In this Feb. 20, 1996 order, Judge Richard Matsch has granted a request for a change of venue in the trial of Timothy McVeigh and Terry Nichols. The case will be moved from Oklahoma City to the federal court in Denver, Colorado.
IN THE UNITED STATES DISTRICT COURT WESTERN
DISTRICT OF
OKLAHOMA
UNITED STATES OF AMERICA,
Plaintiff,
v.
TIMOTHY JAMES MCVEIGH and TERRY LYNN NICHOLS.
Defendants.
No. CR-95-110 MH
MEMORANDUM OPINION AND ORDER ON MOTIONS FOR
CHANGE OF VENUE
MATSCH, District Judge*
This criminal proceeding arises from an explosion in
Oklahoma City, Oklahoma, on April 19, 1995, at 9:02 a.m.
The measurable effects of that event include the deaths of
168 identified men, women and children, injuries to
hundreds of other people. the complete destruction of the
Alfred P. Murrah Federal Office Building and collateral
damage to other buildings, including the United States
Courthouse. A damage assessment prepared for the Office of
State Finance, The State of Oklahoma, estimated the total
incident cost at $651.594.000. The immeasurable effects on
the hearts and minds of the people of Oklahoma from the
blast and its consequences were thoroughly explored in the
hearing on the defendants' motions for a change of venue
under Rule 21 (a) of the Federal Rules of Criminal
Procedure in Oklahoma City on January 30 through February
2, 1996.
Through the grand jury indictment filed in this
district on August 10, 1995, the government has charged
that Timothy McVeigh and Terry Nichols conspired with
others unknown, beginning in September 1994, to use a
"truck bomb" to damage the Alfred P. Murrah Federal
Building and to kill and injure the people in it and that
these two defendants caused the explosion on April 19,1995.
Other counts charge these defendants, jointly, with the use
of a bomb as a weapon of mass destruction, resulting in
federal property damage and death and personal injury in
violation of 18 U.S.C. Sections 2332a and 2(a) & (b); with
the intentional, willful and malicious damage and
destruction of government property and death and injury to
persons by means of an explosive bomb placed in a truck in
violation of 18 U.S.C. Sections 844(f) and 2(a) & (b) and
with first degree murder of eight federal law enforcement
officers in violation of 18 U.S.C. Sections 1114, 1111 and
2(a) & (b) and 28 C.F.R. 64.2(h). The prosecution has filed
notices of intention to seek the penalty of death as to
both defendants on all counts.
Article III of the United States Constitution provides
that criminal trials shall be held in the state where such
crimes have been committed. The Sixth Amendment of the
Constitution provides as follows:
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--
The Due Process Clause of the Fifth Amendment of the
United States Constitution requires fundamental fairness in
the prosecution of federal crimes. The right to an
impartial jury in the Sixth Amendment and the fundamental
fairness requirement of the Due Process clause will
override the place of trial provisions in both Article III
and the Sixth Amendment in extraordinary cases. That is the
foundation for Fed. R. Crim P. 21 (a) providing for a
change of venue to protect from prejudice. The rule reads
as follows:
The court upon motion of the defendant shall transfer the
proceeding as to that defendant to another district whether
or not such district is specified in the defendant's motion
if the court is satisfied that there exists in the district
where the prosecution is pending so great a prejudice
against the defendant that the defendant cannot obtain a
fair and impartial trial at any place fixed by law for
holding court in that district.
The Notes of Advisory Committee on Rules, published
with this rule in 1944, make clear that a change of venue
can be granted only on the motion of a defendant since the
constitutional requirement for trial in the state and
district where the offense was committed under Article III
and Amendment VI is a right of the defendant. The filing of
the motion waives that right.
The initial question is whether the evidence now
before the court shows that there is so great a prejudice
against these defendants in the Western District of
Oklahoma that they cannot obtain a fair and impartial trial
at any place fixed by law for holding court in this
district.
Oklahoma City is the principal place for holding
court. Judge Alley found that obtaining an impartial jury
in Oklahoma City would be "chancy." He designated Lawton,
Oklahoma as the place for this trial under the authority of
Fed. R. Crim. P. 18 requiring that due regard be given to
the convenience of the defendants and the witnesses. The
defendants filed objections to that designation. The
evidence presented at the hearing on the defendants' Rule
21(a) motion demonstrates that a trial of these charges in
Lawton is not practicable. The facilities there are
inadequate. It was stipulated that renovations to the
courthouse and related facilities would cost at least $1
million dollars. The time needed for construction would
delay scheduling the trial.
