*1 TITLE: United States of America, Plaintiff v. Timothy James McVeigh and Terry Lynn Nichols, Defendants.

TOPIC: MOTION FOR CHANGE OF VENUE AND SUPPORTING BRIEF: EVIDENTIARY HEARING REQUESTED

DOCKET-NUMBER: CR 95-110-A

VENUE: U.S. District Court for the Western District of Oklahoma.

YEAR: Filed: November 21, 1995

JUDGE: Hon. Wayne E. Alley, Judge

ATTORNEY(S): Michael E. Tigar, Esq., Austin, Ronald G. Woods, Esq., Houston, D. Kate Rubin, Deputy Federal Public Defender, Oklahoma City, For the Defendant Terry Lynn Nichols.

TEXT:

TABLE OF CONTENTS

INTRODUCTION                                                              2

I.            LEGAL STANDARD                                                  5

II.           OKLAHOMANS HAVE FORGED TANGIBLE CONNECTIONS                 9

TO THE VICTIMS OF THE BOMBING THROUGH MATERIAL

AND FINANCIAL SUPPORT TO RESCUE AND RELIEF EFFORTS

A.  Oklahomans' Support for the Rescue and Relief Effort    10

B.  Support from Lawton and Southwest Oklahoma              11

C.  Financial Contributions by Oklahomans                   13

III.          THE BOMBING AFFECTED ALL OKLAHOMANS

IN TANGIBLE WAYS                                            16

A.  Economic and Financial Losses                           16

B.  Psychological and Emotional Impact of the Bombing       18

1.  Experts Note Widespread, Long-Term

Emotional and Psychological Effects                 20

2.  Emotional and Psychological Impact

in Southwest Oklahoma                               25

IV.           PRETRIAL PUBLICITY                                          27

A.  Factors Considered                                      27

1.  Whether the publicity is recent, widespread,

land highly damaging to the defendant               27

2.  Whether the government is responsible

for the publicity                                   29

3.  Whether a better panel can be found

in another district                                 30

B.  Analysis of Pretrial Publicity                          31

1.  Quantity and Quality of Newspaper Coverage          31

a.     Amount and recency of coverage               31

b.     Qualitative aspects of Oklahoma coverage     32

(1)   Victim impacts                         33

(2)   Rescue, recovery, and relief effort    33

(3)   Government leaks                       34

(4)   Statements by public officials and     34

prosecutors

(5)   Cries for vengeance                    36

(6)   Commentary by public officials about   37

venue

2.  Whether the government is responsible for the       40

publicity

3.  Whether a better panel can be obtained elsewhere    40

V.            GOVERNMENT INCONVENIENCE

AND THE ADMINISTRATION OF JUSTICE                           41

A.  Legal Standard                                          41

B.  Analysis                                                43

VI.           VOIR DIRE ALONE WILL NOT ADEQUATELY                         45

SAFEGUARD MR. NICHOLS' CONSTITUTIONAL

RIGHT TO A FAIR TRIAL

CONCLUSION                                                                47

TABLE OF AUTHORITIES

CASES

United States v. Abello-Silva, 948 F.2d 1168, 1177 (10th Cir.1991), cert denied, 113 S.Ct. 107 (1992) ............ 8

United States v. Abrahams, 466 F. Supp. 552, 557 (D.Mass.1978) ............ 46

United States v. Bakker, 925 F.2d 728 (4th Cir.1991) ............ 27, 30

United States v. Bonanno, 177 F.Supp. 106 (S.D.N.Y.1959), rev'd on other grounds, 285 F.2d 408 (2d Cir.1960) ............ 27, 30

United States v. Cohn, 230 F. Supp. 589, 590-91 (S.D.N.Y.1964) ............ 28, 30

Coleman v. Kemp, 778 F.2d 1487 (11th Cir.1985), cert, denied, 476 U.S. 1164, 106 S. Ct. 2289 (1986) ............ passim

United States v. Delaney, 199 F.2d 107, 114 (1st Cir.1952) ............ 6, 30

United States v. Engleman, 489 F. Supp. 48, 49 (D.Mo.1980) ............ 6, 28, 29, 42

United States v. Florio, 13 F.R.D. 296 (S.D.N.Y.1952) ............ 42, 45

Groppi v. Wisconsin, 400 U.S. 505, 508 n. 6, 91 S. Ct. 490, 492 n. 6 (1971) ............ 8

United States v. Gullion, 575 F.2d 26, 30 (5th Cir.1978) ............ 6

United States v. Haldeman, 559 F.2d 31, 62-3 (D.C.Cir.1977), cert. denied, 431 U.S. 933, 97 S. Ct. 2641 (1977) ............ 6, 27, 30

United States v. Hoffa, 205 F. Supp. 710, 722 (D.Fla.1962), cert. denied, 371 U.S. 892, 83 S. Ct. 168 (1962) ............ 45

United States v. Holder, 399 F. Supp. 220, 227-28 (D.S. Dakota 1975) ............ 45

Irvin v. Dowd, 366 U.S. 717, 722, 81 S. Ct. 1639, 1624 (1961) ............ passim

Isaacs v. Kemp, 788 F.2d 1482 (11th Cir.1985) ............ 27, 28, 40

United States v. Maldonado-Rivera, 922 F.2d 934, 967 (2d Cir.1990), cert. denied, 501 U.S. 1233, 111 S. Ct. 2858 (1991) ............ 29

Marshall v. United States, 360 U.S. 310, 79 S. Ct. 1171 (1959) ............ 6, 29

Pamplin v. Mason, 364 F.2d 1, 5 (5th Cir.1966) ............ 7, 8

United States v. Moody, 762 F. Supp. 1485 (N.D.Ga.1991), aff'd, 977 F.2d 1425 (11th Cir.1992), and cert. denied, 113 S. Ct.1948 (1993) ............ 6, 28, 29, 30

In re Murchison, 349 U.S. 133, 136, 75 S. Ct. 623, 625 (1955) ............ 5

Murphy v. Florida, 421 U.S. 794, 797, 804, 95 S. Ct. 2031, 2035, 2038 (1975) ............ 6, 7

Patton v. Yount, 467 U.S. 1025, 104 S. Ct. 2885 (1984) ............ 28

United States v. Pedraza, 27 F.3d 1515 (10th Cir.), cert. denied, 115 S.Ct. 347 (1994) ............ 30

United States v. Rewald, 889 F.2d 836, 862 n. 27 (9th Cir.1989) ............ 6

Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417 (1963) ............ 28

United States v. Rossiter, 25 F.R.D. 258, 259-60 (D. Puerto Rico 1960) ............ 45

Sheppard v. Maxwell, 384 U.S. 333, 349, 86 S. Ct. 1507, 1517 (1966) ............ passim

United States v. Tokars, 839 F. Supp. 1578, 1582 (N.D.Ga.1993) ............ 6, 42

United States v. Williams, 523 F.2d 1203 (5th Cir.1975) ............ 44

RULES

Rule 21(a), Federal Rules of Criminal Procedure ............ passim

Local Rule 14 ............ 1

TREATISES

C. Wright, Federal Practice and Procedure 2d, (1982) ............ 27

*2 Terry Lynn Nichols, by counsel, moves this Court for a change of venue from the Lawton/Mangum Division. [FN1] A change of venue to a district outside of the state of Oklahoma is necessary to preserve Mr. Nichols' right to a fair trial because there exists a prejudice so great that a fair trial cannot be had anywhere in the state.

FN1. We have filed with this Court our objections to the Lawton transfer. See Notice of Objection to Lawton Transfer, filed 9/19/95. While the grounds for an intra-district transfer include, inter alia, the convenience of the defense, see Fed.R.Crim.P. 18, we were given no opportunity to comment on the Lawton transfer before the decision was made.

End of FN.

This motion is based on Rule 21(a) of the Federal Rules of Criminal Procedure, the Sixth Amendment of the U.S. Constitution, the attached exhibits and declarations, all files and records in this case, and further evidence and argument to be presented at an evidentiary hearing on this motion. Because of the wealth of factual data to be presented on this motion, as well as expert testimony, we move this Court for an evidentiary hearing and oral argument. See Local Rule 14.

INTRODUCTION

This case presents uniquely compelling circumstances for a change of venue outside of the state of Oklahoma. The evidence will show that, throughout the state, there exists virtually every factual scenario that federal courts have ever found to warrant a change of venue for presumed prejudice. Further, the evidence will show that there are unique circumstances in this case which overwhelmingly support a presumption of prejudice and change of venue outside of the state.

The facts summarized in this motion and to be presented in further detail at the hearing will show that:

. Oklahomans throughout the state have participated in the relief and recovery effort, and therefore have tangible connections to the tragedy and a special interest in the outcome of this case.

It has become commonplace to say that Oklahomans came together as one in this tragedy. This is more than a slogan heralded by public officials and the news media. The empirical data show that the coming together of Oklahomans in the wake of the bombing is a reality. From the first news of the bombing, Oklahomans responded to this tragedy by providing all types of assistance to the rescue and recovery effort. This generosity continues to the present day, particularly in the form of financial contributions. Because of their identification with and tangible connections to the victims' families, Oklahomans are not disinterested prospective jurors in the trial of Terry Nichols.

. The bombing caused unprecedented economic damage to Oklahomans.

The direct and indirect damages run into the hundreds of millions of dollars, according to official reports. Every Oklahoman has, or may reasonably believe s/he has, a financial stake in this event--as taxpayer, employee, employer, citizen, and resident.

*3 . The bombing of the Alfred P. Murrah building caused great emotional and psychological consequences, which continue to this day and will persist long into the future.

These emotional and psychological consequences of the bombing have an effect on every prospective juror in the state. These impacts may be sufficiently complex and deep-seated that voir dire would not uncover them. As the Governor of Oklahoma recently wrote,

Family ... assumed a new cherished meaning for Oklahomans. In so many cases we watched as families learned of the loss of parents, brothers, sisters, children, and even grandparents. The ripples moved outward, touching every neighborhood and every home. It was almost impossible in the weeks after April 19 to find a resident of central Oklahoma who failed to know at least one family member directly wounded by the bombing. We all knew someone who died, or someone who was injured. We learned once again the meaning of the term 'extended family.' This family extended to the very border of our state, and beyond.

Governor Frank Keating, "The Oklahoma Standard," Oklahoma Virtue! at 11 (emphasis added). Documents obtained from the Department of Mental Health and media reports confirm that the emotional and psychological consequences of the bombing exist throughout the state and will endure for years to come.

. Media coverage in Oklahoma has been different in amount and--even more significantly--in kind than media coverage a here else.

