CASE NO. 97-1287

IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

 

UNITED STATES OF AMERICA,
Plaintiff/Appellee,

v.

TIMOTHY JAMES MCVEIGH,
Defendant/Appellant.

Appeal from the District Court for the District of Colorado
The Honorable Richard P. Matsch, Chief Judge
(District Court No. 96-CR-68-M)

 

 

BRIEF OF APPELLANT

ORAL ARGUMENT REQUESTED

ROBERT NIGH, JR.
1640 South Boston Avenue
Tulsa, Oklahoma 74119
Telephone: (918) 583-2624
Facsimile: (918) 599-9291

RICHARD BURR
412 Main Street, Suite 1100
Houston, Texas 77002
Telephone: (713) 227-0200
Facsimile: (713) 227-0215

ATTORNEYS FOR APPELLANT

 

TABLE OF CONTENTS

TABLE OF AUTHORITIES

I. STATEMENT OF JURISDICTION

II. STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

III. STATEMENT OF THE CASE

A. Nature Of The Case, Course Of Proceedings And Disposition Below

B. Facts Relevant To The Issues Presented For Review`

1. April 19, 1995 at 9:02 a.m., And The Aftermath

2. The Investigation

a. The Search For "John Doe One" and "John Doe Two"

b. Timothy McVeigh's State Misdemeanor Arrest

c. Mr. McVeigh's Federal Arrest And Witness Exposure to Mr. McVeigh's Image

d. Terry Nichols

e. Michael Fortier

f. Lori Fortier

g. Investigation Concerning Anti-Government Sentiment

h. Anti-Government Sentiment at Elohim City

3. The Trial Evidence

a. The Physical And Emotional Impact Of The Explosion

i. Objective Facts Concerning The Bombing

ii. Detailed Accounts of Personal and Professional History

iii. Accounts Of Victim Activities Prior To The Explosion On The Morning of April 19th

iv. Graphic And Horrifying Descriptions Of Events During And After The Explosion

v. Tragic And Undeserved Losses Which Occurred As A Result Of The Explosion

b. Michael And Lori Fortier

c. Motive And Propensity

d. Circumstantial Evidence

e. The Defense Case

4. Conclusion Of The Trial

5. The Prosecution Penalty Phase

6. The Defense Penalty Phase Case

IV. SUMMARY OF ARGUMENT

V. ARGUMENT

A. Mr. McVeigh Was Denied Due Process Of Law Guaranteed By The Fifth Amendment And The Right To Trial By An Impartial Jury Guaranteed By The Sixth Amendment, When The Jury Pool Was Flooded In The Month Prior To Trial With Reports That Mr. McVeigh Had Confessed To His Lawyers

1. Standard Of Review

2. Factual Background: Incendiary Publicity During The Jury Selection Process

3. Legal Argument

a. Prejudice Should Be Presumed

b. Actual Prejudice Tainted Mr. McVeigh’s Trial

B. Mr. McVeigh Was Denied The Right To A Fair Trial And Due Process Of Law When The Jurors Discussed The Merits Of The Case Prematurely And At Least One Juror Voiced The Opinion That Mr. McVeigh Was Guilty

1. Standard Of Review

2. Factual Background

3. Legal Argument

C. Mr. McVeigh Was Denied A Fundamentally Fair Trial When The Court Excluded Evidence Someone Else May Have Committed The Bombing And The FBI Failed To Investigate Other Suspects

1. Standard of Review

2. Factual Background

3. The Defense Proffer

4. Legal Argument

D. The District Court's Refusal to Charge Premeditation Of The Specific Intent To Kill As An Element Of The Mass Killing Offenses, Its Consequent Failure To Charge On Lesser Included Offenses In Relation To These Crimes, And Its Refusal To Charge On The Lesser Included Offense Of Second Degree Murder In Relation To The Individual Murders, Violated Mr. McVeigh's Rights Under The Fifth And Eighth Amendments

1. Standard of Review

2. Introduction

3. The Instructions On The Charged Offenses

4. Congress Intended That 18 U.S.C. §§ 2332a and 844(f) Require A Specific Intent To Kill When Deaths Are Caused By A Bombing

5. The Refusal To Charge That The Offenses In Counts One-Three Required The Specific Intent To Kill Violated Mr. McVeigh's Rights Under The Fifth Amendment

6. The Court's Failure To Instruct On Lesser Included Offenses On All Eleven Counts, When The Evidence Warranted Such Instructions, Violated Mr. McVeigh's Rights Under The Eighth Amendment

E. The Admission Of Guilt Phase Testimony About The Life Histories Of Victims, Their Experiences Before, During, And After The Explosion, And The Impact Of The Bombing On Their Lives, Violated Fed. Rule Evid. 403 And Rendered The Guilt Determination Constitutionally Unreliable

1. Standard Of Review

2. Introduction

3. The Process By Which This Evidence Came To Be Introduced: The District Court's Sustainable, But Risky, Exercise of Discretion Which Opened The Floodgates To Unfairly Prejudicial, Inflammatory Evidence

4. The Array Of Victim-Based Evidence Presented To The Jury In The Guilt Phase Could Not Have Failed To Stir Deeply The Passions Of Jurors

a. Substantial Personal Or Professional, Or Emotion-Evoking History Of The Witnesses

b. Substantial Or Emotion-Evoking Accounts Of The Morning Of 4/19 Before The Explosion

c. Accounts Of The Explosion Or Its Aftermath As Experienced/Observed By The Witness

d. Victim Impact Evidence (After The Traumatic Injuries Or Death)

5. Fed. Rule Evid. 403 And The Eighth Amendment Provide The Safeguards For Excluding Evidence Which Is Substantially More Prejudicial Than Probative

F. The Court's Refusal To Permit Defense Counsel To Conduct Voir Dire Adequate To Discover Jurors' Predisposition Toward Sentencing Mr. McVeigh To Death Resulted In A Biased Jury In Violation Of The Fifth, Sixth And Eighth Amendments

1. Standard Of Review

2. Under the Fifth, Sixth, and Eighth Amendments, Mr. McVeigh Was Entitled To Make Two Distinct Inquiries Concerning A Prospective Juror's Views About The Death Penalty

3. The District Court Cut The Defense Off From Pursuing Either Line Of Inquiry And Did Nothing To Its Own To Assure That The Inquiries Were Otherwise Made

4. The Court's Rulings Disallowing The Two Lines Of Inquiry Concerning Jurors' Ability To Recommend Against Death If Warranted Under The Law And Facts And Their Predisposition Toward A Death Sentence Based Upon What They Already Knew About The Case, Denied Mr. McVeigh Safeguards Necessary To Assure A Fair Trial And Impartial Trial Of His Punishment

G. Mr. McVeigh Was Deprived Of His Eighth Amendment Right To An Individualized Sentencing Determination When The Trial Court Excluded Information, Proffered In Mitigation Of Punishment, That Implicated Persons Other Than Timothy McVeigh And Terry Nichols In The Bombing Of The Oklahoma Federal Building

1. Standard of Review

2. Under Section 3593(c) Of Title 18 U.S.C., As Well As The Eighth Amendment, The Court May Not Preclude A Capital Sentencer From Considering Any Relevant Information Proffered By A Defendant In Support Of A Sentence Less Than Death

