PART SEVENTEEN OF EIGHTEEN:

C. The District Court Abused its Discretion by Denying Mr. McVeigh's Repeated Requests for Brady Material.

The information Mr. McVeigh seeks to aid in his defense falls clearly within the principles set out in Brady v. Maryland, 373 U.S. 83 (1963). Under Brady, prosecutors have a constitutional obligation to disclose exculpatory evidence. "The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosection." Id. at 87. The Supreme Court has recently retooled the "materiality" component of the Brady doctrine. See Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555 (1995). The Court emphasized that a showing of materiality does not mean that disclosure of suppressed evidence would have resulted in a defendant's acquittal. Kyles, 115 S. Ct. at 1565-66. Rather, the touchstone of Brady is whether "the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Id.: at 1566. In assessing Brady claims, suppressed evidence must be considered collectively, and not on an item-by-item basis. Id. at 1567.

Although a court's evaluation of a Brady claim in many cases takes place postconviction, the Supreme Court's articulation of the materiality standards in Kyles have a direct bearing on the government's obligations in this case. The information the government is constitutionally compelled to divulge to Mr. McVeigh includes the information in this motion, if this court deems it material, regardless of whether an acquittal could be had if the information is divulged, and if the cumulative effect of the evidence is such as to undermine the outcome of a jury verdict. At bottom, the prudent prosecutor should resolve all doubtful questions in favor of disclosure, and this court should grant liberal discovery, in order "to preserve the criminal trial, as distinct from the prosecutors' private deliberations, as the chosen forum for ascertaining the truth about criminal accusations." Kyles, 115 S. Ct. at 1568.

Courts have recognized that application of the Brady doctrine prior to trial is problematic. Because many cases involving Brady issues are decided post-conviction, such cases "provide only limited guidance before trial, when the potential significance of some evidence may not be fully apparent." United States v. Rahman, 870 F. Supp. 47, 51 (S.D.N.Y. 1994). Thus, the difficulty in calibrating the quantum of effect requested information would have on the outcome of a trial is exceedingly difficult in a case such as this one where no conviction has occurred. Because of the pre-trial posture of this case and the fact that the government has sought the death penalty, a liberal application of this court's authority to extract discovery from the government is appropriate.

The Tenth Circuit has acknowledged that for the purposes of Brady discovery requests, the term "prosecution" includes not only the staff of the prosecutor's office, but extends to law enforcement personnel and other agencies involved in the criminal investigation. Smith v. Secretary of New Mexico Department of Corrections, 50 F.3d 801, 824 (10th Cir. 1995); see also United States v. Perdomo, 929 F. 2d 967, 978 (3rd Cir. 1991) (term "prosecution" also includes investigatory activities). The prosecutor is "deemed to have knowledge of the access to anything in the custody or control of any federal agency participating in the same investigation." United States v. Zuno-Arce, 44 F.3d 1420, 1427 (9th Cir. 1995). The information and evidence obtained by all segments of the United States government, including intelligence information obtained from foreign governments or sources, are therefore subject to the requirements of Brady and Rule 16.

Thus, the prosecution cannot avoid disclosure by the simple expedient of leaving relevant evidence in the hands of another agency while utilizing it in preparing its case for trial. United States v. Trevino, 556 F.2d 1265, 1272 (5th Cir. 1977). When the government's investigation has extended to the office of another government agency, the search for exculpatory information must be at least as thorough as was the search for inculpatory evidence:

D. Standard for Guidance in Search.

Absent some showing in precedent or principle for applying a different standard in relation to some aspect of the search the government is obligated to make, I conclude that the following two guidelines should be applied:

• First, the government must search at least as widely and diligently for exculpatory evidence as it has searched at any time, in relation to charges in the case on trial or any possibly related offenses, for evidence that might be used by the government. If, for example, the government attorneys and persons in any agency aiding in the investigation at any stage have extended their search for possibly inculpatory evidence to any office of another government agency, the search for exculpatory evidence must extend to that office and must be at least at thorough as was the search for inculpatory evidence.
• Second, the government must also extend its search to other offices as to which, on the basis of information accessible to the government attorneys by a search in the offices to which the first guideline applies, it appears there is a reasonable likelihood that a search of reasonable scope by feasible methods would identify evidence within the legal definition of the subject matter scope of the duty of disclosure.

Nor can the prosecution circumvent Brady by keeping itself in ignorance or by compartmentalizing information about different aspects of the case. United States ex rel. Smith v. Fairman, 769 F.2d 386, 391-93 (7th Cir. 1985) (we believe that the purposes of Brady would not be served by allowing material exculpatory evidence to be withheld simply because the police, rather than the prosecutors, are responsible for non-disclosure). The prosecution's good faith or bad faith in efforts to produce discoverable material is, in fact, irrelevant. United States v. Agurs, 427 U.S. 97, 110 (1976); Smith, 769 F. 2d at 391-93. A perfunctory denial by a low-level official without full access or clearance to the information requested will not suffice to relieve the government's obligations to produce all discoverable material, regardless of the information's source, classification or sensitivity.