The extent and detail of Oklahoma coverage both responds to and reinforces widely-held perceptions of Oklahomans that they stand together in the Heartland in their grief, their victimization, and their communal struggle to heal the wounds of this tragedy. Because of the widespread tangible effects of the bombing and the resulting perception among Oklahomans that they are an extended family dealing together with this tragedy, the alreadypervasive media coverage affects prospective jurors in Oklahoma differently and more profoundly than does the media coverage to which individuals in other states have been exposed.

. The problem of a fair forum cannot be resolved within the state of Oklahoma.

One of America's leading social scientists has examined the evidence and concluded that the sense of identification felt by almost every Oklahoman with these events is palpable and provable. This communal spirit and identification with the tragic events of April 19th means that prospective jurors in this state are, by definition, not dispassionate about the defendants in this case nor are they disinterested in the outcome. [FN2]

FN2. The substance of this expert testimony is summarized in Exhibit Y.

End of FN.

. Comparative survey results show sharp contrasts between the involvement and attitudes of prospective jurors in Oklahoma venues compared to those in, for example, Denver, Colorado. [FN3]

FN3. These survey results are discussed in the motion for a change of venue filed by counsel for Timothy McVeigh.

End of FN.

*4 The survey results confirm how close Oklahomans are to this tragedy as compared to those in other venues. The results also demonstrate the many tangible connections that Oklahomans have to the bombing, and show significant differences prospective jurors' attitudes about this case in Oklahoma compared to jurisdictions outside the state.

In this motion and the accompanying exhibits, we present a preview of the evidence that will be offered at the hearing on this motion. Based on this evidence and the arguments presented below, we urge this Court to order a change of venue to a district remote from the state of Oklahoma.

I.

LEGAL STANDARD

"A fair trial in a fair forum is a basic requirement of due process." In re Murchison, 349 U.S. 133, 136, 75 S. Ct. 623, 625 (1955). In one of the leading due process cases on the right to a fair trial, Irvin v. Dowd, 366 U.S. 717, 722, 81 S. Ct. 1639, 1624 (1961), the Supreme Court wrote:

In the ultimate analysis only the jury can strip a man of his liberty or his life. [ ... ] [A] juror must be as indifferent as he stands unsworn. His verdict must be based upon the evidence developed at the trial. This is true, regardless of the heinousness of the crime charged, the apparent guilt of the offender or the station in life which he occupies. [ ... ] The theory of the law is that a juror who has formed an opinion cannot be impartial.

The Court articulated the same principle a few years later in even stronger language in the case of Sheppard v. Maxwell, 384 U.S. 333, 349, 86 S. Ct. 1507, 1517 (1966):

[T]he Court has ... pointed out that legal trials are not like elections, to be won through the use of the meeting-hall, the radio, and the newspaper. And the Court has insisted that no one be punished for a crime without a charge fairly made and fairly tried in a public tribunal free of prejudice, passion, excitement, and tyrannical power.

(internal quotations and citations omitted).

Rule 21(a) of the Federal Rules of Criminal Procedure also safeguards the right of criminal defendants to a fair trial in a fair forum. The rule provides in relevant part:

The court, upon motion of the defendant shall transfer the proceeding as to that defendant to another district [ ... ] 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.

Fed.R.Crim.P. 21(a) (emphasis added).

Despite the clear language of the rule, there is some disagreement among the circuits about the legal standard governing transfer of venue in federal criminal cases. Many federal courts, in accordance with the Supreme Court's decision in Marshall v. United States, 360 U.S. 310, 79 S. Ct. 1171 (1959) (per curiam), hold that the standard in federal criminal cases is more protective of defendants than the constitutional due process test. See United States v. Gullion, 575 F.2d 26, 30 (5th Cir.1978); United States v. Tokars, 839 F. Supp. 1578, 1582 (N.D.Ga.1993); United States v. Moody, 762 F. Supp. 1485 (N.D.Ga.1991), aff'd, 977 F.2d 1425 (11th Cir.1992), and cert. denied, 113 S. Ct.1948 (1993); Delaney v. United States, 199 F.2d 107, 113 (1st Cir.1952); see also Murphy v. Florida, 421 U.S. 794, 797, 804, 95 S. Ct. 2031, 2035, 2038 (1975); United States v. Engleman, 489 F. Supp. 48, 49 (D.Mo.1980) (trial judge has a nondelegable responsibility under Rule 21 to ensure that a defendant receives a fair trial); but cf. United States v. Rewald, 889 F.2d 836, 862 n. 27 (9th Cir.1989); United States v. Haldeman, 559 F.2d 31, 62-3 (D.C.Cir.1977), cert. denied, 431 U.S. 933, 97 S. Ct. 2641 (1977).

*5 In Marshall, the Supreme Court reversed the defendant's conviction, relying on its "supervisory power to formulate and apply proper standards for enforcement of the criminal law in the federal courts." 360 U.S. at 313, 79 S. Ct. at 1173. The Court did not formulate a particular standard, but noted instead that "each case must turn on its own special facts." Marshall, 360 U.S. at 313, 79 S. Ct. at 1173.

In Murphy v. Florida, 421 U.S. 794, 95 S. Ct. 2031 (1975), the Court made clear that Marshall articulated a standard more protective than due process. The Court denied relief in Murphy, finding no due process violation and expressly declining to apply Marshall outside the realm of a federal criminal case. Concurring in the judgment, Chief Justice Burger wrote that "I would not hesitate to reverse petitioner's conviction in the exercise of our supervisory powers, were this a federal case." Murphy, 421 U.S. at 804, 95 S. Ct. 2038 (Burger, C.J., concurring).

This circuit has not considered the use of a federal supervisory standard in Rule 21(a) motions in federal criminal cases. On the facts of this case, however, a change of venue based on presumed prejudice is overwhelmingly justified.

The Supreme Court articulated the due process standard in Sheppard v. Maxwell, 384 U.S. 333, 85 S. Ct. 1507 (1966). In Sheppard, the Court granted habeas relief to a state prisoner, basing its finding of presumed prejudice on two factors. First, the Court found that "for months the virulent publicity about Sheppard and the murder had made the case notorious." Sheppard, 384 U.S. at 354, 86 S. Ct. at 1518. Second, the Court found that the trial judge had allowed the proceedings themselves to become a media circus in which both the jurors and witnesses were constantly exposed to press attention.

Sheppard defined the constitutional test for transferring venue in cases where prejudice is presumed as the result of pretrial publicity:

Due process requires that the accused receive a fair trial by an impartial jury free from outside influences. Given the pervasiveness of modem communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused.

[ ... ] Where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, or transfer it to another county not so permeated with publicity.

Sheppard, 384 U.S. at 364, 86 S. Ct. 1522 (emphasis added).

Interpreting Sheppard along with other Supreme Court cases on presumed prejudice, the Fifth Circuit restated the test for presumed prejudice in broader terms to encompass the influence of any factor, including pretrial publicity. See Pamplin v. Mason, 364 F.2d 1, 5 (5th Cir.1966), cited with approval in Groppi v. Wisconsin, 400 U.S. 505, 508 n. 6, 91 S. Ct. 490. 492 n. 6 (1971). Writing for the panel in Mason, Judge Wisdom wrote:

*6 The test is no longer whether prejudice found its way into the jury box at trial.... [T]he test is: Where outside influences affecting the community's climate of opinion as to a defendant are inherently suspect, the resulting probability of unfairness requires suitable procedural safeguards, such as change of venue, to assure a fair and impartial trial.

Mason, 364 F.2d at 5.

Although the Tenth Circuit has stated that "presumed prejudice is rarely invoked and only in extreme situations," where adverse pretrial publicity is found, United States v. Abello-Silva, 948 F.2d 1168, 1177 (10th Cir.1991), cert. denied, 113 S. Ct. 107 (1992), the formulation of the due process standard set forth in Sheppard necessarily controls. Rule 21(a) must be interpreted and applied in accordance with the due process test set down by the Supreme Court in Sheppard.

More importantly, this is not a case where pretrial publicity is the only basis for a change of venue. The tangible connections that all Oklahomans have to this tragedy, as manifested by their support for rescue and relief efforts, and the emotional and psychological impact that has been felt by all, are equally compelling evidence that a fair trial cannot be had in any district in the state of Oklahoma. Moreover, these tangible connections and consequences are greatly magnified by the prejudicial effects of the massive, sensational publicity that has permeated Oklahoma newspapers and television. Accordingly, even if the caselaw could be interpreted to require application of a more stringent standard to Rule 21(a)motions based on pretrial publicity alone, that standard does not apply in this case.

Under either the due process or the more protective federal supervisory standard, the facts compel a change of venue for presumed prejudice based on the separate and combined effects of

. the special interest that all Oklahomans have in this trial, as reflected in their widespread participation in and support for the rescue and relief effort;

. the far-reaching consequences of the bombing on all Oklahomans, including extensive economic and financial effects and deep-rooted, widely-felt emotional and psychological trauma; and

. pervasive, sensational, and highly emotional media coverage of the bombing and the victims, combined with incriminating and derogatory publicity about the defendants, much of it from public officials and prosecution sources.

II.

OKLAHOMANS HAVE FORGED TANGIBLE CONNECTIONS

TO THE VICTIMS OF THE BOMBING THROUGH MATERIAL

AND FINANCIAL SUPPORT TO RESCUE AND RELIEF EFFORTS

The bombing of the Alfred P. Murrah Building in Oklahoma City has been widely described as the worst incident of terrorism on American soil. At the outset, therefore, it must be recognized that this case presents circumstances that are entirely unique.

*7 These unique circumstances arise from the enormity of the tragedy that occurred on April 19th. The deaths of 169 people, and the injuries of several hundreds more, immediately touched the lives of thousands of people across the state.

The tragedy inspired an extraordinary volunteer effort. The generosity of Oklahomans has continued beyond the immediate crisis to the present day, particularly in the form of financial contributions to assist to the families of victims and others affected by the bombing.

Individuals and businesses all across the state have done their part, thus forging a tangible link between themselves and those most grievously affected by the loss or injury of a loved one. This tangible connection both reflects and reinforces the sense of identification that all Oklahomans have to the suffering caused by this tragedy. Because of this special interest, the people of Oklahoma are by definition neither disinterested nor dispassionate as to the outcome of this case.

A. Oklahomans' Support for the Rescue and Relief Effort.

In the days and weeks following the bombing, thousands of Oklahomans responded to the tragedy. Governor Keating described this response:

Here are some of the things Oklahoma did on April 19:

* We cared for more than 600 injured victims, many grievously hurt....

* We rallied with whatever was needed in the crucial first hours....

* We displayed immense heroism....

* And we volunteered in numbers we'll never accurately count.

Governor Frank Keating, "The Oklahoma Standard," Oklahoma Virtue! at 10.

