This criminal proceeding arises from an explosion in Oklahoma City, Oklahoma, on April 19, 1995, at 9:02 a.m. The measurable effects of that event include the deaths of 168 identified men, women and children, injuries to hundreds of other people. the complete destruction of the Alfred P. Murrah Federal Office Building and collateral damage to other buildings, including the United States Courthouse. A damage assessment prepared for the Office of State Finance, The State of Oklahoma, estimated the total incident cost at $651.594.000. The immeasurable effects on the hearts and minds of the people of Oklahoma from the blast and its consequences were thoroughly explored in the hearing on the defendants' motions for a change of venue under Rule 21 (a) of the Federal Rules of Criminal Procedure in Oklahoma City on January 30 through February 2, 1996.
Through the grand jury indictment filed in this district on August 10, 1995, the government has charged that Timothy McVeigh and Terry Nichols conspired with others unknown, beginning in September 1994, to use a "truck bomb" to damage the Alfred P. Murrah Federal Building and to kill and injure the people in it and that these two defendants caused the explosion on April 19,1995. Other counts charge these defendants, jointly, with the use of a bomb as a weapon of mass destruction, resulting in federal property damage and death and personal injury in violation of 18 U.S.C. Sections 2332a and 2(a) & (b); with the intentional, willful and malicious damage and destruction of government property and death and injury to persons by means of an explosive bomb placed in a truck in violation of 18 U.S.C. Sections 844(f) and 2(a) & (b) and with first degree murder of eight federal law enforcement officers in violation of 18 U.S.C. Sections 1114, 1111 and 2(a) & (b) and 28 C.F.R. 64.2(h). The prosecution has filed notices of intention to seek the penalty of death as to both defendants on all counts.
Oklahoma City is the principal place for holding court. Judge Alley found that obtaining an impartial jury in Oklahoma City would be "chancy." He designated Lawton, Oklahoma as the place for this trial under the authority of Fed. R. Crim. P. 18 requiring that due regard be given to the convenience of the defendants and the witnesses. The defendants filed objections to that designation. The evidence presented at the hearing on the defendants' Rule 21(a) motion demonstrates that a trial of these charges in Lawton is not practicable. The facilities there are inadequate. It was stipulated that renovations to the courthouse and related facilities would cost at least $1 million dollars. The time needed for construction would delay scheduling the trial.
The selection of an alternative venue is within the discretion of the court. The government has suggested transfer to the Northern District of Oklahoma with trial at the restored historic courthouse in Tulsa. Although the defendants argue that they do not have to prove prejudice in that district, the court has considered Tulsa as the presumptive transferee district because of the language of Article III, Sec. 2, Par. 3, and the expressed wishes of many of the victims as revealed in the evidence and the arguments of government counsel.
Ordinarily, the effects of pre-trial publicity on the pool from which jurors are drawn is determined by a careful and searching voir dire examination. That is the preferred practice in this judicial circuit. United States v. Pedraza, 27 F.3d 1515, 1525 (10th Cir.), cert. denied, 115 S.Ct. 347 (1994); United States v. Abello-Silva, 948 F.2d 1168, 1177 (10th Cir. 1991), cert. denied, 113 S.Ct. 107(1992). Deferment of the venue motions in this case is impracticable and inimical to the public interest in obtaining a just determination of these charges without undue delay. It is apparent that some special precautions-and logistical arrangements must be taken in preparation for trial of these charges at any location. The scope and intensity of the public interest necessitates it. The safety of the accused and all trial participants must be considered as well. Moreover, a failed attempt to select a jury would, itself, cause widespread public comment creating additional difficulty in beginning again at another place for trial.
effort, the investigations by law enforcement agencies and media sources, the arrests of the defendants, court proceedings and community activities. Extensive print news coverage in Oklahoma City, Tulsa and Lawton has been submitted. Videotapes of local and national telecasts from April 19, 1995, to the date of the motions hearing were admitted and have been reviewed.
The arrest of Timothy McVeigh on April 21 in Perry, Oklahoma as a bombing suspect produced him showing him in restraints and clad in bright orange jail clothing being led into a van while surrounded by a very vocal and angry crowd. Some bystanders could be heard shouting "murderer" and "baby killer." This footage was seen nationwide and was widely used in later television broadcasts about other developments in the government's investigation. There was widespread publicity about a search for another suspect described as John Doe #2. The arrest of Terry Nichols and a search of his brother's farm in Michigan were other subjects of national publicity.
