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PETITION
FOR WRIT OF MANDAMUS OF PETITIONER-DEFENDANT, |
VIII. PROCEDURAL HISTORY OF DISCOVERY REQUESTS. A. Introduction. Defendant McVeigh has compiled an indelible paper trail in attempting to obtain information in the possession of the federal government, particularly the intelligence agencies, which is relevant and material to his defense. Counsel for Defendant McVeigh does not lightly come before this Court seeking intervention in these matters; but there can be only so many requests, so many demands, and so many pleadings filed requesting this information before it becomes apparent to counsel that there is no effective way, absent court intervention, to obtain the necessary materials to construct a defense in this capital case. So that the record is complete, and that the Court has confidence that the present Motion is filed out of legitimate exasperation as
the result of being stonewalled for over a year since the return of the indictment, counsel for Defendant McVeigh invites the Court to review the following chart and accompanying materials, most of which may be found and perused in the separately bound appendices at D.E. 1921, 1922 and 1923. Defense efforts to obtain this material includes the following: NO. DATE DESCRIPTION 3. August 10, 1995 Defendants Timothy McVeigh and Terry Nichols were indicted on one count of conspiracy to use a weapon of mass destruction, one count of use of a weapon of mass destruction, one count of destruction by explosives, and eight counts of first degree murder. 4. August, 1995 Counsel for Defendant McVeigh engages in discovery conversations and negotiations with counsel for the government concerning the production of exculpatory information. However, nothing is reduced to writing. These negotiations occurred within a few weeks after the return of the Indictment. 5. August 21, 1995 In a lengthy letter addressed to Joseph Hartzler, Special Assistant United States Attorney, from defense counsel for Mr. McVeigh, the defense pleaded the case with the government for a change of venue and for "full, complete discovery furnished to the defendant of all grand jury transcripts, 302's, witness statements, plea agreements and immunity deals, tangible evidence, tangible documents, scientific reports to the defendant as quickly as possible[.]" See D.E. 1921 (Vol. I Exhibit "D" at 11-12). 6. November 2, 1995 Letter to Joseph H. Hartzler, Patrick Ryan and Larry Mackey, addressing defense concerns over the production of forensic evidence, documentary evidence and witness statements. This letter pointed out that there had been "zero production of exculpatory evidence" and requested specifically exculpatory evidence and Rule 16 material. See D.E. 1921 (Vol. I Exhibit "E"). 7. November 6, 1995 Defendant McVeigh's first written request for specific Brady information in a letter addressed to Joseph Hartzler. This request consisted of 60 paragraphs of specific requests for categories of exculpatory information over 10 pages in a letter directed to the lead counsel for the government prosecution team. The letter noted that the request was made because the government had failed to produce any exculpatory evidence to the defendant, even though Mr. McVeigh was arrested more than 6 months prior to the date of the letter, and indicted almost three months prior to the date of the letter. The defense team was finding out the possible existence of exculpatory information from the media rather from the government. In paragraph 3 on page 3. Defendant McVeigh requested specifically any statements. Reports or memoranda tending to indicate that the Murrah Building was a target of terrorists which were generated prior to or contemporaneous with the bombing on April 19. 1995. Paragraph 18 on page 4 specifically requested material and reports of investigations regarding the bombing of the Murrah Building compiled by agencies other than the FBI including the BATF, the Central Intelligence Agency, the Army C.I.D., the National Security Agency, the Defense Intelligence Agency, and the Drug Enforcement Administration, the Department of Defense, etc. In paragraph 47 on page 8. defense counsel for Mr. McVeigh requested specifically any and all intelligence reports in the possession of or generated by, any foreign government which were material to the identity of the perpetrators of the Murrah Building bombing. See D.E. 1921 (Vol. I Exhibit "F'). 8. November 8, 1995 Letter from defense counsel to Joseph H. Hartzler setting out specifically the provisions of Federal Rule of Criminal Procedure 16(a)(1)(C) which provides that, upon request of the Defendant, the government shall permit the Defendant to inspect tangible objects which are material to the preparation of the defense. Defense counsel requested specifically "all remaining photographs, books, papers, documents, tangible objects not previously furnished to us". See D.E. 1921 (Vol. I Exhibit "G"). 