Oklahomans from every profession, including doctors and other medical professionals, mental health workers, firefighters, construction workers, accountants and insurance agents, and attorneys, contributed to the rescue and relief effort. Oklahomans from throughout the state came to Oklahoma City to help in the rescue and recovery effort. They gave blood, food, water, supplies, teddy bears, flowers, poems, prayers and hugs to support and aid rescue and relief workers and to share their sympathies with those whose loved ones were killed or injured. They brought steel-toed boots for rescue workers, baby booties for the rescue dogs; they brought their professional services to provide everything from haircuts to mental health counseling to legal and financial advice. Charities were flooded with calls from throughout the state from Oklahomans wanting to know how they could help. See, e.g., "Tulsa Red Cross Office Flooded with Volunteers, 5/3/95, p. 1.

B. Support from Lawton and Southwest Oklahoma.

The citizens of Lawton were involved in the rescue and relief effort from the start. Firefighters from several counties in the Lawton/Mangum Division provided emergency services. See The Estimate of the Governor's Task Force for Damage Assessment for the Oklahoma City Bombing of April 19, 1995 ("Governor's Report") at 19 [Exhibit A]. Hospitals and emergency medical facilities throughout Southwest Oklahoma sent doctors, other medical personnel, and supplies to Oklahoma City, including medical evacuation helicopters sent from Fort Sill. [FN4] Personnel from Fort Sill notified families whose loved ones were killed in the bombing. [FN5] Bomb experts from Fort Sill surveyed the bomb site and sent rescue assistance. [FN6] The Lawton Police Department sent members of its tactical team to Oklahoma City to help with security. [FN7]

FN4. Lawton Constitution, "Shock of Oklahoma City Blast Resonates with Lawton Residents, April 20, 1995, p. 1A, "Southwest Oklahomans Step Forward to Give Help," April 20, 1995, p. 9A.

End of FN.

FN5. Tulsa World, "Bomb Facts," April 21, 1995, p. 4.

End of FN.

FN6. Lawton Constitution, "Shock of Oklahoma City Blast Resonates with Lawton Residents, April 20, 1995, p. 1A, "Government Reacts to Explosion," p. 2D, April 21, 1995, "Fort Sill Bomb Experts, Human and Canine, at Site," April 21, 1995, p. 7C, "Soldiers Examine Potential Bomb," 4/22,95, p. 1.

End of FN.

FN7. Lawton Constitution, "Police Department Sends in Squads," April 21, 1995, p. 7C.

End of FN.

*8 Counselors from Lawton public schools went to the Oklahoma City public schools on April 24, 25, 26, and 27 to help students and teachers deal with emotional trauma resulting from the bombing. There were more counselors from Lawton Public Schools doing outreach in the Oklahoma City schools than from any other location. Ex B. at BI43-B154. [FN8]

FN8. See also Lawton Constitution, "Lawton School Counselors to Help," 4/24/95, p. 3A; see also Tulsa World, "Emotion Loss New Concern," 4/26/95, p. N4 (Lawton and Tulsa counselors went to Oklahoma City schools to help children deal with bomb-related stress).

End of FN.

Throughout Southwest Oklahoma, people stood in long lines to give blood. [FN9] Many residents of Southwest Oklahoma served as volunteers in other aspects of the relief effort. [FN10] The Lawton Salvation Army is also involved in the relief effort, [FN11] as are other Lawton charities. [FN12]

FN9. Lawton Constitution, "Food Drives Start Up in Lawton," "Sam's Taking Donations," 4/21/95, p. 7C.

End of FN.

FN10. Lawton Constitution, "Cityans Donate Services," April 23, 1995, p. 1A. "City Woman Organizes Relief Effort," Lawton Constitution, April 25, 1995, p. 1A.

End of FN.

FN11. Lawton Constitution, "Southwest Oklahomans Respond to Relief Effort," 4/25/95, p. 2A.

End of FN.

FN12. Lawton Constitution, "Local, State Relief Efforts Continuing," 4/28/95, p. 1OA, "Latin Club Donates to Red Cross," 7/21/95, p. 5B.

End of FN.

Lawton held a candlelight vigil in memory of the victims. [FN13] Fort Sill held a memorial service for bomb victims. [FN14] A woman stationed at Fort Sill wrote a song "to help ease some of the pain of the bombing." This was the first song played on several stations in Lawton and Oklahoma City following a moment of silence on Wednesday at 9:02 a.m., the week after the bombing. [FN15]

FN13. Lawton Constitution, April 21, 1995, "Candlelight Vigil," April 22, 1995, p. 2A (picture with caption).

End of FN.

FN14. Lawton Constitution, "Fort Sill Holds Prayer Service for Victims," 4/22/95, p. 1B.

End of FN.

FN15. Lawton Constitution, "Fort Sill Woman Writes Song About Bombing," 5/31/95, p. 2A; "Message of Song Continues to Spread," 7/22/95, p. 5B.

End of FN.

Lawtonians tied blue ribbons on the trees in front of the Lawton City Hall as a symbol of support for survivors and victims of the bombing. [FN16] In Lawton's Shepler Park, people gathered on May 11 for a ceremony "In Memory of Friends: A Moment of Final Closure and Last Respects." The ceremony was held at the suggestion of the U.S. Attorney General's Office, who had recommended that special final ceremonies be conducted in various locations across Oklahoma as a moment of closure. Attending the ceremony was the Lawton Mayor, city and school officials, dignitaries from Fort Sill, representatives from the Lawton Chamber of Commerce, Comanche County government, and public officials. The ceremony was broadcast live to Lawton public schools and Fort Sill via Lawton and Fort Sill cable television. [FN17]

FN16. Lawton Constitution, 5/3/95, p. 2A (picture).

End of FN.

FN17. Lawton Constitution, "Final Closure Ceremony Slated Here Following Oklahoma Bomb," 5/7/95, p. 9A & 10A (advertisement).

End of FN.

*9 A memorial to the bombing victims entitled "Hearts Across Oklahoma" was built just outside of Lawton, in Holy City, designed by a Lawton police officer. [FN18] At the dedication ceremony, a state representative read the list of those who died and a group of costumed angels provided a visual backdrop to dramatize the loss of life. Those who attended the ceremony were invited to walk around the monument "and reflect on what the tragedy meant to them personally and as a state." [FN19]

FN18. Lawton Constitution, "Monument to Victims Planned at Holy City," 4/25/95, p. 8C; "Bombing Monument Designed by Officer," 6/2795, p. 1A ("Like most Oklahomans, McGlothin didn't lose any close friends or family members in the April 19 blast, but, also like most Oklahomans, he said he felt a profound loss at the senseless tragedy." See also, Lawton Constitution, "A Memorial Needed," 5/24/95, p. 6A, "Monument to Bomb Victims Progresses at Holy City," 8/8/95, p. 3A, "Bomb Monument Dedication Set," 9/3/95, p. 8A, "Monument to Bombing Victims Will be Unveiled at Holy City," 9/14/95, p. 3A.

End of FN.

FN19. Lawton Constitution, "Bombing Memorial Dedicated," 9/17/95, p. 1A.

End of FN.

C. Financial Contributions by Oklahomans.

Individuals and businesses throughout the state of Oklahoma continue to make financial contributions to the relief and recovery effort. See Daily Oklahoman, "Acts of Kindness," various dates [Exhibit U]. The Mayor's Disaster Relief Fund has collected $2.07 million in contributions to date. The Governor's Fund has $4 million set aside for the long-term educational needs of children who lost family members in the bombing. Various charitable agencies have committed or spent roughly $12 million to assist Oklahomans. United Way of Metro Oklahoma City, Special Disaster Report to Governor Frank Keating, October 2, 1995 [Exhibit E].

While it isn't possible to identify all of the different sources of these donations, it cannot be disputed that Oklahomans all across the state have made contributions, large and small, to the relief effort. Since April 19th, Oklahoma newspapers have regularly published information about how individuals can make financial contributions to the various relief funds. [FN20]

FN20. See, e.g., "How to Help" columns, various dates [Ex. U]; Lawton Constitution, "Agencies Accepting Donations," 4/23/95, p. 11A (listing various charities); Tulsa World, "OC Mayor to Disburse Fund for Victims' Families," 5/5/95, p. N3, Tulsa World, "Bomb Facts" articles, various dates, giving information about how to help.

End of FN.

The people of Lawton have also done their part to contribute to the relief effort. The Lawton Chamber of Commerce, located in downtown Lawton, is collecting donations in exchange for bumper stickers with the message "Oklahomans for Oklahomans, Together We Stand," with a drawing of the now- famous photograph of the fireman holding Baylee Almon in his arms. [FN21] The Class of 1965 of Comanche High School, located in the Lawton/Mangum division, set up a scholarship fund honoring alumnus Pat Kiker Nix, who was killed in the bombing. [FN22]

FN21. See Declaration of Edward Killam, accompanying photocopy of bumpersticker [Ex. Q] Lawton Constitution, " 'Together We Stand' Bumpersticker Supports Blast Victims," 5/28/95 (also displaying photograph of bumpersticker being placed on Lawton Mayor Ted Marley's city vehicle).

End of FN.

FN22. Daily Oklahoman, "Acts of Kindness," 5/19/95, p. 12; see also Daily Oklahoman, "From Lawton to Maine, Donations Pour In," 5/17/95. p. 6A.

End of FN.

*10 Oklahomans have also contributed to the relief effort by purchasing commemorative books, posters, musical recordings, t-shirts, and memorial pins. The profits from these sales are donated to various relief organizations.

The leading source of contributions to the relief effort through sales of memorial items is the book In Their Name: Oklahoma City, the Official Commemorative Volume, published by Random House. Mrs. Cathy Keating, the wife of Governor Frank Keating, helped put the book together and toured the country to promote it. The Daily Oklahoman provided editorial assistance. Proceeds from the sale of In Their Name go to Project Recovery OKC, which assists families affected by the bombing with their long-term needs. Within the first weeks of the book's release, Oklahomans had purchased 60,000 copies. [FN23] Oklahoma per capita purchases of the book continue to outstrip the nation. The same is true for other commemorative items, including: (1) the book Requiem for the Heartland, see Exs. I & J; (2) the recording of the prayer service held in Oklahoma City on the National Day of Mourning, see Ex. K; (3) the poster "Heroes in the Heartland," see Ex. L; (4) the t-shirt "Helping Hands in the Heartland," see Ex. G.

FN23. Tulsa World, "Mrs. Keating Tells Nation Oklahoma Will Recover," 8/17/95, p. F5.

End of FN.

While the tremendous generosity of Oklahomans in response to the bombing has been admirable, it also reflects an underlying reality: All Oklahomans have been affected by the bombing in tangible ways.

As discussed in the following section, these effects include: (1) unprecedented economic damage, and; (2) widespread and long-lasting emotional and psychological impacts.

III.

