Oklahoma City Bombing Victims: An Update
The last Newsletter described the distress of a group of injured victims and surviving relatives of people killed in the Oklahoma City bombing, a group that had been selected by prosecutors to give victim impact testimony in the event Timothy McVeigh was convicted. First, the trial court barred them from observing any of the trial proceedings, a ruling that was deemed unappealable by a higher court. Then, after Congress passed the Victim Rights Clarification Act of 1997, affirming their rights to both observe the trial and testify at sentencing, the trial judge ruled that only after a conviction would he hear defense arguments against the constitutionality of the new law, while also ruling the defense could question in advance any impact witnesses who observed the trial for any taint that experience would have on their testimony.
As the case went to trial, Judge Richard Matsch had not responded to the victims' motion, brought by volunteer attorney and Utah Law Professor Paul Cassell, to clarify his cloudy interpretation of the Clarification Act. Thus, a number of these victims who wanted very much to observe the trial were deciding not to, for fear they would later be barred as impact witnesses; the same anguish was reported of victims who decided to exercise their uncertain rights to see the trial proceedings.
The following updates that report.
Diane Leonard felt vindicated.The Victim Advocate in Oklahoma Attorney General Drew Edmonson's office - and the widow of Secret Service Agent Don Leonard, killed in the April 19, 1995, bombing of the Murrah Federal Office Building - had chosen to attend the first week's trial in Denver, and then to observe most of the rest of the guilt phase of the trial at the closed-circuit television facility in Oklahoma City. These were decisions calculated to test whether the defense could exclude her as an impact witness - a test she believed passionately she must make for her own sake, and also in behalf of all the victims covered by the Victim Rights Clarification Act - a test she passed. On June 4, with the court's permission, she was the first victim to testify at the sentencing phase of U.S. v. McVeigh.
The last witness called by the government, Glenn Seidl, paid a price for that privilege. He was the widower of Kathy Seidl, another slain Secret Service officer, and to make sure he had his day in court, he stayed away from the trial, which he had very much wanted to observe.
Only seven impact witnesses saw any part of the trial, while 22 did not. Three victims who survived with injuries and 26 relatives of those killed in the blast spoke to the jury, as did four Oklahoma City police officers, four medical professionals, and an employee of the Murrah Building's day care center who was out sick on the day of the bombing. Their testimony was presented over a two-and-a-half-day period.
The impact statements presented in the McVeigh case were somewhat unusual. As is apparent in the transcript (available on the Internet at www.CourtTV.com), much of it was elicited by leading questions, and most of it was brief. The reason for this is revealed in the hearings outside of the jury's hearing over the nature and scope of the impact testimony. Judge Matsch was determined to keep the emotionality of the testimony to a minimum, and to that end, ruled out certain avenues of testimony that might prove to be inflammatory. On those grounds, he turned down the government's request to have a twelve-year-old boy testify. That also explains why the defense did not object to the leading questions - it was a way for the prosecutors to control what the witnesses told the jury.
Yet, for all the clinical, abbreviated qualities of the testimony, it was often vivid and painful, causing Judge Matsch at the end of the first day to admonish the jury, "[Y]ou're going to have to make a decision based on reasoning, and it must be free from the influence of passion, prejudice." In continuing, he seemed to waiver, referring to the earlier testimony of witnesses who had recalled their last moments with deceased loved ones, whereupon, "they cried and you cried.
"_But those images that have been created by that testimony are not the things for you to consider," he said. And yet, moments later, he conceded the difficulty of meeting that duty: "And so, hard as it is, you must wait now and withhold your judgment. Don't overreact. And I know you are human beings, too, and so am I, so is everyone here." According to press accounts, the judge himself had earlier seemed to have been moved to tears. Not reported by the press was its own staff members' reactions; Ms. Leonard remembers going to the restroom during a break in the sentencing hearing to find women reporters sobbing over the testimony they had stoically recorded in their notebooks.
