| DEFENDANT TERRY LYNN NICHOLS' MOTION TO RECEIVE UNDER SEAL AN UNREDACTED VERSION OF THE MOTION FOR SEVERANCE AND TO RECEIVE EX PARTE DEFENDANT'S APPENDIX 1 Together with ORDER OF COURT |
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– REPRINTED WITH PERMISSION Copr. (C) West 1999 No Claim to Orig. U.S. Govt. Works
1996 WL 509526 (D.Colo.Doc.) (Cite as: 1996 WL 509526 (D.Colo.Doc.))
*1 TITLE: United States of America, Plaintiff v. Timothy James McVeigh and Terry Lynn Nichols, Defendants. TOPIC: DEFENDANT TERRY LYNN NICHOLS' MOTION TO RECEIVE UNDER SEAL AN UNREDACTED VERSION OF THE MOTION FOR SEVERANCE AND TO RECEIVE EX PARTE DEFENDANT'S APPENDIX 1 DOCKET-NUMBER: 96-CR-68-M VENUE: U.S. District Court for the District of Colorado. YEAR: Filed: September 6, 1996 JUDGE: Hon. Richard P. Matsch, Chief District Judge ATTORNEY(S): Michael E. Tiger, Esq., Denver, Ronald G. Woods, Esq., Houston, N. Reid Neureiter, Esq., Adam Thurschwell, Esq., Denver, For the Defendant Terry Lynn Nichols. TEXT: Terry Lynn Nichols, by counsel, today files his pleading captioned, Motion of Defendant Terry Lynn Nichols for Severance at the Guilt and Penalty Phases of Trial and Memorandum of Law in Support Thereof and accompanying exhibits and appendices. Mr. Nichols moves the Court to: 1) Permit the sealing of parts of the Motion and Memorandum of Law and all of the appendices thereto. A complete unredacted version of the severance motion with exhibits and appendices is attached hereto for filing under seal, along with a version with certain text redacted and all six appendices omitted for filing in the public file. Parts of the Motion and Memorandum that we propose filing under seal are indicated on the unredacted version by vertical red-line markings in the left margin of the text to be sealed. 2) The receipt of Appendix 1 to the Motion and Memorandum for ex parte, in camera review by the Court. In the alternative, if the Court declines to receive Appendix 1 ex parte, we request that the Court consider the appendix anyway. We will serve Appendix 1 upon all parties and our objection will stand. The justification for this request is as follows. 1. Portions of Motion filed under seal. The Court has ordered that where "proper presentation of a party's position requires the use of copies of discovery documents or [ ... ] references to the information in them," that portion of the filing "shall be submitted under seal." Memorandum Opinion and Order Regarding Extrajudicial Statements by Attorneys and Support Personnel, filed June 13, 1996, at 12. This request to file under seal portions of the motion and the exhibits themselves is fully consistent with the Court's order. A recognized interest of higher value than public access to information, namely Mr. Nichols' and Mr. McVeigh's fair trial rights, will be prejudiced or adversely affected by the disclosure here. As explained in the motion for severance, in determining whether or not to grant severance, the Court will be required to engage in a factual assessment of the case the prosecution is likely to bring against the two defendants, as well as the defenses likely to be presented by the defendants in the event of a joint trial. Factors which militate in favor of severance include the existence of mutually antagonistic defenses, the existence of highly prejudicial evidence admissible against one defendant which is inadmissible against another, and an imbalance in the weight of evidence against the two defendants. Of necessity, in arguing the relevant legal tests and applying those tests to the realities of this case, Mr. Nichols' motion discusses in detail evidence that has been exchanged during discovery in this case. In this highly publicized case, premature disclosure of discovery material prior to selection of a jury is likely to prejudice the prospective jury and threaten Mr. Nichols' right to a fair trial. *2 The need for protection of that interest overrides the qualified right of access and closure by the Court is essential to protect that interest, considering all the reasonable alternatives. The redactions to the severance motion have been made with an eye toward ensuring that the public fully understands the legal argument and general factual background without revealing any specifics originating from discovery material. This Court approved the filing under seal of Motion to Suppress, and has agreed to maintain that unredacted motion under seal because of the potential prejudice that would likely arise as a result of premature revelation of this information. See Memorandum Opinion and Order on Motions to Suppress Evidence and Regarding Admissibility of Statements of Terry Lynn Nichols, filed Aug. 14, 1996, at 1- 2. The Court should permit Mr. Nichols to file the'complete motion for severance under seal, while filing a public version with appropriate redactions. 