PART FIFTEEN OF EIGHTEEN:

The trial judge below has devoted an extensive amount of judicial time to discovery issues in this case, the issues have been thoroughly briefed and argued in the district court and are the subject of two Court orders. See D.E. 1310 and D.E. 3016. No criticism is intended here toward his diligence or effort, but, in the spirit of effective advocacy, it appears to counsel from a careful study of how the respondent trial judge has handled this matter that he does not believe he has authority to enter orders compelling compliance pursuant to Rule 16 or Brady. Rather, the district court seems to have taken the position that these matters are to be resolved by the prosecutors in this case and the district court will rely upon the representations of the prosecutors on discovery matters. See, e.g., D.E. 3016 at 3; D.E. 3410 (Pre-Trial Hearing--Sealed--not provided to Defendant Nichols, March 10, 1997, at 34).

However, it has become very clear to counsel that the prosecutors in this case are simply not going to conduct a thorough search responsive to the requests of defense counsel. For just one example, government counsel candidly acknowledged that they had not requested information from the intelligence agencies concerning Dennis Mahon. See D.E. 2519 (Hearing on Motions--Volume V--Sealed, provided only to government and Defendant McVeigh, November 14, 1996, at 310-11).

Government counsel may believe, in good faith, that none of the requested information is relevant, but the perceptions of government counsel do not change the fact that the defense has made an extensive showing of materiality and relevancy. This information is vital to the defense. Without it, the defense is being denied the opportunity to prove or establish that its client is not guilty. An order from this Court is necessary so that there is no dispute, no "breathing room," as to the scope of the government's obligations to provide discovery material to the defense, and counsel requests respectfully a ruling as to whether the defense has made a sufficient showing of materiality as to the specific items requested.

The government does not deny that the bombing of the Murrah Building initiated what was arguably the most massive and intensive investigation into a criminal act in this nation's history. The government does not deny, and based upon the information in the public record as manifested in Defendant McVeigh's Motion for the Disclosure of Classified Information (D.E. 1079), it cannot deny that the national intelligence agencies of the United States government were involved and participated in the investigation of the bombing of the Murrah Building, at least in the "preliminary meetings." See D.E. 1238 (Vol. I Transcript of Hearing on Motions, April 9, 1996, at 92). The government has not denied that the intelligence and investigative agencies of the United States government have compiled volumes of information, some of which is classified, concerning the bombing of the Murrah Building.

As to intelligence agencies, the government has assured the district court and the parties to this case that these agencies simply do not possess any discoverable information, other than "claims of responsibility". D.E. 1620 (Transcript of Hearing June 18, 1996 at 11314). The prosecutors in this case are confident that the intelligence agencies possess no information which is discoverable to Defendant McVeigh because they have "sent letters" to the Central Intelligence Agency, the Defense Intelligence Agency, and the National Security Agency, requesting "all material they had under Brady, Rule 16 and Jencks Act and any information they had which would tend to show that these defendants did not participate in the crime or that others carried out the crime." D.E. 1238 (Vol. I Transcript of Hearing on Motions April 9, 1996, at 51).

There are (at least) two (2) fallacies in the government's approach in attempting to obtain discoverable information from the intelligence agencies which undermine its assertions that the intelligence agencies possess no discoverable information and which make the denials by government counsel not creditable. The first fallacy is that counsel for the government understands properly the contours of the Brady decision and its progeny, that is, has a basic understanding of what the Supreme Court means when it held that the government must disclose exculpatory information to the defense in order for a criminal trial to be fundamentally fair. Because counsel for the government has exhibited such an extremely restrictive definition of Brady, and because it is the government counsel that frames the requests in the letters to the intelligence agencies, the agencies could in good faith respond negatively to the requests yet still possess discoverable material necessary for a proper defense in this case.

The second fallacy, and also the most fundamental, is that the alphabet soup of government, agencies which possess information responsive to defense discovery requests are in effect, separate fiefdoms of the federal government as opposed to a cohesive centralized federal government, and simply do not consider themselves part of this litigation, subject to the jurisdiction of the district court, or obligated in any way to respond to the requests of the Department of Justice lawyers representing the government in this criminal case. Each of these concerns will be addressed in turn.

