IN THE UNITED STATES DISTRICT COURT

Criminal Action No. 96-CR-6Y-M

UNITED STATES OF AMERICA, Plaintiff,

v.

TIMOTHY JAMES MCVEIGH and TERRY LYNN NICHOLS, Defendants.

Defendant Timothy James McVeigh, by and through undersigned counsel, hereby moves the Court under seal to dismiss the indictment with prejudice, or in the alternative, to abate trial for at least one year to determine whether at that point there is any chance of obtaining a fair trial. In support of this motion, Mr. McVeigh sets forth the following:

INTRODUCTION

1. On February 28, 1997_one month before the commencement of Mr. McVeigh's trial the Dallas Morning News published an incendiary article on its Internet home page asserting that it had "lawfully" obtained internal defense documents which purported to reveal that Mr. McVeigh had confessed to his own defense team that he alone bombed the Murrah Building in Oklahoma City. This news spread like wildfire. By the time the paper edition of the Dallas Morning News appeared in newsstands early in the morning on March 1, 1997, its story had already been widely published and broadcast all over the country. For eleven days thereafter, the factual subject of this article, the wrongdoing of the Dallas Morning News in obtaining internal defense documents, the social irresponsibility of the News in publishing the article, and the competence and credibility of Mr. McVeigh's defense counsel were reported, commented upon, and debated in newspaper articles, radio talk shows, television newscasts, and television news-analysis shows.

2. Before this raging news-fire could even begin to diedown, on March 11, 1997 another fire was started with the Internet publication of an article on Playboy's home page. This article, too, asserted that it was based on a document obtained "lawfully" from confidential defense files this time a 66-page chronology that purportedly contained Mr. McVeigh's full story to his defense team of how the bombing was carried out. The next night, March 12, ABC's Prime Time Live presented a segment based on this same defense document. Images of the document, which appeared to be self-authenticating, were shown, excerpts were quoted, and the author of the article was interviewed about the content of the document.

3. Not since the televised live confession of Wilbert Rideau in 1961 has the right to a fair trial been so dramatically prejudiced by pre-trial publicity. In Rideau v. Louisiana, 373 U.S. 723, 726-727 (1963), the Court wrote:

The case before us does not involve physical brutality. The kangaroo court proceedings in this case involved a more subtle but no less real deprivation of due process of law. Under our Constitution's guarantee of due process, a person accused of committing a crime is vouchsafed basic minimal rights. Among these are the right to counsel, the right to plead not guilty, and the right to be tried in a courtroom presided over by a judge. Yet in this case the people of Calcasieu Parish saw and heard, not once but three times, a "trial" of Rideau in a jail, presided over by a sheriff, where there was no lawyer to advise Rideau of his right to stand mute.

Here, the form of the kangaroo court is different, but it has the same distinct qualities. The media's revelations based on what is claimed to be "lawfully obtained" "confidential defense memoranda" have deprived Mr. McVeigh of the right to counsel. They have breeched that very place of refuge the confidential attorney-client relationship that must exist for the right to counsel to be exercised. See Upjohn Co. v. United States, 449 U.S. 383, 389 (1981), quoting Hunt v. Blackburn, 128 U.S. 464, 470 (1888) ("'assistance [of counsel] can only be safely and readily availed of when free from the consequences or the apprehension of disclosure"'). They have turned the right to plead not guilty into a hollow formalism. And, they have effectuated a trial on the Internet, on the airwaves, and in newsprint just days before the trial in the courtroom is scheduled to begin.

4. In Rideau, the Court held that "due process ... required a trial before a jury drawn from a community of people who had not seen and heard Rideau's televised 'interview.' 'Due process ... commands that no such practice as that disclosed by this record shall send any accused to his death."' 373 U.S. at 727, quoting Chambers v. Florida, 309 U.S. 227, 241 (1940). Unlike the case of Mr. Rideau, where a change of venue could be made to a "community of people who had not seen and heard Rideau's televised 'interview,"' there is no such place where Mr. McVeigh's case can be heard. As the security guard noted in counsel's building last night, after finding out that it was not likely that venue would be changed in Mr. McVeigh's case, "Well, that's alright ... everybody's read those articles anyway." And as an official at FCI-Englewood despaired earlier yesterday, notwithstanding his concerted efforts to avoid learning about the case, "Every time I turn the TV on, there it is. I can't help it." There is no place and, we submit, no time that Mr. McVeigh can obtain a trial "vouchsafed [by] basic minimal rights," Rideau, 373 U.S. at 726, and thus, the indictment must be dismissed with prejudice.

FACTUAL CONTEXT AND ALLEGATIONS

A. The prelude to Mr. McVeigh's trial in the press: establishing and observing a delicate balance

5. From the beginning, the courts handling this case have gone to great lengths to achieve a balance between the Sixth Amendment guarantee of a fair trial and the First Amendment right of the press. Following the return of the indictment, this Court's predecessor in the Western District of Oklahoma entered an order designed in part to protect the fairness of the trial by precluding the disclosure of discovery materials except as necessary in connection with court proceedings and interviews of potential witnesses. See Agreed Order, August 23, 1995 (D.E. 228). Thereafter, this Court entered an order with respect to the motion of various media entities to unseal documents, balancing the First Amendment rights of the press and the Fifth and Sixth Amendment rights of Mr. McVeigh and Mr. Nichols to due process and a fair trial, and setting forth a procedure for sealing, and challenging the sealing of, documents filed in this case. See Memorandum Opinion and Order on Media Motions, January 24, 1996 (D.E. 886). Balancing the same concerns, the Court imposed limitations on extrajudicial statements by counsel for both sides and the defendants. See Memorandum Opinion and Order Regarding Extrajudicial Statements by Attorneys and Support Personnel, June 13, 1996 (D.E. 1584). And on February 27, 1997, the Court admonished counsel in-chambers to curtail even those extrajudicial statements allowed under the June 13, 1996 order because the service of summonses on 1000 prospective jurors had operated to rivet those persons' attention to any news concerning the case. See Hearing Transcript, February 27, 1997, at 128 ("we have hundreds of people out there who have an acute interest now, because they've been notified that they're on the list for the jury," so "be extremely careful about what you say and do in getting publicity about this case during this very sensitive time").