There is no disagreement among the parties with Judge
Alley's concern about a trial in Oklahoma City. The effects
of the explosion on that community are so profound and
pervasive that no detailed discussion of the evidence is
necessary. The motions for change of venue are granted as
to the Western District of Oklahoma.
The selection of an alternative venue is within the
discretion of the court. The government has suggested
transfer to the Northern District of Oklahoma with trial at
the restored historic courthouse in Tulsa. Although the
defendants argue that they do not have to prove prejudice
in that district, the court has considered Tulsa as the
presumptive transferee district because of the language of
Article III, Sec. 2, Par. 3, and the expressed wishes of
many of the victims as revealed in the evidence and the
arguments of government counsel.
Although no one has suggested a trial in the Eastern
District of Oklahoma, to avoid further controversy the
focus of this inquiry is enlarged to consider whether there
is so great a prejudice against these defendants in the
State of Oklahoma that they cannot obtain a fair and
impartial trial anywhere in the state.
Ordinarily, the effects of pre-trial publicity on the
pool from which jurors are drawn is determined by a careful
and searching voir dire examination. That is the preferred
practice in this judicial circuit. United States v.
Pedraza, 27 F.3d 1515, 1525 (10th Cir.), cert. denied, 115
S.Ct. 347 (1994); United States v. Abello-Silva, 948 F.2d
1168, 1177 (10th Cir. 1991), cert. denied, 113 S.Ct.
107(1992). Deferment of the venue motions in this case is
impracticable and inimical to the public interest in
obtaining a just determination of these charges without
undue delay. It is apparent that some special
precautions-and logistical arrangements must be taken in
preparation for trial of these charges at any location. The
scope and intensity of the public interest necessitates it.
The safety of the accused and all trial participants must
be considered as well. Moreover, a failed attempt to select
a jury would, itself, cause widespread public comment
creating additional difficulty in beginning again at
another place for trial.
The parties have submitted a large volume of evidence
concerning news coverage of the explosion, the rescue
effort, the investigations by law enforcement agencies and
media sources, the arrests of the defendants, court
proceedings and community activities. Extensive print news
coverage in Oklahoma City, Tulsa and Lawton has been
submitted. Videotapes of local and national telecasts from
April 19, 1995, to the date of the motions hearing were
admitted and have been reviewed.
Initially, national media coverage of the explosion
was extremely comprehensive. Dramatic pictures of the
Murrah Federal Building were shown nationwide immediately
after the explosion. There was intensive coverage of the
rescue efforts. The immediate reactions of the President,
the Attorney General, and an FBI spokesman were broadcast
across the nation. There were extensive interviews with
injured victims, members of the families of the dead and
missing persons, rescue and relief workers, and residents
of Oklahoma City. The Governor of the State of Oklahoma was
a continual presence in the media coverage, providing
strong leadership and articulating the needs and spirit of
the entire state.
The arrest of Timothy McVeigh on April 21 in Perry,
Oklahoma as a bombing suspect produced him showing him in
restraints and clad in bright orange jail clothing being
led into a van while surrounded by a very vocal and angry
crowd. Some bystanders could be heard shouting "murderer"
and "baby killer." This footage was seen nationwide and was
widely used in later television broadcasts about other
developments in the government's investigation. There was
widespread publicity about a search for another suspect
described as John Doe #2. The arrest of Terry Nichols and
a search of his brother's farm in Michigan were other
subjects of national publicity.
As time passed, differences developed in both the
volume and focus of the media coverage in Oklahoma compared
with local coverage outside of Oklahoma and with national
news coverage. These differences were discussed in the
testimony of Russell Scott Armstrong, an expert in news
media analysis. In the weeks following the explosion, there
was less media coverage of the explosion outside of
Oklahoma. Developments in the government investigation were
reported, but such reports were primarily factual in
nature. Oklahoma coverage, in contrast, remained focused on
the explosion and its aftermath for a much longer period of
time. Television stations conducted their own
investigations, interviewing "eyewitnesses" and showing
reconstructions and simulations of alleged events. Such
"investigative journalism" continued for more than four
months after the explosion. Perhaps most significant was
the continuing coverage of the victims and their families.