THE BOMBING AFFECTED ALL OKLAHOMANS IN TANGIBLE WAYS

The bombing of the Murrah building has had far-reaching consequences well beyond those whose loved ones were killed or injured. These far-reaching effects include vast economic losses incurred by individuals, businesses, and government. The economic costs of the bombing will ripple through the state for years to come.

The psychological and emotional toll of this tragedy has also been felt throughout the state. The psychic impact of the bombing is expected to be one of the most enduring consequences of this tragedy.

The following sections summarize the evidence of these impacts.

A. Economic and financial losses.

Shortly after the explosion, Governor Keating retained the services of KPMG Peat Marwick to estimate the current and future economic losses caused by the bombing. KPMG, along with Adjusters International and Barrett Consulting produced a report on May 18, 1995 ("Governor's Report", Ex. A.).

The Governor's Report estimates that the bombing caused a total of $426,594,000 in nonfederal economic costs and losses. Federal costs and losses add another $225,000,000 to the total economic toll of the bombing. Combined, federal and non-federal costs and losses related to the bombing amount to a total of $651,594,000. Ex. A at 2.

*11 Oklahomans will bear a substantial share of the economic burden of recovery. [FN24] The Governor's Report estimates that over half of the non- federal economic costs and losses associated with the bombing are not funded. Ex. A at 2. [FN25]

FN24. The Governor's Report estimates that the state will absorb s 45,536,000. The City of Oklahoma City will sustain $12,924,000. Another $156,000 will be covered by Oklahoma county funds. Private businesses will take on $256,788,000, with $35,372,000 sustained by private not-for-profit businesses. Individuals are expected to bear $55,504,000 of the total economic costs and losses of the bombing. Ex. A at 2.

End of FN.

FN25. Insurance is expected to cover s 105,430,000, with FEMA grant programs contributing approximately $33,122,000. The remaining $288,042,000 in estimated unfunded loss represents a substantial shortfall, even if additional federal grants and appropriations become available. Ex A at 2.

End of FN.

Commenting on the $650 million estimated total loss, Governor Keating said:

This is the greatest loss in the nation's history due to a terrorist act. It's the greatest private property loss in Oklahoma history.

Tulsa World, "Bomb Losses Costly," 5/19/95, p.N1.

These economic costs and losses translate into real consequences for the people of Oklahoma, both direct and indirect. Losses incurred by individuals, businesses, and government have multiplier effects throughout the state economy. Business disruptions affect not only the owners, but also employees, and customers. As Governor Keating recognized,

These are very serious loss figures and there will be dislocations as a result, and real hardship, and that's the ultimate tragedy--not only the broken bodies but also the tremendous financial sacrifices that will ensue because of this tragedy.

Daily Oklahoman, "State Struggles to Find Money for Bomb Costs," 5/19/95, p. 1.

Disruption in federal and state government services also has widespread effects on those who do business with and for the government, as well as those who rely on government services. The Murrah Building once housed 18 federal agencies and approximately 500 employees. All of these agencies have been moved to separate locations in and around Oklahoma City, with resulting disruptions to individuals and businesses with relationships to these agencies. See Ex. F.

As the Governor's Report shows, many of these costs are yet to be incurred. Moreover, the unfunded economic losses caused by the bombing will ultimately be bone by the taxpayers of Oklahoma. In a state that is the seventh poorest in the nation, these losses are not inconsequential. As Governor Keating noted:

When all is said and done, there will be significant losses to all concerned--individuals. county government, state government, and the city of Oklahoma City. ... [N]o amount of federal help, no amount of state help, is going to make everyone whole.

*12 Daily Oklahoman, "State Struggles to Find Money for Bomb Costs," 5/19/95, p. 1.

In sum, the staggering economic costs of the bombing will be felt throughout the state, and for many years to come. The Oklahoma Governor has recognized this as will prospective jurors. Because Oklahomans will reasonably feel that they have a financial stake in the events that will be the subject of Mr. Nichols' trial, they cannot be indifferent decision-makers, as the constitution demands.

B. Emotional and Psychological Impacts of the Bombing.

The magnitude of this tragedy has produced vast emotional and psychological wounds felt throughout the state. These effects extend far beyond those who have been most immediately affected by the loss or injury of a loved one. These consequences are among the most widespread and long-lasting effects of the bombing on the people of this state.

Thousands of Oklahomans were traumatized by the force of the blast, by the sight of black smoke rising over downtown, by anxiety about family, loved ones, and friends who might have been killed, injured, or terrified by the explosion. Countless others suffered emotional trauma upon realizing that, but for the day's particular circumstances, they or a loved one might have been in or near the Murrah building.

The state as a whole suffered psychological trauma. As described by Mrs. Cathy Keating,

[T]he families who lost loved ones in the explosion 'will never be the same, and neither will we because we will never feel Oklahoma is safe from unwarranted violence. That's a loss we all share.

Daily Oklahoman, "Clinton Plans Visit to City for Victims," 4/20/95, p. 20.

The graphic, extensive coverage of the bombing that saturated Oklahoma television and newspapers in the 45 days following April 19th is itself a source of emotional and psychological trauma for the people of the state. Ex. B at B45. In the days, weeks, and months following the bombing the media consistently reinforced the notions that all Oklahomans had been victimized. Media coverage is thus an independent source of trauma which impacts those who were not immediately affected by the bombing from the loss or injury of a loved one or from proximity to the bomb site. Moreover, for those who are suffering from a loved one's death, injury, or from being near the explosion or participating in the rescue effort, media coverage revives and intensifies their psychological and emotional suffering.

That all Oklahomans were affected by the bombing psychologically and emotionally is demonstrated in the following summary of documents obtained from the state Department of Mental Health and in media reports in the Daily Oklahoman, Lawton Constitution, and Tulsa World.

1. Experts Note Widespread, Long-Term Emotional and Psychological Effects.

According to one trauma expert who spoke from her own experience with trauma victims after the Northridge, California earthquake, a "mental health crisis" will exist in the state of Oklahoma for the next 5 to 10 years. [FN26]

FN26. Daily Oklahoman, "Experts Detail Mental Impact," 4/21/95, p. 9 ("The mental anguish and associated problems caused by [the] bombing will be far- reaching and will include victims, their families and people all across Oklahoma, say mental health professionals."), "Victims Emotions Thawing," 10/19/95 (quoting a Project Heartland counselor: " 'Often people affected by a trauma or tragedy don't even begin to feel until about the first four to six months afterward," and Project Heartland Director Gwen Allen: "The best estimates of experts in the field is that some of the most severely affected could continue to have problems for a very long time--perhaps seven to la years, or even a lifetime.' ")

End of FN.

*13 The publications and programs of the Oklahoma Department of Mental Health ("ODMH") reflect the same understanding of the emotional and psychological consequences of the bombing. A pamphlet from the ODMH available in the Clerk's Office of the United States District Court in Oklahoma City notes that

The tragedy Oklahoma City experienced on April 19, 1995 touched every Oklahoman. We all feel the sorrow and anxiety, and we sense that our lives will never quite be the same. ... For many of us, the support of caring friends will be needed for a long time.

Ex. D. The pamphlet offers mental health assistance from Project Heartland to all Oklahomans, and lists a toll-free number so that people from outside of the Oklahoma City area can request assistance. Ex. D.

The ODMH's recent successful application to FEMA for a $3.8 billion grant reflects the same perspective. See Ex. B. The grant application provides a detailed past, present, and future assessment of the mental health needs of the people of Oklahoma. ODMH gives the following description of the bombing's psychological and emotional impacts:

[T]he bombing had a great emotional impact on all citizens in Oklahoma. Individuals who were killed in the bombing or who were in the blast area at the time of the bombing reside in six central Oklahoma counties, which surround the Oklahoma City Metropolitan area. Family members of the victims, injured and survivors are from throughout the State of Oklahoma and the Nation. Many of these individuals immediately came to Oklahoma City in search of their loved ones.

It is difficult to live in the state of Oklahoma and not know someone who was killed, injured, and/or at the bombing site when the explosion occurred. In addition, fire fighter, police, emergency services workers, National Guard, mental health, and other rescue workers came from throughout Oklahoma and the Nation to assist in the rescue efforts. These individuals saw a great deal of death and destruction, and have now returned to their communities.

Exhibit B at B8. [FN27]

FN27. See also Daily Oklahoman, "Ripples of Bombing Loss Wash State With Grief," 5/10/95, p. 1A:

If a single death is a raindrop, then on April 19, 1995, one month ago today, Oklahoma City was hit by a thunderstorm. The ripples of grief have washed over the entire city, the state, and the nation.

End of FN.

To emphasize the point that all Oklahomans have suffered emotional and psychological trauma because of the bombing, DMH displays a map of Oklahoma on which all counties are classified in one of three ways: (1) declared disaster area; (2) surrounding counties in which victims and survivors reside; and (3) counties in which family members, friends, and other affected individuals reside. Oklahoma County is in the first category. Canadian, Logan, Cleveland, Pottawatomie, and McClain Counties are in the second category. All remaining counties in the state of Oklahoma are classified as "counties in which family members, friends, and other affected individuals reside." Exhibit B at B 12. In this latter category, therefore, are the counties that make up the Lawton/Mangum division of the Western District of Oklahoma.

*14 Project Heartland estimates that, through June 19, 17 percent of the individuals its counselors have seen in crisis counseling were from the general population and were indirectly involved in the bombing. Ex. B at B29. The Department of Mental Health attributes the trauma experienced by these individuals in part to the saturation of news coverage about the bombing. Ex. B at B45. This observation is important because it identifies media coverage as an independent source of trauma caused by the bombing affecting people who were not otherwise immediately affected by the loss or injury of a loved one or by participating in the rescue and recovery effort. [FN28]

FN28. Project Heartland pamphlets also target the emotional and psychological impact of the bombing--including the independent traumatic effect of the media coverage--on children and teenagers. See Ex. C. These effects are not irrelevant even though these young people cannot serve as jurors. The parents of these children and teenagers are prospective jurors.

End of FN.

In Oklahoma City alone, approximately 39,119 individuals were directly affected by the bombing, according to Department estimates. These include an estimated 646 persons who were in the Murrah building at the time of the explosion, the 169 persons who died and approximately 700 injured, 16,774 occupants in surrounding building, and 12,384 workers involved in rescue efforts. Ex. B at B 19.

In the immediate aftermath of the bombing, ODMH initiated a number of programs to assist individuals with the emotional and psychological difficulties resulting from the bombing. Meanwhile, ODMH also recognized the importance of making its services available to people throughout the state of Oklahoma. The day after the bombing, the Department of Mental Health set up a statewide hotline with a toll-free number. [FN29] Responding to the widespread effects of the bombing on the emotions and psyches of people throughout the state of Oklahoma, DMH conducted training sessions and outreach. Project Heartland prepared informational brochures about available counseling services, grief, and post-traumatic stress. Ex. C. It also ran advertisements for its services in the Daily Oklahoman and public service announcements on local radio and television stations, and issued press releases throughout the months of April, May, and June. Ex B at B23 & 25.

