US v. McVeigh

• Decision Date: 24 January 1996
• Docket Number: No. CR-95-110 MH,CR-95-110 MH
• Citation: 918 F. Supp. 1452
• Parties: UNITED STATES of America, Plaintiff, v. Timothy James McVEIGH and Terry Lynn Nichols, Defendants.
• Court: U.S. District Court — Western District of Oklahoma

918 F. Supp. 1452

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

No. CR-95-110 MH

United States District Court, W.D. Oklahoma.

January 24, 1996.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Patrick M. Ryan, U.S. Attorney for Western District of Oklahoma, Joseph Hartzler, Special Assistant U.S. Attorney, Assigned from S.D. Illinois, Larry Mackey, Trial Counsel, Assigned from S.D. Indiana, Oklahoma City, OK, for plaintiff.

Stephen Jones, Robert Nigh, Jr., Jones, Wyatt & Roberts, Enid, OK, Richard H. Burr III, Houston, TX, for defendant McVeigh.

Michael Tigar, Austin, TX, Ronald C. Woods, Houston, TX, D. Kate Rubin, Deputy Federal Public Defender, Oklahoma City, OK, for defendant Nichols.

Clyde A. Muchmore, Harvey D. Ellis, Jr., Crowe & Dunlevy, Oklahoma City, OK, for Combined Comm. Corp. of Okla Inc.

Michael Minnis, David McCullough, Michael Minnis & Associates, Oklahoma City, OK, for The Media Group.

Robert D. Nelson, Hall, Estill, Hardwick, Gable, Golden & Nelson, Oklahoma City, OK, for The National Media Group.

S. Douglas Dodd, Michael C. Redman, Doerner, Saunders, Daniel & Anderson, Tulsa, OK, for The Dallas Morning News.

Paul C. Walter, Stefani I. Silverberg, Jenkins & Gilchrist, Dallas, TX, for The Dallas Morning News.

MEMORANDUM OPINION AND ORDER ON MEDIA MOTIONS

MATSCH, Chief Judge.^*

Combined Communications Corporation of Oklahoma, Inc. (KOCO-TV), the Dallas Morning News, Capital Cities/ABC, Inc., CBS, Inc., Fox News, Inc., National Broadcasting Co., Inc., Cable News Network, Inc., the Chronicle Publishing Company (d/b/a The San Francisco Chronicle), the New York Times Company, Philadelphia Newspapers, Inc. (d/b/a the Philadelphia Inquirer and the Philadelphia Daily News), Seattle Times Co., The Washington Post, and Time Inc. (collectively "National Media Group"), FOI Oklahoma, Inc., The Associated Press, The Daily Oklahoman, The Tulsa World, KFOR-TV Channel 4, KWTV Channel 9, KJRH Channel 2 (Tulsa), Society of Professional Journalists Oklahoma City Chapter and Society of Professional Journalists Eastern Oklahoma Chapter (collectively "Media Group"), have filed motions asking that documents filed in this case under seal be unsealed where appropriate, that the clerk be directed to provide public access to a complete copy of the docket sheets and that procedures be established for consideration of future requests that documents be sealed or proceedings be closed to the public.

These motions were accepted for filing in this case even though the movants are not parties to the proceeding. The government and each of the defendants have filed responses to these motions and oral arguments were heard on December 13, 1995. The motions raise important questions under the First, Fifth and Sixth Amendments to the United States Constitution. The movants have standing to present these questions on behalf of themselves and the general public. They are not, however, parties to this criminal proceeding and the motions are more appropriately considered as a collateral or ancillary civil action in the nature of a petition for a writ of mandamus under the All Writs Act, 28 U.S.C. § 1361, directed to the clerk of this district court.

There are fundamental values served by publicity in the administration of criminal justice. Chief Justice Burger articulated them as follows:

The early history of open trials in part reflects the widespread acknowledgment, long before there were behavioral scientists, that public trials had significant community therapeutic value. Even without such experts to frame the concept in words, people sensed from experience and observation that, especially in the administration of criminal justice, the means used to achieve justice must have the support derived from public acceptance of both the process and its results.

