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PETITION
FOR WRIT OF MANDAMUS OF PETITIONER-DEFENDANT, |
IV. THE GRAND JURY RETURNS THE INDICTMENT OF "OTHERS UNKNOWN." On August 10, 1995, a Federal Grand Jury sitting in the Western Judicial District of Oklahoma returned an eleven count Indictment accusing Timothy James McVeigh and Terry Lynn Nichols of conspiring to use a weapon of mass destruction, actual use of a weapon of mass destruction, destruction by explosive, and eight counts of first degree murder. (Indictment in CR95-110, filed August 10, 1995, no docket number assigned). The Indictment alleges that McVeigh and Nichols constructed a truck bomb and on April 19, 1995, McVeigh parked the truck bomb directly outside the Alfred P. Murrah Federal Building during regular business and day-care hours. The Indictment then
lists the names, spread out over six typewritten pages, of the persons present at the Alfred P. Murrah Federal Building on the morning of April 19, 1995, and who were killed as the result of the explosion. The Grand Jury found evidence that Timothy McVeigh and Terry Nichols conspired and agreed together with "others unknown to the Grand Jury" to use a truck bomb against the federal government, and specifically against the Alfred P. Murrah Building located at 200 Northwest 5th Street in Oklahoma City, Oklahoma, which resulted in the destruction of the building, grevious [sic] bodily injury to scores of persons, and the death of 168 persons. See Indictment at 1-2. This Indictment has never been withdrawn or modified. Thus, the Grant Jury's allegation on the eve of trial is that this crime was committed and aided by "others unknown." By refusing to provide the requested discovery material, the government is attempting to prevent the Petitioner from learning the identity of what it calls "others unknown" but which the petitioner characterizes as "the unknown others."[8] -------------------------------------- FOOTNOTES: [8] The government has claimed below, and will undoubtedly assert here, that it has provided "unprecedented discovery" and gone far beyond what the rules and case law require. That claim is hollow and empty. Chief Judge David Russell of the Western Judicial District, before the return of the Indictment, attempted to schedule a discovery conference in order to facilitate the orderly flow of discovery, but the government refused to attend. The defense was willing to attend. Upon the return of the Indictment, the standing orders of the Federal Judges in the Western Judicial District, where the case was pending, were blithely ignored. The dear mandate of former Chief Judge Daugherty's orders, which are precedent in the Western District and found at United States v. Penix, 516 30 F. Supp. 248, 255 (W.D. Okla. 1981) were ignored. -------------------------------------- During the period of time that motions were pending for recusal of Judge Alley, Judge Alley refused to entertain or rule on any discovery requests by the Defendant. Thus, the government had an almost 4-1/2 month period after the return of the Indictment on August 10, 1995, in which it ignored existing judicial rules and took advantage of Judge Alley's statesmanlike decision not to rule on matters before him while motions for his recusal were pending. The government provided a microscopic amount of discovery consisting primarily of "statements of the Defendant" as required by the Federal Rules and access to some physical evidence. In early January 1996, the government furnished Defendant's counsel all of the 302's then in existence concerning the following witnesses: Michael and Lori Fortier, Jeff Davis, Lea McGown, Vickie Beemer, Eldon Elliott, Tom Kessenger, and one Oklahoma City witness, Daina Bradley. However, before furnishing this information, the prosecution, in a letter to the defense claimed that the prosecutors had personally reviewed the 302's and that nothing in them was exculpatory. See D.E. 1923 (Exhibit "X'). This claim was fantastic and incredible on its face and totally incorrect. Each of the statements contained highly exculpatory Brady material and not just Giglio material. The government then proposed an oral reciprocal discovery agreement with the Defendant in which witness statements would be exchanged except for those witness statements taken by lawyers, even though FBI agents or defense investigators might be present. The government also failed to provide Grand Jury testimony until prodded by the district court which directed the government to produce, first, the Grand Jury testimony of Michael and Lori Fortier. Finally, the government turned over Grand Jury testimony approximately four months before trial. Massive litigation and hearings were required before the government turned over all FBI documents (or at least it represents that it has turned all of them over) relating to the Federal Bureau of Investigation Laboratory when the government prosecutors knew that serious allegations were being made and that an investigation was being conducted by the Inspector General which later validated a significant number of the allegations with respect to the handling, collection, analysis of evidence from the bomb site. The government also delayed producing 302's, in some cases, more than a year after the 302 had been typed. The government's claims thus that it has produced unprecedented discovery are specious. It can be summarized as follows: The government gave the Defendant 100% of that which is irrelevant and withheld 95% of that which is relevant until, either by Court order or the threat of judicial action, it grudgingly began to flow the information to the Defendant, more than a year after the return of the Indictment. These assertions by the Defendant are well documented in the trial record below. See, e.g., D.E. 1310;1918.|
PETITION
FOR WRIT OF MANDAMUS OF PETITIONER-DEFENDANT, |
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