FN29. During the 2 weeks after the bombing, the hotline was staffed by 228 individuals from across the state who logged a total of 1,360 staff hours. By June 12, the hotline had received 2,037 calls directly related to the bombing. Another 737 phone calls were made to Project Heartland between May 17 and June 23. Ex. B at B12. A national hotline for teenagers received a dramatic increase in calls in the months of April and May that the Department of Mental Health attributes to the Oklahoma City bombing. Ex. B at B 13.

End of FN.

ODMH recognizes that the emotional and psychological consequences of the bombing will be long-lasting. Though Project Heartland itself concentrates its efforts on the six-county area in and around Oklahoma City, they have and will continue to provide services to people living outside of this area. One of the target groups identified in the FEMA grant proposal is the general population who were not directly affected by the bombing. Ex. B at B58.

*15 The Department of Mental Health, through Project Heartland, will conduct several programs under its FEMA grant relating to long-term emotional and psychological consequences of the bombing. The 24-hour hotline will continue, with increases in staffing on anniversary dates and special occasions. Project Heartland will continue to provide short-term counseling and long-term counseling referrals for those directly affected by the bombing. Ex. B at B45-B46. Outreach programs will be particularly emphasized because

[T]here is a need to provide comprehensive outreach to the general population to identify individuals affected by the trauma of the bombing. Because of the extensive exposure to detailed, non-stop news coverage over a period of 45 days, individuals not directly exposed to the blast are experiencing problems and are in need of crisis counseling services.

Ex. B at B45. To identify and assist these individuals, Project Heartland will conduct public information and education programs primarily tailored to the general population at large. Ex. B at B46. The grant heavily emphasizes outreach and data collection aimed at identifying those in the general population who are in need. This reflects the Department's recognition that people who are affected by emotional and psychological trauma, particularly post-traumatic stress, often do not recognize their own suffering. Ex B at B45-B46; Ex. C (Project Heartland pamphlet on Post Traumatic Stress Disorder).

Specific outreach and education programs to be conducted include:

. 20 days-worth of radio and television ads on KOCO, KWTV, KFOR, KOKH, and KOCB, with particular concentration on the Thanksgiving and Christmas holiday period and the oneyear anniversary of the bombing;

. newspaper advertisements for Project Heartland to run once each week from February through April;

. inserts to be included in bank statements and other mass mailings, pay envelopes of state employees in the metropolitan area, of various downtown employee groups, and for AFDC and food stamp recipients in the metro area;

. one-month placement of ad on 17 billboards, "reaching 25% of metro area population;

. data collection to identify individuals in need of counseling, including a survey of care providers in the state and a Gallup poll that will be administered to assess community-wide impact and compare the results to another U.S. city;

. training for mental health workers, parents, and public school teachers-- the public school training will include "trial issues and conflict mediation: developing secondary curricula which assist students to reduce campus tensions and emotional turmoil during the trial of the accused bomber(s). [FN30]

FN30. The need for teacher training is emphasized because some teachers have responded to students' stress in ways thought to be inappropriate. For example, one public school teacher suggested that her class visit El Reno and throw stones to express anger towards Timothy McVeigh about the bombing. Ex. B at B 132.

End of FN.

*16 Ex. B at B96.

All of these efforts, although laudatory, will continue to reinforce the sense of victimization among all Oklahomans.

Further evidence of the persistence of post-traumatic stress related to the bombing is a $1.3 million grant recently awarded to the Oklahoma City public schools by FEMA. Counseling assistance will be made available both to students and adults in all school districts in the metro area and develop a district- wide crisis-coping plan. Daily Oklahoman, "Grant Lets City Schools Hire Counselors for Bomb Stress," 11/14/95, p. 1.

Trial in this case will reactivate traumatic and painful memories, sadness, and anger. See Ex. B at B55. This type of post-traumatic reaction is already occurring and is expected to continue. Phone calls for mental health assistance rise significantly in response to significant media coverage about the bombing case. Ex. B at B11. Calls also increased sharply on the day of the six-month anniversary of the bombing.

The trial in this case is set to begin one month after the first anniversary of the bombing. The anniversary will reactivate the feelings of pain, anguish, and anger that Oklahomans have about the bombing. The trial will produce an even more dramatic response, as recognized by Project Heartland's plan to conduct education and counseling in the public schools during the trial. In this type of atmosphere, a fair trial cannot be had.

2. Emotional and Psychological Impact in Lawton and Southwest Oklahoma.

The involvement of Oklahomans from the Lawton/Mangum division in the rescue and relief effort is but one of the ways in which the bombing caused emotional and psychological trauma on Lawton. [FN31] Newspaper reports show that the citizens of Lawton experienced emotional trauma because the tragedy occurred so close to their city. [FN32] Responding to the needs of Lawtonians for mental health support related to the bombing, Lawton established a support group that meets twice monthly to help individuals with emotional and psychological trauma related to the bombing. Ex. B at B110.

FN31. See, e.g., Lawton Constitution, "Police Department Sends in Squads," 4/21/95, p. 7C (police officer who participated in rescue effort discusses traumatic impact of being at the site); "Oklahoma City Scene Described," 4/21/95, p. 7C (Comanche County Red Cross Executive Director discusses traumatic impact of being at the scene), "Firefighter Describes 'Nightmare,' " 4/24/95, p. 3A (same).

End of FN.

FN32. See, e.g., Lawton Constitution, "Teen Reaction May be Delayed," 4/21/95, p. 6B; "Free Trauma Program Slated at City Hospital," 5/7/95, p. 9A (advertising program at Lawton Hospital for "rescue workers from Lawton, families that lost a loved one in the bombing, or witnesses to the disaster, even from television"; recognizing that symptoms may take months or even years to develop, that people may not recognize their own symptoms, that PTSD may take months or years to develop and persist).

End of FN.

*17 When the citizens of Lawton saw the destruction of the Murrah building on television and in the newspapers, they saw a building and a city that they knew. While all Americans were saddened and outraged by the deaths and injuries in Oklahoma City, the people of this state, particularly those living close by in cities such as Lawton, grieved for its own people who were killed, injured, traumatized, and bereaved. Oklahoma suffered losses in its own "extended family"; nearby communities such as Lawton suffered terror and heartache in its own back-yard. The Lawton Constitution viewed the bombing in this way, as illustrated by its first headlines. [FN33]

FN33. See Lawton Constitution, "Terror Hits Home," and "Shock of Explosion Resonates in Lawton,", 4/20/95 p. 1A (noting that the seismograph reading at a Lawton store picked up a faint reading from the blast). See also Lawton Constitution, "Tragedy Bombs Neighbors," 4/28/95, p. 4A (letter to the editor from U.S. Army Master Sargeant at Fort Sill: "[T]he people in the heartland of this nation live in much more closely knit communities. They have all felt the pain of this disaster as if they were personally involved. As the initial shock of this event passes with time, intense anger is settling in on our citizens.' "); "God Bless Oklahoma," 4/28/95, p. 4A (letter to the editor from a Lawton citizen: " 'We've cried for babies we've never held, for people we've never met. We've seen the pain in the rescuers' eyes and would not even wish to glimpse at the images they've seen.' ").

End of FN.

As was often reported in the national and Oklahoma media, the state was shocked that this tragedy hit "the heartland." Oklahomans felt and were told by the media and by their public officials that they lost more than the lives of 169 victims, the injuries of hundreds more, and the devastation of homes and businesses--they lost their sense of safety, that "it can't happen here." [FN34]

FN34. Lawton Constitution, "Age of Innocence Ends in Oklahoma," 4/23/95, p. 5B (appearing alongside ad for anxiety counseling in Lawton); "State Won't Cower to Terrorists," 4/23/95, p. 4A (editorial: Just as problems of hard drug trafficking and addictions and AIDS moved from big cities to Oklahoma, now the unthinkable--terrorism--has, too.").

End of FN.

This feeling resonated with all Americans because terrorist attacks are rare here. But while Americans woke up to the possibility that it could happen here, Oklahomans wake up daily.' to the fact that it did happen here. The persistent media coverage in Oklahoma newspapers and on television is but a constant reminder of what the people of Oklahoma already know from their own experience.

IV.

PRETRIAL PUBLICITY

A. Factors Considered.

Courts consider these factors in Rule 21(a) cases:

1. Whether the publicity is recent, widespread, and highly damaging to the defendant;

2. Whether the government was responsible for the publication of the objectionable material, or if it emanated from independent sources;

*18 3. Whether a substantially better panel can be sworn at another time or place.

C. Wright, Federal Practice and Procedure 2d, section 342 at 249 (1982)(quoting United States v. Bonanno, 177 F. Supp. 106, 122, (S.D.N.Y.1959), rev'd on other grounds, 285 F.2d 408 (2d Cir.1960)).

The caselaw interpreting these factors is summarized below.

1. Whether the publicity is recent, widespread, and highly damaging to the defendant.

The sheer number of articles published is significant, particularly where the coverage is extensive relative to the size of the community, see Coleman v. Kemp, 778 F.2d 1487 (11th Cir.1985), cert. denied, 476 U.S. 1164, 106 S. Ct. 2289 (1986); Isaacs v. Kemp, 778 F.2d 1482 (11th Cir.1985); United States v. Haldeman, 559 F.2d 31, 181 (D.C.Cir.1976), and where national coverage is found to be less extensive, see. e.g., United States v. Bakker, 925 F.2d 728 (4th Cir.1991); Haldeman, 559 F.2d at 143-45; United States v. Cohn, 230 F. Supp. 589, 590-91 (S.D.N.Y.1964).

There is no specific formula dictating how much time must pass between the publicity and the trial to mitigate its prejudicial effects. See Patton v. Yount, 467 U.S. 1025, 1034-35, 104 S. Ct. 2885, 2890-91 (1984). The key question is not whether potential jurors would remember the crime, but whether the lapse of time between the pretrial coverage and the trial is enough to ensure that "the feelings of revulsion that create prejudice have passed." Yount, 467 U.S. at 1035, 104 S. Ct. at 2891. Passage of time alone is less important where the media coverage has been pervasive or especially inflammatory.

Qualitative characteristics of pretrial publicity play an especially important role in the caselaw. The Supreme Court's decision in Rideau v. Louisiana 373 U.S. 723, 83 S. Ct. 1417 (1963), underscores the particularly damaging effect of media reports that the defendant confessed to the crime charged. Similarly, media reports of incriminating information, such as eye- witness accounts, are considered especially prejudicial. See. e.g., Coleman, 778 F.2d at 1509; Isaacs, 778 F.2d at 1484; United States v. Engleman, 489 F. Supp. 48, 50 (E.D.Mo.1980). Incriminating statements by prosecutors, law enforcement, or government officials are highly prejudicial. See Coleman, 778 F.2d at 1501; Moody, 762 F. Supp. at 1488-89. Included in the category of prejudicial coverage about the defendants are media reports which include false or misleading information about the investigation or prosecution. See, e.g., Sheppard, 384 U.S. at 359, 86 S. Ct. at 1520.