6. The Court has also been responsive to "leaks" of material that could be evidence in this case, by making it's orders binding on the; Attorney General and the director of the FBI.

7. There have been more than 70 miscellaneous matters raised and filed with the Court by the press and the electronic media. Various media groups, including the Dallas Morning News, have been actively involved in appearing before the Court, and asking for relief by repeatedly objecting to the sealing of pleadings, and filing numerous standard motions seeking to have the documents unsealed. When the Court denied their objections, the Dallas Morning News and others appealed the Court's decision to the Tenth Circuit Court of Appeals.

B. The Dallas Morning News story

8. On February 28, 1997, the delicate balance struck by the Court collapsed because of the Dallas Morning News ' gross indifference to its ability to destroy the Fifth and Sixth Amendment rights of Mr. McVeigh. Only 31 days before the scheduled March 31, 1997, commencement date of trial, the Dallas Morning News published an article on their Internet home page claiming that Mr. McVeigh had confessed to a defense team member that he alone had driven the truck containing explosives to the Alfred Murrah Building in Oklahoma City and detonated it. The newspaper article also contained a highly inflammatory statement allegedly made by Mr. McVeigh to a member of his defense team that he bombed the building during the day because he needed a "body count" in order to make his point to the government. The Dallas Morning News cited "confidential defense documents" that it "obtained legally" as its source for the purported statements of Mr. McVeigh. A copy of this article is attached hereto as Exhibit B-53.

9. Within minutes after this article appeared on the Internet, television stations across the country aired stories about the article and the alleged "confession" repeatedly. The number of `'hits" on the Dallas Morning News home page that day *1 approached 26,000, whereas ordinarily it is between 2400 and 4800. See Westword/Web Extra/March 6, 1996 <http://www.westword.com/.extra/cyberscoop.html>, at 2. Since then, local television stations and national networks have continued to air stories in which the "confession" is mentioned. Copies of the transcripts of the broadcasts from February 28, 1997, through the date of the filing of this motion are attached hereto as Exhibits D-1 to D-11 .

10. Newspapers across the country printed the Dallas Morning News article in its entirety on March 1, 1997. Many newspapers, radio stations, television stations, and other media sources emphasized that the article contained the chilling and unforgettable statement attributed to Mr. McVeigh that he bombed the building during the day because he needed a "body count" in order to make his point to the government. Copies of the news articles or their on-line text from February 28, 1997, through the date of the filing of this motion are attached hereto as Exhibits B-1 to B-93 and C-1 to C-32.

C. The Playboy story

11. The stories sparked by the Dallas Morning News article were becoming increasingly critical of Mr. McVeigh's counsel when, on March 11, 1997, a new story appeared on Playboy magazine's Internet home page. This story, "based on lawfully obtained documents prepared under the direction of Jones, Wyatt & Roberts, counsel for Timothy McVeigh," Exhibit B-84, at 1, set forth in much greater detail than the Dallas Morning News story Mr. McVeigh's purported confession to his lawyers and revealed that he was not only involved in the Murrah Building bombing but also that he was the principal person involved. As Ben Fenwick, the author of this article wrote, As a reporter in the Oklahoma City area, I covered the events and proceedings surrounding the bombing [of the Murrah Building] for several news organizations.... I was on the site an hour after the explosion. In early spring 1996 I received documents confirming that Timothy McVeigh bombed the Alfred P. Murrah Federal Building, specifying steps he says he took to execute the act. I believe these are different documents from those reported in "The Dallas Morning News," yet they appear to corroborate basic facts in the "News" story. What follows is a narrative of the Oklahoma City bombing based on the documents assembled by Jones, Wyatt & Roberts.

Exhibit B-84, at 1.

12. The next day, March 12, 1997, the lead segment on ABC's Prime Time Live was based upon this same document. Ben Fenwick, the author of the Playboy home page article, was interviewed, and several pages of the document, which appeared to be an authentic "Jones, Wyatt & Roberts" document, were shown. The details of Mr. McVeigh's purported confession to his lawyers were laid out in words drawn from the document and by Fenwick. See Exhibit D- 10.

13. The following day, March 13, 1997, Fenwick appeared on all three major networks morning news shows, reiterating the details of Mr. McVeigh's purported confessions and vouching for the authenticity of the source document. See Exhibit D- 1 l .

D. The harm to Mr. McVeigh

14. Unlike Wilbert Rideau, at the time the Dallas Morning News article, and then the Playboy home page article, were published, Mr. McVeigh had counsel. However, the publication of these articles - and their republication in hundreds of print and electronic media stories thereafter -- has as effectively denied his right to counsel as the televised interview with the Sheriff of Calcasieu County, Louisiana denied Mr. Rideau's right to counsel. It did so by violating the sanctuary of the attorney-client relationship and exposing communications that must be kept inviolate. The right to counsel cannot exist without this sanctuary. It is the central place where counsel's assistance can be had where there is a right to communicate without fear of the consequences, to explore factual hypotheses and alternatives concerning the unknown, to make mistakes in investigation and hypotheses, to develop strategy in consultation with the client, and to mount a quest for justice. It is the only place where an accused can gain help in facing an accuser without fear of being compromised or betrayed.

