-chambers meeting that followed, the Court reaffirmed its view that Mr. Nichols' counsel should have access to his taped social calls, I think that's just a matter of the lawyer being apprised of what's happening with his client in custody; so that's not different from all of the conditions of being in custody. So I don't have any problem with saying that that's with respect to Mr. Nichols and his team and Mr. McVeigh and his team having access to the social tapes, we'll call them, from the Bureau of Prisons. Well, that's what we are talking about, modifying the Judge Alley order so that the only copying that is done is for the particular detainee's conversations with his own lawyer. Transcript of November 14, 1996 Hearing on Motions, Vol. VI at 402-03. *2 During that meeting, Mr. Woods made clear that there would be no undue burden on the Bureau of Prisons: "We will send an investigator out to duplicate the tapes. The Bureau doesn't have to do anything other than make the reel available." Id. at 401. On inquiry from the Court, Mr. Woods explained that the BOP has a log which makes it easy to access a particular inmates' conversations. Id. Confirming Mr. Woods' representations is a letter, attached as Exhibit 2, that the prosecution once used to transmit copies of past social call recordings. As is indicated by the letter, each call is accounted for by a specific BOP Record number, date, and time to the second. See Exhibit 2, August 23, 1996 letter from Joseph H. Hartzler to Ronald G. Woods. This shows that the BOP has a system whereby they can locate Mr. Nichols' calls for an investigator to copy, without having to expend undue time and effort. Accordingly, the Nichols' investigator need not search through the large reel and violate the privacy interests of other inmates. As was made clear in the in-chambers hearing, Mr. Nichols agrees not to use any of these taped conversations at trial without giving the United States access to copies of all tapes. Transcript of November 14, 1996 Hearing on Motions, Vol. VI at 403. The Court was satisfied that Mr. Nichols' request was a reasonable one, specifically stating what the United States was to do: "Give them a chance to copy the ones [telephone calls] that relate to Mr. Nichols' conversations." Id. Relief Prayed For. In light of the above recitation of facts, Mr. Nichols respectfully prays that the Court enter the proposed order attached to this motion, ordering the Bureau of Prisons to give Mr. Nichols' defense team access in order to obtain copies of Mr. Nichols' taped social telephone conversations. Respectfully submitted, Ronald G. Woods Adam Thurschwell (303) 831-4059 Counsel for Terry Lynn Nichols EXHIBIT 1 Byron G. Rogers Federal Building Twelfth Floor, Drawer 3615 1961 Stout Street Denver, Colorado 80294 (303) 313-2500 FAX (303) 313-2212 November 18, 1996 VIA FACSIMILE AND U.S. MAIL Ronald G. Woods, Esq. 1120 Lincoln, Suite 1308 Denver, CO 80203 Re: United States v. Timothy James McVeigh, et. al Case No. 96-CR-68-M Dear Mr. Woods: We have consulted with counsel for the Bureau of Prisons regarding their policies governing the release of security recordings of an inmate's monitored telephone calls. Because the BOP creates and maintains such recordings solely for the security of its facilities, personnel and inmates, it will not release such tapes to anyone (including prosecutors or any other representative of the government) without a valid court order. This policy also applies to requests by inmates for recordings of their own conversations. *3 Accordingly, if you wish to obtain access to your clients recorded conversations in a manner that does not also result in disclosure of the recordings to the prosecution, please submit a petition for such an order to the Court. We request a copy of any such petition, and further request that it include a representation that, in the event you decide to offer in evidence at trial the contents any recording obtained pursuant to such an order, you provide the government with reasonable advance notice of that intent as well as copies of all recordings obtained pursuant to the order. Such notice and disclosure will be necessary to allow the government an appropriate opportunity to rebut any such evidence you introduce. Sincerely yours, JOSEPH H. HARTZLER Special Attorney to the U.S. Attorney General /s/ LARRY A. MACKEY Special Attorney to the U.S. Attorney General EXHIBIT 2 Byron G. Rogers Federal Building Twelfth Floor, Drawer 3615 1961 Stout Street Denver, Colorado 80294 (303) 844-2081 FAX (303) 844-6725 August 23, 1996 CERTIFIED MAIL RETURN RECEIPT REQUESTED Ronald G. Woods, Esq. 1120 Lincoln, Suite 1308 Denver, CO 80203 Re: United States v. Timothy James McVeigh and Terry Lynn Nichols Criminal Action No. 96-CR-68-M Dear Mr. Woods: Pursuant to the Order Directing Bureau of Prisons to Produce Records and Recordings filed in the captioned matter on November 1, 1995, please find enclosed a copy of the following (7) taped telephone calls placed by Terry Nichols: ------------------------------------------------------------------------------- Evidence BOP Date and Time of Call Number Dialed Name of Party Number Record Called No. ------------------------------------------------------------------------------- 1B3693 6194 7/13/96 6:59:20 pm (XXX) XXX-XXXX Marife Nichols ------------------------------------------------------------------------------- 1B3695 6194 7/13/96 8:51:53 pm (XXX) XXX-XXXX Marife Nichols ------------------------------------------------------------------------------- 1B3696 6195 7/14/96 8:08:53 pm (XXX) XXX-XXXX Marife Nichols ------------------------------------------------------------------------------- 1B3697 6195 7/14/96 8:52:00 pm (XXX) XXX-XXXX Josh Nichols ------------------------------------------------------------------------------- 1B3698 6196 7/15/96 8:39:30 pm (XXX) XXX-XXXX Marife Nichols ------------------------------------------------------------------------------- 1B3699 6197 7/16/96 7:23:14 pm (XXX) XXX-XXXX Marife Nichols ------------------------------------------------------------------------------- 1B3700 6195 7/14/96 8:04:50 pm (XXX) XXX-XXXX Marife Nichols ------------------------------------------------------------------------------- Sincerely yours, *4 /s/JOSEPH H. HARTZLER Special Attorney to the U.S. Attorney General U.S. v. McVeigh and Nichols D.Colo.Doc., 1996. |