A. The Government's Restrictive Definition of Brady.

There is no dispute in this case that the government must furnish to the defense information which is exculpatory and impeaching of government witnesses and evidence as those terms are defined in Brady v. Maryland, 373 U. S. 83 (1963) and Giglio v. United States, 405 U. S. 150 (1972). See United States v. McVeigh, 923 F. Supp. 1310, 1313 (D. Colo. 1996). The district court has articulated the obligations of the prosecutors to disclose such evidence and has observed that "the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police." Id. at 1313 (quoting Kyles v. Whitley, U.S. , 115 S. Ct. 1555, 1567, 131 L. Ed. 2d 490 (1995)).

The district court declined to enter an order compelling discovery on these matters, in part, by relying upon the representations of government counsel that the government had requested Rule 16 and Brady material from other government agencies and that the government was "being careful" and would "err on the side of caution producing more documents than we think would be necessary to turn over." Id. at 1313.

Leaving aside the compelling case to be made that government counsel's statements were at best disingenuous which is discussed in great detail in a pleading filed August 22, 1996 (see D.E. 1898), this Court should have no confidence in the government's representations concerning its efforts to locate and identify information in the possession of the intelligence agencies because

1. government counsel view their obligations pursuant to Brady in an impermissibly restrictive way, and
2. even assuming that the prosecutors are in tune with Brady, they have no authority to compel other government agencies to produce discoverable classified information and they are utterly powerless to act on behalf of the entire United States government in complying with constitutional and federal rules concerning discovery in this area.

The individual prosecutors in this case simply have no way to compel or require such agencies to conduct any search or inquiry of their files or investigative reports. There is no court order; just simply some Supreme Court decisions that the agency bureaucrat has not ever read. It is one thing to presume the good faith of Mr. Hartzler, but it is quite another thing to presume the good faith of the CIA station chief in Israel or Kuwait, or a research analyst at the NSA in Ft. Meade, Maryland.

In the April 29, 1996 Order (D.E. 1310), the district court stayed its hand in issuing a direct order compelling disclosure of classified information based upon the representations of government counsel. However, the district court's reliance upon the government's representations presupposed that the government counsel understands their duty pursuant to Brady and Rule 16 and that they have the means and authority to perform that duty. Neither of these presuppositions have proven true.

The district court, on the record, has expressed "concern" over statements made by the government counsel with respect to the government's discovery obligations pursuant to Brady and Giglio. See Transcript of Proceedings, December 13, 1995, at 44 (in the Western District of Oklahoma, Case No. CR-95-0110-MH), no docket number aligned. Government counsel had, on November 21, 1995, submitted correspondence to defense counsel stating that defense counsel's definition of "exculpatory information" was "far broader than ours [the government's]". See D.E. 1923 (Vol. III Exhibit "X").

In this letter, counsel for the government includes the astonishing sentence that, "In my opinion, nothing the Fortiers, or Eldon Elliott or Vicki Beemer said can fairly be characterized as exculpatory of your client." Id. Counsel for Defendant McVeigh has provided the district court with this example on several prior occasions, but its importance cannot be over-emphasized. Government counsel may, in good faith, view his obligations pursuant to Brady and Giglio in such a restrictive manner; but his view is clearly incorrect.

Because the distract court was "concerned" that government counsel took a restrictive view of their Brady obligations, the Court corrected government counsel on the record as follows:

This word "exculpatory" has been misused a lot, I think. Not here, but generally. It's like, "to be exculpatory, it has to be something that proves you're not guilty." That isn't the case. It's something that may diminish the government's evidence and the credibility of its witnesses. (Transcript of Hearing, December 13, 1995 at 45 (Western District of Oklahoma, Case No. CR-95-0110-MH), no docket number assigned).

The most telling and insightful statement made by government counsel in this case concerning discovery then occurred after the district court made the above statement. After the Court had explained the definition of Brady and Giglio to government counsel, government counsel indicated in the very next sentence that he simply disagreed with the Court. He stated, "You accept Mr. Jones' definition, and I will abide by that, of course." Id. at 46. What government counsel dearly meant was that he disagreed with the district court's views concerning discovery and the government's Brady obligations, but simply recognized the Court's authority to define and make legal decisions in this case.

