IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Criminal Action No. 96-CR-68
UNITED STATES OF AMERICA,
TIMOTHY JAMES McVEIGH,
(Trial to Jury - Volume 131)
Proceedings before the HONORABLE RICHARD P. MATSCH,
Judge, United States District Court for the District of
Colorado, commencing at 9:00 a.m., on the 3d day of June, 1997,
in Courtroom C-204, United States Courthouse, Denver, Colorado.
Proceeding Recorded by Mechanical Stenography, Transcription
Produced via Computer by Paul Zuckerman, 1929 Stout Street,
P.O. Box 3563, Denver, Colorado, 80294, (303) 629-9285
PATRICK M. RYAN, United States Attorney for the
Western District of Oklahoma, 210 West Park Avenue, Suite 400,
Oklahoma City, Oklahoma, 73102, appearing for the plaintiff.
JOSEPH H. HARTZLER, SEAN CONNELLY, LARRY A. MACKEY,
BETH WILKINSON, SCOTT MENDELOFF, JAMIE ORENSTEIN, AITAN
GOELMAN, and VICKI BEHENNA, Special Attorneys to the U.S.
Attorney General, 1961 Stout Street, Suite 1200, Denver,
Colorado, 80294, appearing for the plaintiff.
STEPHEN JONES, ROBERT NIGH, JR., RICHARD BURR, and
RANDALL COYNE, Attorneys at Law, Jones, Wyatt & Roberts, 999
18th Street, Suite 2460, Denver, Colorado, 80202; JERALYN
MERRITT, 303 East 17th Avenue, Suite 400, Denver, Colorado,
80203; CHERYL A. RAMSEY, Attorney at Law, Szlichta and Ramsey,
8 Main Place, Post Office Box 1206, Stillwater, Oklahoma,
74076, and CHRISTOPHER L. TRITICO, Attorney at Law, Essmyer,
Tritico & Clary, 4300 Scotland, Houston, Texas, 77007,
appearing for Defendant McVeigh.
* * * * *
(In open court at 9:00 a.m.)
THE COURT: Please be seated.
We're resumed in 96-CR-68, United States against
Timothy James McVeigh, for a hearing of a number of the
motions. Before calling up these motions, though, I want to
take care of a matter relating to the custody of the exhibits.
We have during the trial agreed that exhibit -- the physical
exhibits, the objects, could be kept in the custody of the
Government through counsel, and I propose to continue that.
Mr. Jones, what's the --
MR. JONES: That's satisfactory, your Honor, through
the completion of the trial.
THE COURT: All right. So we will permit,
Mr. Hartzler, your people to regain custody of the physical
exhibits, most of which are now on the floor in the adjacent
MR. HARTZLER: Thank you.
THE COURT: All right.
Now, the motions to be heard are the defendant's
motion to declare the Victims Rights Clarification Act
unconstitutional, a motion with a brief in support. And I'll
hear that first.
Then there is a motion for prepenalty phase voir dire
of the jury. There's a motion for a brief recess between the
Government penalty phase presentation and the defendant's
penalty phase presentation. There are defendant's motions in=20
limine, several, dealing with anticipated evidence; and because
it's anticipated -- information, I guess we should begin
saying, in the words of the -- in the word of the statute.
Those motions were filed under seal because they related to the
possibility of evidence, some of -- or information, some of
which I believe has changed in the Government's planning.
And there's also a plaintiff's motion in limine with
respect to defense information to be introduced. So those I
think are the pending motions, and we'll hear them in the order
I've just announced them.
So we'll begin with the motion to declare the Victims
Rights Clarification Act unconstitutional and brief in support,
and that of course addresses the -- some of the issues that
were dealt with in this Court's previous memorandum opinion and
order on a similar motion filed before the trial began.
So who's to speak in support of the motion?
MR. COYNE: I am, your Honor.
THE COURT: All right.
DEFENDANT'S ARGUMENT ON VICTIMS RIGHTS CLARIFICATION ACT
MR. COYNE: May it please the Court. For the second
time during the pendency of this capital case, Congress has
declared war on the independent, nonpolitical, federal
judiciary, what Chief Justice Rehnquist has called the crown
jewel of our democracy. They've done it this time by passing
what's titled the Victim Rights Clarification Act. We submit
that that statute passed by Congress for the specific purpose
of interfering with this Court's ruling in this case, under
Rule 615 of the Federal Rules of Evidence, is unconstitutional
for a number of reasons.