3. At His Sentencing Trial, Mr. McVeigh Proffered Information And Evidence That Supports An Inference That Others Were Involved In Bombing The Oklahoma City Federal Building Who Were More Culpable Than Timothy McVeigh

a. The Proffered Testimony Of Carol Howe And FBI And BATF Reports Established That Individuals In Northeastern Oklahoma With Long Held Strong Anti-Government Beliefs Were Planning Acts Of Violence Against The Government During The Months Before The Bombing

b. The Proffered Evidence Directly Connected The Community Of Elohim City And Dennis Mahon With Plans To Bomb The Oklahoma City Federal Building

c. The Trial Court Excluded The Proffered Information From The Penalty Phase Of The Trial Without Assessing Its Relevance, Under The Eighth Amendment, To The Jury's Capital Sentencing

d. The Exclusion Of The Howe Testimony And Related Documents From The Penalty Phase Of The Trial Violated Mr. McVeigh's Eighth Amendment Right To Have The Jury Consider Information That Supported An Inference That Others Were Involved In The Bombing And That He Was Not The Primary Instigator Of The Plan Or The Person Who Actually Carried It Out

H. Mr. McVeigh Was Deprived Of His Right To A Fundamentally Fair Penalty Trial And An Individualized Sentencing Determination In Violation Of Due Process and The Eighth Amendment By The Trial Court’s Exclusion of Proffered Information Concerning The Events At Waco, Texas, From February 28, 1993 Through April 19, 1993

1. Standard of Review

2. A Court May Not Preclude the Capital Sentencer’s Consideration of Any Information Proffered by a Defendant in Support of a Sentence less than Death, Particularly When That Information Is Response to Evidence and Argument Presented By The Government

3. In Response To The Government’s Assertions Concerning The Motive For The Bombing, Mr. McVeigh Intended To Introduce Information That Demonstrated The Reasonableness Of His Conclusions About What Happened During The BATF’s And FBI’s Siege On The Branch Davidians And Showed That The Government’s Wrongful Conduct During That Siege Understandably And Predictably Provoked His Anger Toward And Fear Of Federal Law Enforcement

4. The Trial Court Severely Limited The Presentation Of Information About The Waco Siege, Precluding Any Consideration By The Jury Of The Reasonableness Of Mr. McVeigh’s Beliefs About Waco Or The Extent To Which The Wrongful Conduct Of Federal Law Enforcement Had Produced Or Contributed To His Fear Of And Anger Toward The Federal Government

5. Under The Circumstances Of This Case, The Federal Government’s Wrongful Conduct During The Waco Siege Was A Circumstance Of The Offense Entitled To Consideration In Mitigating Of Punishment To The Extent That The Wrongful Conduct Bore Some Relationship To The Defendant’s Criminal Conduct.

6. The Court’s Pretrial Rulings And Instructions To The Jury Deprived Mr. McVeigh Of His Right Under The Eighth Amendment To Have The Jury Give Effect To The Mitigating Circumstances That He Proffered

7. The Exclusion By The [Trial Court] Of Relevant Mitigating Evidence Impeded The Sentencing Jury’s Ability To Carry Out Its Task Of Considering All Relevant Facets Of The Character And Record Of The Individual Offender And [Circumstances Of The Offense,” 7. The Exclusion By The [Trial Court] Of Relevant Mitigating Evidence Impeded The Sentencing Jury’s Ability To Carry Out Its Task Of Considering All Relevant Facets Of The Character And Record Of The Individual Offender And [Circumstances Of The Offense,” Skipper v. South Carolina, 476 U.S. 1,8 And Thus The Resulting Death Sentence Cannot Stand

I. The Victim Impact Evidence Introduced In The Penalty Phase Produced A Sentence Based Upon Emotion Rather Than Reason, In Violation Of The Eighth Amendment

1. Standard Of Review

2. Introduction

3. The Balance Between The Introduction Of Limited Victim Impact Evidence And The Preservation Of The Capital Defendant's Right To A Reliable, Individualized Sentencing Decision Envisioned By The Supreme Court in Payne v. Tennessee Was Not Realized Here

a. Last Contacts With Victims Before They Were Killed

b. Extended Accounts Of Efforts Made To Learn About, Or Of Awaiting Word On, The Status Of Victims

c. Emotional Accounts Of Learning About A Loved One's Fate Or That His Or Her Body Had Been Found.

d. Descriptions Of Victim's History And Qualities

e. The Pure Love And Innocence Of Children

f. Impact On The Victim's Children, Grandchildren, And Nieces And Nephews

g. Impact On The Witness Or Other Family Members

h. The Struggle To Make Sense Of What Happened And Keep Going

VI. REQUEST FOR ORAL ARGUMENT

VII. CONCLUSION

 

TABLE OF AUTHORITIES

 

Addington v. United States, 165 U.S. 184 (1897)

Arizona v. Fulminante, 499 U.S. 279 (1991)

Armstrong v. Commissioner, 15 F.3d 970 (10th Cir. 1994)

Armstrong v. State, 826 P.2d 1106 (Wy. 1992)

Bailey v. United States, 116 S.Ct. 501 (1995)

Beck v. Alabama, 447 U.S. 625 (1980)

Booth v. Maryland, 482 U.S. 496 (1987)

Brady v. Maryland, 373 U.S. 83 (1963)

Bruton v. United States, 391 U.S. 123 (1968)

Cargle v. State, 909 P.2d 806 (Okla. 1995) cert. denied, 117 S.Ct. 100 (1996)

Catala Fonfrias v. United States, 951 F.2d 423 (1st Cir. 1991) cert. denied, 506 U.S. 834 (1992)

Chaney v. Brown, 730 F.2d 1334 (10th Cir.) cert. denied, 469 U.S. 1090 (1984)

Coleman v. Kemp, 778 F.2d 1487 (11th Cir. 1985)

Comber v. United States, 584 A.2d 26 (D.C.Ct.App. 1990)

Daubert v. Merrill Dow Pharmaceuticals Inc, 509 U.S. 579 (1993)

Delli Paoli v. United States, 352 U.S. 232 (1957)

Dennis v. United States, 341 U.S. 494 (1951)

Dutton v. Brown, 812 F.2d 593 (10th Cir.) cert. denied sub nom.

Dutton v. Maynard, 484 U.S. 836 (1987)

Eddings v. Oklahoma, 455 U.S. 104 (1982)

Evans v. State, 601 S.W.2d 943 (Tex. Cr. App. 1980)

Ex parte Hammond, 540 S.W.2d 328 (Tex.Cr.App. 1976)

Fields v. State, 52 Ala. 348 (1875)

Gardner v. Florida, 430 U.S. 349 (1977)

Gray v. Mississippi, 481 U.S. 648 (1987)

Green v. Georgia, 442 U.S. 95 (1979)

Ham v. South Carolina, 409 U.S. 524 (1973)``

Hatch v. State of Oklahoma, 58 F.3d 1447 (10th Cir. 1995) cert. denied, 116 S.Ct. 1881 (1996)

Hernandez v. State, 643 S.W.2d 397 (Tex.Cr.App. 1982) cert. denied, 462 U.S. 1144 (1983)

Hopkins v. Reeves, 65 U.S.L.W. 45 d100 (May 27, 1997)

Hopper v. Evans, 456 U.S. 605 (1982)

Irvin v. Dowd, 366 U.S. 717 (1961)

Jackson v. Denno, 378 U.S. 368 (1964)

Jones v. State, 569 So.2d 1234 (Fla. 1990)

Jurek v. Texas, 428 U.S. 262 (1976)

Keeble v. United States, 412 U.S. 205 (1973)

Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035 (1996)

Kyles v. Whitley, 115 S. Ct. 1555 (1995)

LaPierre v. State, 734 P.2d 997 (Alaska Ct. App. 1987)