As time passed, differences developed in both the volume and focus of the media coverage in Oklahoma compared with local coverage outside of Oklahoma and with national news coverage. These differences were discussed in the testimony of Russell Scott Armstrong, an expert in news media analysis. In the weeks following the explosion, there was less media coverage of the explosion outside of Oklahoma. Developments in the government investigation were reported, but such reports were primarily factual in nature. Oklahoma coverage, in contrast, remained focused on the explosion and its aftermath for a much longer period of time. Television stations conducted their own investigations, interviewing "eyewitnesses" and showing reconstructions and simulations of alleged events. Such "investigative journalism" continued for more than four months after the explosion. Perhaps most significant was the continuing coverage of the victims and their families. The Oklahoma coverage was more personal, providing individual stories of grief and recovery. As late as December 1995, television stations in Oklahoma City and Tulsa were broadcasting special series of individual interviews with family members and people involved in covering the explosion and its aftermath. (See McVeigh Exhibit M-11 B).
In the weeks after the bombing, Oklahomans showed the world what good people can accomplish when they are faced with an overwhelming tragedy. What happened on April 19 was the worst instance of terrorism and mass murder in American history. What followed set a standard for courage and compassion: The Oklahoma Standard. (Nichols Exhibit P, "The Oklahoma Standard" at 9). This same theme is dominant in the books and pamphlets published as commemoratives of the event and its aftermath and distributed throughout the state. It is also expressed in many of the televised interviews of rescue workers and citizens on the street.
Pride is defined as satisfaction in an achievement, and the people of Oklahoma are well deserving of it. But it is easy for those feeling pride to develop a prejudice, defined as "(a) an adverse judgment or opinion formed beforehand or without knowledge or examination of the facts and (b) a preconceived preference or idea." The American Heritage Dictionary of the English Language (3d ed. 1992). The existence of such a prejudice is difficult to prove. Indeed it may go unrecognized in those who are affected by it. The prejudice that may deny a fair- trial is not limited to a bias or discriminatory attitude. It includes an impairment of the deliberative process of deductive reasoning from evidentiary facts resulting from an attribution to something not included in the evidence. -That something has its most powerful effect if it generates strong emotional responses and fits into a pattern of normative values.
The opinion surveys done for this hearing attempted to test the ability of the persons questioned to be fair and impartial jurors. There has been disagreement with some of the questions included in the survey form used by Dr. Donald E. Vinson. The government's response has been that there are no significant differences in the results obtained with those from the defendants' questionnaire. That is the type of dispute of interest in academic circles. What is most important to this court is that the survey forms do not recognize the expanded role of a jury in a death penalty case. The first duty is to determine after hearing all of the evidence in the case, whether the government has proved all of the essential elements of each charge beyond a reasonable doubt. The jury must separate that standard of legal guilt from any opinions concerning probabilities or any notions of moral culpability. The commonly used phrase presumption of innocence" is not an appropriate or even apt description of the position of an accused in this court. What is more descriptive is whether a juror is ready, willing and able to give a defendant the benefit of a reasonable doubt after careful consideration of all of the evidence admitted at a trial.
If a defendant is found guilty on any of the present charges, the jury will then be required to determine whether death is justified for the offense of conviction after consideration of the mitigating and aggravating factors presented by evidence received at a further hearing. 18 U.S.C. Sections 3591-3593. The Supreme Court of the United States has struggled with the constitutional legitimacy of a death sentence under the Eighth Amendment since the per curiam decision in Furman v. Georgia, 408 U.S. 238 (1972), with each of the justices constituting the majority writing separate concurring opinions. The question became somewhat better focused in a joint opinion of justices Stewart, Powell and Stevens in Gregg v. Georgia, 428 U.S. 153, 189 (1976), explaining that the discretion given to a sentencing body "must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action." There must be individualized consideration of the defendant and any mitigating evidence relevant to him. Lockett v. Ohio, 438 U.S. 586 (1978); Eddings v. Oklahoma, 455 U.S. 104 (1981) (citing Lockett).
What has been made clear by later cases is that a sentencing jury must be prepared to make a moral judgment which is individual to the particular defendant after consideration of aggravating and mitigating circumstances specifically as to him. Moreover, the Court has held that due process requires such impartiality of any jury that undertakes capitol sentencing that a voir dire examination of potential jurors must include inquiry into the views of prospective jurors on the death penalty, and those who would automatically vote for or against it must be excluded. Morgan v. Illinois, 504 U.S. 719 (1992). General questions of fairness and impartiality are insufficient. Id.
Denver, Colorado meets all of the criteria that have been cited by past cases as relevant when selecting an alternative venue. See e.g., United States v. Tokars, 839 F.Supp. 1578 (N.D.Ga.1993); United States v. Moody, 762 F.Supp. 1491 (N.D.Ga. 1991). Denver is a large metropolitan community-with many community resources. It is readily accessible, being well-served by daily non-stop flights from all relevant cities. The court facilities in Denver are well-suited for accommodating the special needs of this trial. The United States Marshal for the District of Colorado is well equipped to provide adequate security services. A large jury pool is available.
DATED at Denver, Colorado, this 19th day of February 1996.