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PETITION FOR WRIT OF
MANDAMUS OF PETITIONER-DEFENDANT,
TIMOTHY JAMES McVEIGH AND BRIEF IN SUPPORT MARCH 25, 1997 |
I.
INTRODUCTION. The Government of the
United States is hiding from the defense and the trial court evidence and
information that the government had a prior warning that the Alfred P. Murrah
Federal Building in Oklahoma City (and possibly federal property in Tulsa) was
very likely a target of a terrorist attack on or about April 19, 1995. This
information came to the government from a
variety of sources, including Carol
Howe, a paid ATF informant for about 6 months, who infiltrated Elohim City and
the Christian Identity Movement and who provided specific information prior to
April 19, 1995, that an illegal German national, the grandson of one of the
founders of the German Nazi Party, proposed to bomb federal buildings and
installations and engage in mass murder. Information also came to the
government through foreign intelligence services in the Middle East and from
the government's own assets that an attack was being planned on the
"heartland" of America. The
government responded to part of these warnings by conducting a superficial
security examination of the federal building complex in Oklahoma City on the
early morning hours of April 19, 1995.[1]
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FOOTNOTES: [1] Several witnesses interviewed by ABC News 20/20,
including an attorney and a private process server, among others, claim to have
seen law enforcement using sniffer dogs, as well as a "bomb disposal"
or "bomb squad" unit truck near the Murrah Building in the early
morning hours of April 19, 1995, shortly before the bombing. See attached
Exhibit "D" (transcript of ABC News 20/20 broadcast, January 17,
1997). Oklahoma County Sheriff J.D. Sharp denied the presence of the Oklahoma
County bomb squad truck, telling local media on the record that the county bomb
truck was ten miles away from downtown and nowhere near the country courthouse.
See attached Exhibit "E." However, the County Sheriff's office later
stated that the bomb squad unit was in fact in downtown Oklahoma City the
morning of the bombing for a routine training exercise. See attached Exhibit
"H." This information was confirmed to the defense through discovery.
See exhibits "J" and "K" The presence of the bomb squad
truck was commented on by several other persons and mentioned in a business
newsletter of one downtown Oklahoma City business. See attached Exhibit
"F';; see also Exhibit "G" (news account of witness in Oklahoma
City who recalled that, "The day was fine, everything was normal when I
arrived at 7:45 to begin my day at 8:00 a.m., but as I walked through my
building's parking lot, I remember seeing a bomb squad.") --------------------------------------- But rather than admit that it acted, no
matter how superficially or limited on this information, the government has
chosen to deny, and maybe even withholding from the chief prosecutor, evidence
of this prior warning from an informant it deemed reliable because she
regularly passed polygraph tests. The defense has repeatedly sought by letter,
motion, argument in chambers and in open court, detailed information which it
knows the government has. The district
court has repeatedly advised the government, both in published opinions and in
judicial statements, of the government's duty. The government has claimed it
understood its duty. We submit the government has affirmatively misled the
district court repeatedly on this subject, through prosecutors who may or may
not know the truth. The government, in short, is stonewalling. The Defendant
has made a sufficient showing below for a judicial order compelling the FBI,
the Department of Justice, ATF, Department of State, the National Security
Agency, and the Central Intelligence Agency to produce information to support
the Defendant's claims which are a material part of his defense. Timothy McVeigh's defense is that (1) he did
not rent the Ryder truck (2) he did not assemble a bomb at Geary Lake State
Park (3) he did not drive the Ryder truck to Oklahoma City, and (4) he did not
detonate the bomb. There is a lack of credible government evidence to convince
any fair-minded jury beyond a reasonable doubt that he did in fact do these
things, and there is credible testimony and evidence known to the government
and the defense which impeaches each of the government's claims down to and
including who rented the truck the number of conspirators, where the bomb was
assembled, and who left the truck after parking it in front of the Murrah
Building. The information which will help to establish Mr. McVeigh's innocence
in front of the jury, particularly in light of the recent bizarre disclosures
by two thieves[2] masquerading as journalists, is uniquely in the hands of the
government.
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FOOTNOTES: [2] In late January, one
stole computer information by personally downloading from a defense lap top
computer material he was not authorized to receive. The other secured the
information by personal, unethical and immoral means plus theft, and then
proceeded to embellish the stolen document with language found no place in the
document which he mischaracterized (because it bore a computer generated logo
"Attorney Work Product, Privileged and Confidential, Attorney/Client
Communication") as coming from the Defendant. A Motion to Dismiss the
Indictment and Abate the Proceedings Through a Change of Venue or Continuance
was denied by the Respondent Trial Court on Monday, March 17, 1997. See D.E.