9. November 13,1995 Letter from defense counsel to Joseph H. Hartzler and Patrick Ryan outlining the practice of discovery in criminal cases for the United States District Court for the Western District of Oklahoma (where this case was then being heard) and followed by District Judges Russell, Leonard, Thompson, Cauthron, and Miles LeGrange. The local practice was to routinely grant permission to defendants to inspect, copy or photograph evidence favorable to the defendant within the meaning of Brady and Giglio and their progeny. Exculpatory evidence is typically delivered to the defense within 10 days after an entry of a not guilty plea. Defense counsel set out in detail a portion of the opinion by former Chief Judge Fred Daugherty as reported in United States v. Penix, 516 F. Supp. 248, 255 (W.D. Okl. 1981) in which Judge Daugherty outlined the local practice concerning discovery pursuant to Rule 16 and Brady. Defense counsel requested specifically copies of the notification the government presumably had sent to law enforcement agencies with respect to Brady, Giglio, and Rule 16, specifically the Criminal Investigation Division of the Armed Forces, the Criminal Investigation Division of the Department of Defense, the Defense Investigative Agency, the Central Intelligence Agency. and other foreign and domestic agencies. Defense counsel further noted that although the first specific written request for Brady occurred November 6, 1995, the defense had nevertheless consistently requested orally that the government produce exculpatory evidence. Finally, counsel stated specifically that the defense recognized the possible tendency in this case, given sensitive national security issues and the existence of other possible conspiracies to damage federal property, to withhold information from the defense, but that the defense would address those concerns and protect appropriately the government's intelligence gathering activities. See D.E. 1921 (Vol. I Exhibit "H"). 10. November 20, 1995 Letter to Joseph H. Hartzler and Patrick Ryan consisting of Defendant McVeigh's third written request for exculpatory information on behalf of Defendant Timothy McVeigh. The defense requested specifically "copies of reports, witness statements, telex messages, cables, fax messages, photographs, intelligence summaries which relate or contain information which would indicate or suggest the possibility. likelihood and/or possibility that individuals or organizations or a single individual either in this country or abroad was planning or did execute action against the United States, its property or employees or American civilians in retaliation for" and then a lengthy list of specific events. See D.E. 1921 (Vol. I Exhibit "I"). 11. November 21, 1995 Letter to Joseph Hartzler taking issue with Mr. Hartzler's statement that the FBI 302's containing statements from Eldon Elliott, Vicki Beemer, and the Fortiers did not contain exculpatory information. Defense counsel addressed directly concerns that the government's definition of "exculpatory information" under Brady was unduly restrictive. See D.E. 1921 (Vol. I Exhibit "J"). 12. December 7, 1995 Defendant McVeigh's Report to the Court concerning the government's failure to produce discoverable evidence in accordance with the Court's Order of August 23, 1995, Rule 16 and the Brady decision. Defense counsel set out specifically concerns relating to the government's failure to seek discovery material from law enforcement agencies other than the FBI, specifically the intelligence agencies including the Central Intelligence Agency, the Criminal Investigation Divisions of the Armed Forces and the Department of Defense, the National Security Agency, the Defense Intelligence Agency and other federal, state and foreign investigative/intelligence agencies. See D.E. 1921 (Vol. I Exhibit "K" at 14-15). In this pleading, defense counsel observed the absurdity of the prosecutors in this case seeking a court order to obtain information from the Bureau of Prisons--a component of the Department of Justice. 13. December 21, 1995 Defendant McVeigh's Motion to Require the Government to Produce Exculpatory Evidence to Assist the Defendant, Timothy James McVeigh, in Establishing His Claim That He Is Not Guilty of the Offense Charged Against Him in the Grand Jury Indictment. This document set out in detail over 177 paragraphs encompassing 89 pages of specific and general requests for exculpatory information. Included in these requests were information of other suspects, see page 56, as well as information in the possession of a multitude of intelligence and law enforcement agencies. See D.E. 1922 (Vol. II Exhibit "L" at p. 84). 