First, the statute violates the separation of powers
clause. It violates Mr. McVeigh's Eighth Amendment right to
heightened reliability during his capital sentencing
proceeding. It violates the ex post facto clause, the Sixth
Amendment fair trial guarantee, and the Fifth Amendment rights
to due process and equal protection. And we move that the
Court strike down this statute as unconstitutional.
Now, I won't burden the Court with the lengthy
recitation of the history of your Honor's rulings in this case.
But the purpose of those rulings, I think, is worth bearing in
mind this morning. The purpose was to avoid prejudicial
pretrial impact from possible emotionally traumatizing effects
of what penalty phase witnesses may see and hear at the trial.
It shouldn't surprise anyone that this statute suffers
from as many defects as I've enumerated, given the incredible
haste with which Congress slapped the statute together and
passed it so that it could, again, interfere with this Court's
ruling in this pending capital case.
The bill was introduced in the House just six days
before the en banc Court of Appeals upheld your Honor's Rule
615 ruling, and then the legislation sped through both houses
during the course of two weeks.
THE COURT: I don't think it's correct to say that the
Tenth Circuit upheld the ruling. It declined to rule.
MR. COYNE: And in so --
THE COURT: It had the effect of leaving the order in
MR. COYNE: Agreed, your Honor. The order remained
intact after the -- your ruling was twice challenged on appeal,
but they did not reach the substance of that ruling on appeal.
THE COURT: Right.
MR. COYNE: Congress wasn't entirely unaware of the
constitutional problems that it raised. And if I may quote
from the congressional record, I think the remarks of
Representative Scott in particular sum up one of the problems
that I see, and that is in particular the separation of
problems (sic) difficulty. "The bill violates the
constitutional framework of separation of powers in its undue
retroactive interference with a ruling in a pending criminal
case. It is an obvious attempt to obtain legislatively a
ruling in the Oklahoma bombing case different from the one
already entered into by a federal judge according to the law
and according to the facts in the particular case."
Now, the statute didn't leave your Honor with much, if
any, discretion, at least as I read it. It speaks in terms
which are mandatory. 18 U.S.C. Section 3510 provides in
pertinent part that this Court and any other United States
district court shall not order any victim of an offense
excluded from the trial of the defendant accused of that
offense because such victim may during the sentencing hearing
testify as to the effect of the offense on the victim and the
victim's family or as to any other factor for which notice is
given as required under Section 3593.
The statute also amends 18 U.S.C. Section 3593 in
pertinent part to read: "The fact that a victim attended or
observed the trial --" and again mandatory language -- "shall
not be construed to pose a danger of creating unfair prejudice,
confusing the issues, or misleading the jury."
What seems to be happening is that Congress in this
case has decided to overrule Federal Rule of Evidence 403 at
least as regards to victims.
Now, the separation of powers principle, as I'm sure
the Court's aware, developed from the framers' deep-seated
hatred of legislative interference with the courts at the
behest of private individuals and factions, and that's
precisely what we have in this case. We have victims who
appealed the Court's rulings, victim rights associations who
appealed the Court's rulings, attorneys general who lobbied
Congress on behalf of overturning this Court's ruling, all
binding together for the purpose of disturbing a ruling that
this Court entered for the purpose of protecting the fair trial
rights of Mr. McVeigh.
This specter created by state politicians and private
parties inserting themselves into the legislative arena for the
purpose not just of affecting the law and changing it, but of
changing the law in the middle of an ongoing capital trial is
one which I submit brings into disrepute both branches of
government, the legislative and the judicial branch.