The Oklahoma coverage was more personal, providing
individual stories of grief and recovery. As late as
December 1995, television stations in Oklahoma City and
Tulsa were broadcasting special series of individual
interviews with family members and people involved in
covering the explosion and its aftermath. (See McVeigh
Exhibit M-11 B).
According to Armstrong, these differences in media
coverage reflect the different needs of the Oklahoma media
market compared to the nationwide media market. He observed
that, as a national story of great importance, people
across the country wanted to know the "who, what, where,
why, and when" of this event. The nation was interested in
the human story of suffering and renewal, but in a more
general sense. In contrast, because this was a crime that
occurred in their state, Oklahomans wanted to know every
detail about the explosion, the investigation, the court
proceedings and, in particular, the victims.
Armstrong opined that the greater informational needs
of Oklahomans resulted from a perception that Oklahomans
are united as a family with a spirit unique to the state.
Indeed, the "Oklahoma family" has been a common theme in
the Oklahoma media coverage, with numerous reports of how
the explosion shook the entire state, and how the state has
pulled together in response. The political leadership of
the state has repeatedly and consistently emphasized the
bonds tying all Oklahomans together as family and
proclaiming to the nation and the world that the survival
and recovery from this tragedy is "Oklahoma's story."
(Nichols Exhibit HA, Epilogue to In Their Name). Oklahoma
Governor Frank Keating best described the unity and spirit
of Oklahoma:
In the weeks after the bombing, Oklahomans showed the
world what good people can accomplish when they are faced
with an overwhelming tragedy. What happened on April 19 was
the worst instance of terrorism and mass murder in American
history. What followed set a standard for courage and
compassion: The Oklahoma Standard.
(Nichols Exhibit P, "The Oklahoma Standard" at 9). This
same theme is dominant in the books and pamphlets published
as commemoratives of the event and its aftermath and
distributed throughout the state. It is also expressed in
many of the televised interviews of rescue workers and
citizens on the street.
There is an evident and understandable pride of
accomplishment in all that has been done to try to return
to normalcy. Prominently displayed in the state capitol
building is the artwork of survivors and families of the
deceased done at a state sponsored gathering at Quartz
Mountain under the heading "Celebration of the Spirit."
Many Oklahomans view a trial of this case as an additional
challenge and want the opportunity to demonstrate their
ability to be fair in spite of this extraordinary
provocation of their emotions of anger and vengeance. They
seek participation in the trial to demonstrate an ability
to overcome a tragedy with such powerful emotional impact
that people have come to measure time by it.
Pride is defined as satisfaction in an achievement,
and the people of Oklahoma are well deserving of it. But it
is easy for those feeling pride to develop a prejudice,
defined as "(a) an adverse judgment or opinion formed
beforehand or without knowledge or examination of the facts
and (b) a preconceived preference or idea." The American
Heritage Dictionary of the English Language (3d ed. 1992).
The existence of such a prejudice is difficult to prove.
Indeed it may go unrecognized in those who are affected by
it. The prejudice that may deny a fair- trial is not
limited to a bias or discriminatory attitude. It includes
an impairment of the deliberative process of deductive
reasoning from evidentiary facts resulting from an
attribution to something not included in the evidence.
-That something has its most powerful effect if it
generates strong emotional responses and fits into a
pattern of normative values.
In this case the repetition of emotionally intense
stories of loss and grief and the valiant efforts to
overcome the consequences of this event have developed a
common belief that the citizens of Oklahoma can and must
take what many believe to be the necessary last step on the
road to recovery--participation in the trial of these
accused men. The character of the crimes charged is so
contrary to the public expectation of human behavior that
there is a prevailing belief that some action must be taken
to make things right again. That theme is dominant in the
comments of people interviewed by television reporters
asking about their reactions to court proceedings in this
case. The common reference is to "seeing that justice is
done." There is a fair inference that only a guilty verdict
with a death sentence could be considered a just result in
the minds of many.
