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Judge Matsch Rejects Execution Stay Request

I’m going to ask that everyone stay seated until this ruling is completed — I’ve completed this ruling. The initial question here is, of course, as always, subject matter jurisdiction. The defendant in his petition asks for an order staying execution of this Court’s judgment under the All Writs Act, which is 28 United States Code 1651(a). That’s the statute that provides that federal courts may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.

The statute is not a grant of jurisdiction; and therefore, the authority of this court to grant the relief now requested must be found elsewhere. The argument made is that this stay is necessary to permit defense counsel to investigate circumstances leading to the recent disclosure of documents from the Federal Bureau of Investigation and to make fair use of the evidence so recently produced.

The defendant contends that these documents demonstrate a breach of the Government’s discovery agreement and a violation of the Government’s duty of disclosure under Brady vs. Maryland.

The Supreme Court observed in the 1999 opinion in Strickler vs. Greene that the Brady rule of disclosure is based on the due process clause of the Constitution and that a true Brady violation requires a showing that (1) the evidence is favorable to the accused, either because it is exculpatory or impeaching; (2) the evidence must have been suppressed by the prosecution either willfully or inadvertently, and (3) prejudice must have resulted.

The prejudice component of this doctrine requires a showing that the documents were material; that is to say that there is a reasonable probability that the suppressed evidence would have produced a different verdict. That repeats the standard the court set earlier in Kyles vs. Whitley.

A claim of constitutional infirmity in the process resulting from a conviction in a Federal Court may be made by a motion to vacate, set aside or correct the sentence under United States Code Section 2255, which is a — essentially a habeas corpus statute.

Timothy McVeigh filed such a motion in this case on March 6 of 2000, as well as a motion for new trial, for newly discovered evidence under Rule 33 of the Federal Rules of Criminal Procedure. The principal focus of that motion was denial of effective representation by counsel under the Sixth Amendment. It did include a claim of a violation of the Brady rule. The Court denied that motion, and Mr. McVeigh waived his right to appeal that order.

Now, before Congress enacted the Antiterrorism and Effective Death Penalty Act, often referred to as the AEDPA, in 1996, Mr. McVeigh could have filed a new Section 2255 motion to assert a Brady violation on the basis of these recent disclosures.

The AEDPA has restricted the jurisdiction of the district courts to proceed on such a second or successive motion under Section 2255 and requires that a federal prisoner seeking such relief must first make application to the court of appeals and that the motion may not be filed with the district court unless a panel of judges from the court of appeals certifies that the promotion of the proposed motion contains, in the language of the statute, “newly discovered evidence that if proven and viewed in light of the evidence as a whole would be sufficient to establish by clear and convincing evidence that no reasonable fact-finder would have found the movant guilty of the offense.”

In the brief that has been filed in support of the present petition for stay, defendant’s counsel have conceded an inability to make such a showing. Accordingly, a second motion under Section 2255 is not available to Timothy McVeigh.

Because of this jurisdictional limitation, Mr. McVeigh’s lawyers have asked for time to develop sufficient evidence to present a motion under Rule 60(b) of the Federal Rules of Civil Procedure, seeking to vacate this court’s judgment denying the Section 2255 motion on the ground that it was obtained by fraud and is therefore void.

While there is some doubt about the applicability of the civil rules to a motion in a criminal proceeding, I have assumed the — that Rule 60(b) could be applied. The critical question, then, is this: Has the defendant presented a reasonable basis for a belief that given time to pursue the matter counsel contends in good faith supports a claim of fraud on the Court?

In 1944, the Supreme Court, in a civil case, Hazel-Atlas Company vs. Hartford Company, held that fabrication of evidence in a deliberately planned and carefully executed scheme to defraud an appellate court calls into question the legitimacy of the judgment.

The Court recognized — the Supreme Court, that is — the possibility of the applicability of that same doctrine upon a habeas review of a state court judgment in Calderon vs. Thompson.

The Fifth Circuit Court of Appeals considered this in Fierro vs. Johnson, in 1999. In that case, the court held that perjury by police officers was not sufficient to establish a claim of fraud on the court and repeated what it had earlier articulated as the standard of proof for a claim of fraud on the court and used these words: “To establish fraud on the court, it is necessary to show an unconscionable plan or scheme which is designed to improperly influence the court in its discretion.

Generally speaking, only the most egregious misconduct, such as bribery of the judge or members of the jury or the fabrication of evidence by a party in which an attorney is implicated, will constitute a fraud on the court. Less egregious misconduct, such as nondisclosure to the court of facts allegedly pertinent to the matter before it, will not ordinarily rise to the level of fraud on the court.”

