MARCH 25, 1997


A. Judge Matsch's Denial of Mr. McVeigh's Discovery Motions is Reviewable
Upon Petition for Writ of Mandamus.

Mr. McVeigh's right to the requested discovery material is dear and
indisputable. Moreover, mandamus is the appropriate means of reviewing a
district judge's denial of discovery motions. In re Joint Eastern & Southern
Districts Asbestos Litigation, 22 F.3d 755, 764 (7th Cir. 1994). As the
Supreme Court noted in Roche v. Evaporated Milk Assn., 319 U.S. 21 (1943),
mandamus is traditionally used "to confine an inferior court to a lawful
exercise of its prescribed jurisdiction or to compel it to exercise its
authority when it has a duty to do so."[26] 


[26] According to the All Writs Act, "[t]he Supreme Court and all courts
established by act of Congress may issue all writs necessary or appropriate
in aid of their respective jurisdictions and agreeable to the usages and
principles of law." 28 U.S.C. ' 1651(a).

As this Court held in Texaco, Inc. v. Chandler, 354 F.2d 655 (10th Cir.
1965), cert. denied, 383 U.S. 936 (1966): 

     The jurisdiction of this court to take action to 
     guarantee a fair and impartial trial is no longer 
     open to question. Upon an adequate showing, this 
     court has held that it has the "power and inescapable 
     duty," whether under the all writs statute, 28 U.S.C. 
     1651, or under its inherent powers of appellate 
     jurisdiction, to "effectuate what seems to us to be
     the manifest ends of justice." 354 F.2d at 657 
     (quoting United States v. Ritter, 272 F.2d 30, 32 
     (10th Cir. 1959), cert. denied, 362 U.S. 950 (1960)). 

The remedy of mandamus is a drastic one that should be invoked only in
extraordinary circumstances. Will v. United States, 389 U.S. 90, 95 (1967).
However, extraordinary circumstances abound here. Mr. McVeigh goes on trial
for his life in one week. A system that would take life must first give
justice. This is a case where there is no smoking gun. There has been no
confession. There has been no admission of guilt. The eyewitness testimony
proffered by the government so far is in disarray and is contradictory. The
FBI forensic laboratory is itself under serious challenge by senior agents
in scientific analysis and its critical flaws have been amply documented by
the Inspector General of the United States Department of Justice. Michael
Fortier, the government's star witness, has made contradictory public

By not tendering the information requested in this motion, the federal
government is simultaneously prosecuting Timothy McVeigh while at the same
time attempting to restrict his ability to use information that is necessary
to defend himself. See United States v. Fernandez, 913 F.2d 148, 154 (4th
Cir. 1990). As the Fourth Circuit has stated, courts must not be remiss in
protecting a defendant's right to a full and meaningful presentation of his
claim to innocence. Id. Timothy McVeigh is constitutionally presumed
innocent and now seeks an order from this Court commanding the government to
produce that which is relevant to his defense and to which he has no other
means of access. The district court's refusal to compel discovery in this
capital case severely hamstrings Mr. McVeigh's ability to defend against the
charges and prejudices Mr. McVeigh's right to a fair trial.

B. Federal Rule of Criminal Procedure 16 Entitles Mr. McVeigh to the
Requested Discovery Material.

     Federal Rule of Criminal Procedure 16 provides in relevant part: 

     Upon request of the defendant the government shall 
     permit the defendant to inspect and copy or photograph 
     books, papers, documents, photographs, tangible objects,
     buildings or places, or copies or portions thereof, 
     which are within the possession, custody or control 
     of the government, and which are material to 
     the preparation of the defendant's defense or are 
     intended for use by the government as evidence in 
     chief at the trial, or were obtained from or belong
     to the defendant.

Fed. R. Crim. P. 16(a)(1)(C).

The material Mr. McVeigh requested under Rule 16(a)(1)(C) is both material
and relevant to his defense. Mr. McVeigh's discovery requests are relevant
and material in that all information obtained by the United States from
intelligence sources that identify foreign or domestic groups or individuals
other than Timothy McVeigh as being either responsible for, or suspected of
involvement in the bombing is discovery absolutely necessary to the
development and presentation of his defense.