When a shocking crime occurs, a community reaction of outrage and public protest often follows. Thereafter, the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion. Without an awareness that society's responses to criminal conduct are underway, natural human reactions of outrage and protest are frustrated and may manifest themselves in some form of vengeful "self-help," as indeed they did regularly in the activities of vigilante "committees" on our frontiers. "The accusation and conviction or acquittal, as much perhaps as the execution of punishment, operate to restore the imbalance which was created by the offense or public charge, to reaffirm the temporarily lost feeling of security and, perhaps, to satisfy that latent `urge to punish.'"

Civilized societies withdraw both from the victim and the vigilante the enforcement of criminal laws, but they cannot erase from people's consciousness the fundamental, natural yearning to see justice done — or even the urge for retribution. The crucial prophylactic aspects of the administration of justice cannot function in the dark; no community catharsis can occur if justice is "done in a corner or in any covert manner." It is not enough to say that results alone will satiate the natural community desire for "satisfaction." A result considered untoward may undermine public confidence, and where the trial has been concealed from public view an unexpected outcome can cause a reaction that the system at best has failed and at worst has been corrupted. To work effectively, it is important that society's criminal process "satisfy the appearance of justice," and the appearance of justice can best be provided by allowing people to observe it.

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 570-572, 100 S.Ct. 2814, 2824, 65 L.Ed.2d 973 (1980) (citations omitted).

Those words aptly describe the reasons for news media interest in this case and the frustration reflected in the subject motions. The docket sheets reveal a routine practice of sealing documents without adequate recognition of the public interest in obtaining information concerning the progress of this criminal proceeding. Many entries give only a data base number with the phrase "Sealed (In vault)" without any identification of the source of the document, the nature of it, the reason for not including it in the case file or who directed or authorized such secrecy. Some limited identification of the nature and source of some of the documents has been provided by attorneys in complying with directions from Magistrate Judge Howland. A summary was submitted by the movants in their status report filed on October 27, 1995. Several hundred documents have been sealed. Many more papers of the same or similar kind will be submitted as the case progresses. The court must now establish standards for a system of records control to evaluate claims for secrecy and for the exercise of the discretionary authority to restrict public access to information.

A review of first principles will assist in identifying useful criteria for balancing the conflicting interests at each stage of the proceeding. This analysis will permit classification of individual items within a system of presumptions.

Every criminal prosecution in a federal court begins with some investigation by one or more law enforcement agencies of government to develop an evidentiary base for the necessary showing of probable cause. The documents generated during the investigation and the conduct of the investigators are largely shielded from public view. Specific privileges to withhold information, for example, the informer's privilege, have been recognized. Matter of Search of 1638 E. 2nd St., Tulsa, Okl., 993 F.2d 773, 774 (10th Cir.1993). Preserving the integrity of the factual inquiries, encouragement of people to come forward with information, avoidance of flight and destruction of evidence and protection of the reputations of innocent people are among the reasons given in support of such secrecy. These same reasons have been expressed in support of the policy of grand jury secrecy, discussed later.

Records of all agencies of government have historically been open to public inspection under the common law of this country. See, e.g., McCoy v. Providence Journal Co., 190 F.2d 760, 765-66 (1st Cir.), cert. denied, 342 U.S. 894, 72 S.Ct. 200, 96 L.Ed. 669 (1951). That principle is consistent with the basic premise of democracy — that government is the servant of the people.

In 1974, Congress enacted the Freedom of Information Act, ("Act") P.L. 93-502, now appearing in 5 U.S.C.A. § 552. The premise of the Act is that records of all agencies of the executive branch of the federal government should be open to public view. The importance of the legislation was succinctly stated in the following paragraph from House Report No. 1497:

It is vital to our way of life to reach a workable balance between the right of the public to know and the need of the Government to keep information in confidence to the extent necessary without permitting indiscriminate secrecy. The right of the individual to be able to find out how his Government is operating can be just as important to him as his right to privacy and his right to confide in his Government. This bill strikes a balance considering all these interests.

H.R.Rep. No. 1497, 89th Cong., 2nd Sess. 6, reprinted in 1966 U.S.C.C.A.N. 2418, 2423. Congress excepted law enforcement agency records from the policy of openness. Section (b)(7) of 5 U.S.C. § 552 denies public access to the following records and information:

(7) records of information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to

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