Simply stated, the due process clause places an affirmative duty on the prosecution to disclose evidence favorable to Mr. McVeigh. Kyles, 115 S. Ct. at 1565. This constitutional requirement means that the individual prosecutors in this case have a duty to learn of any favorable evidence known to anyone acting on the government's behalf in this case, including law enforcement. Id. at 1567. There is no principled reason why the individual prosecutors in this case should be absolved of their duty under the Constitution to learn of any favorable evidence on Mr. McVeigh's behalf which happens to be in the possession of other agencies in the Executive Branch, including intelligence agencies. Mr. McVeigh clearly has no independent access to such information and it would be fundamentally unfair to saddle him with the burden of producing such evidence. See Smith v. Secretary of Department of Corrections, 50 F.3d at 823 (the Brady rule is grounded in notions of fundamental fairness that embody practical recognition of the imbalances inherent in our adversarial system of criminal justice).

E. Because the Material Sought by Mr. McVeigh is Material Both to Guilt and Punishment, the District Court's Abuse of Discretion Jeopardizes Both Stages of Mr. McVeigh's Capital Trial

By its own terms, Brady applies to evidence which is material either to guilt or to punishment. Brady v. Maryland, 373 U.S. 83, 87 (1963); see also Chaney v. Brown, 730 F.2d 1334, 1345 (10th Cir. 1984) (citing cases). The government has essentially conceded that the Brady doctrine requires evidence which "may support a lesser culpability claim in the sentencing phase of this case if a jury finds [Mr. McVeigh] guilty." D.E. 881 at 29 (Brief of the United States in Response to Mr. McVeigh's Discovery Report and Motions). The government does not dispute that such information is relevant under Brady to a capital sentencing proceeding; rather, the government merely characterizes Defendant McVeigh's request for such information as "procedurally premature." Id. The government is in fact precluded from making the argument that the discovery requests are not material to a sentencing determination in a capital case not only by Brady itself, but by this Circuit's decision in Chaney v. Brown, 730 F. 2d 1334 (10th Cir.) cert. denied, 469 U. S. 1090 (1984).

In Chaney, the Tenth Circuit granted a petition for a writ of habeas corpus, holding that the prosecution had violated Brady by withholding evidence which might have affected the sentence in a capital case. The evidence suppressed by the prosecution consisted basically of FBI 302's which detailed witness statements, some of which raised questions concerning the location of the defendant at the time of the crime and whether he acted alone, and others were simply inconsistent with the prosecution's theory of the case and the timing of events.

In granting the writ, the Tenth Circuit observed that the Eighth and Fourteenth amendments require that the sentence in a capital case not be precluded from considering as a mitigating factor, any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. Id. at 1351 (citing Eddings v. Oklahoma, 455 U. S.104, 110-12 (1982)). The Tenth Circuit held that the evidence in Chaney was mitigating because it related to the circumstances of the offense as a whole, and also tended to support inferences that others were involved in committing the crime, and that defendant Chaney may have been less culpable than others. Id.

Perhaps more important, the Court noted that the withheld evidence in Chaney was significant with respect to the aggravating circumstances that had to be proven in order to sentence him to death. In Chaney, the aggravating circumstances as found by the jury to support the death sentence rested on the conclusion that Chaney was the sole perpetrator of the crimes. Id. The Court stated:

Because the withheld evidence tends to support inferences that Chaney may not have been the sole participant in the criminal episode, and may not have personally killed the victims, or had been present at the time of the murders, the evidence might have caused the jury not to find these aggravating circumstances beyond a reasonable doubt. Id. at 1352.

Thus, Brady and Chaney make clear that the government is constitutionally obligated to provide to Mr. McVeigh any information concerning "other participants" and all reports concerning John Doe No. 2, as well as information concerning "the circumstances of the offense" which Mr. McVeigh could possibly proffer as a basis for a sentence less than death. To the extent that any of the preceding 17 specific requests in this motion address any of this information, the government is simply compelled to produce it.

However, the government's response to Mr. McVeigh's prior motion for discovery evidences a very disturbing picture of the government's understanding of its obligations under Brady. In fact, the government's position is inconsistent and contradictory even within its own brief in response to Mr. McVeigh's discovery motion. On one hand, the government proudly proclaims that it is "voluntarily exceeding its discovery obligations" as well as "exceeding Brady's requirements" by voluntarily agreeing to make all witness statements to law enforcement officers available to the defense.[28] See D.E. 881 at 5, 19-20 (Brief of the United States in Response to Defendant McVeigh's Discovery Report and Motions). In addition, the government has undertaken a "Brady review" and has ostensibly aided the defense by categorizing Brady material into six (6) categories, including categories of other possible perpetrators as well as information relating to possible mitigation of culpability. Id. at 19-20.