Voices of the WitnessesOne can find insightful excerpts from the testimony of all 38 witnesses - even those with less compelling statements. The following selection, presented in chronological order, gives some sense of what the jury heard.
* * *
Assistant U.S. Attorney (AUSA) Larry Mackey: "[I] ask you to tell this jury in your own terms the impact of Don's death on you."
Diane Leonard: "I think the best way to describe it is I feel like I died, too, on April 19. I feel like my heart looks like that building. It has a huge hole that can never be mended."
Question: "Have you been forced to undergo changes that you would just as soon not have experienced?"
Answer: "There is nothing in my life that is the same. I no longer do the same work. The only thing that is the same is the house that I live in, and now it's a house that's not a home, so it really isn't the same."
* * *
AUSA Beth Wilkinson: "Did there come a time when (six and one-half-year-old) David expressed a desire to die?"
Mathilda Westberry: "Yes."
Question: "What did he say?"
Answer: "He would ask Bev when they were travelling, like to the day care and so forth, he would ask Bev to run a red light so they could crash and die and he could go with papa."
Question: "Has the counseling helped him to deal with his feelings about the bombing?"
Question: "Is he doing better in school?"
Answer: "Yes, much better."
* * *
AUSA Joseph Hartzler: "Your honor, we call Susan Walton. She's going to need some assistance. I think she could hold the microphone but would not be able to enter the witness stand."
[Later in the direct examination] "I am going to ask you about the gardening. It appears that you're probably not able to kneel down; isn't that correct?"
Ms. Walton: "Right. I don't think I'll ever be able to kneel again, so it's all done from sitting position."
Question: "Okay. How about housework? You pretty disappointed you haven't been able to do some housework?"
Answer: "Not a bit."
* * *
Pamela Wicher: "_ Melinda has had the hardest time. She was like her daddy's little girl. She - she told me that she has learned to hate, which is a horrible thing to hear coming from your 16-year-old baby. _ She wrote a paper for school. The topic was a day that changed her life. _ [A]t the end of the paper she said that 'I never knew such a dark, horrible place existed until I had to go there, and I'm clawing my way out as best I can.'
"I think she's doing a good job. She's coming back."
* * *
U.S. Attorney Patrick Ryan: "Do you think you're doing better today than you were two years ago?"
Laura Kennedy: "Yes. I've made some progress, but it's very slow. It's a day-to-day struggle. When I still see children, especially if they're blond-haired, blue-eyed little boys, it's painful. It's painful to be a mother and not have anybody to mother."
* * *
USA Patrick Ryan: "Were you able to determine the number of people who have been treated by the Department of Mental Health?"
Sue Malone [injury epidemiologist for the Oklahoma Department of Health]: "I got a number from the Department of Mental Health for Project Heartland, which started in response to the bombing. _ [in figures through] December, '96, there were 1,806,713 clients served by Project Heartland, and again that does not include anybody that sought services from private clinicians."
* * *
AUSA Beth Wilkinson: "And your scars healed, other than having that mark that you just showed the jury?"
Susan Urbach: "Well, I have to take off a lot of my clothes in order to show you my other scars."
Question: "We'll do without that."
Answer: "But yes, I've healed up very nicely, thank you."
Question: "And how do you feel about your scar today on your face?"
Answer: "Well, it's my badge of honor."
Question: "What do you mean by 'badge of honor'?
Answer: "Well, to me, you see, a scar - and any scar - tells a story _ of a wounding and a healing that goes along with that wounding. And the more deeply you're wounded, the more healing that must come your way, that you must experience, for that wound to close up, and for you to get your scar. I mean, you don't get your scar unless you've been wounded and you have healed. And I've got my scar."
Question: "So you're proud of your scar?"
* * *
AUSA Vicki Behenna: "_ for the next two months after Carrie's death, was pretty bad, wasn't it?"