15. The Dallas Morning News and Ben Fenwick intruded into this place of refuge for Timothy McVeigh. Neither was invited; neither had permission from Mr. McVeigh or his counsel to be there; they trespassed. *2

16. Just as significantly, the Dallas Morning News and Fenwick have eviscerated Mr. McVeigh's right to plead not guilty. While it is true, of course, that Mr. McVeigh can still go to trial on his plea of not guilty, his efforts to defend on this ground will now be seen as nothing more than a hollow formalism at best, and a lie at worst. Whether the purported confessions by Mr. McVeigh to his lawyers are true, most jurors who heard of them will think they are and will remember them. Even if they still have a doubt about the truthfulness of the confessions, they will nevertheless be haunted by them. Because of this, Mr. McVeigh's efforts to test the government's case and to force the government to prove him guilty beyond a reasonable doubt will have no chance of resonating with jurors, even if they honestly believe, and this Court finds, that they can listen to and evaluate the evidence without being influenced by these pretrial disclosures. No person can be uninfluenced by exposure to the content of these stories at the time that Mr. McVeigh's counsel is questioning the government's evidence. The defense can do nothing more than score debater's points at trial, because the real trial has already occurred with the exposure of the purported confessions.

E. The remedy sought is equitable. because the harm is irreparable. and neither Mr. McVeigh nor his counsel can fairly be held responsible

17. Anyone exposed to these articles_or the hundreds of articles and reports that reiterated the purported confessions_will be influenced by them. Doubt about guilt based upon the evidence presented at trial will invariably be resolved against Mr. McVeigh because of these reports. That much is clear. Just as clear is that neither Mr. McVeigh nor his counsel can fairly be held responsible for these disclosures. To appreciate this, the Court must become acquainted with what occurred to lead to these revelations by the media.

18. The first inkling counsel for Mr. McVeigh had that anything was about to happen was on Thursday, February 27, 1997. On that day, a reporter from the Dallas Morning News asked Stephen Jones if he might meet him as the "new kid on the block." During the conversation the reporter asked counsel where he would be Friday, February 28, 1997, at 4:00 p.m. because he would want his comments on something. Mr. Jones had been preparing to return to Oklahoma that Friday, so he advised the reporter that he might be in central or western Kansas where mobile telephone connections were difficult. The reporter suggested that Mr. Jones call Pete Slover, another reporter for the Dallas Morning News. Mr. Jones did so and advised Slover of his travel plans. Mr. Jones volunteered to respond to any matter that Mr. Slover had, if response would be appropriate. Slover said to Jones that he "didn't have it yet" but expected to have it the next day, and preferred not to inquire about it now.

19. The Dallas Morning News clearly wanted to spring a surprise on counsel. Its reporters made sure Mr. Jones could be reached at 4:00 p.m. on Friday, February 28, 1997. They refused to advise Mr. Jones of why it was important to be able to reach him. The paper intentionally misled Mr. Jones by advising him that it did not yet have the materials at issue, when in fact the documents had been in its possession since the end of January, 1997.

20. Because Mr. Jones believed that something might seriously be amiss, he altered his travel plans and remained in Denver, where he received a telephone call from Mr. Slover about 3:00 p.m. on February 28. Upon learning what Mr. Slover's article would be, Mr. Jones attempted to dissuade the Dallas Morning News from publishing any of the purported defense material. He asked to and did speak with their lawyer. He advised the paper that what Mr. Slover read to him did not sound familiar. When these attempts failed, Mr. Jones decided to advise the Court of the matter, inasmuch as the Dallas Morning News was a party before the court.

21. The Dallas Morning News, in an attempt to thwart any attempt by Mr. Jones to obtain an order of prior restraint against it from the Court, decided to outfox the Court and Mr. Jones by publishing the story immediately on its Internet home page.

22. On Friday evening, February 28, 1997, Mr. Jones believed the Dallas Morning News story was a hoax, perpetuated upon it by two individuals, both of whom had well-known differences of opinion with Pete Slover. Indeed, in March, 1996, Slover had telephoned the defense investigators and complained about both of these people, and the defense believed that these two individuals had simply pulled a hoax on the newspaper. To attempt to verify this, Jones requested that the Dallas Morning News send him a copy of the so-called "confidential defense memorandum" so that he could determine whether in fact it was an accurate document. The paper refused to send a copy or any part of it, and without a description of date, time or place, but only isolated language from the memorandum, it was not possible for the defense team to learn in the few minutes that were available the true identity or accuracy of the document, if it existed. Efforts to reach the two individuals suspected of the hoax were likewise unsuccessful. The defense informed the Dallas Morning News that it would immediately apprise Judge Matsch of this development. The defense team believed that once this information was known, the Dallas Morning News decided to move on the Internet, fearing a restraining order by the Court or an order of replevin.