In Bankers Life & Coal Co. v. Holland, 346 U.S.379 (1953), the Court held
that when a petitioner can show either an usurpation of power or a clear
abuse of discretion, the right to mandamus is clear and indisputable. The
court below abused its discretion when it ignored its obligations under Rule
16. Rule 16 entitles the defense to any information that is relevant and
material. The trial court's refusal to compel the government to produce the
requested information violates the rules of discovery. Although the trial
court is vested with wide discretion concerning matters of discovery, this
discretion is not unbridled and it was abused here.

Rule 16 permits discovery that is "relevant to the development of a possible
defense." United States v. Mandel, 914 F.2d 1215, 1219 (9th Cir. 1990)
(quoting United States v. Clegg, 740 F.2d 16, 18 (9th Cir. 1984)). The mere
fact that some of this information may be classified is of no moment. The
standard for discovery of classified information is low, and is very easily
met in this case.

In order to prevail on a discovery request for classified information, a
defendant must make a threshold showing that the requested material is
relevant to his case. United States v. Yunis, 924 F.2d 1086, 1095 (D.C. Cir.
1991). This standard is little more than the "low" legal hurdle of
relevance. United States v. Yunis, 867 F. 2d 617, 623 (D.C. 1989) (the
district court properly noted that the defendant must show that the
statements sought crossed the low hurdle of relevance); United States v.
Yunis, 924 F. 2d 1086, 1095 (D.C. Cir. 1991) (threshold showing that the
material is relevant is a "low" hurdle); see also United States v. Rezaq,
156 F.R.D. 514, 519 (D.D.C. 1994) (the threshold showing for a defendant to
prevail on a discovery motion for classified information is not a high one).

Significantly, the requested discovery need not directly relate to Timothy
McVeigh's guilt or innocence. Id. Rather, the requested information must
simply "play an important role in uncovering admissible evidence, aiding
witness preparation, corroborating testimony, or assisting impeachment or
rebuttal." Rezaq, 156 F.R.D. at 519 (citing United States v. George, 786 F.
Supp. 11, 13 (D.D.C. 1991)). Thus, the requested information in this motion
is discoverable under the applicable legal standards. 

But there is another concern here. Factually, this case is in a class by
itself Counsel cannot think of any other criminal prosecution in which the
full focus of the federal government's massive resources,[22] including
military and intelligence resources, have been directed worldwide with the
sole purpose of identifying and apprehending the persons responsible for the
crime of which Mr. McVeigh stands accused. 


[22] A military C130 was used for photo reconnaissance of downtown Oklahoma
City after the bombing. See FOX Broadcast "Ground Zero" February 27, 1996
(video footage of C130 flying over Murrah Building and interview with Capt.
Steve Pulley(?) assigned to the 137th Airlift Wing of the Oklahoma Air
National Guard stating that the C130 was used for "evidentiary and
historical photos."). Capt. Pulley(?) stated that an FBI agent was on board
the C130 as it flew its reconnaissance mission over the Murrah building. The
purpose of the FBI agent was "to keep evidentiary control." Id. In addition,
a variety of locations relevant to the bombing were identified for
reconnaissance satellite photo image recovery. See attached Exhibit "D." 

Even the bombing of the World Trade Center in Manhattan lacked the
identifiable targeting of the federal government specifically, not to
mention the catastrophic casualties present in the bombing of the Murrah
Building. This case simply stands
alone. To the extent that the federal government has spared no resource in
its investigation, it would be fundamentally unfair to deny to Mr. McVeigh a
fraction of the product of that investigation when the fruits are relevant
and material to the defense in this capital case.

