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Partial Transcript

Criminal Action No. 96-CR-68 

                 (Trial to Jury - Volume 131) 

Proceedings before the HONORABLE RICHARD P. MATSCH, 
Judge, United States District Court for the District of 
Colorado, commencing at 9:00 a.m., on the 3d day of June, 1997, 
in Courtroom C-204, United States Courthouse, Denver, Colorado. 
Proceeding Recorded by Mechanical Stenography, Transcription 
  Produced via Computer by Paul Zuckerman, 1929 Stout Street, 
    P.O. Box 3563, Denver, Colorado, 80294, (303) 629-9285 
         PATRICK M. RYAN, United States Attorney for the 
Western District of Oklahoma, 210 West Park Avenue, Suite 400, 
Oklahoma City, Oklahoma, 73102, appearing for the plaintiff. 
GOELMAN, and VICKI BEHENNA, Special Attorneys to the U.S. 
Attorney General, 1961 Stout Street, Suite 1200, Denver, 
Colorado, 80294, appearing for the plaintiff. 
RANDALL COYNE, Attorneys at Law, Jones, Wyatt & Roberts, 999 
18th Street, Suite 2460, Denver, Colorado, 80202; JERALYN 
MERRITT, 303 East 17th Avenue, Suite 400, Denver, Colorado, 
80203; CHERYL A. RAMSEY, Attorney at Law, Szlichta and Ramsey, 
8 Main Place, Post Office Box 1206, Stillwater, Oklahoma, 
74076, and CHRISTOPHER L. TRITICO, Attorney at Law, Essmyer, 
Tritico & Clary, 4300 Scotland, Houston, Texas, 77007, 
appearing for Defendant McVeigh. 
                         *  *  *  *  * 
    (In open court at 9:00 a.m.) 
         THE COURT:  Please be seated. 
         We're resumed in 96-CR-68, United States against 
Timothy James McVeigh, for a hearing of a number of the 
motions.  Before calling up these motions, though, I want to 
take care of a matter relating to the custody of the exhibits. 
We have during the trial agreed that exhibit -- the physical 
exhibits, the objects, could be kept in the custody of the 
Government through counsel, and I propose to continue that. 
         Mr. Jones, what's the -- 
         MR. JONES:  That's satisfactory, your Honor, through 
the completion of the trial. 
         THE COURT:  All right.  So we will permit, 
Mr. Hartzler, your people to regain custody of the physical 
exhibits, most of which are now on the floor in the adjacent 
         MR. HARTZLER:  Thank you. 
         THE COURT:  All right. 
         Now, the motions to be heard are the defendant's 
motion to declare the Victims Rights Clarification Act 
unconstitutional, a motion with a brief in support.  And I'll 
hear that first. 
         Then there is a motion for prepenalty phase voir dire 
of the jury.  There's a motion for a brief recess between the 
Government penalty phase presentation and the defendant's 
penalty phase presentation.  There are defendant's motions in=20 
limine, several, dealing with anticipated evidence; and because 
it's anticipated -- information, I guess we should begin 
saying, in the words of the -- in the word of the statute. 
Those motions were filed under seal because they related to the 
possibility of evidence, some of -- or information, some of 
which I believe has changed in the Government's planning. 
         And there's also a plaintiff's motion in limine with 
respect to defense information to be introduced.  So those I 
think are the pending motions, and we'll hear them in the order 
I've just announced them. 
         So we'll begin with the motion to declare the Victims 
Rights Clarification Act unconstitutional and brief in support, 
and that of course addresses the -- some of the issues that 
were dealt with in this Court's previous memorandum opinion and 
order on a similar motion filed before the trial began. 
         So who's to speak in support of the motion? 
         MR. COYNE:  I am, your Honor. 
         THE COURT:  All right. 
