U.S. v. McVeigh, Criminal Action No. 96-CR-68-M.

• Decision Date: 25 September 1996
• Docket Number: Criminal Action No. 96-CR-68-M.
• Parties: UNITED STATES of America, Plaintiff, v. Timothy James McVEIGH and Terry Lynn Nichols, Defendants.
• Court: U.S. District Court — District of Colorado

944 F.Supp. 1478

UNITED STATES of America, Plaintiff, v. Timothy James McVEIGH and Terry Lynn Nichols, Defendants.

Criminal Action No. 96-CR-68-M.

United States District Court, D. Colorado.

September 25, 1996.

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COPYRIGHT MATERIAL OMITTED

Patrick Ryan, U.S. Attorney for the Western District of Oklahoma, Oklahoma City, OK, Joseph Hartzler, Special Assistant U.S. Attorney Assigned from S.D. Illinois, Denver, CO, for plaintiff.

Stephen Jones, Richard H. Burr, III, Robert Nigh, Jr., Jones, Wyatt & Roberts, Enid, OK, Jeralyn E. Merritt, Denver, CO, for defendant McVeigh.

Michael Tigar, Ronald G. Woods, N. Reid Neureiter, Denver, CO, for defendant Nichols.

MEMORANDUM OPINION AND ORDER ON MOTIONS ADDRESSED TO DEATH PENALTY NOTICE

MATSCH, Chief Judge.

This memorandum opinion addresses the issues raised in the following pleadings:

Docket entry 144 Motion to Disqualify Attorney General and All other Officers and Employees of the Department of Justice from Participating in Decision Whether to Seek the Death Penalty, and to Preclude Seeking the Death Penalty Until a Lawful Prosecutorial Decision Can Be Made Whether to Seek It. (McVeigh)

Docket entry 145 Memorandum of Law in Support of Motion to Disqualify Attorney General and All other Officers and Employees of the Department of Justice from Participating in Decision Whether to Seek the Death Penalty, and to Preclude Seeking the Death Penalty Until a Lawful Prosecutorial Decision Can Be Made Whether to Seek It. (McVeigh)

Docket entry 182 Brief of the United States in Opposition to Motion to Disqualify the Attorney General and All Officers of the Department of Justice and to Preclude the Government from Seeking the Death Penalty.

Docket entry 210 Reply Brief of Defendant Timothy McVeigh in Support of Motion to Disqualify Attorney General and All other Officers and Employees of the Department of Justice from Participating in Decision Whether to Seek the Death Penalty, and to Preclude Seeking the Death Penalty Until a Lawful Prosecutorial Decision Can Be Made Whether to Seek It.

Docket entry 489 Notice of Intention to Seek the Death Penalty as to Defendant Timothy James McVeigh

Docket entry 490 Notice of Intention to Seek the Death Penalty as to Defendant Terry Lynn Nichols

Docket entry 637 Motion to Strike Notice of Intention to Seek the Death Penalty as to Defendant Timothy James McVeigh

Docket entry 638 Memorandum in Support of Motion to Strike Notice of Intention to Seek the Death Penalty as to Defendant Timothy James McVeigh

Docket entry 639 Motion to Strike Notice of Intention to Seek the Death Penalty as to Defendant Terry Lynn Nichols, and Memorandum in Support Thereof; Oral Argument Requested

Docket entry 742 Brief of the United States in Opposition to Defendants' Motions to Strike to the Notices of Intent to Seek the Death Penalty

Docket entry 801 Reply Memorandum Concerning Motion to Strike the Death Penalty (Nichols)

Docket entry 843 Reply Brief of Defendant Timothy James McVeigh in Support of Motion to Strike the Notice of Intention to Seek the Death Penalty

Docket entry 987 Notice Re Motion to Strike Notice of Intention to Seek Death Penalty as to Defendant Timothy James McVeigh (Nichols)

Docket entry 1182 Motion for Leave of court to File Supplemental Brief; Supplemental Brief In Support of Motion to Strike Notice of Intention to Seek the Death Penalty as to Defendant Timothy James McVeigh

Docket entry 1195 Notice Re: Supplemental Brief in Support of Motion to Strike Notice of Intention to Seek the Death Penalty as to Defendant Timothy James McVeigh (Nichols)

On October 20, 1995, the government filed a Notice of Intention to Seek the Death Penalty as to defendant Timothy James McVeigh, and an identical notice as to defendant Terry Lynn Nichols. These notices under 18 U.S.C. § 3593(a), invoke the provisions of the Federal Death Penalty Act, ("Act") 18 U.S.C. §§ 3591-3596.