The Supreme Court has never hesitated to strike down
provisions of law which seem to accord to one branch powers
more appropriately disseminated among other branches. That's
taught to us by the Mistretta case, and yet in this instance,
the Congress has done -- has reached into the middle of this
capital trial and it has overruled this Court's order. In
essence what Congress did after the judicial process had run
its course was to resolve itself into a super supreme court so
that it could overrule this Court's decision and ignore any
other decisions of any other courts contrary to it. The
precedential value of such incursion into the judicial process
is staggering, and one which I think needs to be taken into
Plaut vs. Spendthrift Farms stands for the principle
that the legislature cannot control the actions of the courts
by directing the particular steps which shall be taken in the
progress of a judicial inquiry; yet in this case, the Victim
Rights Clarification Act does precisely that: It directs this
Court that it cannot apply Rule 615 to protect this defendant
and countermands this Court's order, twice considered after
some thought and deliberation, revisited after some extensive
briefing and argument, and by legislative fiat just overturns
If I could turn to another constitutional flaw; that
is, the Eighth Amendment requirement that Mr. McVeigh is
entitled to a capital sentencing proceeding which has
heightened reliability. Indeed, when the United States Supreme
Court struck down the death penalty in Furman vs. Georgia, it
was concerned, deeply concerned about the irrational and
unpredictable manner in which the death penalty had been
imposed. Yet by permitting victim impact testimony in this
case, which has been tainted by inflammatory trial testimony,
the Victim Rights Clarification Act ensures that those same
constitutional problems will pervade Mr. McVeigh's sentencing
The Supreme Court has said it is vitally important,
your Honor, both to the defendant and to the community that any
decision to impose the death sentence be and appear to be based
upon reason rather than caprice or emotion. And I think those
were the principles which guided your Honor's early decisions
when you decided to sua sponte, without any motion by the
defendant or the Government, to invoke Rule 615 to protect the
integrity of this very important capital trial and sentencing
When victim/witnesses are exposed to the type of
inflammatory, emotional, heartrending testimony permitted
during the guilt phase of this trial, passion, prejudice, and
perhaps even mistake are as inevitable as they are
This Court did not rule in a vacuum. Indeed it had
before it several examples of emotional outbursts by victims in
direct response to attendance at proceedings in this case. I
won't lengthen my argument by reciting those; they're noted in
our brief. But I would like to say that the wisdom of the
Court's decision, I think, has been shown even during the
course of the trial and beyond as after the appearance of
certain witnesses, at least -- Jennifer McVeigh, Lori Fortier
come to mind -- there were again emotional responses of victims
outside the courthouse in response to those testimony.
Those are the types of effects, your Honor, that we
can't cabin off. Those are also the types of effects that are
very difficult to detect. And for that reason, we respectfully
submit that the Court's suggested procedure of taking these
victim impact witnesses on voir dire for the purposes --
purpose of determining whether in fact they have been affected
by attendance at trial proceeding is one which may prove
unsatisfactory and may not ferret out the bias which may have
infected their testimony.
If I could turn to the ex post facto clause argument
just briefly, we submit that this particular statute does
violate the ex post facto clause. It is being applied
retroactively; Congress passed its statute and then reached
back and imposed it on this Court, on this defendant, on this
Perhaps the most critical element of that particular
argument is whether or not this statute, Victim Rights
Clarification Act, acts to disadvantage Mr. McVeigh. According
to Lynce vs. Mathis, a case cited in our brief, the narrow
issue is whether the statute's consequences disadvantage, in
this case Mr. McVeigh, by increasing his punishment.
Well, the very purpose of victim impact testimony is
of course to persuade the jury to impose the most severe
sentence possible; in this case, a death sentence. The
statute's consequences, on the other hand, allowing that
victim/witness testimony which has become contaminated and in a
real sense supercharged by attendance at court proceedings,
dramatically increases the risk that Mr. McVeigh will be
sentenced to death.
We submit, therefore, that application of the Victim
Rights Clarification Act to Mr. McVeigh during his ongoing
trial will have both the purpose and effect of increasing the
quantum of punishment.
Just briefly, your Honor, if I could note our fair
trial argument under the Sixth Amendment and our due process,
equal protection arguments under the Fifth Amendment, I won't
lengthen my presentation by spelling those out -- they're set
out in the brief -- other than to note that the Supreme Court
has consistently emphasized that a criminal defendant's right
to a fair trial guaranteed by the Sixth Amendment is the most
fundamental of all freedoms. And that fair trial right, of
course, extends beyond a guilt phase proceeding and into a
sentencing phase proceeding.
Mr. McVeigh is entitled to that fair trial; and
indeed, your Honor's orders under Rule 615, I submit, were
tendered for that very purpose: To ensure the integrity of a
very important capital sentencing proceeding in this case.
THE COURT: All right. Thank you.
Mr. Sean Connelly, are you going to respond to
PLAINTIFF'S ARGUMENT ON VICTIMS RIGHTS CLARIFICATION ACT
MR. CONNELLY: Yes, your Honor, just briefly.
The Victims Rights Clarification Act made two
procedural clarifications in federal sentencing law in capital
cases. The first, which this Court has already applied, said:
"The United States district court shall not order a victim
excluded because that victim will offer victim impact testimony
or other sentencing testimony in a capital case." The Court
has applied this by rescinding its prior orders, so that's no
longer in effect -- that's no longer in dispute, I don't think.
I think the only issue at this point is the amendment to
Section 3593(c) which says that the fact that a victim attended
part or all of the trial proceedings, or in this case
closed-circuit broadcast, shall not be a basis for excluding
that victim on grounds of unfair prejudice or other types of
arguments that could otherwise exclude somebody under 3593(c).