Michael Lenz, Jr.: "Yes, ma'am, I did things I'm certainly not proud of. Probably drank more than I should, caused trouble. I had no regard for - for anything. I'd lost everything. There was nothing. I mean, a house, it's bricks, mortar. Without a family in it, it's not a home."
Question: "Did you want to continue with your own life?"
Answer: "There was a point when I - I contemplated - definitely not being in the best of judgment, but - there was a point where I actually stuck a pistol in my mouth. I couldn't pull the trigger, thank God _
"There is - if I may, I will say this: that when I reached that low point in my life, there is nothing, nothing more dangerous than a man who has no reason to live. I've been there."
* * *
USA Patrick Ryan: "What did you and Clint do that day?"
Glenn Seidl: "_ So the next day, some counselors came in from Washington, D.C. [editor's note: evidently not part of the NOVA Crisis Response Team]. And they asked if I'd like to talk. And I told them I was worried about Clint [his seven-year-old son]. Clint was avoiding me. I mean, you know, he - I'd seen him once in a while look around the corner. And the counselor came in, Carolyn Ellis, and I told her that Clint had been avoiding me.
"And she took him into a room and they talked. And she came back and she said, 'Clint has never seen you cry. He's never seen you scared. He thinks the people that have done this are after you and him.' And it never dawned on me - you know, I mean that they weren't after me or him directly. And this very professional lady gets a tear in her eye and says that - told me that you and his mom have started him a savings account. He's got $180 in there and that he wants to pay me that money if I'll help you."
The Legal FightOn June 3, 1997, between the guilty verdicts and the penalty phase, Judge Matsch held a hearing outside the jury's hearing to consider the constitutionality of the Victim Rights Clarification Act.
The defense objections to the statute were lengthy and futile. Among the constitutional violations it attached to the statute were the separation of powers doctrine, the Eighth Amendment right to heightened reliability of evidence in capital murder cases, the ban on ex-post-facto laws, the Sixth Amendment's requirements of a fair trial, and the Fifth Amendment's rights to due process and equal protection.
Perhaps at the core was a question of the propriety of Congress altering the Rules of Criminal Procedure in mid-trial, and on this point, Professor Cassell and others were proven right: the Supreme Court had previously ruled that such an act was within Congressional prerogatives.
In responding to the two sides' oral arguments, Judge Matsch finally made an oblique response to Professor Cassell's motion for clarification of his earlier order. "I've considered the briefing that's been submitted and the arguments here; and, in addition, I would recognize there was a pleading filed, a motion of the victims of the Oklahoma City bombing to reassert the motion for a hearing on the application of the Victim 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 [friend of the court] 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."
Two paragraphs later he opined, "I therefore do not consider it to be an ex-post-facto issue, nor do I consider it to be a violation of the separation-of-powers principle."
He then stressed the statute's language that a victim who observed the trial should not be construed to pose a danger of unfair prejudice.
"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" if a witness's testimony has been tainted. "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 - that his or her testimony has indeed been influenced in some way by what he or she observed during the trial."
The first witness to be so tested was Diane Leonard, who had watched most of the trial. She was first questioned by Assistant U.S. Attorney Larry Mackey about the judge's earlier ruling on that subject.
"I have been very mindful of that," she replied. "However, I had such a strong need to understand what had happened, and I felt like my life has been like a puzzle, and only the border was there - the interior pieces were scattered. And it's been very helpful to me to hear what occurred, to be able to put those pieces in place."
Then the judge questioned her, leading up to this dialogue: "So let me just ask you a couple of questions, and please recognize that I'm not asking these in any accusatory way. But it is human nature to react to some things that happen at a trial, including the judge. I mean, I'm not unmindful that my first ruling when you were present in the courtroom when I made it, apparently, probably shocked and angered you, and you had some reaction to that. I understand that. And just because we're a few feet from each other, and I'm asking you these questions, I don't want you to be hesitant about telling me honestly how you felt about that."