The emotional burden of the explosion and its
consequences has been intensified by the repeated and heavy
emphasis on the innocence of the victims and the impact of
their loss on their families. The tragic sense is
heightened by the deaths of infants and very young children
in the day care center. The horror of that fact has been
powerfully portrayed by the symbols of teddy bears and
angels displayed everywhere in Oklahoma. They were placed
on a Christmas Tree at the State Capitol. The public
sympathy for victims is so strong that it has been
manifested in the very courthouse where these motions were
heard, when on the first day of the hearing a T-shirt was
sold bearing the following inscription:
Those Lost Will Never
Leave Our Hearts
Or be Forgotten
April 19,1995
United States Court
Western District of Oklahoma
(Nichols Exhibit ZE). The shirt also exhibited the purple
ribbon which is a ubiquitous symbol of empathy and unity
throughout Oklahoma, even appearing on special license
plates.
The intensity of the humanization of the victims in
the public mind is in sharp contrast with the prevalent
portrayals of the defendants. They have been demonized. The
videotape footage and fixed photographs of Timothy McVeigh
in Perry have been used regularly in almost all of the
television news reports of developments in this case. All
of the Oklahoma television markets have been saturated with
stories suggesting the defendants are associated with
"right wing militia groups." File film shows people in
combat fatigues firing military style firearms to
illustrate the suggested association. That theme has
particularly been emphasized with Terry Nichols and his
brother. These films have also been shown in Denver and on
national news programs but not with the frequency of the
use by broadcast outlets in Oklahoma.
New film showing the defendants in restraints and body
armor was taken in the sally port of the jail in Oklahoma
City when they were being brought to court for hearing
these motions. It was shown nationally and locally in
connection with reports of the court proceedings.
The possible prejudicial impact of this type of
publicity is not something measurable by any objective
standards. The parties have submitted data from opinion
surveys done by qualified experts who have given their
opinions about the results and their meaning. The
government places heavy reliance on this evidence to
support the position that a fair and impartial jury can be
selected in the Northern District of Oklahoma for a trial
in Tulsa. Such surveys are but crude measures of opinion at
the time of the interviews. Human behavior is far less
knowable and predictable than chemical reactions or other
subjects of study by scientific methodology. There is no
laboratory experiment that can come close to duplicating
the trial of criminal charges. There are so many variables
involved that no two trials can be compared regardless of
apparent similarities. That is the very genius of the
American jury trial.
The expert witnesses who have studied in this area
have suggested that voir dire of the jury panel is the only
technique available to minimize the effects of pre-trial
publicity and that most jurors develop fixed opinions by
the conclusion of lawyers' opening statements. While those
opinions may be justified by the research done, consisting
largely of simulated trials, this view is inconsistent with
this court's long experience with jury trials both as
lawyer and judge. That experience fortifies a faith that a
properly conducted trial with competent counsel on both
sides with adequate resources available to them will reveal
the historical facts relevant to the charges and that
jurors who have adequate protection from external
influences will reach a just verdict according to the law
and evidence.
Extensive publicity before trial does not, in itself,
preclude fairness. In many respects media exposure presents
problems not qualitatively different from that experienced
in earlier times in small communities where gossip and
jurors' personal acquaintances with lawyers, witnesses and
even the accused were not uncommon. Properly motivated and
carefully instructed jurors can and have exercised the
discipline to disregard that kind of prior awareness. Trust
in their ability to do so diminishes when the prior
exposure is such that it evokes strong emotional responses
or such an identification with those directly affected by
the conduct at issue that the jurors feel a personal stake
in the outcome. That is also true when there is such
identification with a community point of view that jurors
feel a sense of obligation to reach a result which will
find general acceptance in the relevant audience.
The opinion surveys done for this hearing attempted to
test the ability of the persons questioned to be fair and
impartial jurors. There has been disagreement with some of
the questions included in the survey form used by Dr.
Donald E. Vinson. The government's response has been that
there are no significant differences in the results
obtained with those from the defendants' questionnaire.
That is the type of dispute of interest in academic
circles. What is most important to this court is that the
survey forms do not recognize the expanded role of a jury
in a death penalty case. The first duty is to determine
after hearing all of the evidence in the case, whether the
government has proved all of the essential elements of each
charge beyond a reasonable doubt. The jury must separate
that standard of legal guilt from any opinions concerning
probabilities or any notions of moral culpability. The
commonly used phrase presumption of innocence" is not an
appropriate or even apt description of the position of an
accused in this court. What is more descriptive is whether
a juror is ready, willing and able to give a defendant the
benefit of a reasonable doubt after careful consideration
of all of the evidence admitted at a trial.