Lockett v. Ohio, 438 U.S. 586 (1978)

Lucas v. State, 791 S.W.2d 35 (Tex.Cr.App. 1989)

Maher v. People, 10 Mich. 212 (1862)

McFadden v. United States, 814 F.2d 144 (3rd Cir. 1987)

Miller-El v. State, 782 S.W.2d 892 (Tex.Crim.App. 1990)

Mills v. Maryland, 486 U.S. 367 (1988)

Montoya v. United States Parole Com'n, 908 F.2d 635 (10th Cir. 1990)

Moody v. United States, 377 F.2d 175 (5th Cir. 1967)

Morgan v. Illinois, 504 U.S. 719 (1992)

Morrissette v. United States, 342 U.S. 246 (1952)

Old Chief v. United States, 117 S.Ct. 644 (1997)

Parker v. Randolph, 442 U.S. 62 (1979)

Payne v. Tennessee, 501 U.S. 808 (1991)

Penry v. Lynaugh, 492 U.S. 302 (1989)

People v. Hobley, 159 Ill.2d 272 (Ill.) cert. denied, 115 S.Ct. 575 (1994)

People v. Borchers, 325 P.2d 97 (Cal. 1958)

People v. Berry, 556 P.2d 777 (Cal. 1976)

People v. Hall, 718 P.2d 99 (Cal. 1986)

Reeves v. Hopkins, 102 F.3d 977 (8th Cir. 1997) cert. granted sub nom.

Hopkins Reeves, 118 S.Ct. 30 (September 29, 1997)

Richmond v. Embry, 122 F.3d 866 (10th Cir. 1997)

Rideau v. Louisiana, 373 U.S. 723 (1963)

Sager v. Maass, 907 F.Supp. 1412 (D.Or. 1995)

Salinger v. United States, 272 U.S. 542 (1926)

Sheppard v. Maxwell, 384 U.S. 333 (1966)

Skipper v. South Carolina, 476 U.S. 1 (1986)

South Carolina v. Gathers, 490 U.S. 805 (1989)

Staples v. United States, 511 U.S. 600 (1994)

State v. Muhammad, 145 N.J. 23, 678 A.2d 164 (1996)

State v. Robinson, 451 S.E.2d 196 (N.C. 1994)

State v. Bernard, 608 So.2d 966 (La. 1992)

State v. Debler, 856 S.W.2d 641 (Mo. 1993)

Stirone v. United States, 361 U.S. 212 (1960)

Stringer v. Black, 503 U.S. 222 (1992)

Turner v. Murray, 476 U.S. 28 (1986)

United States v. Abello-Silva, 948 F.2d 1168 (10th Cir. 1991)

United States v. Affleck, 776 F.2d 1451 (10th Cir. 1985)

United States v. Armstrong, 621 F.2d 951 (9th Cir. 1980)

United States v. Bailey, 444 U.S. 394 (1980)

United States v. Bass, 794 F.2d 1305 (8th Cir.) cert. denied sub nom.

Price v. United States, 479 U.S. 869 (1986)

United States v. Bass, 404 U.S. 335 (1971)

United States v. Bedonie, 913 F.2d 782 (10th Cir. 1990)

United States v. Bradshaw, 787 F.2d 1385 (10th Cir. 1986)

United States v. Brewer, 1 F.3d 1430 (4th Cir. 1993)

United States v. Cancelliere, 69 F.3d 1116 (11th Cir. 1995)

United States v. Chiantese, 582 F.2d 974 (5th Cir. 1978) cert. denied, 441 U.S. 922 (1979)

United States v. Copple, 24 F.3d 535 (3d Cir.) cert. denied, 513 U.S. 989 (1994)

United States v. Galloway, 937 F.2d 542 (10th Cir. 1991)

United States v. Gano, 560 F.2d 990 (10th Cir. 1977)

United States v. Gregg, 803 F.2d 568 (10th Cir. 1986) cert. denied, 480 U.S. 920 (1987)

United States v. Greschner, 802 F.2d 373 (10th Cir. 1986) cert. denied, 480 U.S. 908 (1987)

United States v. Gullion, 575 F.2d 26 (1st Cir. 1978)

United States v. Hendrix, 549 F.2d 1225 (9th Cir.) cert. denied, 434 U.S. 818 (1977)

United States v. Hueftle, 687 F.2d 1305 (10th Cir. 1982)

United States v. Joe, 8 F.3d 1488 (10th Cir 1993)

United States v. Johnson, 22 F.3d 106 (6th Cir. 1994)

United States v. Jones, 707 F.2d 1169 (10th Cir.) cert. denied, 464 U.S. 859 (1983)

United States v. Keller, 916 F.2d 628 (11th Cir. 1990) cert. den, 499 U.S. 978 (1991)

United States v. Kimball, 73 F.3d 269 (10th Cir. 1995)

United States v. Lampley, 127 F.3d 1231 (10th Cir. 1997)

United States v. Leichtnam, 948 F.2d 370 (7th Cir. 1991)

United States v. Masters, 622 F.2d 83 (4th Cir. 1980)

United States v. Mathews, 36 F.3d 821 (9th Cir. 1994)

United States v. McCullah, 76 F.3d 1087 (10th Cir. 1996) cert. denied, 117 S.Ct. 1699 (1997)

United States v. McRae, 593 F.2d 700 (5th Cir.) cert. denied, 444 U.S. 862 (1979)

United States v. Miller, 471 U.S. 130 (1985)

United States v. Molina, 75 F.3d 600 (10th Cir.) cert. denied, 116 S.Ct. 2510 (1996)

United States v. Naranjo, 710 F.2d 1465 (10th Cir. 1983)

United States v. Nguyen, 117 F.3d 796 (5th Cir. 1997)

United States v. Nicholson, 983 F.2d 983 (10th Cir. 1993)

United States v. Patterson, 20 F.3d 809 (10th Cir. 1994)

United States v. Pedraza, 27 F.3d 1515 (10th Cir.) cert. denied, 513 U.S. 941 (1994)

United States v. Petary, 857 F.2d 458 (8th Cir. 1988)

United States v. Rackley, 986 F.2d 1357 (10th Cir. 1993)

United States v. Resko, 3 F.3d 684 (3rd Cir. 1993)

United States v. Richardson, 86 F.3d 1537 (10th Cir.) cert. denied, 117 S.Ct. 588 (1996)

United States v. Richman, 600 F.2d 286 (1st Cir. 1979)

United States v. Rivera-Gomez, 67 F.3d 993 (1st Cir. 1995)

United States v. Ryan, 9 F.3d 660 (8th Cir. 1993), reh. en banc 41 F.3d 361 (1994) cert. denied 115 S.Ct. 1793 (1995)

United States v. Sasser, 974 F.2d 1544 (10th Cir. 1992)

United States v. Sides, 944 F.2d 1554 (10th Cir.) cert. denied, 502 U.S. 989 (1991)

United States v. Singleton, 16 F.3d 1419 (5th Cir. 1994)

United States v. Thompson, 908 F.2d 648 (10th Cir. 1990)

United States v. Wiles, 102 F.3d 1043 (10th Cir. 1996)

United States v. Williams, 51 F.3d 1004 (11th Cir.) cert. denied, 116 S.Ct. 258 (1995)

United States v. Yellow Earrings, 891 F.2d 650 (8th Cir. 1989)

Wainwright v. Witt, 469 U.S. 412 (1985)

Washington v. Texas, 388 U.S. 14 (1967)

White v. Collins, 959 F.2d 1319 (5th Cir.) cert. denied, 503 U.S. 1001 (1992)