3429. ---------------------------------------
However, with the resources allowed it by the district court pursuant to
the Crimes and Offenses Act of 1790 as modified by the Criminal Justice Act of
1963, the Defendant has made a substantial investigation and has produced
volumes of evidence and specifications of materiality to the district court ex
parse, in camera and on some occasions in open court or in camera with the
prosecutors. The government's reaction has consistently been first to deny,
then to produce a scant amount of information as the Defendant files formal
motions, then to produce a little bit more just before the hearing, then to
deny the existence of anything else, then when the "anything else"
surfaces, grudgingly to admit that it has been found. See D.E. 1918 at 6-35.
There is no better example of this than the government's submission to the defense in January, 1996 of a two-page FBI
Insert of a conversation with Carol Howe
in which she is not identified by her last name and every proper noun, including Dennis Mahon, Andreas
Strassmeir, Elohim City, and the
Reverend Robert Millar, is grotesquely misspelled so that it could
not reasonably be found. D.E. 3313,
Exhibit "D." Then, when this
information surfaced, the government informed the Court that Ms. Howe had been
an ATF informant until a date several weeks prior to April 19, 1995. See
Transcript of Scheduling and Rule 17.1 Conference--Sealed, January 29, 1997, at
67. Then, when the defense discovered that in fact she had continued to be an
informant after the bombing, the government acknowledged to the Court that in
fact she had been an ATF informant in late April and early May 1995 and had
been sent back to Elohim City.[3]
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FOOTNOTES: [3] The government on background (see below) has confirmed
details given to the Court in camera to ABC and NBC News. Hence the discussion
here. ---------------------------------------
See D.E. 3360 at 2-4. The same pattern of disingenuous,
economical-with-the-truth statements and representations by the government to
the district court permeates its claims concerning FBI Laboratory material (now
presumably largely furnished), prior warnings, possible foreign involvement,
and other material. The Petitioner asks
this Court to enter a Writ of Mandamus directing the District Court to enter an
order commanding the government to produce the material requested in the manner
outlined by the defense in sealed district court documents D.E. 2768 and D.E.
3123. The District Court has declined to do so. See D.E. 3016; D.E. 2840
(January 8, 1997 Pretrial Conference: Volume m--Sealed); D.E. 2866 (January 9,
1997 Pretrial Conference: Volume IV--Sealed); D.E. 3410 (March 10, 1997 Pretrial
Hearing--Sealed--Not Provided to Defendant Nichols). The defense has made a
sufficient showing under Brady and Rule 16 that the requested information is
required in order to defend properly against the allegations in the Indictment
and for a fundamentally fair trial in this capital case. In order to file this Writ of Mandamus and
make the appropriate allegations, most of the material relied upon originates
from the public record, what has appeared in the press, and open judicial
proceedings. In a few cases, names have been redacted or otherwise modified in
order to protect the rights of other persons not on trial and to protect the
security and secrecy of information.[4]
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FOOTNOTES: [4] Information given to the media by the government or
others, even if the substance of the same material was filed under seal, is
included here because it is already in the public record through interviews with
the media. --------------------------------------- All of the documents filed under seal, some
of which are ex parte, in camera pursuant to controlling caselaw, are
identified by Docket Number ("D.E.") and within that Docket Number
the exhibit number or page number so that the Court may quickly find the
material. This issue arrives before the
Court at this late date simply because the defense has repeatedly gone to the
government with information and requests, had to then seek intervention from
the district court, and the last district court order has been issued within the
last two weeks. D.E. 3410. The district court has denied defense motions for
either a continuance or, in the alternative, a dismissal. Trial is now set to
commence on March 31, 1997, with the selection of the jury. The defense moves
that the Court, while considering this matter, either stay the commencement of
the trial, or proceed with jury selection but stay the commencement of evidence
being received until this matter has been resolved in this Court. One hundred and sixty-eight people died in
the Oklahoma City bombing. The devastation was total and complete. The public
is entitled to accept the jury's verdict, whatever it is, with safety and
confidence, bizarre press sensationalism and government stonewalling
notwithstanding. The Petitioner is entitled to the relief set forth herein in
order that he may meet the government's evidence. |
PETITION FOR WRIT OF
MANDAMUS OF PETITIONER-DEFENDANT,
TIMOTHY JAMES McVEIGH AND BRIEF IN SUPPORT MARCH 25, 1997 |
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