Before the notices were filed, defendant Timothy McVeigh moved to disqualify the Attorney General and all other officers and employees of the Department of Justice from any participation in the process of deciding whether to seek the death penalty in this case. That motion, filed July 25, 1995, was fully briefed but not decided before the reassignment of this case and the change of venue. The defendant Terry Nichols joined in the motion. The particular relief sought in the motion to disqualify is now moot because the notices have been filed. The contentions made must be considered, however, because they also affect the validity of these notices as challenged by the defendants' motions to strike.

Mr. Nichols filed a separate civil action in the Western District of Oklahoma, Terry Lynn Nichols v. Janet Reno, 931 F.Supp. 748 (D.Colo.1996) (formerly CIV-95-1824W), which was transferred to this court. The complaint in that case, brought under the Administrative Procedures Act, made some of the same contentions contained in Mr. McVeigh's motion to disqualify. This court granted the defendants' motion to dismiss the civil action in a memorandum opinion and order entered on May 29, 1996. Nichols v. Reno, 931 F.Supp. 748 (D.Colo.1996). Although the dismissal resulted from the conclusion that the complaint did not state a claim for relief within the court's jurisdiction, the reasoning is applicable here on the merits of Mr. McVeigh's motion to disqualify.

The premise of the motion is that the Attorney General made the decision to seek the death penalty before any suspect was even identified. On April 19, 1995, shortly after the explosion in Oklahoma City giving rise to the charges in this case, General Reno publicly announced that the death penalty would be sought in any prosecution for bombing the Murrah Building. The President repeated that public pledge two days later, shortly after Timothy McVeigh was identified as a suspect. Later on that day, April 21, when Mr. McVeigh appeared before Magistrate Judge Ronald L. Howland in Oklahoma City, an Assistant United States Attorney advised the court that the maximum penalty on the charge of violation of 18 U.S.C. § 844(f) was death.

In the memorandum opinion and order deciding the civil case, the court reviewed the "Death Penalty Protocol" published in the United States Attorneys' Manual, prescribing a procedure for prosecutors to follow to obtain authority to seek the death penalty in any criminal case. Patrick Ryan, United States Attorney for the Western District of Oklahoma, wrote a letter to Timothy McVeigh's attorney, Stephen Jones, inviting his participation in the Protocol process. Mr. Jones refused any participation, claiming that it would be futile because these public statements showed that the decision had already been made. Despite the refusal, the Department of Justice procedure was followed and the formal notices of intention to seek the death penalty were approved according to the Protocol. Counsel for Terry Nichols did submit statements pursuant to the Protocol, as described in the civil case opinion. Counsel for both defendants have asked for discovery of the Department of Justice internal documents relevant to the notices to support their motions. That request is denied. Such documents are not pertinent to the McVeigh motion to disqualify or to the defendants' motions to strike the death penalty notices because the administrative decision to file them is not judicially reviewable.

As this court ruled in the civil action, the decision to seek the death penalty under the Act is a matter of prosecutorial discretion. The Protocol did not create any individual right or entitlement subject to the due process protections applicable to an adjudicative or quasi-adjudicative governmental action. The Act expressly provides that the attorney for the government shall file and serve the death penalty notice if he believes that the "circumstances of the offense" are such that a sentence of death is justified. § 3593(a). There is no requirement that the prosecutor consider any other matters, including any mitigating factors concerning the offense or the character and circumstances of a particular defendant. The decision of a jury whether to recommend a sentence of death is made only after a full hearing and consideration of aggravating and mitigating factors provided by information submitted pursuant to the adversary process. § 3593(b)-(e). The constitutional protections of the life and liberty of a defendant are provided by the sentencing hearing following trial of the charges in the indictment. The issuance of these notices is essentially a prosecutor's charging decision. The McVeigh motion to disqualify the Attorney General and Department of Justice officials is denied on the merits.

In their motions to strike the death penalty notices the defendants assert that the notices filed on October 20, 1995, violate the Fifth and Eighth Amendments. The defendants claim that the prosecution has exposed them to the possibility of capital punishment as a result of arbitrary and irrational decisions. Nothing has been submitted to show or suggest that the notices were filed because of any discriminatory motive, invidious classification or improper motivation as to either defendant. Those are the only grounds warranting judicial interdiction of such action by an officer of the executive branch of government. Accordingly, there is no merit to this contention.

Additionally, the defendants suggest that Fed.R.Crim.P. 7 is applicable to these notices and that they fail to include adequate statements of the essential facts relied on as required by subsection (c) of the rule. Assuming that the rule fairly states the requirement of adequate notice for procedural due process and is, therefore, applicable to the notices, there is no violation when the notices are read in conjunction with the allegations of the indictment. The indictment contains such detailed statements of what the prosecution intends to prove...