Moreover, the relevancy and materiality of the discoverable intelligence
information sought should be viewed with an eye towards the difficulty in
proving such qualities at this early stage of what will certainly be a
complex criminal matter. See United States v. Poindexter, 727 F. Supp. 1470
(D.D.C. 1989) rev 'd on other grounds, 951 F.2d 366 (D.C. Cir. 1991). The
language and spirit of the discovery rule is designed to afford an accused,
in the interest of fairness, the widest possible opportunity to inspect and
receive such materials in the possession of the government as may aid him in
presenting his side of the case. Id. at 1473. The Court in Poindexter felt
it best to resolve close or difficult discovery issues in favor of the

     The language and the spirit of the Rule are designed 
     to provide to a criminal defendant, in the interest 
     of fairness, the widest possible opportunity to 
     inspect and receive such materials in the possession 
     of the government as may aid him in presenting his side 
     of the case. Moreover, because of the CIPA process, the 
     Court will have an opportunity to address once again the 
     issue of the materiality of classified documents that 
     have been produced and their use as evidence. For these 
     reasons, . . ., the court has been inclined to err on the 
     side of granting discovery to the defendant of matters 
     that may fairly be encompassed within the indictment, 
     and it has generally resolved close or difficult issues 
     in his favor.

Id. (footnotes omitted) (bold emphasis added); see also United States v.
Rahman, 870 F. Supp. 47, 51 (S.D.N.Y. 1994) (Brady and its progeny deal with
the issue of materiality after a conviction and provide only limited
guidance before trial when the significance of some evidence may not be
fully apparent). 

C. The District Court Abused its Discretion by Denying Mr. McVeigh's
Repeated Requests for Brady Material.

The information Mr. McVeigh seeks to aid in his defense falls clearly within
the principles set out in Brady v. Maryland, 373 U.S. 83 (1963). Under
Brady, prosecutors have a constitutional obligation to disclose exculpatory
evidence. "The suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or bad
faith of the prosection." Id. at 87. The Supreme Court has recently retooled
the "materiality" component of the Brady doctrine. See Kyles v. Whitley, 514
U.S. 419, 115 S. Ct. 1555 (1995). The Court emphasized that a showing of
materiality does not mean that disclosure of suppressed evidence would have
resulted in a defendant's acquittal. Kyles, 115 S. Ct. at 1565-66. Rather,
the touchstone of Brady is whether "the favorable evidence could reasonably
be taken to put the whole case in such a different light as to undermine
confidence in the verdict." Id.: at 1566. In assessing Brady claims,
suppressed evidence must be considered collectively, and not on an
item-by-item basis. Id. at 1567.

Although a court's evaluation of a Brady claim in many cases takes place
postconviction, the Supreme Court's articulation of the materiality
standards in Kyles have a direct bearing on the government's obligations in
this case. The information the government is constitutionally compelled to
divulge to Mr. McVeigh includes the information in this motion, if this
court deems it material, regardless of whether an acquittal could be had if
the information is divulged, and if the cumulative effect of the evidence is
such as to undermine the outcome of a jury verdict. At bottom, the prudent
prosecutor should resolve all doubtful questions in favor of disclosure, and
this court should grant liberal discovery, in order "to preserve the
criminal trial, as distinct from the prosecutors' private deliberations, as
the chosen forum for ascertaining the truth about criminal accusations."
Kyles, 115 S. Ct. at 1568.

Courts have recognized that application of the Brady doctrine prior to trial
is problematic. Because many cases involving Brady issues are decided
post-conviction, such cases "provide only limited guidance before trial,
when the potential significance of some evidence may not be fully apparent."
United States v. Rahman, 870 F. Supp. 47, 51 (S.D.N.Y. 1994). Thus, the
difficulty in calibrating the quantum of effect requested information would
have on the outcome of a trial is exceedingly difficult in a case such as
this one where no conviction has occurred. Because of the pre-trial posture
of this case and the fact that the government has sought the death penalty,
a liberal application of this court's authority to extract discovery from
the government is appropriate. 

The Tenth Circuit has acknowledged that for the purposes of Brady discovery
requests, the term "prosecution" includes not only the staff of the
prosecutor's office, but extends to law enforcement personnel and other
agencies involved in the criminal investigation. Smith v. Secretary of New
Mexico Department of Corrections, 50 F.3d 801, 824 (10th Cir. 1995); see
also United States v. Perdomo, 929 F. 2d 967, 978 (3rd Cir. 1991) (term
"prosecution" also includes investigatory activities). The prosecutor is
"deemed to have knowledge of the access to anything in the custody or
control of any federal agency participating in the same investigation."
United States v. Zuno-Arce, 44 F.3d 1420, 1427 (9th Cir. 1995). The
information and evidence obtained by all segments of the United States
government, including intelligence information obtained from foreign
governments or sources, are therefore subject to the requirements of Brady
and Rule 16.