Woodson v. North Carolina, 428 U.S. 280 (1976)

Zant v. Stephens, 462 U.S. 862 (1983)

 

Statutes

18 U.S.C. § 371

18 U.S.C. § 921(a)

18 U.S.C. § 922(g)

18 U.S.C. § 924(c)

18 U.S.C. § 924(j)

18 U.S.C. § 1111

18 U.S.C. § 1112

18 U.S.C. § 1114

18 U.S.C. § 2332(a)

18 U.S.C. § 3291

18 U.S.C. § 3593(c)

18 U.S.C. § 3595

18 U.S.C. § 3742(a)

21 U.S.C. § 844(f)

21 U.S.C. § 844(I)

21 U.S.C. § 1291

 

Rules, Regulations and Guidelines

Federal Rules of Evidence, Rule 401

Federal Rules of Evidence, Rule 402

Federal Rules of Evidence, Rule 403

1992 U.S.S.G. Section 5K2.10

 

Other Authorities

Dressler, J., Understanding Criminal Law (2d ed. 1995)

McCormick, Charles K, McCormick on Evidence, Third Edition 1994

 

 

I. STATEMENT OF JURISDICTION

The District Court's jurisdiction in this criminal case was based upon 18 U.S.C. §3231. This Court's jurisdiction is based upon 28 U.S.C. §1291, 18 U.S.C. §3742(a), and 18 U.S.C. §3595. A Notice of Appeal was filed on August 14, 1997 (V. 95, D.E. 4879),[1] to review the judgment and sentences entered on August 14, 1997.

 

 

II. STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

A. Whether Mr. McVeigh Was Denied Due Process Of Law Guaranteed By The Fifth Amendment And The Right To Trial By An Impartial Jury Guaranteed By The Sixth Amendment, When The Jury Pool Was Flooded The Month Prior To Trial With Reports That Mr. McVeigh Had Confessed To His Lawyers?

 

B. Whether Mr. McVeigh Was Denied His Sixth Amendment Right To A Fair Trial And His Fifth Amendment Due Process Right To Place The Burden Of Proof On The Government When Jurors Discussed The Merits During The Government's Case In Chief, And At Least One Juror Voiced The Opinion That Mr. McVeigh Was Guilty?

 

C. Whether Mr. McVeigh Was Denied A Fundamentally Fair Trial When The Court Excluded Evidence That Someone Else May Have Committed The Bombing And The FBI Failed To Investigate?

 

D. Whether The District Court’s Refusal To Charge Premeditation Or The Specific Intent To Kill As An Element Of The Charges Under 18 U.S.C. § 2332a And 844(f), As Charged In The Indictment, Disregarded The Will Of Congress As To The Mens Rea Required When Deaths Result From The Commission Of The Offenses, And As A Result Violated The Grand Jury Clause Of The Fifth Amendment, And Whether The Evidence Warranted Instruction On A Lesser Included Offense Of Killing With Reckless Disregard For Human Life In Connection With All Counts?

 

E. Whether The Admission Of Staggeringly Emotional Guilt Phase Testimony About The Life Histories Of Victims, Their Experiences Before, During, And After The Explosion, And The Impact Of The Bombing On Their Lives, Violated Fed. Rule Evid. 403 And Rendered The Guilt Determination Constitutionally Unreliable?

 

F. Whether The Court's Refusal To Permit Defense Counsel To Conduct The Voir Dire Necessary To Discover Jurors' Predisposition Toward Sentencing Mr. McVeigh To Death Resulted In A Biased Jury In Violation of The Fifth, Sixth And Eighth Amendments?

 

G. Whether Mr. McVeigh Was Deprived Of His Eighth Amendment Right To An Individualized Sentencing Determination When The Trial Court Excluded Information, Proffered In Mitigation Of Punishment, That Implicated Persons Other Than Timothy McVeigh And Terry Nichols In The Bombing Of The Oklahoma Federal Building And Raised Questions About The Degree Of Mr. McVeigh’s Culpability?

 

H. Whether Mr. McVeigh Was Deprived Of His Right To A Fundamentally Fair Penalty Trial And An Individualized Sentencing Determination In Violation Of Due Process And The Eighth Amendment By The Trial Court’s Exclusion Of Proffered Information Which Would Have Provided A Basis For The Jury To Assess The Reasonableness Of Mr. McVeigh’s Feelings About The Government Due To Events That Occurred At Waco, Texas, From February 28, 1993 Through April 19, 1993?

 

I. Whether The Victim Impact Evidence Introduced In The Penalty Phase Produced A Sentence Based Upon Emotion Rather Than Reason, In Violation Of The Eighth Amendment?

 

 

III. STATEMENT OF THE CASE

A. Nature of the Case, Course of Proceedings and Disposition Below.

The Defendant, Timothy James McVeigh, was charged by Complaint filed April 21, 1995 with violation of 18 U.S.C. §844(f), destruction by explosives. On August 10, 1995, an Indictment was returned charging Timothy James McVeigh and Terry Lynn Nichols with one count of conspiracy to use a weapon of mass destruction, 18 U.S.C. §2332(a); one count of use of a weapon of mass destruction, 18 U.S.C. §2332(a); one count of destruction by explosives, 18 U.S.C. §844(f); and eight counts of first degree murder, 18 U.S.C. §§ 1114 and 1111. On October 20, 1995, the government filed Notices of Intent to Seek the Death Penalty against both Defendants (V. 6, D.E. 489, 490).

 

By Opinion dated December 1, 1995, this Court granted Terry Lynn Nichols' Petition for Writ of Mandamus and held that the extraordinary circumstances of the case required recusal of Western District of Oklahoma Judge Wayne Alley. Nichols v. Alley, 71 F.3d 347 (10th Cir. 1995). By Order dated December 4, 1995, the Honorable Stephanie K. Seymour designated Chief Judge Richard P. Matsch of the United States District Court for the District of Colorado to preside over future proceedings (V. 16, D.E. 711).

By Memorandum Opinion and Order dated February 19, 1996, the District Court granted the Defendants' Motion for Change of Venue and transferred the case to Denver Colorado, United States v. McVeigh, 918 F. Supp. 1467 (D. Colo. 1996) (V. 24, D.E. 984). By Memorandum Opinion dated October 25, 1996, the Court granted the Defendants' Motion for Severance and ordered that the trial of Timothy James McVeigh would occur first. United States v. McVeigh, 169 F.R.D. 362 (D. Colo. 1996) (V. 38, D.E. 2376).

A two and one-half month jury trial was held in Denver, Colorado, beginning on March 31, 1997. The jury returned guilty verdicts against Mr. McVeigh on all eleven counts of the Indictment on June 2, 1997 (V. 50, D.E. 4423). Following the guilty verdicts, the District Court immediately began the sentencing phase of the trial on June 4, 1997. The jury returned verdicts of death against Mr. McVeigh on each of the counts on June 13, 1997 (V. 52, D.E. 4564). Mr. McVeigh was sentenced on August 14, 1997. The District Court imposed a sentence of death on each of the eleven counts. (V. 95, D.E. 4878). This appeal followed (V. 95, D.E. 4879).