23. Counsel for Mr. McVeigh met with the Court late in the afternoon on February 28, 1997, after it became apparent that the Dallas Morning News had already published its article on the Internet. Immediately upon returning from court, the defense commenced an investigation of whether such a document existed, and how the Dallas Morning News obtained copies. By Saturday night the defense knew the answers to both questions and counsel informed counsel for the Dallas Morning News in their opinion they had probable cause to believe that Mr. Slover had committed a theft. The Dallas Morning News reporter, either with or without the permission of the Dallas Morning News compromised the defense computer system and without authorization of Mr. McVeigh or Mr. Jones, the FBI, or Michael Tigar, removed thousands of computer files, consisting of 25,000 investigative reports of the F.B.I. and the federal government, and defense investigative documents exchanged in reciprocal discovery with co-defendant Terry Nichols. This compromise of the defense files, occurred by fraud, theft, manipulation and actual downloading onto a computer owned either by Mr. Slover or the Dallas Morning News under circumstances which would clearly suggest to Mr. Slover, a member of the bar of the State of Texas, that he did not have valid authority to have these documents and that no consent had been given to him to have them. This is not a case in which the defense was compromised by a third party who then gave the documents to the Dallas Morning News. Rather, Dallas Morning News reporter Pete Slover, either with or without the knowledge of his employer, was himself a principal in the theft. *3

24. Mr. Jones further advised the Dallas Morning News lawyer that he intended to file a replevin action against the paper, but would forego this if the newspaper agreed to three conditions: to cease writing stories based upon information in the stolen defense materials; to gather up the defense documents in its possession and turn them over to its Denver lawyer, Mr. Tom Kelley; and to publish a story saying the paper could no longer vouch for the authenticity of the documents. In conjunction with this last request, Mr. Jones offered to explain why this was so, and gave the paper a 2:00 p.m. deadline on Sunday, March 2, 1997, to respond. *4

25. On Sunday, March 2, 1997, the Dallas Morning News responded by agreeing to the first two terms of the defense offer, but not the third.

26. Not completely satisfied that the defense objective had been accomplished, and intending to have a brief press conference on Monday morning, March 3, 1997, Mr. McVeigh's defense team determined not to ask the Court for a continuance and refrained from any further public comment until Monday, except for a short appearance on Sunday morning on the David Brinkley show and a very brief interview with CNN.

27. During the weekend the Dallas Morning News editor, Mr. Ralph Langer, made the rounds of the television and talk show circuits promoting the Dallas Morning News publication of this article and justifying its actions. On Monday morning, March 3, 1997, as defense counsel was preparing to file its Statement of Position, the publisher of the Dallas Morning News appeared on NBC's Today show and repeated the entire story of Mr. McVeigh's purported confession, patting the newspaper on the back about publishing a story of compelling national interest.

28. The defense conducted a press conference on March 3, 1997. A copy of the transcript of the March 3, 1997, press conference is attached hereto as Exhibit G.

29. During this period of time, local newspapers in the State of Colorado and particularly in the Denver metropolitan area had picked up the Dallas Morning News story and reproduced it. Copies of the Denver Metropolitan news articles are attached hereto as Exhibits B-1 to B-l 9, C-l. Though few newspapers contained praise for the Dallas Morning News' irresponsible action, the news stories reprinted what the Dallas Morning News had said.

30. On Monday around 6:00 p.m., CBS News released a report that the purported "confession" was a fake document created by the defense. This report was presumably based upon a press statement made by Mr. J.D. Cash over the weekend, a copy of which is attached hereto as Exhibit H, but which to that point had not drawn much attention. The CBS report was inaccurate because it reported that the "confession" had been shown to a witness to get that witness to change his story. For this reason, the defense felt that some explanation was needed, fearing that its silence would be perceived as acknowledging that a fake document was being prepared to get a witness to change a story. Accordingly, the defense issued a press statement, a copy of which is attached as Exhibit E. *5

31. On Tuesday, March 4, 1997, at 4:00 p.m., the defense proposed to the Dallas Morning News that it would cease talking if the newspaper would do the same. The Dallas Morning News agreed and took the menu of articles off its Internet web page, and has basically honored this agreement, as has the defense.

32. Notwithstanding the agreement of the defense and the Dallas Morning News to refrain from further discussion, the release of the March 3, 1997, evening statement by the McVeigh defense team unleashed a veritable maelstrom of publicity in national newspapers, on television, on radio and on the Internet. Instead of being a weekend story, the matter developed a life of its own, continuing to date and still being circulated throughout the potential jury pool.

33. In addition, lead counsel for Mr. McVeigh, Stephen Jones, was deluged with more than 120 calls from the local and national media seeking interviews as a direct result of the Dallas Morning News story. All interviews were declined, except for a very brief CNN interview, and a two-and-one-half minute interview on This Week with David Brinkley. Defense counsel advised the Dallas Morning News he would be appearing very briefly. After the agreement had been reached with the Dallas Morning News on Sunday, counsel gave two very brief interviews to the Oklahoma City television stations suggesting that the matter might be resolved on a basis that would permit the trial to go forward.

34. On March 3, 1997, when Mr. McVeigh's counsel advised the Court that it was not seeking a continuance, its decision was based upon events up to that point in time. The barrage of publicity that has occurred since the publication of the evening March 3, 1997, defense statement, and continued unabated as this motion is being prepared for filing, has justifiably changed Mr. McVeigh's position.

35. The crowning blow has been the publication of the Fenwick article on Playboy's home page on March 11, 1997, and the ensuing additional media frenzy thereafter precipitated by that article. To date, the means by which Mr. Fenwick obtained the defense document that was the source for his article is not known. What is known unequivocally is that no one with authority to do so Mr. McVeigh or his attorneys authorized Mr. Fenwick to obtain a copy of this document. However he obtained it, he does not have it lawfully, and his use of it is as flagrant a violation and evisceration of Mr. McVeigh's right to counsel as the Dallas Morning News committed.