Thus, the prosecution cannot avoid disclosure by the simple expedient of
leaving relevant evidence in the hands of another agency while utilizing it
in preparing its case for trial. United States v. Trevino, 556 F.2d 1265,
1272 (5th Cir. 1977). When the government's investigation has extended to
the office of another government agency, the search for exculpatory
information must be at least as thorough as was the search for inculpatory

D. Standard for Guidance in Search.

     Absent some showing in precedent or principle for 
     applying a different standard in relation to some 
     aspect of the search the government is obligated to 
     make, I conclude that the following two guidelines 
     should be applied:

     First, the government must search at least as widely 
     and diligently for exculpatory evidence as it has 
     searched at any time, in relation to charges in the 
     case on trial or any possibly related offenses, for 
     evidence that might be used by the government. If, for
     example, the government attorneys and persons in any 
     agency aiding in the investigation at any stage have 
     extended their search for possibly inculpatory evidence 
     to any office of another government agency, the search 
     for exculpatory evidence must extend to that office 
     and must be at least at thorough as was the search for 
     inculpatory evidence.

     Second, the government must also extend its search to 
     other offices as to which, on the basis of information 
     accessible to the government attorneys by a search in 
     the offices to which the first guideline applies, it 
     appears there is a reasonable likelihood that a search
     of reasonable scope by feasible methods would identify 
     evidence within the legal definition of the subject 
     matter scope of the duty of disclosure.

United States v. LaRouche, 695 F. Supp. 1265, 1281 (D. Mass. 1988).

Nor can the prosecution circumvent Brady by keeping itself in ignorance or
by compartmentalizing information about different aspects of the case.
United States ex rel. Smith v. Fairman, 769 F.2d 386, 391-93 (7th Cir. 1985)
(we believe that the purposes of Brady would not be served by allowing
material exculpatory evidence to be withheld simply because the police,
rather than the prosecutors, are responsible for non-disclosure). The
prosecution's good faith or bad faith in efforts to produce discoverable
material is, in fact, irrelevant. United States v. Agurs, 427 U.S. 97, 110
(1976); Smith, 769 F. 2d at 391-93. A perfunctory denial by a low-level
official without full access or clearance to the information requested will
not suffice to relieve the government's obligations to produce all
discoverable material, regardless of the information's source,
classification or sensitivity. 

Simply stated, the due process clause places an affirmative duty on the
prosecution to disclose evidence favorable to Mr. McVeigh. Kyles, 115 S. Ct.
at 1565. This constitutional requirement means that the individual
prosecutors in this case have a duty to learn of any favorable evidence
known to anyone acting on the government's behalf in this case, including
law enforcement. Id. at 1567. There is no principled reason why the
individual prosecutors in this case should be absolved of their duty under
the Constitution to learn of any favorable evidence on Mr. McVeigh's behalf
which happens to be in the possession of other agencies in the Executive
Branch, including intelligence agencies. Mr. McVeigh clearly has no
independent access to such information and it would be fundamentally unfair
to saddle him with the burden of producing such evidence. See Smith v.
Secretary of Department of Corrections, 50 F.3d at 823 (the Brady rule is
grounded in notions of fundamental fairness that embody practical
recognition of the imbalances inherent in our adversarial system of criminal

E. Because the Material Sought by Mr. McVeigh is Material Both to Guilt and
Punishment, the District Court's Abuse of Discretion Jeopardizes Both Stages
of Mr. McVeigh's Capital Trial 

By its own terms, Brady applies to evidence which is material either to
guilt or to punishment. Brady v. Maryland, 373 U.S. 83, 87 (1963); see also
Chaney v. Brown, 730 F.2d 1334, 1345 (10th Cir. 1984) (citing cases).