Yet, barely five pages away in their brief, the government assails many of Mr. McVeigh's discovery requests as "meritless," including information of others with motives to bomb federal buildings, as well as information on John Doe No. 2. Id. at 25-30. In spite of the Tenth Circuit's decision in Chaney, the government nevertheless insists that evidence relating to John Doe No. 2 is not exculpatory. Id. at 28. The government cannot have it both ways. It cannot on the one hand be commended for exceeding its obligations under the Constitution and the Brady decision by divulging information to which the defense is (according to the government) not constitutionally entitled; but on the other hand, argue that evidence concerning John Doe No. 2 as well as other information on other possible perpetrators of the bombing are not exculpatory as a matter of law.

If the government views its production of Brady material regarding "other subjects" such as John Doe #2 as gratuitous, then the government may withhold crucial evidence at the same time it maintains that legally it is not required to give it at all. The government appears to have a deep and fundamental misunderstanding of its constitutional duties under Brady. The government's tactic throughout this case has been a willingness to divulge volumes of irrelevant information that it would not otherwise be constitutionally required to divulge, while at the same time refusing to divulge relevant and material information specifically requested by Mr. McVeigh, and then arguing incredibly that the requested information does not fall within the ambit of the Brady decision.

The government's position on these matters is inexplicable. The government does not contend that this information does not exist, it has taken the position that even if this evidence does exist, Mr. McVeigh is not entitled to it as a matter of law. The government's interpretation of Brady and its progeny is fundamentally flawed and especially troubling in a case such as this one where the government is seeking the death penalty while at the same time maintaining that it has no duty to divulge information it may have concerning other possible perpetrators of the crime. It invites the real risk of a reversal of a conviction, should there be one.

Typical of the government's stunted interpretation of Brady is its citation to this Court's opinion in Hopkinson v. Shillinger, 781 F. Supp. 737 (D. Wyo. 1991) (Matsch, J., by designation). The government cites Hopkinson for the proposition that evidence of the involvement of other perpetrators in a murder is not Brady material because such evidence does not show that the defendant was not involved in the murder. D.E. 881 at 29 (Brief of the United States in Response to Defendant McVeigh's Discovery Report and Motions). The government uses Hopkinson in order to argue that evidence of the involvement of John Doe No. 2 is not exculpatory, and therefore not properly discoverable under Brady. Hopkinson stands for no such thing and could not be more inapposite.

The procedural posture of Hopkinson was that of a successive petition for a writ of habeas corpus on a 12-year old conviction and death sentence of a state prisoner. Thus, the inquiry before the Court was whether the suppressed evidence would have created a reasonable probability sufficient to undermine confidence in the outcome of the trial and death sentence that had already occurred. In contrast, Defendant McVeigh is constitutionally presumed innocent of the crimes for which he is charged in the Indictment and seeks an Order from this Court to compel the government to produce information to which he is constitutionally entitled prior to any conviction and sentence. Because the potential significance of some evidence may not be fully apparent at the pre-trial stage, cases such as Hopkinson provide this court with "limited guidance." See United States v. Rahman, 870 F. Supp. 47, 51 (S.D.N.Y. 1994).

As the government has emphasized, it must be remembered that Brady stems from the "fundamental fairness" requirement of the due process clause and its purpose is to ensure that a miscarriage of justice does not occur. D.E. 881 at 29-30 (Brief of the United States in Response to Defendant McVeigh's Discovery Report and Motions) (citing Arizona v. Youngblood, 488 U.S. 51, 58 (1988); United States v. Bagley, 473 U. S. 667, 675 (1985)). Thus, Mr. McVeigh does not come before this Court as a convicted felon seeking absolution, but rather as a criminal defendant presumed innocent seeking information relevant and material to his defense in a capital case which is in the sole custody and control of his adversary. Mr. McVeigh asks this Court for nothing more than to Order the district court to perform its duty under the Constitution.

Moreover, when this Court decided Hopkinson, it did not have the benefit of the Supreme Court's decision in Kyles v. Whitley, 115 S. Ct. 1555 (1995). In Kyles, the Supreme Court emphasized that the "materiality" requirement under Bagley was not a sufficiency of the evidence test. Kyles, 115 S. Ct. at 1566. The Court made clear that it makes no difference under Brady whether there would still have been adequate evidence for a conviction even if the favorable evidence had been disclosed. Id.

The difference between the inquiry in Hopkinson and the inquiry in this case is the difference between deciding whether, if an oar would have been thrown to a person in a boat going over a waterfall would have saved him, or whether an oar should be thrown to a person in a boat about to go over a waterfall. It was too late to throw the oar to Hopkinson, but it is not too late to throw one to Mr. McVeigh. The Constitution requires it. Fundamental fairness demands it.

[CONCLUDED IN PART EIGHTEEN]

[28] The government did not turn over to defense counsel all Grand Jury transcripts until ordered to do so by the court below in January, 1997. The government has never provided to defense counsel memos of interviews by attorneys for the government.