         MR. COYNE:  May it please the Court.  For the second 
time during the pendency of this capital case, Congress has 
declared war on the independent, nonpolitical, federal 
judiciary, what Chief Justice Rehnquist has called the crown 
jewel of our democracy.  They've done it this time by passing 
what's titled the Victim Rights Clarification Act.  We submit 
that that statute passed by Congress for the specific purpose 
of interfering with this Court's ruling in this case, under 
Rule 615 of the Federal Rules of Evidence, is unconstitutional 
for a number of reasons. 
         First, the statute violates the separation of powers 
clause.  It violates Mr. McVeigh's Eighth Amendment right to 
heightened reliability during his capital sentencing 
proceeding.  It violates the ex post facto clause, the Sixth 
Amendment fair trial guarantee, and the Fifth Amendment rights 
to due process and equal protection.  And we move that the 
Court strike down this statute as unconstitutional. 
         Now, I won't burden the Court with the lengthy 
recitation of the history of your Honor's rulings in this case. 
But the purpose of those rulings, I think, is worth bearing in 
mind this morning.  The purpose was to avoid prejudicial 
pretrial impact from possible emotionally traumatizing effects 
of what penalty phase witnesses may see and hear at the trial. 
         It shouldn't surprise anyone that this statute suffers 
from as many defects as I've enumerated, given the incredible 
haste with which Congress slapped the statute together and 
passed it so that it could, again, interfere with this Court's 
ruling in this pending capital case. 
         The bill was introduced in the House just six days 
before the en banc Court of Appeals upheld your Honor's Rule 
615 ruling, and then the legislation sped through both houses 
during the course of two weeks. 
         THE COURT:  I don't think it's correct to say that the 
Tenth Circuit upheld the ruling.  It declined to rule. 
         MR. COYNE:  And in so -- 
         THE COURT:  It had the effect of leaving the order in 
         MR. COYNE:  Agreed, your Honor.  The order remained 
intact after the -- your ruling was twice challenged on appeal, 
but they did not reach the substance of that ruling on appeal. 
         THE COURT:  Right. 
         MR. COYNE:  Congress wasn't entirely unaware of the 
constitutional problems that it raised.  And if I may quote 
from the congressional record, I think the remarks of 
Representative Scott in particular sum up one of the problems 
that I see, and that is in particular the separation of 
problems (sic) difficulty.  "The bill violates the 
constitutional framework of separation of powers in its undue 
retroactive interference with a ruling in a pending criminal 
case.  It is an obvious attempt to obtain legislatively a 
ruling in the Oklahoma bombing case different from the one 
already entered into by a federal judge according to the law 
and according to the facts in the particular case." 
         Now, the statute didn't leave your Honor with much, if 
any, discretion, at least as I read it.  It speaks in terms 
which are mandatory.  18 U.S.C. Section 3510 provides in 
pertinent part that this Court and any other United States 
district court shall not order any victim of an offense 
excluded from the trial of the defendant accused of that 
offense because such victim may during the sentencing hearing 
testify as to the effect of the offense on the victim and the 
victim's family or as to any other factor for which notice is 
given as required under Section 3593. 
         The statute also amends 18 U.S.C. Section 3593 in 
pertinent part to read:  "The fact that a victim attended or 
observed the trial --" and again mandatory language -- "shall 
not be construed to pose a danger of creating unfair prejudice, 
confusing the issues, or misleading the jury." 
         What seems to be happening is that Congress in this 
case has decided to overrule Federal Rule of Evidence 403 at 
least as regards to victims. 
         Now, the separation of powers principle, as I'm sure 
the Court's aware, developed from the framers' deep-seated 
hatred of legislative interference with the courts at the 
behest of private individuals and factions, and that's 
precisely what we have in this case.  We have victims who 
appealed the Court's rulings, victim rights associations who 
appealed the Court's rulings, attorneys general who lobbied 
Congress on behalf of overturning this Court's ruling, all 
binding together for the purpose of disturbing a ruling that 
this Court entered for the purpose of protecting the fair trial 
rights of Mr. McVeigh. 