14. February 15, 1996 Letter to Beth A. Wilkinson regarding outstanding issues relating to discovery. This letter underscored the defense's frustration with the government's production of discovery, particularly Brady and Giglio items and requested yet again specific reports generated by the Central Intelligence Agency, the Criminal Investigation Divisions of the various components of the Department of Defense, the National Security Agency, the Defense Intelligence Agency, the Bureau of Intelligence and Research of the State Department, the Office for Combatting [sic] Terrorism of the United States Department of State, the National Security Council, the Department of Defense Special Operations Agency, and other domestic and foreign law enforcement agencies. See D.E. 1923 (Vol.III Exhibit "M"). 15. February 15,1996 Letter to Beth A. Wilkinson requesting additional Brady material containing information concerning, among other things, information about the German Andreas Strassmeir and any connections with neo-Nazi or other white supremacist organizations. See D.E. 1923 (Vol. III Exhibit "N"). 16. March 8, 1996 Defendant McVeigh's Motion for Disclosure of Discoverable and Exculpatory Intelligence Collected by the Central Intelligence Agency, the National Security Agency, the Departments of Justice and State, and Any Other Intelligence Gathering Agencies, Rule 16 Material and Brief in Support. This pleading set forth 31 paragraphs of specific discovery requests from specifically named intelligence agencies, and provided the factual and legal basis for the request. See D.E. 1923 (Vol. III Exhibit "O"). 17. April 8, 1996 Specification of Materiality and Relevance ofNational Security Information as it Relates to the Defense of Timothy McVeigh (Ex Parte and Under Seal). This document, which the Court has reviewed, exparte and under seal, provided the factual basis, including the defense hypothesis for the prior request for national intelligence information filed March 8, 1996. See D.E. 1228. 16. April 9, 1996 Supplemental Motion to Motion for Disclosure of Discoverable and Exculpatory Intelligence Collected by the Central Intelligence Agency, the National Security Agency, the Departments of Justice and State, and Any Other Intelligence Gathering Agencies, Rule 16 Material and Brief in Support. See D.E. 1236. 17. April 24, 1996 Defendant McVeigh's Supplemental Specification of Materiality of Requested Classified Information (Filed Ex Parte Under Seal). See D.E. 1309. 18. April 29, 1996 Memorandum Opinion and Order on Motions for Production of Classified Information by Chief Judge Richard P. Matsch. See D.E. 1310. 19. May 6, 1996 Letter to Joseph H. Hartzler concerning an article in Strategic Investment magazine which referenced a classified Pentagon study concerning the bombing of the Murrah Building. This letter requested information concerning this classified study. See D.E. 1923 (Vol. III Exhibit "P"). 20. May 8, 1996 Letter to Joseph Hartzler in response to this Court's Order of April 29, 1996, recommending that defensecounsel submit a direct request to government counsel to search for information which would most likely be classified and in the possession of the National Intelligence Agencies. This letter consists of 16 pages of single-spaced specific requests encompassing 53 separate paragraphs. Specifically mentioned is any and all "follow up" information generated by the governmentt to verify or corroborate th information provided by Vincent Cannistraro indicating that Iraq may have sponsored the bombing of the Murrah Building which was found by defense counsel buried in the mounds of "non-pertinent" documents. See D.E.1923 (Vol. III Exhibit "Q"). 21. May 23, 1996 Letter to Joseph Hartzler reiterating a multitude of specific Brady requests, and requesting information possibly provided by the governments of Israel and Kuwait concerning possible terrorist acts against this country around April 19, 1995, and Oklahoma City specifically as a potential target. See D.E. 1923 (Vol.III Exhibit "R"). 