*19 Where media reports present the facts of the crime in a sensational manner, see, e.g., Coleman, 778 F.2d at 1493, 1498, 1500-1501, they contribute significantly to community prejudice even though the reporting is about the victims rather than the defendants. By contrast, media reports that contain factual, dispassionate accounts of the crime and court proceedings generally do not support a finding of presumed prejudice. See, e.g., United States v. Maldonado Rivera, 922 F.2d 934, 967 (2d Cir.1990), cert. denied, 501 U.S. 1233, 111 S. Ct. 2858 (1991).

Another important qualitative factor in evaluating the prejudicial impact of pretrial publicity is whether the media accounts contain evidence that will be admissible at trial. Examples from the caselaw include media reports about the defendant's personal life that are not relevant or are otherwise inadmissible at trial. See. e.g., United States v. Moody, 762 F. Supp. at 1490-91; see Marshall, 360 U.S. at 313, 79 S. Ct. at 1173.

Whether pretrial coverage is factual or inflammatory is a key aspect of judicial evaluations of prejudice under Rule 21(a). Examples of inflammatory or sensational coverage include articles quoting prosecutors, law enforcement, or public officials calling for vengeance against the defendant or otherwise demonizing the defendant. See. e.g., Irvin, 366 U.S. at 726, 81 S. Ct. at 1644 (articles reporting prosecutor's determination to seek the death penalty and sheriff's promise to "devote his life to securing petitioner's execution."); Engleman, 489 F. Supp. at 51. Editorials and commentary of this character are also strong indicators of community prejudice. See. e.g., Coleman, 778 F.2d at 1522, 1538-39. Media reports that local attorneys were unwilling or hesitant to represent the defendant were further evidence supporting the presumption of prejudice in Irvin, 366 U.S. at 726, 81 S. Ct. at 1644, Coleman, 778 F.2d at 1538-39. Extensive, highly emotional reporting about the victims has also been relied upon to support the presumption of prejudice. Coleman, 778 F.2d at 1491, 1500-1501.

2. Whether the government is responsible for the publicity.

Justice Frankfurter wrote in his concurring opinion in Irvin, 366 U.S. at 730, 81 S. Ct. at 1645:

Not a Term passes without this Court being importuned to review convictions ... in which substantial claims are made that a jury trial has been distorted because of inflammatory newspaper accounts--too often, as in this casewith the prosecutor's collaboration--exerting pressures upon potential jurors before trial and even during the course of trial.

*20 See also United States v. Pedraza, 27 F.3d 1515, 1519, 1525 (10th Cir.1994) (affirming denial of Rule 21(a) motion because voir dire was adequate, but noting criticism of government for holding press conference after the defendant's arrest, particularly because the Customs Service misstated facts to the press), cert. denied, 115 S. Ct. 347 (1994); United States v. Bonanno, 177 F. Supp. 106, 122 (S.D.N.Y.1959); United States v. Delaney, 199 F.2d 107, 114 (I st Cir.1952); United States v. Moody, 762 F. Supp. at 1485.

The source of publicity is often related to qualitative aspects of the coverage. Reports that contain incriminating information are most likely to come from government sources unless the evidence is presented in a court pleading or proceeding. Inflammatory calls for vengeance are considered especially prejudicial when made by government or law enforcement officials, as are public announcements by the prosecution, law enforcement, or other public officials of their intention to seek the death penalty. By contrast, where the defendant is the source of much of the coverage, courts have been less sympathetic to arguments for a change of venue based on pretrial publicity. See. e.g. Bakker, 925 F.2d at 733.

3. Whether a better panel can be found in another district.

This factor also overlaps with the other elements of the analysis. Where national media coverage is similar both in extent and quality to local coverage, there may be little advantage to a change of venue. See, e.g., Haldeman, 559 F.2d at 287 n. 43; United States v. Cohn, 230 F. Supp. 589, 590 (S.D.N.Y.1964).

With these considerations in mind, we now turn the analysis of media coverage in this case.

B. Analysis of pretrial publicity.

State and local coverage of the April 19th bombing of the Alfred P. Murrah building is drastically different both in extent and kind from national reporting and from local reporting outside of the state. All of the qualitative characteristics that courts have found to support the presumption of prejudice are also present in Oklahoma media reports about the bombing. Specifically, there has been massive reporting of:

. victim impact, including graphic details of physical injuries and suffering, the recovery process of survivors, the emotional impact of the bombing on Oklahomans whose loved ones were killed or injured;

. dramatic, emotional stories about the rescue and recovery work at the bomb site, the rescue workers, relief efforts;

. a steady stream of leaks by the government about their investigation;

. statements by public officials demonizing the defendants and calling for their execution;

*21 . appeals for vengeance against the defendant and other commentaries, many of which assume that those charged in this case are guilty.

In the following sections, we summarize the media evidence, also incorporating by reference the exhibits submitted by counsel for McVeigh in support of his motion. We will present this evidence in detail at the evidentiary hearing on this motion.

1. Quantity and quality of Oklahoma media coverage.

a. Amount and recency of coverage.

The volume of newspaper articles published in the Daily Oklahoman and Tulsa World is enormous. The Daily Oklahoman an alone has published 2910 articles about the bombing from April 19 to the present. This month's reporting is already averaging 5 articles per day. The Tulsa World has published 1561 articles. The Dallas Morning News, a paper that targets the Oklahoma market, has published 1089 articles. Ex. S. The same disparities exist between local and national coverage, a fact illustrated dramatically in the motion and exhibits submitted by counsel for Timothy McVeigh. The impact of such massive reporting is especially strong in smaller communities, such as the Lawton/Mangum Division, which not only has its own local paper and television stations, but also receives Oklahoma City stations and the Daily Oklahoman. See Coleman, 778 F.2d at 1540 n. 23.

Both local and national coverage reached their peak in the six-week period after the bombing. Recent trends show an upswing in coverage, a trend that is sure to continue and intensify as the holidays, the one-year anniversary of the bombing, and the trial approach. This trend also appears in local and national coverage elsewhere, but the level of coverage in Oklahoma continues to outstrip all other media.

As noted in the motion and supporting exhibits submitted by counsel for Timothy McVeigh, the volume of Oklahoma media coverage of the bombing is unprecedented even as compared to cases in which a motion for a change of venue was granted. The accumulated prejudice of this massive coverage throughout the state cannot be overestimated, particularly in light of the qualitative characteristics of this publicity, summarized below.

b. Qualitative aspects of Oklahoma coverage.

The qualitative differences in Oklahoma newspaper coverage of the bombing as compared to national and local reporting elsewhere are summarized in Exhibit S.

(1) Victim impacts

Oklahoma reporting about the bombing has focused extensively on victim impacts, see Ex. T, including graphic descriptions of physical injuries, see Ex. S.

This type of graphic coverage is not limited to articles published just after the bombing. For example, an article published November 9 on the front page of the Daily Oklahoman, above the fold, began as follows:

One moment Clifford Cagle was sitting at his desk looking over his daily schedule on the computer. The next thing he remembers, he instinctively rolled onto his side to allow fluids and blood to trickle out of his mouth.

*22 "Dallas Star Shines for Victim," 11/9/95, p. 1.

Newspaper reporting in Oklahoma has also closely followed the recovery and rehabilitation of those injured, and the emotional and psychological suffering of those whose loved ones were killed or injured in the bombing. See Ex. S. Finally, it is crucial to recognize that the local media have consistently reinforced the notion that all Oklahomans are victims of the bombing. This type of coverage is both unique in respect to all other national and local media coverage and historically unprecedented. No other crime in history, no matter how sensational, has generated coverage that day after day conveys the message that not only those killed and injured and their loved ones but everyone in the state has suffered personally as the result of the crime. The effect of coverage of this type on the ability of potential jurors to be impartial can hardly be overemphasized. See also Ex. U.

(2) Rescue, recovery, and relief work.

The newspaper articles from the Daily Oklahoman, Tulsa World, and Lawton Constitution, along with the television transcripts submitted as exhibits to the motion by counsel for Timothy McVeigh demonstrate that Oklahomans have seen massive reporting about the rescue and recovery work at the bomb site, rescue workers, and the ongoing relief effort. See also Exs. A, B, E, S & U, attached hereto. The initial rescue and recovery work at the bomb site was reported nationally in the period shortly after the bombing. After this initial period, however, national coverage dropped off sharply. By contrast, the Oklahoma media continue to report heavily and with considerable sentiment about the rescue workers and the ongoing relief effort. Both the amount of coverage and the emotional content differ significantly in Oklahoma reporting as compared to elsewhere.

(3) Government leaks.

This has been the subject of several pleadings filed with this Court by counsel for both defendants. The problem continues, with all of its prejudicial consequences upon prospective jurors, as noted by counsel for Timothy McVeigh in his motion and exhibits.

(4) Statements by public officials and prosecutors demonizing the defendants

and calling for the death penalty.

Since April 20, prosecutors and other public officials have made clear time and again that they believe that persons convicted of the bombing should be executed. Many of these statements have been highly inflammatory:

. President Clinton, Lawton Constitution, 4/20/95, p. 1A:

These people are killers and must be treated like killers. When they are found, justice will be swift, certain, and severe....The bombing in Oklahoma City was an attack on innocent children and defenseless citizens. It was an act of cowardice and it was evil.

. Janet Reno, Lawton Constitution, 4/20/95, p. 1A:

The death penalty is available and we will seek it.

. Patrick Ryan, press conference after indictments:

*23 I intend to recommend to the Department of Justice and the Attorney General of the United States that the death penalty be sought against both McVeigh and Nichols.

KFOR-TV (Oklahoma City), 8/10/95, 10 p.m. broadcast. [FN35]

FN35. Final approval from the Attorney General to file a notice of intention to seek the death penalty was obtained and announced on the six- month anniversary of the bombing.

End of FN.

. Governor Frank Keating: 'They got the first creep that did it.' " [FN36] It looks like they're moving in on the rest, ... and I think that's great.'

FN36. Governor Keating's opinion of Timothy McVeigh has not changed with passage of time. Daily Oklahoman, "Keating Dismissed Request for Investigation of Senator," 6/2/95, p. 10 (" 'In my view Mr. McVeigh was a creep last week and still is a creep.' ").

End of FN.

'I have always been [confident] ... that the very best law enforcement people would find those responsible and they would be prosecuted and hopefully executed.'

