IV. THE GRAND JURY RETURNS THE INDICTMENT OF "OTHERS UNKNOWN." McVEIGH PETITION FOR WRIT OF MANDAMUS

PETITION FOR WRIT OF MANDAMUS OF PETITIONER-DEFENDANT,
TIMOTHY JAMES McVEIGH AND BRIEF IN SUPPORT
MARCH 25, 1997

IV. THE GRAND JURY RETURNS THE INDICTMENT OF "OTHERS UNKNOWN." 

On August 10, 1995, a Federal Grand Jury sitting in the Western Judicial
District of Oklahoma returned an eleven count Indictment accusing Timothy
James McVeigh and Terry Lynn Nichols of conspiring to use a weapon of mass
destruction, actual use of a weapon of mass destruction, destruction by
explosive, and eight counts of first degree murder.

(Indictment in CR95-110, filed August 10, 1995, no docket number assigned).
The Indictment alleges that McVeigh and Nichols constructed a truck bomb and
on April 19, 1995, McVeigh parked the truck bomb directly outside the Alfred
P. Murrah Federal Building during regular business and day-care hours. The
Indictment then lists the names, spread out over six typewritten pages, of
the persons present at the Alfred P. Murrah Federal Building on the morning
of April 19, 1995, and who were killed as the result of the explosion. 

The Grand Jury found evidence that Timothy McVeigh and Terry Nichols
conspired and agreed together with "others unknown to the Grand Jury" to use
a truck bomb against the federal government, and specifically against the
Alfred P. Murrah Building located at 200 Northwest 5th Street in Oklahoma
City, Oklahoma, which resulted in the destruction of the building, grevious
[sic] bodily injury to scores of persons, and the death of 168 persons. See
Indictment at 1-2. This Indictment has never been withdrawn or modified.
Thus, the Grant Jury's allegation on the eve of trial is that this crime was
committed and aided by "others unknown." By refusing to provide the
requested discovery material, the government is attempting to prevent the
Petitioner from learning the identity of what it calls "others unknown" but
which the petitioner characterizes as "the unknown others."[8] 

--------------------------------------

FOOTNOTES:
[8] The government has claimed below, and will undoubtedly assert here, that
it has provided "unprecedented discovery" and gone far beyond what the rules
and case law require. That claim is hollow and empty. Chief Judge David
Russell of the Western Judicial District, before the return of the
Indictment, attempted to schedule a discovery conference in order to
facilitate the orderly flow of discovery, but the government refused to
attend. The defense was willing to attend. Upon the return of the
Indictment, the standing orders of the Federal Judges in the Western
Judicial District, where the case was pending, were blithely ignored. The
dear mandate of former Chief Judge Daugherty's orders, which are precedent
in the Western District and found at United States v. Penix, 516 30 F. Supp.
248, 255 (W.D. Okla. 1981) were ignored. 
--------------------------------------

During the period of time that motions were pending for recusal of Judge
Alley, Judge Alley refused to entertain or rule on any discovery requests by
the Defendant. Thus, the government had an almost 4-1/2 month period after
the return of the Indictment on August 10, 1995, in which it ignored
existing judicial rules and took advantage of Judge Alley's statesmanlike
decision not to rule on matters before him while motions for his recusal
were pending. The government provided a microscopic amount of discovery
consisting primarily of "statements of the Defendant" as required by the
Federal Rules and access to some physical evidence. 

In early January 1996, the government furnished Defendant's counsel all of
the 302's then in existence concerning the following witnesses: Michael and
Lori Fortier, Jeff Davis, Lea McGown, Vickie Beemer, Eldon Elliott, Tom
Kessenger, and one Oklahoma City witness, Daina Bradley. However, before
furnishing this information, the prosecution, in a letter to the defense
claimed that the prosecutors had personally reviewed the 302's and that
nothing in them was exculpatory. See D.E. 1923 (Exhibit "X'). This claim was
fantastic and incredible on its face and totally incorrect. Each of the
statements contained highly exculpatory Brady material and not just Giglio
material. The government then proposed an oral reciprocal discovery
agreement with the Defendant in which
witness statements would be exchanged except for those witness statements
taken by lawyers, even though FBI agents or defense investigators might be
present.

The government also failed to provide Grand Jury testimony until prodded by
the district court which directed the government to produce, first, the
Grand Jury testimony of Michael and Lori Fortier. Finally, the government
turned over Grand Jury testimony approximately four months before trial.
Massive litigation and hearings were required before the government turned
over all FBI documents (or at least it represents that it has turned all of
them over) relating to the Federal Bureau of Investigation Laboratory when
the government prosecutors knew that serious allegations were being made and
that an investigation was being conducted by the Inspector General which
later validated a significant number of the allegations with respect to the
handling, collection, analysis of evidence from the bomb site. The
government also delayed producing 302's, in some cases, more than a year
after the 302 had been typed. The government's claims thus that it has
produced unprecedented discovery are specious. It can be summarized as
follows: The government gave the Defendant 100% of that which is irrelevant
and withheld 95% of that which is relevant until, either by Court order or
the threat of judicial action, it grudgingly began to flow the information
to the Defendant, more than a year after the return of the Indictment. These
assertions by the Defendant are well documented in the trial record below.
See, e.g., D.E. 1310;1918.
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PETITION FOR WRIT OF MANDAMUS OF PETITIONER-DEFENDANT,
TIMOTHY JAMES McVEIGH AND BRIEF IN SUPPORT
MARCH 25, 1997