We submit, contrary to defendant, that this is a
constitutional exercise of Congress's power to prescribe the
rules of procedure in federal courts.
I'd like to address briefly the three constitutional
arguments that have been made. Each of them is precluded by
controlling case law. First, it is not a violation of
separation of powers for Congress to prescribe the rules of
procedure that a court must follow in a criminal or any type of
proceeding in federal court. The Supreme Court's made clear in
the Plaut case that Congress can alter the rules of procedure
even after they've been applied by a court in a given case as
long as it does so prior to final judgment. And indeed as long
as it does so, it can even reopen final judgments as long as
the judgment is not final in the sense of all appellate
remedies haven't been exhausted through the Court of Appeals
and ultimately through the Supreme Court, the highest court.
Congress has clearly exercised its power under Plaut
and under the Rules Enabling Act and power to prescribe the
rules of procedure in federal court; so we submit that under
Plaut, there is no basis for any separation of powers argument.
In fact, Plaut is a 1995 decision, but the principle goes as
far back as to Chief Justice Marshall in 1801 in the Schooner=20
Peggy case where Congress changed the rules that governed a
case that had become decided by the district court, and a
forfeiture case, had been affirmed by the Court of Appeals, the
Supreme Court Chief Justice Marshall in the Schooner Peggy case
applied the new rules that Congress had established for that
very case and applied it because the case had not yet become
final in the sense that all appellate rights had been exhausted
up to and including the Supreme Court. So we'd submit that as
a controlling case when there's basis for any separation of
powers attack on it.
The next argument is ex post facto, and as this court
recognized in its opinion back in September 1996, overruling
challenges to the Government's allegation of nonstatutory
aggravating factors that the defendant claimed would violate
the ex post facto clause, the Court said that there's been no
change in the definition of the offense or in the applicable
punishment, the only change is a matter of sentencing
procedure. And the Court cited Dobbert vs. Florida. Dobbert
involved a case where the Florida legislature, after the
defendant's crime had been committed, changed sentencing
procedure in that case so that the judge no longer had to
automatically defer to a jury recommendation of life in prison.
The judge after the legislative enactments was entitled to
override a jury recommendation of life and impose a death
sentence. The defendant in that case argued there was an ex=20
post facto violation, and the Supreme Court unanimously said
that it's simply a change in sentencing procedure. It may work
to the detriment of the defendant, but it's merely a change in
procedure. It is not as required under ex post facto case law,
a redefinition of the elements of offense nor is it a increase
of the punishment after the fact of the crime. So we submit
that this Court's decision back in September relying on Dobbert
also disposed of any ex post facto challenge.
The only other argument is that allowing a victim who
watched part or all of the trial to testify at sentencing would
violate the Fifth, Sixth, and Eighth Amendments. Again, that
has to be an argument as applied that the victims' testimony is
somehow so tainted by the exposure to any part of the trial
that that victim constitutionally may not testify. We would
submit there's no basis for such a broad constitutional
prophylactic rule and in effect it is asking the Court to make
Rule 615 of constitutional stature, and it has never been
interpreted that way. The Sixth Amendment gives the defendant
a right to confront witnesses, not to exclude them from part of
the trial. And this argument if taken to its logical context
would result not only in striking down this statute but also
similar or even broader statutes applied in many, many states
around the country; and we submit there's no basis for a
constitutional prophylactic rule, that simply by attending all
or part of the trial, a victim is constitutionally disabled
If the Court has any other questions, I'm sure I'd be
happy to answer them. But otherwise, that's our response.
THE COURT: All right.
MR. COYNE: If I may just briefly, your Honor?
THE COURT: Yes, Mr. Coyne.
DEFENDANT'S REBUTTAL ARGUMENT, VICTIMS RIGHTS CLARIFICATION
MR. COYNE: Your Honor, Mr. Connelly's fond of Chief
Justice John Marshall; so am I, and in a case called Marbury=20
vs. Madison Chief Justice Marshall wrote that it is exclusively
the province and duty of the judiciary to say what the law is.
But more apropos to this point, in Fletcher vs. Peck, an 1810
decision written by Chief Justice Marshall, he wrote, quote,
"It is the particular province of the legislature to prescribe
general rules for the government of society; the application of
those rules to individuals and society would be seem to be the
duty other departments." Congress in this case had prescribed
a rule of procedure, a rule to bind this Court in this case, a
rule for this Court's benefit, for the benefit of the
defendant; that was Rule 615. You applied the rule in this
case, and it was your duty to do so. And what happened was
Congress stepped in.