         This specter created by state politicians and private 
parties inserting themselves into the legislative arena for the 
purpose not just of affecting the law and changing it, but of 
changing the law in the middle of an ongoing capital trial is 
one which I submit brings into disrepute both branches of 
government, the legislative and the judicial branch. 
         The Supreme Court has never hesitated to strike down 
provisions of law which seem to accord to one branch powers 
more appropriately disseminated among other branches.  That's 
taught to us by the Mistretta case, and yet in this instance, 
the Congress has done -- has reached into the middle of this 
capital trial and it has overruled this Court's order.  In 
essence what Congress did after the judicial process had run 
its course was to resolve itself into a super supreme court so 
that it could overrule this Court's decision and ignore any 
other decisions of any other courts contrary to it.  The 
precedential value of such incursion into the judicial process 
is staggering, and one which I think needs to be taken into 
         Plaut vs. Spendthrift Farms stands for the principle 
that the legislature cannot control the actions of the courts 
by directing the particular steps which shall be taken in the 
progress of a judicial inquiry; yet in this case, the Victim 
Rights Clarification Act does precisely that:  It directs this 
Court that it cannot apply Rule 615 to protect this defendant 
and countermands this Court's order, twice considered after 
some thought and deliberation, revisited after some extensive 
briefing and argument, and by legislative fiat just overturns 
         If I could turn to another constitutional flaw; that 
is, the Eighth Amendment requirement that Mr. McVeigh is 
entitled to a capital sentencing proceeding which has 
heightened reliability.  Indeed, when the United States Supreme 
Court struck down the death penalty in Furman vs. Georgia, it 
was concerned, deeply concerned about the irrational and 
unpredictable manner in which the death penalty had been 
imposed.  Yet by permitting victim impact testimony in this 
case, which has been tainted by inflammatory trial testimony, 
the Victim Rights Clarification Act ensures that those same 
constitutional problems will pervade Mr. McVeigh's sentencing 
         The Supreme Court has said it is vitally important, 
your Honor, both to the defendant and to the community that any 
decision to impose the death sentence be and appear to be based 
upon reason rather than caprice or emotion.  And I think those 
were the principles which guided your Honor's early decisions 
when you decided to sua sponte, without any motion by the 
defendant or the Government, to invoke Rule 615 to protect the 
integrity of this very important capital trial and sentencing 
         When victim/witnesses are exposed to the type of 
inflammatory, emotional, heartrending testimony permitted 
during the guilt phase of this trial, passion, prejudice, and 
perhaps even mistake are as inevitable as they are 
         This Court did not rule in a vacuum.  Indeed it had 
before it several examples of emotional outbursts by victims in 
direct response to attendance at proceedings in this case.  I 
won't lengthen my argument by reciting those; they're noted in 
our brief.  But I would like to say that the wisdom of the 
Court's decision, I think, has been shown even during the 
course of the trial and beyond as after the appearance of 
certain witnesses, at least -- Jennifer McVeigh, Lori Fortier 
come to mind -- there were again emotional responses of victims 
outside the courthouse in response to those testimony. 
         Those are the types of effects, your Honor, that we 
can't cabin off.  Those are also the types of effects that are 
very difficult to detect.  And for that reason, we respectfully 
submit that the Court's suggested procedure of taking these 
victim impact witnesses on voir dire for the purposes -- 
purpose of determining whether in fact they have been affected 
by attendance at trial proceeding is one which may prove 
unsatisfactory and may not ferret out the bias which may have 
infected their testimony. 
         If I could turn to the ex post facto clause argument 
just briefly, we submit that this particular statute does 
violate the ex post facto clause.  It is being applied 
retroactively; Congress passed its statute and then reached 
back and imposed it on this Court, on this defendant, on this 
         Perhaps the most critical element of that particular 
argument is whether or not this statute, Victim Rights 
Clarification Act, acts to disadvantage Mr. McVeigh.  According 
to Lynce vs. Mathis, a case cited in our brief, the narrow 
issue is whether the statute's consequences disadvantage, in 
this case Mr. McVeigh, by increasing his punishment. 