22. June 14, 1996 Mailing en masse to 30 federal intelligence/law enforcement agencies and a host of other various state investigative/law enforcement agencies requesting material pursuant to Rule 16 and Brady and to which was attached a copy of this Court's April 29, 1996 Memorandum Opinion and Order on Motions for Production of Classified Information and the May 8, 1996, letter to Joseph Hartzler enumerating 53 paragraphs of specific discovery requests. See D.E. 1923 (Vol. III Exhibit "S"). This mailing went out when, after 45 days, the government had produced to the defense nothing had been received pursuant to the Court Order of April 29 as it related to the national intelligence data. 23. July 3, 1996 Letter to Joseph H. Hartzler requesting information concerning applications and orders filed in the Foreign Intelligence Surveillance Court and material obtained therefrom constituting Brady or Rule 16 material and as it relates to the bombing of the Murrah Building. See D. E. 1923 (Vol. III Exhibit "T"). 24. August 22, 1996 Motion to Compel Production of Additional Intelligence Information and Memorandum to the Court Concerning Violation of the Government's Duty to the Defendant Under Brady and This Court's Order of April 29, 1996, Respecting National Intelligence Information. See D.E. 1898. 25. August 27, 1996 McVeigh's Motion to Compel the Production ofMaterial and Exculpatory Classified InformationPursuant to Rule 16 and Brady. See D.E. 1918; D.E. 1921 (Appendix Vol. I); D.E. 1922 (Appendix Vol. II); and D.E. 1923 (Appendix Vol. III). 26. August 27, 1996 McVeigh's Second Supplemental Specification of Materiality of Requested Classified Information ExParte and Under Seal. See D.E. 1929. 27. August 29, 1996 Supplemental Memorandum to the Court Regarding Motion to Compel Production of National Intelligence Information. See D.E. 1936. 28. September 3, 1996 Sealed Affidavit of Stephen Jones in Further Support of Motion to Compel Release of National Intelligence Data, Third Supplementation of Specification of Materiality and Developments Filed Ex Parte and Under Seal. See D.E. 1969. 29. September 30, 1996 Defendant McVeigh's Supplemental Discovery Requests for National Intelligence Information. See D.E. 2175. 30. October 1, 1996 Defendant McVeigh's Fourth Supplemental Specification of Materiality of Requested Classified Information (ExParte and Under Seal). See D.E. 2191. 31. October 10, 1996 McVeigh's Amended Motion to Compel the Production of Material and Exculpatory Classified Information Pursuant to Rule 16 and Brady (Supplemental Requests). See D.E. 2265. 32. October 31, 1996 Defendant Tim McVeigh's Statement of Materiality and Specificity With Respect to His Amended Motion to Compel the Production of Material and Exculpatory Classified Information Pursuant to Rule 16 and Brady (Supplemental Requests). See D.E. 2403. 33. October 31, 1996 Defendant McVeigh's Fourth Supplement of Specification of Materiality of Requested Classified Information (Vol. II). See D.E. 2406. 34. November 8, 1996 Fifth Supplemental Specification of Materiality of Requested Classified Information. See D.E. 2482. 35. November 12, 1996 Defendant McVeigh's Supplemental Discovery Requests for Classified Information. See D.E. 2490. 36. November 21, 1996 Supplemental Discovery Requests for Classified Information by Timothy James McVeigh. See D.E. 2533. 37. December 11, 1996 Memorandum to the Court Concerning Discovery of Classified Information as to Timothy James McVeigh. See D.E. 2649. 38. December 27, 1996 Defendant McVeigh's Supplemental Memorandum to the Court Outlining the Relevance and Materiality of Newly Discovered Information From the Philippines, Israel and the Middle East and Its Relevance to the McVeigh Defense (ExParte and Under Seal). See D.E. 2763. 39. December 30, 1996 Supplemental Motion to Compel the Production of Information in Possession of the Intelligence Agencies of the United States and Enumerated Discovery Requests. See D.E. 2768. 40. January 17, 1997 Motion for Reconsideration of Denial of Discovery Material (Under Seal). See D.E. 2966. 41. January 21, 1997 Motion for Production of Evidence of Prior Warning of the Oklahoma City Bombing Possessed by the Office of Executive Secretariat at the Department of Justice by Timothy James McVeigh. See D.E. 2984. 42. February 4, 1997 Motion to Compel Discovery Based Upon Newly Discovered Information or in the Alternative Request for Issuance of Subpoenas Duces Tecum Pursuant to Rule 17(c). See D.E. 3123. 43. February 26, 1997 Memorandum to the Court Regarding Motion to Compel Disclosure of Certain Information and Reports as to Timothy James McVeigh (Sealed). See D.E. 3313. 44. March 7, 1997 Defendant Timothy James McVeigh's Reply to the March 6, 1997, Response of the United States to McVeigh's Motion for Additional Discovery (Sealed). See D.E. 3372. Thus, the defense has requested information acquired by, and in the possession of, the nation's intelligence and law enforcement agencies both orally and in writing, and informally in written letters and formally in written motions filed with the Court, since mid-August of 1995.|
PETITION
FOR WRIT OF MANDAMUS OF PETITIONER-DEFENDANT, |
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