Also, just to briefly remind the Court that during a
March 7, 1997, conference, though without the benefit of oral
argument or briefing, it seemed that the Court shared some of
the separation-of-power concerns that we voiced this morning.
Other than that, if there are no questions, thank you,
THE COURT: All right.
RULING ON VICITMS RIGHTS CLARIFICATION ACT
Well, I've considered the briefing that's been
submitted and the arguments here; and in addition, I would
recognize that yesterday there was a pleading filed, motion of
the victims, the Oklahoma City bombing, to reassert the motion
for a hearing on the application of Victims Rights
Clarification Act of 1997, attached to which was the brief that
was earlier submitted on March the 21st, 1997, by counsel for
the named persons, and have considered that as an amicus
briefing because it is not my view, and it's not been argued by
the Government that the view -- that the statute creates
standing for the persons who are identified as being
represented by counsel in filing that brief.
Now, I already expressed my general views with respect
to the constitutional issues presented here. First of all, in
the previous opinion of course I said that we never may -- we
may never get to the question of constitutionality because that
arises only upon a guilty verdict. Now there is a guilty
verdict, so we must address the constitutional issues.
I did, however, go forward to talk about the
separation of powers and the ex post facto issues, but it is
important, I think, to emphasize that the legislation in
question here does not dictate a rule of decision in the case.
It is, in my view, the equivalent perhaps of an amendment to
Rule 615 of the rules of evidence. The Supreme Court has
recognized that Congress has a constitutional authority in the
matter of the rules of evidence, the Rules Enabling Act, the
normal process by which the rules of evidence were developed
and are developed in that they come from the judicial
conference, then the Supreme Court, then to the Congress. And
in essence the Congress has negative veto, but also the power
to amend and the power to initiate rules on their own
proceeding, their own legislative process.
Now, I therefore do not consider it to be an ex post=20
facto issue, nor do I consider it to be a violation of the
So it comes down to really the question of whether
there are Eighth Amendment and Fifth Amendment implications to
permitting testimony during the penalty phase hearing from
persons who attended or observed the trial; and, of course,
what the statute says -- and this should be emphasized -- is
that the fact that a victim attended or observed the trial
shall not be construed to pose a danger of unfair prejudice,
confusing the issues, or misleading the jury.
The most important word there, in my judgment, is
"danger." It is not a statute that says that the Court does
not have the inherent power and authority to determine that any
particular witness's observation of the trial has so influenced
or affected that witness as to put the testimony of that
witness into the category of being a matter that could unfairly
prejudice the jury, confuse the issues, or mislead the jury.
As I indicated in anticipation of the possibility of
this moment in my earlier opinion, that matter can be
determined factually when we have the Government proffering
these witnesses. And accordingly, it's my intention to permit
the defense, prior to the testimony of any witness who has
attended or observed the trial, to determine whether that
witness has indeed -- and his or her testimony has indeed been
influenced in some way by what he or she observed during the
It's my understanding that the persons who may be
offered as witnesses here by the Government have not seen the
entire trial; and therefore, it is with respect to what
particular testimony or parts of the trial they saw. And also,
it relates to what their testimony will be here, because there
are limits as to what any victim/witness can testify to,
whether that person has observed any portion of the liability
trial or not. And that's a matter that has been raised by
these motions in limine filed by the defense.
Care must be taken here to ensure that this next phase
of the trial be one within the proper constraints of the Eighth
Amendment and the Fifth Amendment as the Supreme Court of the
United States in varying opinions filed by the several justices
in Payne vs. Tennessee caution; that, you know, a penalty phase
hearing cannot be turned into some kind of a lynching and that
the people who testify with respect to the area of victim
impact that's mentioned in the statute, the death penalty
act -- that this cannot become such a matter of emotion and
testimony which would inflame or incite the passions of the
jury with respect to vengeance or the passions of the jury with
respect to empathy for grief or those human emotions that are
inappropriate in making a measured and deliberate moral
judgment as to whether the defendant should be put to death.
That's the issue to be presented to the jury.
And I do not intend any of the evidence --
"information," as it's called -- be presented to this jury to
permit them to exercise anything other than a disciplined moral
judgment in the process that's already been described in my
previous opinion, that sequential process that the jury must go
through, as they will be instructed in closing instructions
after the death penalty information has been presented.
So what I'm going to require here is that the
Government identify in advance of the appearance of these
witnesses who they are, what they did see -- I mean those
portions of the trial that they observed, either here in this
courtroom or through the closed-circuit transmission,
television transmission to Oklahoma City, and then what it is
that their testimony is proposed to cover at the trial.
And we'll deal with that outside the presence of the
jury when we have that information. So that's the ruling.