 

B. Facts Relevant to the Issues Presented for Review.

1. April 19, 1995 at 9:02 a.m., and the Aftermath.

On April 19, 1995, at 9:02 a.m., a massive explosion ripped through the Alfred P. Murrah Federal Building in Oklahoma City (TR:4878:16-20). The explosion could be easily felt and heard six miles away (TR:11847:2-6). Police officers that heard the explosion started running towards the Murrah Building. They could see black smoke and debris going up into the air (TR:5068:3-10). In the area of the explosion, people emerged from buildings in all directions, and found the streets covered with glass, debris, bricks and rocks (TR:5055:2-5). A gaping hole had been gashed into the front of the Murrah Building, wires were down, and automobiles were on fire (TR:5055:15-23).

Emergency workers immediately reported to the scene in an effort to lend assistance. They observed hundreds of people in the streets (TR:12202:3-9). The people all looked the same, they were bleeding, and there was debris and chunks of concrete in the street (TR:12202:23-25). Paramedics recognized that it was a disaster situation, and set up a triage area in front of the Journal Record Building where they initially believed the explosion had occurred (TR:12203:15-16). Heroic efforts were made to provide medical care to those seriously and critically injured.

At the same time, fire fighters, police officers and rescue teams were attempting to assist those still inside the building. For example, police Sergeant John Avera reported to the scene and made heroic attempts to rescue those inside. During the course of that effort, he removed the body of infant Baylee Almon from the rubble of the Murrah Building (TR:5,077:5-24). A picture of Avera handing Baylee Almon's lifeless body to fireman Chris Fields became the symbolic image of the suffering and tragedy in Oklahoma City (V. 16, D.E. 778; V. 17, D.E. 779, Ex. 10)[2] Family members of federal employees that worked in the Murrah Building began a frantic search for their relatives (TR:5059:2-23). Parents of children that had been in the second floor day care made desperate attempts to enter the building and locate or rescue their infants (TR:5037:2-5038:22).

The national attention was immediately riveted upon the explosion at the Murrah Building and its incredible aftermath:

The hours immediately following the explosion and other major turns in the case were carried live by the three major networks and CNN. The three major networks have aired at least 2,300 bombing segments, more than 1,000 mention one or both of the Defendants. G.X 2, Paragraph 3. CNN, not counting it's [sic] "Headline News" Channel, has run over 1,100 bombing segments, a third of which mentioned Defendants. Id. Not only did the bombing instantly become a national story, but the very allegations and images the Defendants cite as evidence that a fair trial cannot be held in Oklahoma have been repeatedly reported and broadcast nationwide.

(Brief of the United State in Opposition to Defendants' Motion for Change of Venue, V. 16, D.E. 778:26-27). The Oklahoma City bombing was considered a national news story of unprecedented importance. People needed to know all of the specifics concerning the event, and there was interest in how the investigation and trial would come out. (Testimony of media expert Scott Armstrong at hearing on Motions for Change of Venue, PT:312:9-16; Jan. 31, 1996.) As a result, there was extensive news coverage concerning every aspect of the case, including Mr. McVeigh's arrest, which was broadcast repeatedly all over the country. (PT:382:5-12:Jan. 31, 1996)

One hundred and sixty-three people died inside the Murrah Building after the explosion (TR:10073:8-10). Five other people died outside the building (TR:10079:4-7). Fifteen children died in the day care, and four other children who were simply visiting the Murrah Building were killed (TR:11800:23-25).

On April 19, 1995, just hours after the bombing, the President and the Attorney General held a press conference. At that time, no one had been identified as a suspect or charged with the crime. Attorney General Reno was asked if the death penalty would be sought once an arrest had been made. Attorney General Reno explained that 18 U.S.C. §844 made the death penalty available and said "we will seek it." (V. 2, D.E. 144, Ex. 1) (Emphasis Supplied). On April 21, 1995, President Clinton held a press conference shortly after Mr. McVeigh's arrest as a suspect in the bombing of the Murrah Building. At that conference, he confirmed the Attorney General's decision to seek the death penalty: "We will find them. We will convict them. And we will seek the death penalty for them." (V. 2, D.E. 144, Ex. 2).

 

2. The Investigation.[3]

a. The Search For "John Doe One" and "John Doe Two."

"The FBI and other law enforcement agencies quickly secured the bomb site and began investigating" (V. 30, D.E. 1561:3). At the genesis of the investigation, on April 19, 1995, Special Agent James Norman provided Special Agent James Elliott with a number that he had located on what appeared to be a piece of a large truck (TR:5572:20-25). This piece of metal, which turned out to be a rear axle housing, was located approximately five hundred and seventy-five feet from the crater in front of the Murrah Building (TR:5575:13-5579:20). Within hours, the FBI was able to trace the confidential vehicle identification number on the rear axle housing to Ryder Rentals in Florida. Ryder informed the FBI the truck had been assigned to a rental company known as Elliott's Body Shop in Junction City, Kansas (V. 30, D.E. 1561:18-19).

The investigation at Elliott's was initiated the same day, when Special Agent Scott Crabtree of the Salina, Kansas field office was instructed to pick up the rental documents from Elliott's and forward them to FBI headquarters (TR:10494:14-22). Crabtree arrived at Elliott's Body Shop at 4:30 that afternoon (TR:10495:7-10). Crabtree interviewed Eldon Elliott, the owner of the rental agency, Vicki Beemer, Elliott's secretary, and Tom Kessinger, a mechanic that worked for Elliott. Vicki Beemer said she had received the call "from Kling" to reserve the truck on April 14, 1995, and had conducted the transaction in person with Kling on April 17th. Tom Kessinger had been present in the office on April 17th when Kling and his associate completed the transaction and picked up the truck (V. 43, D.E.3032:17-18).

According to the government, Vicki Beemer told Agent Crabtree she could not recall Kling's face sufficiently to identify him, but generally described the renter of the truck as a white male with short, dark blond or light brown hair. She told Crabtree that someone else was also present with Kling but that she had no recollection of the physical description of the second person (V. 43, D.E. 3032:19).

Eldon Elliott told the FBI he had seen Kling briefly on April 17, 1997 when the truck was picked up. Elliott described Kling as 5'-10" tall, average build, short light brown hair with a military type haircut (TR:10496:12-24). Agent Crabtree obtained the most comprehensive description of the suspects from Tom Kessinger, who was able to provide descriptions for both "Kling" (John Doe One) and his associate (John Doe Two). (Government's Brief in Opposition to Motion to Suppress Eye Witness Identification Testimony, V. 43, D.E. 3031:19).

On April 19, 1995, FBI visual information specialist Vince Rozycki arrived at Fort Riley, Kansas in order to prepare composite drawings of Unknown Subject One and Unknown Subject Two (TR:10547:4-6). At approximately 2:00 a.m. on April 20, 1995, Mr. Rozycki met with Special Agent Scott Crabtree (TR:10547:14-24). Crabtree told Rozycki that Tom Kessinger had the most complete knowledge of the description of the two individuals (TR:10548:19-10549:3). Kessinger told Rozycki that Unknown Subject One (the renter of the Ryder truck) had a long head, a crew-cut, a crease in his chin, close set eyes, was clean shaven, 5'-10" inches tall and approximately 175-185 pounds. He described Kling as having a slender build, a rough complexion with acne,[4] light brown hair, and twenty-seven to thirty years of age. He said that Kling was wearing green fatigues and a dark t-shirt (TR:10552:10-23).

Kessinger described the second subject as five 5'-10" inches tall, clean shaven, muscular, large arms, large chest, smooth complexion, dark hair, thick neck, wide chin. Kessinger said that "John Doe Two" was wearing a blue and white ball cap, blue jeans, black t-shirt, and white tennis shoes. Kessinger said the subject had a tattoo on his left upper arm (TR:10553:20-10554:1).