2. Receipt of Appendix 1 exparte, for in camera review. Terry Lynn Nichols, by counsel, requests in camera and ex parte filing of Defense Appendix 1. We are aware that the Court has denied Mr. McVeigh's similar motion to receive certain evidence and argument ex parte. Nevertheless, to preserve our record and because we believe the legitimate concerns raised by the Court in its denial order do not apply with the same force in this context, we ask the Court to reconsider its ruling with respect to the filing of Nichols Appendix 1. We note that should the Court find severance appropriate on grounds unrelated to the ex parte filing, the issue will be moot. Appendix 1 is a factual assessment of the case against Terry Lynn Nichols and the case against Timothy James McVeigh. This in-depth, fact-intensive analysis in chart form, outlines in chronological form the two very distinct cases while demonstrating just how different the cases and their attendant proofs must be. This document is the quintessence of attorney work product. Appendix 1 contains the mental impressions, thoughts and analysis of Mr. Nichols' attorneys and investigators, and therefore constitutes privileged information. If Mr. Nichols were to submit Appendix 1 to either of his adversaries (the government or Mr. McVeigh), he risks severely compromising his defense. While the serving of motions and other pre-trial materials always provides a window on the movant's strategy, Appendix 1 is distinct from "legal argument"; rather, it reveals the thoughts, strategies and factual analysis of counsel. Mr. Nichols is thus confronted with a dilemma--to share this highly sensitive analysis with them would be tantamount to giving them the keys to our offices; however, he needs to prove to the Court the differences between the case against him and the case against Mr. McVeigh in sufficient detail to convince the Court that his antagonistic defenses basis for severance is more than speculative, and to assure an adequate record in the event of appeal. In this regard, appellate decisions denying severance on these grounds routinely recite the defendant's failure to provide the district court enough specific and detailed factual information to support his claim that joinder would be prejudicial. See e.g. United States v. McClure, 734 F.2d 484, 488 (10th Cir.1984) (rejecting "mere abstract allegation[s]" of prejudice and requiring a "close review of the record" where antagonistic defenses claimed), United States v. Paxnell, 581 F.2d 1374, (l0th Cir. 1978), cert. denied, 439 U.S.1076 ( ) (on pretrial motion for severance, defendant failed to offer any evidence indicating that he would be unfairly prejudiced if his motion were not granted). *3 The government's high-sounding language about our adversarial system is misplaced in this context. Objection of the United States to McVeigh's Motion to File Portions of the Severance Brief Ex Parte. [FN1] The cases it draws its quotes from are are all civil cases, in which a criminal defendant's constitutional right to make a defense is not at stake, Abourezk v. Reagan, 785 F.2d 1043 (D.C.Cir.1986), affd, 484 U.S. 1 (1987) (denial of visas by Secretary of State), United States v. James Daniel Good Real Propert., 510 U.S. 43, 114 S.Ct. 492 (1994) (forfeiture); and the secret fact finding was performed in each of them at the government's behest and for the government's benefit. FN1. Our response to the government's attempt to argue the merits of the antagonistic defense question--an issue which is entirely distinct from and irrelevant to a defendant's right to make the best and most fully-supported argument he can on the question--is contained in our Motion for Severance. Gov't Objection, at 3-4. No doubt a "secret, one-sided determination of facts decisive of rights," James Daniel Good, 114 