But the district court has declined to intervene in this protracted discovery dispute and has declined to order directly the government to produce exculpatory evidence. Thus, counsel for Defendant McVeigh respectfully suggests to the Court that the prosecutors (and maybe even the government) may be acting in good faith in complying with its discovery obligations, but they are simply acting in accordance with their own narrow view of their duty to disclose exculpatory information and are applying their definition of Brady rather than the Court's. Because, despite what the government says, the government's actions have shown this to be the case.

There are other indications. In June, 1996, the government produced to the defense a multitude of FBI 302's, including a sheet of paper regarding Serial #14838. See D.E. 1921 (Vol. I Exhibit "A"). This sheet of paper advised the defense that Serial #14838 contained "classified material not associated with this case[.]" Id. Yet on July 31, 1996, defense counsel again received this same sheet of paper indicating that this "classified" material was not associated with this case, but attached to this description was the two aforementioned FBI 302's that have been the sum and substance of the government's production regarding classified intelligence information. Id.

These FBI 302's could not be more "associated with this case," more exculpatory of Defendant McVeigh, or more relevant and material to a defense to the charges in the indictment; and that is not to mention that the investigation of the information in these 302's occurred on the day of the bombing--April 19, 1995--but were "transcribed" on June 18, 1996, and provided to the defense July 31, 1996.

If this Court were to peruse D.E. 1923 (Exhibit "Y"), the Court would find extensive details concerning neurotic fringe persons making fanciful "confessions", and who are clearly unreliable and mentally unbalanced, while finding not a word about information relayed by a very senior officer in the intelligence community of a major American ally informing the United States government that a foreign power perpetrated the bombing of the Murrah Building. This is the type of petty gamesmanship that defense counsel has come to expect from the government, it is fundamentally unfair to Defendant McVeigh, it is contrary to this Court's explicit definition of Brady and Giglio, and if it continues unabated, it will ultimately result in a reversal of a conviction in this case should that occur.

Although the district court has recognized that the individual prosecutors in this case bear the burden of disclosure. Defendant McVeigh ultimately bears the risk of nondisclosure: his life. It is Defendant McVeigh whose interests are really at stake in this discovery dispute. The only reason that the individual prosecutors in this case have a duty of disclosure is to vindicate Defendant McVeigh's constitutional right to a fair trial. Thus, although the individual prosecutors are charged with the duty of disclosure, the relative risks of non-disclosure are stacked against the Defendant because the risk to the prosecution is reversal of a conviction and a retrial, but the risk to Defendant McVeigh is his very life. The prosecutors in this case are, and there is no other diplomatic way to articulate it, trifling with the administration of justice in this capital case and this Court must simply put a stop to it. Judicial oversight of the discovery process in this case is the only method of assuring compliance. It is, we respectfully submit, long overdue.

The fundamental misunderstanding and distortion of Brady by government counsel is critical in this case because the only method by which they have attempted to acquire classified intelligence information is through letters sent to the various agencies, specifically the Central Intelligence Agency, the National Security Agency, and the Defense Intelligence Agency, "asking them for all materials they had under Brady, Rule 16 and Jencks Act and any information they had which tend to show that these defendants did not participate in the crime or that others carried out the crime." See D.E. 1238 (Vol. I Transcript of Hearing, April 9, 1996 at 51).

However, counsel can have no faith in these "letters" sent by government counsel to the various intelligence agencies because government counsel have a view of Brady that is at odds with the controlling legal authority. There thus exists a situation whereby an intelligence agency could in good faith respond negatively to an inquiry from government counsel, yet still possess information that it would be required to disclose under the appropriate definition of Brady and that of the Supreme Court cases. Counsel for the government have refused to provide the defense with a copy of their requests to the intelligence agencies. See D.E. 1923 (Vol. III Exhibit "W").

The district court explicitly declined to approve or disapprove the government's letters to the intelligence agencies. See D.E. 2519 at 305. The district court articulated its concerns, stating that the court was not going to provide a "shield" to anyone by saying that the court has put its seal of approval on the letters. Id. The court then recognized that it was the ultimate responsibility of government counsel to produce discoverable information. Id. at 6. Defendant McVeigh is thus forced to rely upon the "good faith" of the government[24] to perform its disclosure obligations.