         Well, the very purpose of victim impact testimony is 
of course to persuade the jury to impose the most severe 
sentence possible; in this case, a death sentence.  The 
statute's consequences, on the other hand, allowing that 
victim/witness testimony which has become contaminated and in a 
real sense supercharged by attendance at court proceedings, 
dramatically increases the risk that Mr. McVeigh will be 
sentenced to death. 
         We submit, therefore, that application of the Victim 
Rights Clarification Act to Mr. McVeigh during his ongoing 
trial will have both the purpose and effect of increasing the 
quantum of punishment. 
         Just briefly, your Honor, if I could note our fair 
trial argument under the Sixth Amendment and our due process, 
equal protection arguments under the Fifth Amendment, I won't 
lengthen my presentation by spelling those out -- they're set 
out in the brief -- other than to note that the Supreme Court 
has consistently emphasized that a criminal defendant's right 
to a fair trial guaranteed by the Sixth Amendment is the most 
fundamental of all freedoms.  And that fair trial right, of 
course, extends beyond a guilt phase proceeding and into a 
sentencing phase proceeding. 
         Mr. McVeigh is entitled to that fair trial; and 
indeed, your Honor's orders under Rule 615, I submit, were 
tendered for that very purpose:  To ensure the integrity of a 
very important capital sentencing proceeding in this case. 
Thank you. 
         THE COURT:  All right.  Thank you. 
         Mr. Sean Connelly, are you going to respond to 
Mr. Coyne? 
         MR. CONNELLY:  Yes, your Honor, just briefly. 
         The Victims Rights Clarification Act made two 
procedural clarifications in federal sentencing law in capital 
cases.  The first, which this Court has already applied, said: 
"The United States district court shall not order a victim 
excluded because that victim will offer victim impact testimony 
or other sentencing testimony in a capital case."  The Court 
has applied this by rescinding its prior orders, so that's no 
longer in effect -- that's no longer in dispute, I don't think. 
I think the only issue at this point is the amendment to 
Section 3593(c) which says that the fact that a victim attended 
part or all of the trial proceedings, or in this case 
closed-circuit broadcast, shall not be a basis for excluding 
that victim on grounds of unfair prejudice or other types of 
arguments that could otherwise exclude somebody under 3593(c). 
         We submit, contrary to defendant, that this is a 
constitutional exercise of Congress's power to prescribe the 
rules of procedure in federal courts. 
         I'd like to address briefly the three constitutional 
arguments that have been made.  Each of them is precluded by 
controlling case law.  First, it is not a violation of 
separation of powers for Congress to prescribe the rules of 
procedure that a court must follow in a criminal or any type of 
proceeding in federal court.  The Supreme Court's made clear in 
the Plaut case that Congress can alter the rules of procedure 
even after they've been applied by a court in a given case as 
long as it does so prior to final judgment.  And indeed as long 
as it does so, it can even reopen final judgments as long as 
the judgment is not final in the sense of all appellate 
remedies haven't been exhausted through the Court of Appeals 
and ultimately through the Supreme Court, the highest court. 
         Congress has clearly exercised its power under Plaut 
and under the Rules Enabling Act and power to prescribe the 
rules of procedure in federal court; so we submit that under 
Plaut, there is no basis for any separation of powers argument. 
In fact, Plaut is a 1995 decision, but the principle goes as 
far back as to Chief Justice Marshall in 1801 in the Schooner=20 
Peggy case where Congress changed the rules that governed a 
case that had become decided by the district court, and a 
forfeiture case, had been affirmed by the Court of Appeals, the 
Supreme Court Chief Justice Marshall in the Schooner Peggy case 
applied the new rules that Congress had established for that 
very case and applied it because the case had not yet become 
final in the sense that all appellate rights had been exhausted 
up to and including the Supreme Court.  So we'd submit that as 
a controlling case when there's basis for any separation of 
powers attack on it. 