ARGUMENT

I. BECAUSE DEVASTATINGLY PREJUDICIAL AND INFLAMMATORY PRETRIAL PUBLICITY HAS DECIMATED ANY REASONABLE PROSPECT THAT MR. MCVEIGH WILL RECEIVE A FAIR TRIAL, THE ONLY APPROPRIATE REMEDY IS DISMISSAL OF THE INDICTMENT WITH PREJUDICE.

Working independent of one another but guided by a common profit motive, the Dallas Morning News and Playboy magazine have in Mr. McVeigh's capital case toppled the twin pillars upon which rests the very integrity of our criminal justice system: the presumption of innocence and the Sixth Amendment guarantee of a fair trial. More than a century ago, the Supreme Court enshrined as a bedrock principle the notion that every criminal defendant begins trial presumed to be innocent of the charges against him. "The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of our criminal law." Coffin v. United States, 156 U.S. 432, 453 (1895).

Whatever remained of Mr. McVeigh's presumption of innocence evaporated on February 28, 1997, just one month before his trial is to begin. On that day, the Dallas Morning News published its Internet article claiming that it was in possession of secret defense documents containing a purported "confession" by Mr. McVeigh to a member of his defense team; that Mr. McVeigh asserted that he alone committed the atrocity of the Oklahoma City bombing; and the blood chilling claim that Mr. McVeigh told his defense team that he purposely chose to detonate the bomb during the daytime to maximize the "body count" and better get his point across. Each of the myriad news reports chronicling this development focused on the "body count" claim. This statement is simply incendiary -- it goes well beyond "extremely inflammatory." Every potential juror must be presumed to have heard, and to remember, some report of this purported "confession."

Less than two weeks later, on March 11, 1997, Playboy magazine posted its Internet article, supposedly based on an actual defense memorandum, which purported to report still another confession of Mr. McVeigh. Like the Dallas Morning News article, the Playboy piece was prominently featured on the nightly news by two of the three major networks and by many other national and local media organization.

The Supreme Court has noted the reasons why the presumption of innocence is indispensable to a fair trial. "[T]he presumption of innocence 'cautions the jury to put away from their minds all the suspicion that arises from the arrest, the indictment, and the arraignment, and to reach their conclusion solely from the legal evidence adduced."' Taylor v. Kentucky, 436 U.S. 478, 485 (1978), quoting 9 J. Wigmore, Evidence Section 2511, p. 407 (3d ed. 1940). The ineluctable effect of the dual torches lit by the Dallas Morning News and Playboy articles is to inflame the suspicions of even the most fair- minded citizens. With respect to a smaller but significant group of other potential jurors, the effect of the media feeding frenzy has been to remove all doubt as to Mr. McVeigh's involvement in the bombing.

Under these circumstances, prejudice to Mr. McVeigh is presumed. See Rideau v. Louisiana, 373 U.S. 723, 726-27 (1963) (prejudice presumed when defendant's confession was televised prior to trial); United States v. Davis, 60 F.3d 1479, 1485 (lOth Cir. 1995) (prejudice presumed when court determined jurors had watched television news reports of trial). Cf. Dobbert v. Florida, 432 U.S. 282, 302 (1977) (prejudice not presumed in the absence of a "trial atmosphere ... utterly corrupted by press coverage"); United States v. Abello-Silva, 948 F.2d 1168, 1177 (10th Cir. 1991) (prejudice not presumed despite pretrial publicity consisting of 31 articles over a six-month period because jurors anonymously selected, identities protected, and news clippings merely revealed facts gathered from public records and pretrial hearings); Stafford v. Saffle, 34 F.3d 1557, 1567 (lOth Cir. 1994) (prejudice not presumed despite extensive pretrial publicity concerning defendant's prior murder conviction and death sentence, all jurors seated had knowledge of the case, and literally hundreds of news stories printed when defendant failed to establish that "an irrepressibly hostile attitude pervaded the community").

In Rideau v. Louisiana, Rideau was arrested for armed robbery, kidnapping and murder. While awaiting trial, Rideau granted a filmed interview to the sheriff, during which he confessed in detail to the crimes. Subsequently, the filmed interview was televised three times to tens of thousands of people in the community in which the crimes occurred. Thereafter, Rideau was convicted and sentenced to death. 373 U.S. at 724-25.

The Supreme Court held that Rideau was denied due process of law when the trial court refused to grant a change of venue motion after the community's repeated exposure to the film. According to the Court:

we do not hesitate to hold, without pausing to examine a particularized transcript of the voir dire examination of the members of the jury, that due process of law in this case required a trial before a jury drawn from a community of people who had not seen and heard Rideau's televised 'interview.' 'Due process of law, preserved for all by our Constitution, commands that no such practice as that disclosed by this record shall send any accused to his 'death.' Id at 727, quoting Chambers v. Florida., 309 U.S. 227, 241 (1940). *6

Mr. McVeigh's facts are far more compelling than those of Wilbert Rideau. First, while Rideau's jury pool was exposed to one confession, Mr. McVeigh's prospective jurors have been tainted by two purported confessions, alleged to be based on different defense documents, revealed within the span of two weeks. Rideau's solitary confession was televised three times to tens of thousands of people in the parish where his trial took place. Mr. McVeigh's alleged confessions were first publicized nationally by posting on the Internet. Subsequent reports regarding Mr. McVeigh's purported confessions captured the nation's attention and led the national news broadcasts. These reports have been relentlessly republicized by every media known to man. In sum, in this case, egregiously prejudicial and inflammatory pretrial publicity has saturated not only the Denver community where Mr. McVeigh's trial is to be held, it has swept the nation. As a result, "any subsequent proceedings [involving Mr. McVeigh] in a community so pervasively exposed to such a spectacle could be but a hollow formality." Rideau, 373 U.S. at 726.