If a defendant is found guilty on any of the present
charges, the jury will then be required to determine
whether death is justified for the offense of conviction
after consideration of the mitigating and aggravating
factors presented by evidence received at a further
hearing. 18 U.S.C. Sections 3591-3593. The Supreme Court of
the United States has struggled with the constitutional
legitimacy of a death sentence under the Eighth Amendment
since the per curiam decision in Furman v. Georgia, 408
U.S. 238 (1972), with each of the justices constituting the
majority writing separate concurring opinions. The question
became somewhat better focused in a joint opinion of
justices Stewart, Powell and Stevens in Gregg v. Georgia,
428 U.S. 153, 189 (1976), explaining that the discretion
given to a sentencing body "must be suitably directed and
limited so as to minimize the risk of wholly arbitrary and
capricious action." There must be individualized
consideration of the defendant and any mitigating evidence
relevant to him. Lockett v. Ohio, 438 U.S. 586 (1978);
Eddings v. Oklahoma, 455 U.S. 104 (1981) (citing Lockett).
What has been made clear by later cases is that a
sentencing jury must be prepared to make a moral judgment
which is individual to the particular defendant after
consideration of aggravating and mitigating circumstances
specifically as to him. Moreover, the Court has held that
due process requires such impartiality of any jury that
undertakes capitol sentencing that a voir dire examination
of potential jurors must include inquiry into the views of
prospective jurors on the death penalty, and those who
would automatically vote for or against it must be
excluded. Morgan v. Illinois, 504 U.S. 719 (1992). General
questions of fairness and impartiality are insufficient.
Id.
Because the penalty of death is by its very nature
different from all other punishments in that it is final
and irrevocable, the issue of prejudice raised by the
present motions must include consideration of whether there
is a showing of a predilection toward that penalty. Most
interesting in this regard is the frequency of the opinions
expressed in recent televised interviews of citizens of
Oklahoma emphasizing the importance of assuring certainty
in a verdict of guilty with an evident implication that
upon such a verdict death is the appropriate punishment. It
is significant that there is a citizens' movement in
Oklahoma to support pending legislation which would sharply
limit the reviewability of a death sentence.
Upon all of the evidence presented, this court finds
and concludes that there is so great a prejudice against
these two defendants in the State of Oklahoma that they
cannot obtain a fair and impartial trial at any place fixed
by law for holding court in that state. The court also
finds and concludes that an appropriate alternative venue
is in the District of Colorado.
Denver, Colorado meets all of the criteria that have
been cited by past cases as relevant when selecting an
alternative venue. See e.g., United States v. Tokars, 839
F.Supp. 1578 (N.D.Ga.1993); United States v. Moody, 762
F.Supp. 1491 (N.D.Ga. 1991). Denver is a large metropolitan
community-with many community resources. It is readily
accessible, being well-served by daily non-stop flights
from all relevant cities. The court facilities in Denver
are well-suited for accommodating the special needs of this
trial. The United States Marshal for the District of
Colorado is well equipped to provide adequate security
services. A large jury pool is available.
In reaching this ruling, the court is acutely aware of
the wishes of the victims of the Oklahoma City explosion to
attend this trial and that it will be a hardship for those
victims to travel to Denver. The attorneys for the
government have earnestly argued that statutory provisions
for victims must be considered by the court. The Department
of Justice is required to give prescribed care and
consideration to those affected by criminal conduct. The
United States Attorney for the Western District of Oklahoma
has clearly complied with these requirements by providing
information and staff assistance and will continue to do
so. Assistant United States Attorney K. Lynn Anderson, who
heads the Victim Assistant Unit of the United States
Attorney's Office, described the Unit's continuing efforts
to assist and inform the 2,200 people identified in the
Unit's data base. Further, as observed on the record at the
hearing, this court has considered the brief filed on
behalf of victims as amicus curiae. The interests of the
victims in being able to attend this trial in Oklahoma are
outweighed by the court's obligation to assure that the
trial be conducted with fundamental fairness and with due
regard for all constitutional requirements.
Upon the foregoing, it is
ORDERED that this criminal proceeding is transferred to the
United States District Court for the District of Colorado.
DATED at Denver, Colorado, this 19th day of February 1996.
BY THE COURT:
______________________
Richard P. Matsch
United States District Judge sitting by
designation
ENDNOTE
* Chief Judge Richard P. Matsch, District of Colorado,
sitting by designation