S.Ct. at 502, is anathema to basic conceptions of due process, as these cases hold. That is not what we are requesting here, however. The "facts" (or rather evidence) contained in Appendix 1 is discovery material and public information known and available to all parties. What is not and should not be known or available is counsel's interpretation of this evidence and anticipations of our own and our adversary's use of it at trial. The Court need not and should not "determine" any facts dispositive of any party's rights; it need only decide whether our prediction about the likely defenses or the government's is more realistic, given the evidence available to all. The government is of course equally free to submit ex parte its own anticipation of its case at trial and the defenses that it expects will be made to it. Finally, the government's suggestion that we wait until trial to see what the defenses will be misses much of the point of the "antagonistic defense" rationale for severance. Gov't Objection, at 4-5. Part of the prejudice of antagonistic defenses is the hard choice put to the antagonistic defendants-- put their only realistic (antagonistic) defense before the jury, knowing that the all but certain result is conviction based on nothing more than the defendants' antagonism, or forego this defense and face likely conviction anyway. In either case, the government can stand by in the smug knowledge of the difficult road these claims face on appeal. Id. at 3. 3. Alternative relief. In the event that the Court declines to accept Appendix 1 ex parte, we request that it consider it anyway. We will serve it upon the other parties, and our objection will stand. For the foregoing reasons, we request that the Court receive the unredacted version of the brief under seal, and Nichols Appendix 1 ex parte and in camera. *4 September 5, 1996 Respectfully submitted, Ronald G. Woods Adam Thurschwell (303) 831-4059 Counsel for Terry Lynn Nichols
ORDER ON DEFENDANT NICHOLS' MOTION TO RECEIVE UNDER SEAL AN UNREDACTED VERSION OF THE MOTION FOR SEVERANCE AND TO RECEIVE EX PARTE DEFENDANT'S APPENDIX 1 DOCKET-NUMBER: 96-CR-68-M VENUE: U.S. District Court for the District of Colorado. YEAR: Filed: September 6, 1996 JUDGE: Hon. Richard P. Matsch, Chief District Judge TEXT: Defendant Terry Lynn Nichols has today filed a Motion for Severance with a supporting memorandum, and accompanying exhibits and appendices. This filing was made with a motion to receive a complete unredacted version of the severance motion with exhibits and appendices under seal and a redacted text for public filing. The request for sealing is consistent with the criteria set forth in the Memorandum Opinion and Order on Media Motions entered January 24, 1996. The defendant Nichols has also tendered Appendix 1 for ex parte, in camera review. Counsel for Mr. Nichols has expressly recognized that this court on September 5, 1996, entered an order denying defendant McVeigh's motion to file sections of his severance brief ex parte and under seal, and suggests that the court reconsider that ruling with respect to Nichols' Appendix 1 because it is essentially attorney work product but necessary for understanding the antagonistic defenses basis for the motion for severance. The suggestion made is that if the court refuses ex parte consideration, counsel will serve Appendix 1 upon the other parties under objection. As noted in the motion, if the court finds severance appropriate on grounds unrelated to the ex parte filing, consideration of this unusual request will be moot. Argument on the motions for severance is scheduled for October 2, 1996. At this time, the court is unwilling to accept any submission ex parte. The question of the appropriateness of that approach will be addressed, if necessary, at the hearing on October 2, 1996. Accordingly, it is now ORDERED that only the redacted version of the motion for severance and supportive brief will be filed in the public file of this case at this time and the unredacted version with appendices shall be filed under seal. Appendix 1, submitted for ex parte consideration, has not been seen by the court. It will remain with the clerk, under seal, until further order of court. Dated: September 6th, 1996 BY THE COURT: /s/ Richard P. Matsch, Chief Judge U.S. v. McVeigh and Nichols D.Colo.Doc., 1996. |