Based upon Kessigner's descriptions, without input from Vicki Beemer or Eldon Elliott, Rozycki prepared two composite drawings, one of John Doe One, and one of John Doe Two (TR:10555:1-10556:19). Eldon Elliott was shown the drawing of John Doe One, but made no modifications or corrections (TR:10557:18-23). Vicki Beemer made no additions, corrections or deletions to the composite sketch of Unknown Subject One (TR:10558:5-10).

Federal investigators then displayed these composite drawings of "Kling and his associate" to employees of various motels and businesses in the Junction City area. Employees at the Dreamland Motel in Junction City advised that the first composite drawing resembled Tim McVeigh, a former guest who had stayed there from April 14 to 18, 1995 (V. 30, D.E. 1561:2). On April 21, 1995, federal investigators determined that Timothy McVeigh had been arrested two days earlier, on April 19, 1995, and was still in State custody for the misdemeanor charge of carrying a concealed weapon. Federal agents arrested Mr. McVeigh in Perry, Oklahoma and transported him to Oklahoma City for his initial appearance upon a complaint which alleged he had committed the Oklahoma City bombing (V. 30, D.E. 1561:2,3).

 

b. Timothy McVeigh's State Misdemeanor Arrest.

On April 19, 1995, between 10:20 and 10:30 a.m., Oklahoma State Highway Patrol Trooper Charles Hanger stopped a yellow 1977 Mercury Marquis, four door (TR:5238:14-15) because he noticed the car was not displaying a tag. He pulled in behind the vehicle and signaled for the car to pull over (TR:5238:18-23). Hanger identified Timothy McVeigh as the person driving the Mercury Marquis (TR:5240:9-11). At the time of the traffic stop, Hanger informed Mr. McVeigh that he had been stopped because his car had no tag. Mr. McVeigh told Trooper Hanger that he had recently purchased the car and didn't have a tag (TR:5244:3-13). Hanger asked for a Bill of Sale, and Mr. McVeigh said: "I don't have one with me" (TR:5244:12-14).

As Mr. McVeigh reached for his driver's license, Trooper Hanger noticed a bulge under the left arm of Mr. McVeigh's windbreaker (TR:5245:9-16). Mr. McVeigh produced a Michigan driver's license in the name of Timothy McVeigh (TR:5246:9-15 and Government's Exhibit 427).[5] Hanger directed Mr. McVeigh to take both hands and slowly pull back his jacket. Mr. McVeigh stated: "I have a gun." Hanger grabbed the gun with his left hand and instructed Mr. McVeigh to "get his hands up and turn around" (TR:5247:13-17). Hanger then handcuffed Mr. McVeigh (TR:5249:7-11).

Hanger asked Mr. McVeigh why he would be carrying a loaded firearm, and Mr. McVeigh stated that he felt he had the right to carry it for his own protection (TR:5249:18-21). Hangar Mirandized Mr. McVeigh (TR:5257:1-5) and asked why he did not have a tag, and Mr. McVeigh said that he had recently purchased the vehicle in Junction City, Kansas from a Firestone dealer (TR:5267:16-25). Mr. McVeigh said he was in the process of moving to Arkansas, that he had taken a load of his belongings down there and was on his way back to Kansas to get more of his belongings (TR:5256:14-19). Hanger asked for permission to search the vehicle and Mr. McVeigh gave consent (TR:5258:14-16). Hanger recorded the VIN number from the car, looked around the front seat area and in the glove box, glanced to the back seat, and wasn't there very long (TR:5259:2-11).

Hanger transported Mr. McVeigh south on Interstate 35 to the Noble County Jail in Perry, Oklahoma (TR:5268:23-25). Jailer Marsha Moritz handled the booking process (TR:5272:14-15). Hanger observed Mr. McVeigh remove a billfold, some keys, coins, and four forty-five caliber bullets from his pockets (TR:5276:7-10). Hanger observed Jailer Marsha Moritz holding a pair of ear plugs (TR:5276:12-16). Mr. McVeigh was charged with unlawfully carrying a weapon and transporting a loaded firearm (TR:5294:24-5295:2). On Saturday, April 22, 1995, Hanger discovered a crumpled business card in the right rear floorboard of his patrol unit (TR:5306:13-25). The card said: "Dave," then in parenthesis, "TNT at $5.00 a stick, need more." Below that was a telephone number, 707-288-0128. Below that it said: "Call after 1 May, see if I can get some more." (TR:5311:14-17).

The distance between the Murrah Building and the point of Mr. McVeigh's arrest was 77.9 miles (TR:5313:15-17). Driving at the speed limit posted on April 19, 1995, Hanger was able to travel that distance in seventy-five minutes and fifteen seconds (TR:5313:18-21).

On April 20th or 21st, Trooper Hanger saw the composite sketches of John Doe One and John Doe Two (TR:5389:21-23). Hanger did not advise anyone that he had arrested a suspect that resembled one of the composites (TR:5390:1-4). Until he was contacted by the FBI, Trooper Hanger had no suspicions that Mr. McVeigh might be involved in the Oklahoma City bombing (TR:5390:5-7). As far as Hanger was concerned, Mr. McVeigh had been arrested on State misdemeanor charges (TR:5390:8-25).

 

c. Mr. McVeigh's Federal Arrest And Witness Exposure to Mr. McVeigh's Image.

On Friday, April 21, 1995, Supervisory Special Agent James Adams was directed to travel to the Noble County Jail in Perry, Oklahoma, to arrest and transport Tim McVeigh (PT:493:20-25, Feb. 19, 1997). Adams and eight other federal agents arrived at the Noble County Jail between 12:30 and 1:00 p.m. that day (PT:494:1-10, Feb. 19, 1997) and observed a crowd gathering outside the courthouse. (PT:497:8-14, Feb. 19, 1997). Agents decided to take Mr. McVeigh out the main entrance of the courthouse (PT:498:23-25, Feb. 19, 1997). He was not given a bullet-proof vest (PT:501:1-3, Feb. 19, 1997) and no efforts were made to obtain civilian clothing for him (PT:510:13-15, Feb. 19, 1997). Mr. McVeigh was transported while wearing an orange coverall outfit obtained from the Noble County Sheriff (PT:501:18-20, Feb. 19, 1997). The police van was parked twenty to twenty-five feet from the door of the courthouse. The press was thirty-five to forty feet from the van (PT:505:8-13, Feb. 19, 1997). The van which transported Mr. McVeigh could have been backed right up to the courthouse door and the "display" of Mr. McVeigh to the crowd and media could have easily been prevented (PT:5121-6, Feb. 19, 1997).

Local and national media undertook a "constant repetition" of the image of Timothy McVeigh being moved while in custody in the orange jumpsuit from the Noble County Courthouse to the waiting van (PT:329:9-15, Jan. 31, 1996).

Eldon Elliott observed Timothy McVeigh on television after Mr. McVeigh's arrest, but did not telephone the FBI and indicate that Mr. McVeigh was the Robert Kling that had rented the truck (TR:8081:20-8082:5). On June 8, 1995, forty-eight days after his encounter with "Kling," Elliott viewed a photo spread in Oklahoma City and identified Tim McVeigh as the Robert Kling that had rented the truck (TR:8009:1-11). Eldon Elliott indicated to FBI Special Agent John Hersley that he had seen the television news depictions of Mr. McVeigh walking out of the Perry Jail "once or twice" prior to the time that Elliott was asked to select the suspect he had seen from the photo line-up (PT:388:17-25, Feb. 19, 1997).