Likewise, Mr. McVeigh's prejudicial facts dwarf those in Coleman v. Kemp, 778 F.2d 1487 (11th Cir. 1985). In that case, shortly after Coleman and others were arrested, law enforcement officials announced that the circumstantial evidence against them was "overpowering" and that there was nothing to be gained by pursuing other suspects. The press reported that Coleman's fingerprint had been found at the scene. Coleman was rarely mentioned in the press without an accompanying statement that he had confessed to the murder of a youth. All of this was reported repeatedly by print and broadcast media alike. "In short, there was an overwhelming showing in the press of petitioner Coleman's guilt before his trial ever began." Id. at 1538.

The media's unrelenting focus on Mr. McVeigh's alleged confessions makes an even stronger showing in the press of Mr. McVeigh's guilt -- and this on the eve of jury selection. Revelations regarding Mr. McVeigh's alleged confessions have dominated the national and local news media for the past fifteen days. Mr. McVeigh is now just five days from the day the jury pool reports for duty, to fill out crucial questionnaires. It is hard to imagine anything more damaging to a capital defendant's defense than a public report of his alleged confession. Whether true or false, fact or rumor, even a hint of a confession is extremely prejudicial to a defendant who, like Mr. McVeigh, has pled not guilty and has never wavered from his resolve to plead not guilty.

As the Court stated in Coleman v. Kemp, supra:

Under such circumstances, it is inconceivable to think that petitioner Coleman received an impartial assessment of his guilt or innocence on the basis of the evidence, and the detached weighing of aggravating and mitigating circumstances which the Georgia death penalty system contemplates.

778 F.2d at 1539. Here, it is likewise inconceivable that Mr. McVeigh will receive an impartial assessment of his guilt or innocence based on the evidence adduced at trial. This Court should heed the wisdom of the Coleman decision and avoid a travesty of justice.

The Sixth Amendment to the United States Constitution provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed. U.S. Const. amend. VI (emphasis added).

The most common form of publicity that deprives the defendant of a fair trial is "the type that proclaims the defendant's guilt in advance of trial, and prejudices the minds of the public against the defendant to such an extent that most people are unable to weigh the evidence objectively." United States u Bailleaux, 685 F.2d 1105, 1108-09 (9th Cir. 1981). Clearly, an alleged confession fits squarely within this category of prejudicial publicity.

There can be no doubt that the ubiquitous reports of Mr. McVeigh s alleged confessions saturated all media markets throughout the country and dominated the national news. It is simply impossible that jurors will be able to lay aside impressions or opinions of Mr. McVeigh's guilt shaped by pretrial exposure to these revelations. Patton v. Yount, 467 U.S. 1025 (1984). The constitutional imperative that jurors return a verdict based solely on the evidence presented during trial has become manifestly impossible. Murphy v. Florida, 421 U.S. 794, 800 (1975). Under the unique circumstances here presented, where a capital defendant permanently has been stripped, through no fault of his own, of both the presumption of innocence and the right to a fair trial, the only feasible and appropriate remedy is dismissal of the indictment with prejudice.

II. ALTERNATIVELY, MR. MCVEIGH'S TRIAL SHOULD BE ABATED FOR AT LEAST ONE YEAR TO ALLOW THE LETHAL EFFECTS OF THE PREJUDICIAL AND INFLAMMATORY PUBLICITY TO SUBSIDE AND TO ATTEMPT TO RESTORE TO MR. MCVEIGH THE PRESUMPTION OF INNOCENCE GUARANTEED BY THE CONSTITUTION.

Traditional remedies for prejudicial pretrial publicity include change of venue, enhanced voir dire and continuance.

Expanded voir dire will likewise not restore the ante quo. Even assuming the Court extensively questions jurors during voir dire, and carefully instructs them in cautionary remarks in the charge to the jury to minimize the effect of the damaging publicity, the Court is unlikely to assure that Mr. McVeigh's guilt or innocence will be determined solely on the evidence lawfully adduced at trial. As Justice Jackson observed in Krulewitch v. United States, 336 U.S. 440, 453 (1949):

The naive assumption that prejudicial effects can be overcome by instructions to the jury, *** all practicing lawyers know to be unmitigated fiction.

Id (Jackson, J., concurring). See Delaney v. United States, 199 F.2d 107, 112-13 (is' Cir. 1952)

("One cannot assume that the average juror is so endowed with a sense of detachment, so clear in his introspective perception of his own mental processes, that he may confidently exclude even the unconscious influence of his preconceptions as to probable guilt, engendered by a pervasive Pre-trial publicity. This is particularly true in the determination of issues involving the credibility of witnesses."). See also, Note, Controlling Press and Radio Influence on Trials, 63 Harv. L. Rev. 840, 84243 (1950). But see Nebraska Press Ass 'n v. Stuart, 427 U.S. 539, 554-55 (1976); United States v. Burmea, 30 F.3d 1539, 1560 (5tH Cir. 1994).

Beginning voir dire on March 31,1997, just a few weeks after massive and prejudicial media reports have contaminated the jury pool, will only serve to exacerbate whatever prejudice has already occurred. Enhanced voir dire will not serve to either preserve or restore Mr. McVeigh's constitutional right to a fair trial by an impartial jury. See Affidavit of Gerald Lefcourt, attached hereto as Exhibit A- 1. To the contrary, enhanced voir dire would likely aggravate the damage done to Mr. McVeigh's rights by re- emphasizing the very publicity which has so undermined his chances of a fair trial.