         The next argument is ex post facto, and as this court 
recognized in its opinion back in September 1996, overruling 
challenges to the Government's allegation of nonstatutory 
aggravating factors that the defendant claimed would violate 
the ex post facto clause, the Court said that there's been no 
change in the definition of the offense or in the applicable 
punishment, the only change is a matter of sentencing 
procedure.  And the Court cited Dobbert vs. Florida.  Dobbert 
involved a case where the Florida legislature, after the 
defendant's crime had been committed, changed sentencing 
procedure in that case so that the judge no longer had to 
automatically defer to a jury recommendation of life in prison. 
The judge after the legislative enactments was entitled to 
override a jury recommendation of life and impose a death 
sentence.  The defendant in that case argued there was an ex=20 
post facto violation, and the Supreme Court unanimously said 
that it's simply a change in sentencing procedure.  It may work 
to the detriment of the defendant, but it's merely a change in 
procedure.  It is not as required under ex post facto case law, 
a redefinition of the elements of offense nor is it a increase 
of the punishment after the fact of the crime.  So we submit 
that this Court's decision back in September relying on Dobbert 
also disposed of any ex post facto challenge. 
         The only other argument is that allowing a victim who 
watched part or all of the trial to testify at sentencing would 
violate the Fifth, Sixth, and Eighth Amendments.  Again, that 
has to be an argument as applied that the victims' testimony is 
somehow so tainted by the exposure to any part of the trial 
that that victim constitutionally may not testify.  We would 
submit there's no basis for such a broad constitutional 
prophylactic rule and in effect it is asking the Court to make 
Rule 615 of constitutional stature, and it has never been 
interpreted that way.  The Sixth Amendment gives the defendant 
a right to confront witnesses, not to exclude them from part of 
the trial.  And this argument if taken to its logical context 
would result not only in striking down this statute but also 
similar or even broader statutes applied in many, many states 
around the country; and we submit there's no basis for a 
constitutional prophylactic rule, that simply by attending all 
or part of the trial, a victim is constitutionally disabled 
from testifying. 
         If the Court has any other questions, I'm sure I'd be 
happy to answer them.  But otherwise, that's our response. 
         THE COURT:  All right. 
         MR. COYNE:  If I may just briefly, your Honor? 
         THE COURT:  Yes, Mr. Coyne. 
         MR. COYNE:  Your Honor, Mr. Connelly's fond of Chief 
Justice John Marshall; so am I, and in a case called Marbury=20 
vs. Madison Chief Justice Marshall wrote that it is exclusively 
the province and duty of the judiciary to say what the law is. 
But more apropos to this point, in Fletcher vs. Peck, an 1810 
decision written by Chief Justice Marshall, he wrote, quote, 
"It is the particular province of the legislature to prescribe 
general rules for the government of society; the application of 
those rules to individuals and society would be seem to be the 
duty other departments."  Congress in this case had prescribed 
a rule of procedure, a rule to bind this Court in this case, a 
rule for this Court's benefit, for the benefit of the 
defendant; that was Rule 615.  You applied the rule in this 
case, and it was your duty to do so.  And what happened was 
Congress stepped in. 
         Also, just to briefly remind the Court that during a 
March 7, 1997, conference, though without the benefit of oral 
argument or briefing, it seemed that the Court shared some of 
the separation-of-power concerns that we voiced this morning. 
         Other than that, if there are no questions, thank you, 
your Honor. 
         THE COURT:  All right. 
         Well, I've considered the briefing that's been 
submitted and the arguments here; and in addition, I would 
recognize that yesterday there was a pleading filed, motion of 
the victims, the Oklahoma City bombing, to reassert the motion 
for a hearing on the application of Victims Rights 
Clarification Act of 1997, attached to which was the brief that 
was earlier submitted on March the 21st, 1997, by counsel for 
the named persons, and have considered that as an amicus 
briefing because it is not my view, and it's not been argued by 
the Government that the view -- that the statute creates 
standing for the persons who are identified as being 
represented by counsel in filing that brief. 