The government has essentially conceded that the Brady doctrine requires
evidence which "may support a lesser culpability claim in the sentencing
phase of this case if a jury finds [Mr. McVeigh] guilty." D.E. 881 at 29
(Brief of the United States in Response to Mr. McVeigh's Discovery Report
and Motions). The government does not dispute that such information is
relevant under Brady to a capital sentencing proceeding; rather, the
government merely characterizes Defendant McVeigh's request for such
information as "procedurally premature." Id. The government is in fact
precluded from making the argument that the discovery requests are not
material to a sentencing determination in a capital case not only by Brady
itself, but by this Circuit's decision in Chaney v. Brown, 730 F. 2d 1334
(10th Cir.) cert. denied, 469 U. S. 1090 (1984).

In Chaney, the Tenth Circuit granted a petition for a writ of habeas corpus,
holding that the prosecution had violated Brady by withholding evidence
which might have affected the sentence in a capital case. The evidence
suppressed by the prosecution consisted basically of FBI 302's which
detailed witness statements, some of which raised questions concerning the
location of the defendant at the time of the crime and whether he acted
alone, and others were simply inconsistent with the prosecution's theory of
the case and the timing of events.

In granting the writ, the Tenth Circuit observed that the Eighth and
Fourteenth amendments require that the sentence in a capital case not be
precluded from considering as a mitigating factor, any of the circumstances
of the offense that the defendant proffers as a basis for a sentence less
than death. Id. at 1351 (citing Eddings v. Oklahoma, 455 U. S.104, 110-12
(1982)). The Tenth Circuit held that the evidence in Chaney was mitigating
because it related to the circumstances of the offense as a whole, and also
tended to support inferences that others were involved in committing the
crime, and that defendant Chaney may have been less culpable than others. Id.

Perhaps more important, the Court noted that the withheld evidence in Chaney
was significant with respect to the aggravating circumstances that had to be
proven in order to sentence him to death. In Chaney, the aggravating
circumstances as found by the jury to support the death sentence rested on
the conclusion that Chaney was the sole perpetrator of the crimes. Id. The
Court stated:

     Because the withheld evidence tends to support 
     inferences that Chaney may not have been the 
     sole participant in the criminal episode, and 
     may not have personally killed the victims, or 
     had been present at the time of the murders, 
     the evidence might have caused the jury not 
     to find these aggravating circumstances beyond 
     a reasonable doubt.

Id. at 1352.

Thus, Brady and Chaney make clear that the government is constitutionally
obligated to provide to Mr. McVeigh any information concerning "other
participants" and all reports concerning John Doe No. 2, as well as
information concerning "the circumstances of the offense" which Mr. McVeigh
could possibly proffer as a basis for a sentence less than death. To the
extent that any of the preceding 17 specific requests in this motion address
any of this information, the government is simply compelled to produce it.

However, the government's response to Mr. McVeigh's prior motion for
discovery evidences a very disturbing picture of the government's
understanding of its obligations under Brady. In fact, the government's
position is inconsistent and contradictory even within its own brief in
response to Mr. McVeigh's discovery motion. 

On one hand, the government proudly proclaims that it is "voluntarily
exceeding its discovery obligations" as well as "exceeding Brady's
requirements" by voluntarily agreeing to make all witness statements to law
enforcement officers available to the defense.[28] See D.E. 881 at 5, 19-20
(Brief of the United States in Response to Defendant McVeigh's Discovery
Report and Motions).


[28] The government did not turn over to defense counsel all Grand Jury
transcripts until ordered to do so by the court below in January, 1997. The
government has never provided to defense counsel memos of interviews by
attorneys for the government.

In addition, the government has undertaken a "Brady review" and has
ostensibly aided the defense by categorizing Brady material into six (6)
categories, including categories of other possible perpetrators as well as
information relating to possible mitigation of culpability. Id. at 19-20.

Yet, barely five pages away in their brief, the government assails many of
Mr. McVeigh's discovery requests as "meritless," including information of
others with motives to bomb federal buildings, as well as information on
John Doe No. 2. Id. at 25-30. In spite of the Tenth Circuit's decision in
Chaney, the government nevertheless insists that evidence relating to John
Doe No. 2 is not exculpatory. Id. at 28. The government cannot have it both
ways. It cannot on the one hand be commended for exceeding its obligations
under the Constitution and the Brady decision by divulging information to
which the defense is (according to the government) not constitutionally
entitled; but on the other hand, argue that evidence concerning John Doe No.
2 as well as other information on other possible perpetrators of the bombing
are not exculpatory as a matter of law.