 

d. Terry Nichols

By April 22, 1995, federal investigators had identified James and Terry Nichols as "close associates" of Timothy McVeigh. As a result, FBI agents were sent to Herington, Kansas where Terry Nichols lived. Agents Steve Smith and John Foley arrived in Herington at approximately 2:30 p.m. on April 21, 1995 (V. 30, D.E. 1561:6). Agents who were conducting surveillance of Nichols watched as he drove to the Herington Department of Public Safety (the Police Station) that afternoon. From 3:26 p.m. until 12:28 a.m. the following day, agents interrogated Nichols in the basement of the Herington Department of Public Safety. At that time he was arrested as a "material witness" (V. 30, D.E. 1561:11).

Beginning on April 22, 1995, federal agents performed several searches of Terry Nichols' residence and property (V. 30, D.E. 1561:13). The items seized by federal agents included a Makita drill, a drill bit, "primadet" non-electric blasting caps, a receipt for the purchase of one ton of ammonium nitrate fertilizer in the name of Mike Havens (which bore Timothy McVeigh's fingerprint), and a telephone debit calling card in the name of Daryl Bridges (V. 37, D.E. 2166:6-9; TR:6767:10-13).

 

e. Michael Fortier

The FBI first contacted Michael Fortier, Timothy McVeigh's friend from Kingman, Arizona, on April 21, 1995 (TR:8287:13-17). Fortier was asked by agents whether he thought Mr. McVeigh was capable of committing the Oklahoma City bombing. Fortier told the FBI he did not think Tim was capable (TR:8288:23-8289:4). The FBI asked Fortier if he had any knowledge of the bombing and he said that he did not (TR:8289:22-23).

Fortier was interviewed by the FBI on the 21st, 22nd, 23rd, and 24th of April, 1995 (TR:8470:19-25, TR:8471:1). In those interviews, Fortier told the FBI he did not know of anything that would indicate Mr. McVeigh was guilty, and, as far as he knew, Mr. McVeigh was innocent (TR:8471:5-6). Fortier said Tim McVeigh did not have what it would take to build the bomb (TR:8471:5-6). Fortier said he had never heard Mr. McVeigh discuss any kind of bomb (TR:8471:9-11). Fortier was asked if he had ever spent any time in Oklahoma City and he told the agents that he had not (TR:8292:13-15).

On April 24, 1995, Fortier was upset and confronted the FBI about what he considered to be "a bunch of inflammatory lies and mistruths" that had appeared in the Arizona Republic Newspaper (TR:8292:24-8293:4). One of the FBI agents called Fortier a baby killer (TR:8293:20-25), and the FBI started speaking to Fortier about what they could do to help him out if he cooperated with them (TR:8294:19-23). Fortier determined not to speak with the agents anymore and asked them when they raided his house not to use men dressed in black with automatic weapons (which he had observed them utilize in Michigan on the James Nichols' farm) (TR:8294:20-8295:3).

A search warrant was eventually executed at Fortier's house. Fortier received a call from one of the agents asking him to bring his wife and child to the Mohave Community College (TR:8295:12-14). Microphones were implanted in Fortier's house during the execution of the search warrant (TR:8296:15-17) and Fortier's telephone was tapped (TR:8297:4-5).

Electronic surveillance revealed that in a conversation with his brother John on April 25, 1995, Fortier said he'd been thinking about doing the talk show circuit by coming up with "some asinine story" (TR:8342:2-9). Fortier also had a conversation with his mother in which he talked about selling photographs of himself and Mr. McVeigh for $50,000.00 (TR:8344:17-20). Fortier also had conversations with a friend named Glynn Bringle (TR:8301:25-8302:1). Fortier told Bringle that he thought he could make "one cool mill" by making up something juicy (TR:8302:10-17). Fortier also told his parents that he thought money could be made with movie rights (TR:8302:25-8303:2). On May 8, 1995, in a telephone conversation with his friend Lonnie Hubbard, Fortier said during trial testimony he'd pick his nose and "flick it and then like kind of wipe it on the Judge's desk" (TR:8340:10-8341:9). Fortier told Hubbard "I hold the key to it all" (TR:8341:10-8342:1).[6]

Michael Fortier gave an interview to CNN because he inferred, from a conversation with an FBI agent, that the FBI was going to modify the sketch of John Doe Two to look like him (TR:8462:9-14). Fortier also believed that the FBI was harassing him (TR:8461:24-8462:1). Fortier told CNN that everybody should be supportive of Tim McVeigh "because he's an innocent man" (TR:8470:2-8).

Eventually Fortier was served with a Subpoena to appear before the Grand Jury investigating the Oklahoma City bombing. On May 7, 1995, in Kingman, Arizona, Fortier told Special Agents Walsh and Walker that he could not be of any further help to the investigation because he didn't know anything (TR:8363:5-10). Fortier arrived in Oklahoma City on May 17, 1995 (TR:8312:9-13). Fortier and his wife met with the FBI that night. Fortier told FBI agents Zimms and Volz that he could "give them" Tim McVeigh, but he didn't want to be prosecuted (TR:8477:23-8478:1). An attorney was appointed for Fortier and he began "cooperating" (TR:8314:10-8315:2). He spent the Summer answering whatever questions were asked of him (TR:8315:22-23).

 

f. Lori Fortier

On April 21, 1995, Lori Fortier gave a statement to FBI Special Agent Ruben Martinez (TR:5969:12-23). She said that based upon what she knew about Mr. McVeigh, she seriously doubted that he would be involved in the Oklahoma City bombing (TR:5970:10-13). Lori Fortier said that the only knowledge she had about the bombing was what she had seen on television and read in the newspapers (TR:5970:14-17).

On April 23, 1995, Lori Fortier went with her husband to the Mohave County Sheriff's Department, and conducted another interview with the FBI. She told the FBI that she had never heard Mr. McVeigh talk about explosives or bombs (TR:5970:18-5971:5). Lori Fortier told the agents that there was nothing which would lead her to believe that Mr. McVeigh would be capable of carrying out the Oklahoma City bombing (TR:5971:6-9). Ms. Fortier said she had cleaned the house and had access to the bedroom where Mr. McVeigh stayed. She had never seen anything unusual which would lead her to believe Mr. McVeigh was a member of a violent group (TR:5971:17-24). Up until May 17, 1995, Lori and Michael Fortier denied any knowledge of the Oklahoma City bombing (TR:5972:17-19).

Lori Fortier prepared a written statement to give to the press that said "Tim" wasn't involved (TR:5748:17-5749:1). The FBI obtained Lori Fortier's handwritten statement which was on the desk in the Fortier's house on May 1, 1995 (TR:5749:11-17). The statement said that Mr. McVeigh was a close personal friend and "from knowing him, I believe in no way that he was responsible for this crime" (TR:5823:18-5824:14). Another draft of the statement prepared by Lori Fortier on the same day, indicated: "It truly sickens me when I see my friend's -- yes, my friend's face portrayed on the front of Time Magazine as the face of terror" (TR:5827:15-18). The statement suggested Mr. McVeigh had been arrested only because he resembled the composite sketch, and that there were "half a million people that could fit that sketch" (TR:5828:5-9).

On May 1, 1995, the Fortiers traveled to the Mohave County Sheriff's Substation to receive a search warrant (TR:5751:21-5752:10). During execution of the warrant the agents seized tools, anti-government literature, and some pictures (TR:5753:14-20). Agents placed the Fortiers under surveillance (TR:5756:18-24), which lasted from right after the bombing until the Fortiers traveled to Oklahoma, a period of about one month (TR:5757:5-11). The Fortiers later learned that a microphone was placed in their home when the search warrant was executed (TR:5758:7-10).