But Defendant McVeigh will never be content under any circumstances to rely upon the "good faith" of any agency of the United States government. The United States government is a party opponent in this case, an adversary with virtually unlimited resources, and is aggressively seeking to execute Mr. McVeigh. Counsel for the government, and for that matter the personnel staffing the agencies of the federal government, are litigants in this case, they have a vested interest in this prosecution and in obtaining a conviction and death sentence, it is in their interests to not disclose information or to disclose as little as possible, and the defense will never be content to "take their word for it" or rely upon their "good faith".

In the "ordinary" capital case, there may be no reason to question the good faith representations of the prosecution or even the state government (although the case law would certainly suggest numerous instances of unjustified reliance or reliance misplaced or abused). But this is not an ordinary case. This is a case where the government itself was the target. Employees of the plaintiff were injured or killed. More than 15 government agencies lost employees to death. Whole departments and regional offices were destroyed, their work set back for months, in some cases years, and in still other cases, can never be resumed.

Among these agencies were numerous law enforcement agencies, in fact, every major federal law enforcement agency except the FBI. The ATF, Secret Service, Drug Enforcement Agency and the Department of Defense, CID, and even the Postal Inspectors (their building was catty-corner from the Alfred P. Murrah Building) were involved as victims. Under these circumstances, with 168 dead, 500 injured, and damage estimated at three quarters of a billion dollars, it is not appropriate to rely upon their good faith, any more than it was appropriate to rely upon Oklahomans as jurors, and for the same reasons.

These government agencies do not honor the presumption of innocence, and they are not going to help the defense provide our client with a fair trial. They just are not. The drum beat of prejudicial leaks, courthouse video-taped walkouts, presidential press conferences, and indeed the size and magnitude of the crime itself, and its novelty on these shores, all worked to prejudice the defense preparation in multiple ways. Some of the effects have included massive media interest with the result that many important fact witnesses refused to talk with the Defendant's counsel and investigators. When civil suits were filed by victims which might have afforded the defense the opportunity, legitimately, to take depositions of lay witnesses, the suits were dismissed on the eve of the depositions, or when the plaintiffs would not or did not dismiss, the government sought a stay. The result being that many sources of information were--and still are--cut off though these same witnesses continue to talk to FBI agents and to the press.

The inability of the defense to depose witnesses allowed the FBI to go back to key defense witnesses and intimidate them by asking for polygraph tests and telling them "you did not see what you claimed to have seen." The defense was also prejudiced because there was a massive overwhelming sense of collective judgment that the Defendant was guilty, and that was it. The trial would be simply to rubber stamp of the validity of the arrest and public relations campaign in the press that our client is guilty. Government agencies, and others, simply refused to consider the possibility of innocence, or that others might be involved, even a foreign connection. One wonders how many American have to die in the World Trade Center, over Lockerbie, in a military barracks in Saudi Arabia, or off Long Island to realize that there is nothing remote, fanciful or inconsistent about the same foreign hands (or others) being involved in the bombing of the Murrah Building.

The government does not produce truly exculpatory evidence because it does not believe it exists. Or, if it exists, it is not credible (or so they claim). Either the Defendant has established that the material he seeks from the national intelligence agencies is exculpatory or he has not. If he has, then he needs a court order to pry it out, or at least, if that does not work, there will not be any dispute later as to what should have been done. The district court relied on good faith professed on the part of the prosecution, but the defense does not see any compelling need to rely upon the good faith of the Deputy General Counsel of the DOD, William Sheehan and his counterparts throughout the federal bureaucracy, because he does not have any. See D.E. 1923 (Exhibit "CC").

In fact, Mr. Sheehan's knowledge of his legal obligations under the Constitution is so wrong it is breathtaking in its audacity: The Department of Defense is not a party to this suit and is not bound by the Court's order. The last time the defense looked at the Indictment it was captioned "United States of America" versus Tim McVeigh, not 'The Department of Justice" versus Tim McVeigh. This district court's order of April 29, 1996 (D.E. 1310) directed a response from the government as a whole. To paraphrase a currently politically correct statement used in another context: the government agencies just don't get it.