The Tenth Circuit Court of Appeals has required proof of intent to defraud in civil cases. Bulloch vs. United States, Robinson vs. Audi, and most recently in Weese vs. Schukman.

If this court were to vacate or modify the order denying relief under Section 2255 and permit an amendment of that motion to expand the Brady contention, the question then becomes what relief could be provided.

As I’ve already said, the defendant must show that what the Government failed to disclose was information of such materiality that if the disclosure had been made before trial, a different outcome could be expected.

There are two outcomes in this case. The first is the jury verdict convicting Timothy McVeigh of all counts in the indictment. Mr. McVeigh does not make a claim of factual innocence of any of those charges, it as has been made clear here in the argument this morning.

And considering the evidence presented to the jury, there is no plausible argument that Timothy McVeigh is not guilty on any of these charges. The Tenth Circuit Court of Appeals on direct appeal recognized that and characterized the evidence as “compelling.”

The thrust of the defendant’s position here is that there may be some basis for showing that others may have been involved. The Government in the grand jury considered that possibility by alleging in the first count — that is, the conspiracy count — that the conspiracy involved others unknown to the grand jury.

But, it must be remembered that the conspiracy charge is not the only charge on which Timothy McVeigh was convicted. Count 2 charged Timothy McVeigh with the use of a weapon of mass destruction consisting of a bomb placed in a truck. And Count 3 charges destruction of the Murrah Federal Building by such a bomb. Counts 4 through 11 charge first-degree murder of federal employees, specifically named federal employees occupying the Murrah Building.

The possibility that others may have been involved in the conspiracy which culminated in this bombing does not mitigate or affect those charges, particularly the first-degree murder charges. Whatever role others may have played, it’s clear that Timothy McVeigh committed murder and mayhem as charged.

Now, the other outcome is the sentence of death recommended by the jury. In Sawyer vs. Whitley, the Supreme Court held that a death sentence would be vacated if the defendant showed by clear and convincing evidence that but for constitutional error at his sentencing hearing, no reasonable juror would have found him eligible for the death penalty under applicable state law. That suggests that actual innocence includes actual innocence of the death sentence.

Now, assuming that that ruling has not been affected by the enactment of the AEDPA, which is an assumption not free from doubt, as the Government has suggested, it has no evidentiary support in this case. The argument of defendant’s counsel that the jury may not have found the death penalty was justified if the defense had been able to implicate additional perpetrators is just not tenable.

The defendant, as I said in colloquy with Counsel, Mr. Richard Burr, must have knowledge of this fact: whether others were involved with him. And if that be the case, he had the opportunity to present evidence within his own knowledge at a sentence hearing.

Mr. Burr, in response to questions I put, suggested that there may be reasons why Mr. McVeigh would not share that knowledge with his lawyers. I cannot accept that. I have to go on the assumption that if there are others involved, it may be true that he would not know all, or indeed who all; but there again, that relates much more to the conspiracy charge.

At any rate, if it’s fair to impute to the government counsel everything that every FBI agent and other government agent knows or did, it is also fair to impute to defendant’s counsel what Timothy McVeigh knows.

The jury found in the special findings in this case beyond a reasonable doubt that all of the aggravating factors had been proven. The jury was especially instructed to write in the verdict form provided with space any additional mitigating factors that any one of them believed existed. They wrote none.

And they did that even though the defense did present evidence at the trial suggesting the involvement of others. And that evidence that was received at trial was, of course, also as the jury was instructed, relevant to their determination of their recommendation of punishment.

The pleadings filed here make the suggestion — and there has been some such suggestion that if the jury had been given what the defense hopes to be able to develop as evidence of a role in the offense by Mr. McVeigh that includes others and also that there are others who may be known to the Government but who have never been charged that the jury in this trial might have reached a result comparable to that of the jury that heard and decided the charges against Terry Nichols.

But these trials are entirely separate; and it will be remembered that for present purposes the verdict in the Nichols trial was limited to the conspiracy, although, of course, there are verdicts on lesser includeds, but there were not guilty verdicts on Counts 2 and 3.

Now, as I’ve already said, if we were only to compare the evidence about conspiracy, then we may have a different case to consider now. The Court must consider that the jury’s determination of the appropriate sentence here was the main view of the group that he was guilty of first-degree murder, eight first-degree murders.

But at any rate, I’ve looked at what has been submitted here as a showing or a presumed showing that there was some fraud upon the Court by the failure of the Federal Bureau of Investigation to produce documents that were clearly within the scope of the discovery agreement and that they didn’t — there is no suggestion that prosecuting counsel was aware prior to this May.