When a reporter asked with a chuckle if Keating could give "that creep" a fair trial, the governor said with a smile, 'In my life I gave a lot of creeps a fair trial.'

Daily Oklahoman, "Bomb Investigators Got 'First Creep,' Keating Says," 5/26/95, p. 1; see also Tulsa World, "Keating Sees Fair Trial for 'First Creep,' " 5/26/95 p. 11.

Obviously, no amateur did this, and whoever did this was an animal.

Daily Oklahoman, April 20, 1995, "Governor Decries Explosive Violence," p. 8:

"Right now, we need to pray for each other, to identify those who can be saved, and save them, and go after these lousy, stinking individuals that did this--and make sure they never walk the streets again."

Oklahoma Gazette, "A Crack in Time," 4/27/95, p. 13.

. State Representative Ron Kirby (D-Lawton):

" 'You see those people taking those kids out .... I can't take that, when it gets down to kids. .... I hope we have a public lynching. I want to pull the trap door.' "

Lawton Constitution, "Lawmakers at Chamber Breakfast Recall Oklahoma Bombing Chaos." 4/22/95, p. 6A (speaking at a breakfast meeting with members of the Legislative Oversight Committee of the Lawton Chamber of Commerce).

. District Attorney Robert Macy, "Army of Agents Seeks Second Suspect, Macy Vows Death Penalty for Bombers," Daily Oklahoma, 4/23/95, p. 1:

You bet your life. .... We will seek the death penalty and we will get the death penalty. ... We are assembling the finest death penalty prosecution team in the country.

See also KFOR-TV(Oklahoma City), 8/12/95, 5 p.m. broadcast Daily Oklahoman, "Macy to Prosecute on All 169 Bombing Deaths," 11/10/95, p. 8A ("State murder charges will be filed regardless of what happens in the federal prosecution.").

(5) Cries for vengeance and other derogatory coverage.

Attached to this motion are editorials and letters to the editor about the bombing published in the Daily Oklahoman and Tulsa World. [Exs. V and W, respectively]. Vengeance is a central theme of much of this commentary, as is the assumption that the defendants charged in this case are guilty. These are the two highest-circulation papers in Oklahoma, distributed throughout the state, and are particularly influential in shaping public opinion as well as bellwethers. No one who reads these papers regularly could fail to be influenced by the passion of the outpouring. Following are some excerpts:

*24 . Letters to the Editor, Tulsa World, April 28, 1995, p. 5:

Prison or even hanging is too easy on the bombers.

* * *

When the bombers are caught and convicted, let's have a good old- fashioned public hanging.

. "The New Anarchists," Tulsa World, 6/3/95, p. 18 (editorial):

It is unlikely that Oklahoma City bombing suspect Terry Nichols' extreme views about government are shared by many Americans. ... Self-styled 'patriots' like to compare themselves to the well-known civil disobedients of earlier times. But ... the proponents of civil disobediance chose nonviolent means to achieve their ends.

. Comment published in Lawton Constitution, "Americans Vie With Bomb's Emotional Aftermath," 4/23/95, p. 6B:

I truly believe that there should be a public hanging in front of the [Murrah] building. ... I'm ashamed of that opinion, but I truly feel that way.

. Letter to the Editor, Daily Oklahoman, "Oklahoma Justice," 5/8/95, p. 4:

I keep hearing people on TV and radio tell us it's a time of healing. Tell me how we heal ourselves when we have not found everyone or even begun to solve the problem. I only hope the people responsible for this stupid, senseless bombing are dealt with quickly and severely, as we have been told.

I don't want to have to feed them, teach them law, fix their teeth and cure their ills for the next 5 or 10 years before we give them the punishment they deserve. There are no excuses. They deserve "Oklahoma Justice."

The following media commentaries come from Lawton:

. Interviews with Lawtonians in USA Today, "In 8 Months, Lawton, Okla., will have the world's attention; it's working now to be seen in the best light," 10/16/95, p. 11 A:

I don't know why we're even going through with a trial ... What we ought to do is hang them without a trial. They're guilty. Everybody knows it.

If they're charged, I feel like they did it.

What they ought to do is set these guys loose in Oklahoma city and let the families (of the victims) take their shots....That would be justice.

Other derogatory coverage includes media reports that Oklahoma attorneys did not want to represent the defendants in this case. See, e.g., Lawton Constitution, "Bomb Case Too Close for State's Lawyers," 4/30/95, p. 5b ("The problem isn't just money. Many lawyers are so repulsed by the circumstances of the case that they don't want to have anything to do with it.").

(6) Commentary by public officials about venue.

Prosecution and other public officials have also emphasized their belief that the trial should take place in the state of Oklahoma in the interests of fairness to the victims. Yet these same officials have contributed to an atmosphere which renders a fair trial impossible in the state of Oklahoma. Further, implicit in many of these remarks and commentary is the assumption that those charged in this case are guilty. For example:

*25 . United States Attorney Patrick Ryan:

Let's not forget that Oklahomans didn't ask for Oklahoma City to be the site of this crime. Others did. And these folks should be brought to justice here in Oklahoma City or at least in the Western District of Oklahoma.

KFOR-TV (Oklahoma City), 8/7/95, 6 p.m. broadcast.

. Governor Frank Keating:

Why in the world shouldn't it be in Oklahoma City? It was a 168 of our friends and neighbors who were murdered without cause?

CBS-TV (national), 9/8/95, 5:30 p.m. newscast.

In this case we had a horrible, unspeakable crime. The people have an absolute right to be outraged, and absolute right to want vengeance. But that doesn't mean they can't give these individuals a fair trial. I think most of us could step back and say, okay, I'm mad, I'm angry, whoever did this should be punished to the ultimate. He should receive the death penalty. But is this the guy that did it? I don't think that's a difficult stretch. But to adopt the argument of the defense attorneys that no community that is outraged has a right to try a case in their community--what kind of ass-backwards law is that?!?

KFOR-TV (Oklahoma City), 8/11/95, 10 p.m. broadcast.

Lawton Constitution, "Lawton Residents React to News That Trial May be Held Here," 9/15/95, p. 2A.

. Lawton Chamber of Commerce Chairman Don Gaskins:

We've lived and breathed this whole thing with Oklahoma City. It's hard for anyone to talk about gains and benefits from something like this in view of the situation, in light of this tragedy. ... We all understand it will create a situation where we'll need more hotel rooms; personal income will increase and retail sales will be up, [but] to a certain extent, I thin it'll create a circus atmosphere.

Lawton Constitution, "Lawton Residents React to News That Trial May be Held Here," 9/15/95. p. 2A.

These commentaries by public officials are themselves evidence of all of the grounds argued in this motion for a change of venue. The remarks illustrate the existence of a strong, passionate local interest in this trial. That interest reflects the extent to which public officials and the media have allied themselves completely with the victims of the bombing. Some of the remarks quoted above are evidence of a pernicious economic motivation that is likely to affect Mr. Nichols' chance of a fair trial: the expectation of the local community that it will profit from the trial itself. See also Daily Oklahoman, "Lawton Weighs Options to Handle Media Influx," 11/9/95, p. 1.

Protestations that Oklahomans can give the defendants a fair trial offer no real reassurance, particularly where the comments come from public officials who have made other statements that they have prejudged the issue of guilt and/or penalty. Moreover, such remarks are like those editorials described by the court in Coleman, 778 F.2d at 1539, n. 20, as follows:

*26 Almost all of the appeals for a fair trial were made in a context of an effort to calm down the community to avoid the fear of mob violence, or in a context of a desire that the trials be held in Seminole County and not transferred elsewhere, or in the context of following all of the procedural steps, thus equating a fair trial with one in which the procedural steps were followed even if the outcome were a foregone conclusion.

Today's press release from the Lawton Chamber of Commerce Task Force, announcing its intentions with regard to planning for a trial and its title-- Task Force 169--shows beyond all doubt that a fair trial cannot be had in the Lawton/Mangum Division or anywhere in the state of Oklahoma. Ex. O.

2. Whether the government is responsible for the publicity.

As the previous discussion shows, government officials have been the source of a considerable amount of the prejudicial publicity about this case. This includes leaks of the government's investigation, repeated statements of intention to seek the death penalty, and derogatory, inflammatory remarks about the defendants.

3. Whether a better panel can be obtained elsewhere.

The previous discussion of Oklahoma media coverage of the bombing and the defendants as compared to publicity elsewhere in the country makes clear that districts outside of the state of Oklahoma will provide a substantially better jury pool.

Potential jurors outside of the state of Oklahoma will not have been subjected to the barrage of publicity that has blanketed the state's newspapers and television stations. Nor have they repeatedly been told by the media that they are victims.

Potential jurors elsewhere will have few if any tangible connections to the bombing. As a result, they will be far less likely to identify themselves as closely with this tragedy as Oklahomans have done. The comparative survey evidence submitted by counsel for Mr. McVeigh in support of their motion for a change of venue confirms all of these points.

In light of the barrage of prejudicial pretrial publicity and the concrete links that Oklahomans have to the bombing, there can be no question but that a jury pool drawn from outside of the state will be less tainted. This is not a case where media coverage elsewhere in the nation is so widespread that there is no advantage to a change of venue.

In sum, Oklahoma television and newspaper reports about the bombing have all of the characteristics which were found by the Fifth Circuit to justify relief in the Coleman and Isaacs death penalty habeas cases. The impact of this reporting is especially powerful in smaller communities such as the counties that make up the Lawton/Mangurn Division of the Western District. Even in larger cities such as Tulsa, however, this torrent of coverage has a strong conscious and subconscious effect on the attitudes of prospective jurors.

The qualitative comparison of national newspaper and television reports with state and local coverage is as dramatic as the quantitative differences. National media coverage is not only less frequent by a large margin, but also significantly less inflammatory and emotionallycharged. With the exception of intense coverage in the few days following the bombing, national reporting on the bombing and the defendants has been largely factual. Moreover, national coverage has not been continuous, but tends to follow specific events such as court proceedings and news conferences.

*27 Media coverage of the bombing and of the defendants in Oklahoma is pervasive, voluminous, and highly prejudicial to the defendants in this case. The qualitative aspects of Oklahoma media coverage are unique in comparison with national reporting and unprecedented in the history of sensational criminal trials. See Ex. S. These facts present a uniquely compelling case for a change of venue.

V.

GOVERNMENT INCONVENIENCE AND THE ADMINISTRATION OF JUSTICE.

A. Legal Standard.

The administration of justice favors a venue transfer where pretrial publicity has been so pervasive that jurors' assurances of their impartiality cannot be considered reliable. As the Court wrote Irvin, 366 U.S. at 728, 81 S. Ct. at 1645:

No doubt each juror was sincere when he said that he would be fair and impartial to petitioner, but psychological impact requiring such a declaration before one's fellows is often its father.