Ms. Leonard: "I was very disappointed in that ruling, obviously, because from April 19, 1995, I wanted to learn everything I could about what happened. There have been lots of rulings that you've made that a lot of people were not happy about, but I could find something positive, long-range, about each of those rulings, except this one; and I couldn't find a long-range positive to that one, so that's why it did disturb me. Yes, it did."
He probed further: "_ whether you have the view that, Okay, I want to get in there - I'm paraphrasing very crudely -but I want to get in there and tell them what I think and this Judge has learned his lesson, or something like that."
Ms. Leonard: "No, I don't feel that way at all. I just want to - to explain who Don was and the impact this crime has had on my life _"
The Court: "And then of course in this trial you've seen Mr. McVeigh?
Ms. Leonard: "Yes, I have."
The Court: "And I'm aware that seeing a person accused and now convicted of the crime that lost - that caused your husband's death, you certainly have reactions about him, and I'm not asking you to detail those. I'm just asking if you, whether you can honestly tell us whether you can separate out any anger or feeling that you need to get revenge or anything like that from your ability to testify truthfully as to the matters that you're going to be asked."
Ms. Leonard: "I don't really understand this, but I can honestly tell you that I have never felt anger toward Mr. McVeigh - a few days, the first few days after this occurred, I had some general anger. _ I decided early on that it took a lot of energy to be angry, and I had too many other places - I didn't have that much energy left, and what I had left, I had too many other places to put it. So I've directed my energy in different directions other than anger."
The Court: "And I'm going to add to that, of course, the concern that we might have that you feel anger toward the lawyers, about the lawyers who've been representing Mr. McVeigh because that, too, is a possible trauma reaction, that these people have raised objections, have made arguments in his favor, have opposed the Government's case and the evidence. Tell us what your reaction to that has been and whether that may influence you as a witness."
Ms. Leonard: "I can honestly say that I felt more anger towards things that the defense said prior to the trial."
The Court: "Some of the motions prior to the trial, you're talking about?"
Ms. Leonard: "Oh, some of the comments to the media were difficult to bear. But when I went into the closed-circuit or this courtroom each day, I tried to approach this whole thing the way my husband would have: he - when there was an occurrence, he would investigate, he would get all the information he could, and then continue from there. And I've just been trying to do the same thing. And when I come into the courtroom, I put on my cognitive hat rather than my emotional one _"
A few more exchanges later, Judge Matsch turned the questioning over to defense counsel Robert Nigh. What is perhaps most interesting in his questions is that they were not very interesting. Only once did he seem, somewhat awkwardly, to push Ms. Leonard as much as Judge Matsch had done: "Has being present in - during the descriptions of these events helped you to sort through some of some of that, to figure out what impact it has had upon your life?"
Ms. Leonard: "Absolutely not. The impact occurred in 1995, and I have been on a quest for answers ever since _"
Mr. Nigh: "But the testimony didn't help you sort through any of that?"
Ms. Leonard: "It helps me put the pieces of this puzzle into place, to understand what occurred."
And with that, the legal battle over the purportedly-odious influence of her viewing the trial was put in the judge's hands. After the court and counsel conducted a similar voir dire of a second impact witness, Dora Reyes, who was in court just for the closing and the jury instructions, Judge Matsch issued his ruling:
"[T]he issue is whether the observations these witnesses have testified about of trial proceedings create a prejudice or will cause any influence or effect on the testimony they're expected to give concerning the effects of the crimes, and considering what the witnesses have said here and also the demeanor and manner of these witnesses, which I think is extremely important - I mean, I put these questions, myself, to them in a way in which it would seem to me that if they were influenced by this court's rulings or defense counsel's zealous advocacy, they would have shown some reaction. They didn't. Strikes me that both of these women are quite disciplined and emotionally prepared to give relevant testimony without the influence of any emotional reaction to the observations of the trial that they have made."