The statements released in the press by the Dallas Morning News and Playboy magazine are incendiary. Both statements were published and disseminated nationally and both statements were and continue to be the subject of heated debate, commentary, criticism and conjecture. Although counsel for Mr. McVeigh have denounced the statements as scurrilous, and their publication irresponsible, the statements are still out there, and are fresh in people's minds. The statements are particularly fresh in the minds of those prospective jurors who have been summoned for jury service in this case, who are, no doubt, paying close attention to every news report regarding Mr. McVeigh. Questioning these prospective jurors during voir dire regarding what they have heard about this case and having them repeat what they have heard only brings the prejudicial facts to the forefront again. To allow this, without any time for the memory to become weaker, will only cause the memories to be more vivid through being re-experienced.

A continuance is the favored remedy when the prejudicial publicity complained of will abate within a foreseeable period. United States v. Morales, 815 F.2d 725, 737 (1st Cir. 1987). As noted in the immediately preceding section, Mr. McVeigh does not believe that his case -- or his defense -will ever recover from the media's damning assertions and the attendant firestorm of incredibly inflammatory and prejudicial publicity. Nonetheless, in some circumstances, a continuance is a practical, feasible method of handling a case receiving pretrial publicity. United States v. DeLuzio, 454 F.2d 711, 712 (lOth Cir. 1972).

Only with a substantial, meaningful continuance will recall fade to the point where a fair trial may become possible. In a year's time, the details of the news reports will be remembered with less specificity, and jurors may well be able to listen to the evidence presented at trial without being clouded by improper, inflammatory information they received pretrial. See Affidavit of Gerald B. Lefcourt, attached hereto as Exhibit A-1; Affidavit of Edward R. Shohat, attached hereto as Exhibit A-2; Affidavit of Ephraim Margolin, attached hereto as Exhibit A-3; Affidavit of Elisabeth Semel, attached hereto as Exhibit A-4; and Affidavit of Daniel J. Sears, attached hereto as Exhibit A-5..

Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused. . . [[W]here there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates.... Sheppard v. Maxwell, 384 U.S. 333, 362-63 (1966).

The Supreme Court has yet to deviate from the rule it announced ninety years ago in Patterson v. Colorado, 205 U.S. 454, 462 (1907): "The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print." In Irvin v. Dowd, 366 U.S. 717 (1961), the Supreme Court reversed a conviction even though jurors had indicated they could be impartial in their verdict despite pretrial prejudicial publicity, because "[w]ith his life at stake, it is not requiring too much that Petitioner be tried in an atmosphere undisturbed by so huge a wave of public passion...." Id. at 728. "This is true, regardless of the heinousness of the crime charged, the apparent guilt of the offender or the station in life which he occupies." Id. at 722.

In Sheppard v. Maxwell, supra, the defendant moved for a continuance or, alternatively, a change of venue, at the start of the trial. The trial court deferred ruling on the motion until after a jury was impaneled. Voir dire revealed that all but one of the summoned jurors had read something about the case. However, because all prospective jurors said they would not be influenced by what they had read or seen, the trial court overruled the motions. The Supreme Court nonetheless reversed the conviction and ordered a new trial. *7

In Delaney v. United States, 199 F.2d 107 (1st Cir. 1952), the Court ordered a new trial for refusal of the trial court to grant a continuance because a change of venue would not have provided relief where the publicity was national in scope. Like Mr. McVeigh's situation, Delaney involved "massive pre-trial publicity, on a nationwide scale," albeit from congressional hearings instead of published purported leaked and stolen "confessions" and "confidential defense documents." Id. at 113.

The news reports in this case seriously endanger Mr. McVeigh's right to a fair trial because they not only purport to proclaim the defendant's guilt, but they unjustifiably proclaim he confessed his guilt to a member of his defense team. See Affidavit of Gerald Lefcourt, attached hereto as Exhibit A-1. There is more than a reasonable likelihood that this prejudicial news will prevent Mr. McVeigh's right to a fair trial, thus a continuance is necessary until the threat abates.

A continuance not only allows time for the prejudicial and inflammatory effect of the news reports of purported confessions and disclosures by Mr. McVeigh contained in so- called confidential defense documents, it permits the subsequent trauma to Mr. McVeigh's Sixth Amendment right to effective assistance of counsel to abate.

Rulings on motions for continuance are traditionally left to the trial court's discretion. Nonetheless, "a judge is not imbued with the power to abrogate a criminal defendant's constitutional rights. Myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality." United States v. King, 664 F.2d 1171, 1173 (lOth Cir. 1981).

III. IF THE COURT REJECTS DISMISSAL AND ABATEMENT AS A REMEDY, IT SHOULD CONSIDER A CHANGE OF VENUE

While the prejudicial pretrial publicity complained of herein has been national, it has been much more intense in the Denver media market. See, e.g, Exhibits B-1 to B-52 (Denver media reports) and B-53 to B-54 to B-93 (national media reports). For this reason, if the Court rejects dismissal and abatement as remedies, we ask that the Court change venue. Alternative venues that could be acceptable in these circumstances include the Districts of Alaska, Hawaii, Puerto Rico, the Virgin Islands, and Vermont.