See also Irvin, 366 U.S. at 729-30, 81 S. Ct. at 1646 (Frankfurter, J., concurring) ("How can fallible men and women reach a disinterested verdict based exclusively on what they heard in court when, before they entered the jury box, their minds were saturated by press and radio for months preceding the matter designed to establish the guilt of the accused. A conviction so secured obviously constitutes a denial of due process of law in its most rudimentary conception.").

Similarly, where pretrial publicity and other prejudicial factors in the district indicate that the process of empaneling a jury will be extremely time- consuming, the administration of justice favors a transfer of venue. In United States v. Tokars, 839 F. Supp. 1578, 1584 (N.D.Ga.1993), the district court granted a change of venue notwithstanding survey evidence that 30 percent of those polled had no opinion about the case. The court explained:

Of course, the difficult task would be ascertaining which prospective jurors in fact are unbiased. Where the negative publicity has been so intense, the court's task would be made more difficult by prospective jurors' subconscious recollection of news coverage.

In Engleman, 489 F. Supp. at 50-51, the district court relied on similar reasoning:

Effective and economical judicial administration is not well served by calling an inordinate and unwieldy number of veniremen to see if an unbiased jury might be obtained, especially when it is already apparent that a substantial chance of intolerable prejudice exists. ... A change of venue during voir dire would immeasurably increase the burden, expense, and inconvenience on all parties and the Court, and would result in unacceptable delay. ... If the Court did not grant defendants' separate motions for change of venue, this cause would begin with built-in grounds for reversal.

*28 The district court in Florio, 13 F.R.D. 296, 298 (S.D.N.Y.1952), was persuaded by the same considerations:

The instant case would have been in a state of suspension if on the voir dire a jury could not have been obtained (and the volume and nature of the pretrial publicity indicated that such a result was inevitable). A long adjournment would have been the probable result and many months would have elapsed before the defendant would have been brought to justice. Or, perhaps, the case might have proceeded to trial in this District, under the shadow of doubt, and only after appeal would there have been any certainty that the procedures by which it was attempted to punish the defendant for his crime--the commission of which he was later to confess--were to any avail.

This type of uncertainty does not serve the administration of justice. As the Supreme

Court wrote in Irvin v. Dowd, 366 U.S. at 728, 81 S. Ct. at 1645,

With his life at stake, it is not requiring too much that petitioner be tried in an atmosphere undisturbed by so huge a wave of public passion....

B. Analysis.

We have noted to the Court our objections to the Lawton/Mangum division of the Western District on grounds of convenience. See Notice of Objection to Lawton Transfer, filed 9/29/95.

The Lawton/Mangum division is not a convenient venue for this trial because the current facilities are inadequate and likely to remain so even with the costly renovations now being planned. This expenditure of public funds is unnecessary in light of the existence of numerous other venues within a non- stop flight from Oklahoma City which have adequate facilities and a pool of potential jurors who have not been tainted by massive, prejudicial publicity about this case.

Given the massive pretrial publicity and demonstrated hostility towards the defendants in the state, a lengthy voir dire of a sizable jury pool will be necessary, with uncertain and unreliable results. In all likelihood it will not be possible to empanel a jury, and if one is seated, there will remain a cloud of reversible error throughout the trial. No trial is error-free, and any errors that do occur will be reviewed in light of uncertainty about whether the jury was truly free of the prejudicial effects of pretrial publicity in the first place. See. e.g., United States v. Williams, 523 F.2d 1203 (5th Cir.1975) (conviction reversed based on the combined effects of prejudicial pretrial publicity and improper argument by the prosecutor).

Inconvenience to the government does not weigh heavily against a venue change in this case. The defendants are charged with acts of conspiracy that are alleged to have occurred in several states, including Arizona, Kansas, and Arkansas. Many of the government and defense witnesses will come from these states.

Much of the government's evidence has already been transported to numerous locations around the country for testing. That evidence can be transported to a new location for trial, and would have to be moved in any event if the trial were held in Lawton. Moreover, two of the three lead prosecutors on the government's team are not from Oklahoma, and can as easily relocate to another venue as to Oklahoma City (or to Lawton).

*29 Where, as here, the prejudicial pretrial publicity is largely the responsibility of the government, considerations of government inconvenience have less force. While prosecution and other public officials have emphasized their view that the trial should take place in the state of Oklahoma in the interests of fairness to the victims, these same officials have contributed to the very atmosphere that renders a fair trial impossible here. The government cannot have it both ways.

The question of venue is one of Mr. Nichols' constitutional right to a fair trial in a fair forum. However understandable, the desire of the victims' families to have the trial in Oklahoma does not trump Mr. Nichols constitutionally-guaranteed right to a fair trial.

The administration of justice is best-served by a change of venue. Inconvenience to the government does not compel a contrary result.

VI.

VOIR DIRE ALONE WILL NOT ADEQUATELY SAFEGUARD MR. NICHOLS' CONSTITUTIONAL RIGHT

TO A FAIR TRIAL

The constitutional requirement that a juror be "as indifferent as he stands unsworn," Irvin. 366 U.S. at, 722, 81 S. Ct. at 1624, is not a legal abstraction. Only the indifferent juror can provide the indispensable, bedrock requirement for a fair trial--a verdict based only on the evidence presented in court.

Generally, voir dire is the procedure used to identify those jurors whose objective connection to the case, based either on prior experiences, relationships, or associations, warrant excusal for cause based on presumed prejudice. In some cases, however, the circumstances that would generally excuse a juror for cause are so widespread in a community that voir dire is both inadequate and inefficient for ensuring the defendant a fair trial. This is true, for example, where the community has a strong local interest in the trial and/or there is widespread hostility about the charged offense and the defendants. See. e.g., United States v. Hoffa, 205 F. Supp. 710, 722 (D.Fla.1962), cert, denied, 371 U.S. 892, 83 S. Ct. 168 (1962); Florio, 13 F.R.D. at 298; United States v. Holder, 399 F. Supp. 220, 227-28; (D.S. Dakota 1975); United States v. Rossiter, 25 F.R.D. 258, 259-60 (D. Puerto Rico 1960). In these cases, a change of venue is a necessary safeguard to protect the defendant's constitutional right to a fair trial by a panel of indifferent jurors.

The facts summarized above and to be adduced in greater detail and the hearing show that, under the applicable legal standard, this is a case where voir dire is assuredly not an adequate means of ensuring Mr. Nichols' right to a fair trial by indifferent jurors. Our venue expert agrees with this assessment. Se Ex. Z, summarizing expert testimony to be provided by Professor John McConahay. Professor McConahay is one of America's leading social scientists. who has years of experience studying the impacts of traumatic events on communities. Dr. McConahay is Professor of Public Policy at the Sanford Institute of Public Policy at Duke University. He holds a doctorate in social psychology.

*30 The economic, emotional, and psychological impacts of the bombing are also palpable and far-reaching, but their manifestations are also subtle and will be difficult to detect in the case of particular individuals.

In these unique circumstances, voir dire is not a reliable safeguard of the defendant's constitutional right to a fair trial.

The unique circumstances of this case also make it enormously impractical to wait until voir dire to determine whether it is possible to empanel a fair jury for this trial. A trial of this magnitude and expected duration cannot be moved on short notice. If, as we maintain, a fair panel cannot be selected in the Lawton/Mangum Division, the attempt to find a suitable panel through voir dire will fail. As a result, there will be substantial delay before trial could being in a new venue. By that time, Mr. Nichols will have been in custody--in solitary confinement, deprived of even a single contact visit with his wife or two year-old daughter--for more than a year. Additional delay in the trial would be fundamentally unfair to Terry Nichols. See, e.g., United States v. Abrahams, 466 F. Supp. 552, 557 (D.Mass.1978) (noting unfairness of delaying proceedings to allow effects of prejudicial publicity to subside, if such were possible).

Moreover, a change of venue after an unsuccessful voir dire will have made utterly unnecessary the great expense and planning involved in the proposed renovations to the Lawton courthouse. Indeed, having committed such a major expenditure of public monies to renovate the Lawton courthouse, the pressure to refuse a change of venue will be great, notwithstanding the results of the voir dire.

Under the unique circumstances of this case and in light of the wealth of evidence justifying a finding of presumed prejudice, the most prudent, rational, and legally sound course of action is to grant a change of venue to a district outside of the state of Oklahoma.

CONCLUSION

The facts summarized in this motion present a uniquely compelling case for a change of venue. As the court wrote in Coleman, 778 F.2d at 1538,

If there were no constitutional right to a change of venue in the instant case, then one can conceive of virtually no case in which a change of venue would be a constitutional necessity.

In Mr. Nichols' case, the presumption of prejudice is founded upon both pretrial publicity and the tangible connections that all Oklahomans have with the tragic events of April 19th. As such, this case is unlike those where the combined effects of time passing and careful voir dire are thought to be an adequate safeguard against the effects of prejudicial pretrial publicity.

Here, neither time nor close inquiry will erase the physical, psychological, emotional, and economic effects of the bombing on the citizens of Oklahoma. These tangible connections intensify and are only intensified by the effects of massive, highly prejudicial pretrial publicity upon the citizens of Oklahoma. The people of Oklahoma are exposed to this publicity not as disinterested individuals, but as people who themselves have been victimized by the bombing and who identify themselves closely with those who are suffering from the loss or injury of a loved one and with those who are attempting to recover from the damage or destruction of their home or business.

*31 Based on the combined effects of pervasive, inflammatory, and incriminating publicity. along with the special interest that Oklahomans have in the outcome of Mr. Nichols' trial, it is clear as a matter of law that a fair trial for Mr. Nichols cannot be had in any district in the state of Oklahoma. For the foregoing reasons, this Court should grant Mr. Nichols' motion for a change of venue.

Respectfully submitted,
__________________________
Michael E. Tigar
150 East Tenth
Denver, CO 80203

Ronald G. Woods
5300 Memorial, Suite 1000
Houston, TX 77007

Adam Thurschwell
N. Reid Neureiter
Jane B. Tigar
1120 Lincoln, Suite 1308
Denver, CO 80203

Kate Rubin

(303) 831-4059
Fax (303) 831-6232

Counsel for Terry Lynn Nichols
(Appointed by the Court)

ORDER AND NOTICE OF HEARING

UPON CONSIDERATION OF Defendant Nichols' Motion for Change of Venue and Supporting Brief; Evidentiary Hearing Requested, the Court having been sufficiently advised, it is hereby

ORDERED that the matter is set for an evidentiary hearing to be held on the __________ day of __, 1995, at ___.m. in the United States District Court for the Western District of Oklahoma to be held in the __________ courtroom on the floor.

The parties are directed and ordered to have witnesses and evidence available for hearing on the date immediately set forth above.

It is so ORDERED this __________ day of ___, 1995.

United States District Judge

U.S. v. McVeigh and Nichols