It has been argued forcefully here by Mr. Robert Nigh that this calls into question the integrity of the process and that this court has a responsibility to protect that integrity. But I think there has to be a drawn a distinction between the integrity of the Federal Bureau of Investigation and the integrity of the adjudicative process leading to the — to these verdicts and recommendation. They are quite different things.

It is the function of others to hold the FBI accountable for its conduct here, as elsewhere. And I would expect that there would be consequences upon finding what the defense suggests; but there is a great deal of difference between an undisciplined organization or organization that is not adequately controlled or that can’t keep track of its information — those are not the questions here. We’re not here for the purpose of trying the FBI.

The suggested evidentiary hearing that defense counsel want to present would be within the Court’s jurisdiction and relevant only if I were forced to determine that there is enough here to suggest the kind of intentional planning and scheme to defraud the Court by withholding the evidence and, as the defense counsel have pointed out, to cause the prosecuting attorneys repeatedly through the course of the trial to say:

Yes, we’ve provided your directives to communicate, and all of the agencies have gathered together the information that should be produced in discovery and under Brady.

I’m mindful, too, that this was not a passive defense case; that is to say, Mr. McVeigh was represented by a whole team of lawyers and investigators and provided resources that may number in the millions of dollars to conduct their own investigation. And it was done. Mr. Nigh just referred to that. That investigation, of course, explored whether there were others involved.

I’m not suggesting that the defense had all of the resources of the Government available; but they, in my view, certainly had adequate resources. And no, I do not recall any reasonable request for funding to be turned down by the Court. In fact, I think that it’s time for public disclosure of the amounts of funds provided to the defense in the trial of this case. And I will take steps to see that at least the total funding be made public.

You know, there is a difference between alternative perpetrators and additional perpetrators. And, of course, defense counsel at trial focused on alternative perpetrators, somebody other than Timothy McVeigh, who otherwise was of course implicated. And that was in the course of the trial leading to the conviction of the crimes; but the sentence hearing was different, when the possibility of others not being prosecuted or involved in the offense being different from what was shown at the trial could have been presented.

Now, I do not doubt that there may be as a result of the requested evidentiary hearing evidence presented of negligence, lack of coordination, lack of organization in the collection and maintaining of the materials. But it has to also be viewed in the context of the massive investigation was undertaken here and the speed with which it was done.

There seems in my review of what’s been submitted here no pattern of what was not disclosed that would suggest a scheme to keep away from the defense what they needed for trial, including the sentence hearing. I don’t see that.

We have information about particular persons, some of whom have expressed strong anti-government sentiment, some of whom have made generic threats about bombing federal buildings. And there are other things. I’m hesitant to, as I said at the beginning — I don’t want to accuse persons here who have no opportunity to clarify or defend accusations.

And I also must be circumspect because the material that has been submitted here includes some information relevant to Mr. Nichols. But Mr. Nichols is a separate matter and must be considered separately; that is, the case against Mr. Nichols.

I’ve since this matter has arisen and in consideration of this petition and the materials provided reflected on this trial and the outcomes. I did not comment on that at the time of the sentencing of Timothy McVeigh. I could not do so. I was constrained at the time by knowing that I was about to begin the trial of Terry Nichols and that anything I might say upon the outcomes in Mr. McVeigh’s case could disadvantage that trial and his attorneys.

But I can say now that for anyone who heard and saw the evidence presented at the trial of Timothy McVeigh, there can be no doubt that on April 19, 1995, around 9:00 in the morning, Timothy McVeigh parked a Ryder truck in front of the Alfred P. Murrah Building in Oklahoma City; that the truck was packed with explosives; that Timothy McVeigh ignited fuses attached to those explosives and walked away; that at 9:02 that morning, those explosives were detonated, killing 168 men, women, and children; maiming, disfiguring and seriously injuring many more people; the destruction of the building and the destruction of government services.

The evidence suggests that the motivation for this attack was anger at the conduct of the Government, law enforcement agencies, in the tragic occurrences at Waco, Texas, and Ruby Ridge, Idaho, and that Timothy McVeigh was retaliating and was at war with the United States Government.

But the United States Government is not some abstraction, is not some alien force. It is the American people, the people in the Murrah Building who were there in service to their fellow citizens.

The prescribed punishment for Timothy McVeigh’s crimes includes death if 12 jurors believe it is justified under all the circumstances and exercise their moral judgment as the conscience of the community.

Whatever may in time being disclosed about possible involvement of others in this bombing, it will not change the fact that Timothy McVeigh was the instrument of death and destruction. For that, he was sentenced to death by lethal injection; and I find that there is no good cause to delay the execution of that sentence.

It is accordingly ordered that the petition for stay of execution of the sentence of death is denied.

Court is adjourned.

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