CONCLUSION

On the very eve of his day in court, and through no fault of his own, Mr. McVeigh's right to a fair trial has been fatally compromised. Misguided media representatives have stripped Mr. McVeigh of any vestige of a presumption of innocence, have poisoned the jury pool with extremely prejudicial news reports, and have rendered impossible any opportunity for a fair trial. Under these unique circumstances, this Court should dismiss the indictment against Mr. McVeigh with prejudice.

Alternatively, if the Court disagrees with counsel and believes that Mr. McVeigh can be fairly tried notwithstanding the unprecedented, paralyzing, pretrial publicity propagated by the media, Mr. McVeigh respectfully requests that his trial be abated for one year to permit restoration of the presumption of innocence and the opportunity for a fair trial, and as an alternative to that, change venue.

Respectfully submitted,

Stephen Jones. OBA 44805 Robert Nigh, Jr., OBA #011686 Richard H. Burr, FBA #407402 Randall T. Coyne, MBA #549013 999 18th Street, Suite 2460 Denver, Colorado 80202 Phone: (303) 299-9050 Fax: (303) 299-9023

By: Jeralyn E. Merritt, Esquire 303 East 17th Ave., Suite 400 Denver, Colorado 80203 Phone: (303) 837-1837 Fax: (303) 832- 7822 Cheryl A. Ramsey, OBA #7403 Szlichta & Ramsey P.O. Box 1206 Stillwater, Oklahoma 74076 Phone: 405/377-3393

Christopher L. Tritico, TBA #20232050 Essmyer, Tritico, & Clary 4300 Scotland Houston, Texas 77007 Phone: 713/869-1155

Of Counsel

Robert L. Wyatt, IV, OBA #13154 Michael D. Roberts, OBA #13764 James L. Hankins, OBA #15506 Amber McLaughlin, TBA #13740980 Robert J. Warren, OBA #16123 Holly Hillerman, OBA # 017055 Mandy Welch, TBA #21125380

Attorneys for Defendant Timothy James McVeigh CERTIFICATE OF MAILING

I hereby certify that I have this 14th day of March, 1997, served a true and correct copy of the above and foregoing Motion to Dismiss, or in the Alternative, Request for Abatement, with Supporting Memorandum of Law (Under Seal) by hand delivering same to the following:

Joseph H. Hartzler, Esquire Special Attorney to the U.S. Attorney General U.S. Department of Justice 1961 Stout Street, Suite 1200 Denver, Colorado 80294 Voice: 303/313-2500 FAX: 303/313- 2212 Michael Tigar, Esquire Ronald G. Woods, Esquire N. Reid Neureiter, Esquire Adam Thurschwell, Esquire Jane B. Tigar, Esquire 1120 Lincoln, Suite 1308 Denver, Colorado 80203 Voice: 303/831-4059 FAX: 303/831-6232 /s/ Of Counsel

[Endnotes]

*1 Whenever someone logs on to the Dallas Morning News' Internet home page, this is referred to as a "hit."

*2 This is not to suggest that an accused cannot invite the media in or make a strategic decision with reference to the media, but in this instance, these media representatives were trespassers, not invitees.

*3 It is unlikely that the Dallas Morning News was ignorant of what had occurred. Mr. Jones specifically asked Dallas Morning News lawyer Paul Watler if there was a conflict of interest in his representing both the newspaper and Slover, and Watler said there was no conflict. In addition, Slover's similar actions in the past were plainly known to the newspaper. See Exhibit F, concerning an incident involving Slover's trespass in the Ellis County, Texas, Court Clerk's Office.

*4 In the intervening period, Mr. Jones and the defense team continued to investigate the matter, and satisfied themselves that the following criminal statutes had been violated by Mr. Slover and the Dallas Morning News: 18 U.S.C. Sections 641, 1030(a)(6)(a), and 2314.

*5 The publication of this explanation was followed by a series of editorials and Monday morning "quarter-backing" by a few lawyers around the country. None of these lawyers were even remotely familiar with the facts of the case, and indeed all of them made an assumption that was not justified by the press statement issued by the defense, referenced herein as Exhibit E.

The purported "fake confession" was never shown to any witness, nor was it shown to any person sought to be interviewed. Given the nature of the crime here the defense had to investigate a number of individuals whom it considered to be very dangerous to the safety and physical security of the defense team, and certain precautions were taken to make sure that none of them believed that the defense was pointing the finger at them. Among those lawyers criticizing the defense were, incredibly enough, Mr. McVeigh's previous counsel, who serves as a paid television consultant commenting on the trial of his former client; a well- known and well respected First Amendment lawyer who regularly represents newspapers; and Jeffrey Toobin, a lawyer who earned justifiably the censure of the New York Times for his betrayal of his employer, independent counsel Lawrence Walsh, in the prosecution of Oliver North.

*6 Mr. McVeigh acknowledges that the principle of "presumed prejudice" applies in "extreme situations," Coleman v. Kemp, 778 F.2d 1487, 1490 (11th Cir. 1985), and that it is "rarely applicable." Nebraska Press Ass 'n v. Stuart, 427 U.S. 539, 554 (1976). Nonetheless, the facts of Mr. McVeigh's case are even more egregious than those presented in Coleman. In short, as discussed more fully below, we respectfully argue that the facts in this case overwhelmingly demonstrate that this is one of the rare and extreme situations in which prejudice must be presumed.

*7 As the attached expert affidavit of Gerald Lefcourt makes plain, jurors' reassurances that their verdict would be controlled only by the evidence are particularly suspect in this case given that the alleged admissions were made to a member of Mr. McVeigh's own defense team. Affidavit of Gerald Lefcourt, attached hereto as Exhibit A- 1.