         Now, I already expressed my general views with respect 
to the constitutional issues presented here.  First of all, in 
the previous opinion of course I said that we never may -- we 
may never get to the question of constitutionality because that 
arises only upon a guilty verdict.  Now there is a guilty 
verdict, so we must address the constitutional issues. 
         I did, however, go forward to talk about the 
separation of powers and the ex post facto issues, but it is 
important, I think, to emphasize that the legislation in 
question here does not dictate a rule of decision in the case. 
It is, in my view, the equivalent perhaps of an amendment to 
Rule 615 of the rules of evidence.  The Supreme Court has 
recognized that Congress has a constitutional authority in the 
matter of the rules of evidence, the Rules Enabling Act, the 
normal process by which the rules of evidence were developed 
and are developed in that they come from the judicial 
conference, then the Supreme Court, then to the Congress.  And 
in essence the Congress has negative veto, but also the power 
to amend and the power to initiate rules on their own 
proceeding, their own legislative process. 
         Now, I therefore do not consider it to be an ex post=20 
facto issue, nor do I consider it to be a violation of the 
separation-of-powers principle. 
         So it comes down to really the question of whether 
there are Eighth Amendment and Fifth Amendment implications to 
permitting testimony during the penalty phase hearing from 
persons who attended or observed the trial; and, of course, 
what the statute says -- and this should be emphasized -- is 
that the fact that a victim attended or observed the trial 
shall not be construed to pose a danger of unfair prejudice, 
confusing the issues, or misleading the jury. 
         The most important word there, in my judgment, is 
"danger."  It is not a statute that says that the Court does 
not have the inherent power and authority to determine that any 
particular witness's observation of the trial has so influenced 
or affected that witness as to put the testimony of that 
witness into the category of being a matter that could unfairly 
prejudice the jury, confuse the issues, or mislead the jury. 
         As I indicated in anticipation of the possibility of 
this moment in my earlier opinion, that matter can be 
determined factually when we have the Government proffering 
these witnesses.  And accordingly, it's my intention to permit 
the defense, prior to the testimony of any witness who has 
attended or observed the trial, to determine whether that 
witness has indeed -- and his or her testimony has indeed been 
influenced in some way by what he or she observed during the 
         It's my understanding that the persons who may be 
offered as witnesses here by the Government have not seen the 
entire trial; and therefore, it is with respect to what 
particular testimony or parts of the trial they saw.  And also, 
it relates to what their testimony will be here, because there 
are limits as to what any victim/witness can testify to, 
whether that person has observed any portion of the liability 
trial or not.  And that's a matter that has been raised by 
these motions in limine filed by the defense. 
         Care must be taken here to ensure that this next phase 
of the trial be one within the proper constraints of the Eighth 
Amendment and the Fifth Amendment as the Supreme Court of the 
United States in varying opinions filed by the several justices 
in Payne vs. Tennessee caution; that, you know, a penalty phase 
hearing cannot be turned into some kind of a lynching and that 
the people who testify with respect to the area of victim 
impact that's mentioned in the statute, the death penalty 
act -- that this cannot become such a matter of emotion and 
testimony which would inflame or incite the passions of the 
jury with respect to vengeance or the passions of the jury with 
respect to empathy for grief or those human emotions that are 
inappropriate in making a measured and deliberate moral 
judgment as to whether the defendant should be put to death. 
That's the issue to be presented to the jury. 
         And I do not intend any of the evidence -- 
"information," as it's called -- be presented to this jury to 
permit them to exercise anything other than a disciplined moral 
judgment in the process that's already been described in my 
previous opinion, that sequential process that the jury must go 
through, as they will be instructed in closing instructions 
after the death penalty information has been presented. 
         So what I'm going to require here is that the 
Government identify in advance of the appearance of these 
witnesses who they are, what they did see -- I mean those 
portions of the trial that they observed, either here in this 
courtroom or through the closed-circuit transmission, 
television transmission to Oklahoma City, and then what it is 
that their testimony is proposed to cover at the trial. 
         And we'll deal with that outside the presence of the 
jury when we have that information.  So that's the ruling.