The government may respond once again citing gross numbers of discovery items produced, but that is hardly the issue. Have we received everything pursuant to a specific request, not just some of it, or fifty percent of it or even ninety-nine percent of it? If there is a specific request, and the government claims it has supplied it all, then it should inform the defense which discovery items are responsive and sign a paper with the district court that the defense has it all instead of just waiving a hand at a warehouse full of papers and tangible objects and say: it's in there. The government hopes that in the abundance of irrelevant material it has furnished the truly relevant will not be missed. The defense comes before the Court at this time and seeks invocation of the Court's authority to take control of the discovery process in this case.

1. Carol Howe: As discussed supra, the government provided to the defense information that we now know came from Carol Howe, but that was presented to the defense on January 26, 1996, in such a way that every proper noun was grossly misspelled and Carol Howe was referred to as a confidential informant named "Carol"--indicating that Carol may not have been her real name (or the informant may not have even been a female) and certainly did not give a last name. Such was the excess of the sloppy (or the defense believes more likely intentional) spelling in this report, the government itself could not even find it when the Court ordered it to respond to defense requests concerning this information and this particular report was omitted. In isolation, the defense might have been willing to credit the government's claim that it could not find this particular insert, but since it follows a clear pattern of government careless handling of exculpatory information, the defense now believes that it was deliberate. But that is not to say that the individual prosecutors in this case did it. The defense believes that over zealous investigators within the ATF and the FBI are likely responsible.

In addition, government counsel stated to the Court, as discussed supra, that Carol Howe had been dismissed as an ATF informant in March 1995, when in fact, as the ATF knew, she had become an ATF informant again in early May 1995. Government counsel advised the district court of these facts only when defense counsel brought it to their attention.

2. Government characterization of Brady: Government counsel, by written letter (D.E. 1923, Exhibit "X") represented to defense counsel that in its opinion, no statements made by Michael Fortier, Lori Fortier, Eldon Elliott or Vickie Beemer could be characterized as exculpatory. Defense counsel believes this statement is a compelling insight into the government's view of its Brady obligations which underscores the need for judicial intervention. The statements made by those individuals are so exculpatory that lengthy hearings have been held before the district court concerning their contradictory statements concerning clothing worn by "Robert Kling," who Kling was with, and what the other person looked like. The statements of these individuals are so obviously exculpatory under the existing case law that, when defense counsel received government counsel's letter containing these statements, there was an immediate red flag raised and defense counsel was placed on notice to monitor discovery matters very carefully. Defense counsel is now convinced that the government in this case will not honor its discovery and Brady obligations absent judicial intervention.

3. Information from Saudi Arabia: This information is discussed more fully in D.E. 1898, but the concern to the defense is that the government received facially credible information from a foreign intelligence officer that Iraq had targeted specifically the Murrah Building by contracting seven (7) Afghani freedom fighters residing in Pakistan to carry out the bombing. The government became aware of this information the day of the bombing-April 19, 1995--yet, the two simple reports generated by the government were provided to the defense under the guise of being "possibly non-pertinent" nearly one year after the bombing and spread out over five months, although the two reports were transcribed on the same day. See D.E. 1898 (Exhibits "3" and "4").

4. "Master Minds": As discussed supra, the government indicated to the district court that it had no information that any persons other than the charged Defendants were the "master minds" of the bombing of the Murrah Building. But this statement was made at a time when the government was in possession of the information relayed from Saudi Arabia concerning Iraq targeting the Murrah Building and using Afghan rebels to carry out the bombing. The government clearly had information that persons and/or organizations other than the charged Defendants were the master minds of the bombing. It is only when the defense points these things out that the government then retreats and amends its disingenuous statements as "there was no underlying credible information" that others (as the Grand Jury noted "unknown others") were responsible for the bombing.

5. Andreas Strassmeir: Information received from the government concerning Andreas Strassmeir indicates certain symbols concerning Mr. Strassmeir's immigration information. See attached Exhibit "A." Government counsel made representations to the district court as to what these symbols "A" and "O" mean. See D.E. 3410 (March 10, 1997, transcript at 11). The defense was informed that "A" means "admitted" and "O" means "overstay." However, it appears to the defense that according to the State Department's own chart of the meanings of certain symbols, "A" means "diplomatic visa" and "O" means "extraordinary ability." See attached Exhibit "I."

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