This electronic surveillance revealed that in a conversation with their friend, Jim Rosencranz, in the Fortier living room on May 12, 1995 (TR:5870:2-19), Michael Fortier stated: "I never heard, I never -- Tim never said anything to me about taking a direct positive action against the government." Lori Fortier stated: "he talked about informing people" (TR:5871:1-7).

Michael and Lori Fortier were subpoenaed to testify before the Grand Jury. They left Kingman on May 16, 1995, to travel to Oklahoma City (TR:5759:2-9). The Fortiers obtained a motel room in Oklahoma City, and telephoned the FBI (TR:5760:1-11). Lori Fortier testified before the Grand Jury on August 8, 1995, under a grant of immunity (TR:5763:17-5764:13).

Prior to May 17, 1995, Michael and Lori Fortier were very critical of the FBI and the way the FBI was treating them (TR:6003:15-22). Lori Fortier would not testify before the Grand Jury, testify at the trial in Denver, or talk to the government unless she was safe from prosecution (TR:5864:6-5866:17).

 

g. Investigation Concerning Anti-Government Sentiment.

On April 21, 1995, FBI Special Agent William Eppright, III, was assigned to coordinate and receive evidence from a vehicle search of Timothy McVeigh's car (TR:5396:10-12; TR:5399:1-5). Inside a sealed envelope taken from the front seat, Eppright discovered a small clipping from pages 61 and 62 of The Turner Diaries (TR:5420:6-18). Page 62 had been highlighted with a yellow highlighter (TR:5421:1-5). Eppright also reviewed a clipping which contained a quote from Samuel Adams and a handwritten notation, taken from the sealed envelope (TR:5426:4-9). The clipping read: "When the government fears the people, there is liberty. When the people fear the government, there is tyranny. S. Adams." There was a handwritten notation on the clipping which said: "Maybe now, there will be liberty" (TR:5427:2-6)

Eppright also found an 8-1/2" by 11" sheet of paper with a number of attached clippings and a xerox copy of a document in the middle (TR:5428:21-25). The heading, on the left-hand side, was entitled: "The American Response to Tyranny." The clipping contained a description of the battle of Lexington. (TR:5431:3-5432:7). The document also contained a quote from John Locke. (TR:5433:7-22). At the bottom of the page, there was another highlighted section which indicated the government's actions at Waco were tantamount to a declaration of war against the American people (TR:5434:14-5435:5).

 

h. Anti-Government Sentiment at Elohim City.

Seven months before the Oklahoma City bombing, the Bureau of Alcohol Tobacco and Firearms initiated an investigation into a white supremacist compound located in northeastern Oklahoma known as Elohim City. In connection with that investigation the ATF recruited a confidential informant named Carol Howe.

On April 21, 1995, FBI Special Agent Blanchard and ATF Agent Angela Finley met with Carol Howe concerning Elohim City and the Oklahoma City bombing. Special Agent Blanchard's report concerning that interview detailed Carol Howe's statements concerning Elohim City and its residents (V. 94, D.E. 4501, at Ex. 3).  In that interview, Howe told the ATF that in 1994 she saw an individual named Pete that resembled the composite of Unidentified Subject Number One at Elohim City. Howe stated that the televised pictures of Timothy James McVeigh did not look like "Pete." Howe also stated that she had seen an individual named "Tony" who resembled the composite of Unidentified Subject Number Two.

Howe informed federal agents that the security officer at Elohim City was an individual named Andy Strassmeir, an illegal alien from Germany who spoke fluent English with a marked German accent. Blanchard's 302 of the interview with Howe said: "Strassmeir had spoken frequently about direct action against the United States Government." Howe said that Strassmeir had discussed assassinations, bombings, and mass shootings.

Carol Howe told federal agents there was frequent anti-federal government philosophy discussed at Elohim City. She described Elohim City residents as being ultra militant white separatists. Required reading at the compound included, Mien Kamph, The Silent Brotherhood, and The Turner Diaries. According to the report of interview, "The Turner Diaries is a book which described the idea of driving a delivery truck loaded with explosives into the delivery area of a federal building and detonating it at 9:30 a.m." Howe reported that Elohim City residents were sympathetic with David Koresh, hated the federal government because of the Waco raid, and believed that they could be the next victim.

Dennis Mahon was the person who first took Carol Howe to Elohim City. Mahon had spoken to Carol Howe about targeting federal installations such as the IRS Federal Building, the Tulsa Federal Building and the Oklahoma City Federal Building for destruction through bombings. According to Howe, Mahon and Strassmeir had taken three trips to Oklahoma City in November of 1994, December, 1994 and February 1995. Howe accompanied the group during the December 1994 trip. All of this information was set forth in the April 21, 1995 report of investigation prepared by Special Agent James R. Blanchard, II on April 21, 1995 (V. 94, D.E. 4501, Ex. 3).

An ATF document dated mid-May of 1995 concerning the investigation into the bombing of the Murrah Building in Oklahoma City stated: "It is suspected that members of the EC are either directly or indirectly involved through the conspiracy. It is suspected that suspect Number Two may be at this location." (TR:10781:2-7).

For some reason, never adequately explained, the investigation into Elohim City was terminated. A November 10, 1995, follow-up report stated: "There has been no activity in this investigation . . . to avoid interfering with the Oklahoma bomb investigation" (ATF report of November 10, 1995, TR:10,781:8-11).

 

3. The Trial Evidence.[7]

During the guilt phase of the trial, the government presented evidence which fell into four general categories. Those categories included (a) devastation surrounding the Murrah Building and the injuries, death and emotional impact caused by the explosion; (b) Timothy McVeigh's anti-government sentiment, which the government argued was the motive for the bombing; (c) circumstantial evidence which the government argued linked Mr. McVeigh to the bombing, or to components which the government believed were contained within the truck bomb; and (d) the immunized testimony of Lori Fortier and the plea bargained testimony of Michael Fortier.

The government did not present the evidence topically or chronologically, and elected to present evidence concerning the physical and emotional impact of the explosion periodically throughout the trial, usually in close proximity to particularly weak evidence. The government's physical and emotional impact evidence included five sub-categories of types of evidence. The first sub-category, which by itself could not be considered objectionable, concerned objective facts about the explosion. The second sub-category included detailed professional and personal histories of the witnesses designed to create an emotional bond with the jury. The third sub-category included accounts of victim activities on the morning of April 19, 1995, prior to the explosion, which were designed to humanize the victims and witnesses. The fourth sub-category involved graphic and horrifying descriptions of the victims' experiences during and after the explosion. The fifth sub-category included descriptions of the tragic and undeserved losses associated with the bombing.

The defense case, presented through cross-examination of government witnesses, and three days of direct evidence presented during the Defendant's case in chief, was designed to refute key elements of the government's case and to establish that Mr. McVeigh was not "Robert Kling." The evidence included proof that a Ryder truck, arguably associated with Tim McVeigh, was connected with Mr. McVeigh the day before the truck that carried the bomb was rented at Elliott's Body Shop in Junction City, Kansas. It could not have been the bomb truck. The defense sought to present evidence that two individuals who matched the composite drawings of John Doe One and John Doe Two had been seen at Elohim City in the months before the bombing, and that these men would have had the motive, means and the opportunity to carry out the bombing. Although these individuals were suspects, federal law enforcement did not adequately investigate. The Court concluded this evidence was "not sufficiently relevant to be admissible" (TR:10,786:1-4).

 

a. The Physical and Emotional Impac