If the government views its production of Brady material regarding "other
subjects" such as John Doe #2 as gratuitous, then the government may
withhold crucial evidence at the same time it maintains that legally it is
not required to give it at all. The government appears to have a deep and
fundamental misunderstanding of its constitutional duties under Brady. The
government's tactic throughout this case has been a willingness to divulge
volumes of irrelevant information that it would not otherwise be
constitutionally required to divulge, while at the same time refusing to
divulge relevant and material information specifically requested by Mr.
McVeigh, and then arguing incredibly that the requested information does not
fall within the ambit of the Brady decision.

The government's position on these matters is inexplicable. The government
does not contend that this information does not exist, it has taken the
position that even if this evidence does exist, Mr. McVeigh is not entitled
to it as a matter of law. The government's interpretation of Brady and its
progeny is fundamentally flawed and especially troubling in a case such as
this one where the government is seeking the death penalty while at the same
time maintaining that it has no duty to divulge information it may have
concerning other possible perpetrators of the crime. It invites the real
risk of a reversal of a conviction, should there be one.

Typical of the government's stunted interpretation of Brady is its citation
to this Court's opinion in Hopkinson v. Shillinger, 781 F. Supp. 737 (D.
Wyo. 1991) (Matsch, J., by designation). The government cites Hopkinson for
the proposition that evidence of the involvement of other perpetrators in a
murder is not Brady material because such evidence does not show that the
defendant was not involved in the murder. D.E. 881 at 29 (Brief of the
United States in Response to Defendant McVeigh's Discovery Report and
Motions). The government uses Hopkinson in order to argue that evidence of
the involvement of John Doe No. 2 is not exculpatory, and therefore not
properly discoverable under Brady. Hopkinson stands for no such thing and
could not be more inapposite.

The procedural posture of Hopkinson was that of a successive petition for a
writ of habeas corpus on a 12-year old conviction and death sentence of a
state prisoner. Thus, the inquiry before the Court was whether the
suppressed evidence would have created a reasonable probability sufficient
to undermine confidence in the outcome of the trial and death sentence that
had already occurred. In contrast, Defendant McVeigh is constitutionally
presumed innocent of the crimes for which he is charged in the Indictment
and seeks an Order from this Court to compel the government to produce
information to which he is constitutionally entitled prior to any conviction
and sentence. Because the potential significance of some evidence may not be
fully apparent at the pre-trial stage, cases such as Hopkinson provide this
court with "limited guidance." See United States v. Rahman, 870 F. Supp. 47,
51 (S.D.N.Y. 1994). 

As the government has emphasized, it must be remembered that Brady stems
from the "fundamental fairness" requirement of the due process clause and
its purpose is to ensure that a miscarriage of justice does not occur. D.E.
881 at 29-30 (Brief of the United States in Response to Defendant McVeigh's
Discovery Report and Motions) (citing Arizona v. Youngblood, 488 U.S. 51, 58
(1988); United States v. Bagley, 473 U. S. 667, 675 (1985)). Thus, Mr.
McVeigh does not come before this Court as a convicted felon seeking
absolution, but rather as a criminal defendant presumed innocent seeking
information relevant and material to his defense in a capital case which is
in the sole custody and control of his adversary. Mr. McVeigh asks this
Court for nothing more than to Order the district court to perform its duty
under the Constitution.

Moreover, when this Court decided Hopkinson, it did not have the benefit of
the Supreme Court's decision in Kyles v. Whitley, 115 S. Ct. 1555 (1995). In
Kyles, the Supreme Court emphasized that the "materiality" requirement under
Bagley was not a sufficiency of the evidence test. Kyles, 115 S. Ct. at
1566. The Court made clear that it makes no difference under Brady whether
there would still have been adequate evidence for a conviction even if the
favorable evidence had been disclosed. Id.

The difference between the inquiry in Hopkinson and the inquiry in this case
is the difference between deciding whether, if an oar would have been thrown
to a person in a boat going over a waterfall would have saved him, or
whether an oar should be thrown to a person in a boat about to go over a
waterfall. It was too late to throw the oar to Hopkinson, but it is not too
late to throw one to Mr. McVeigh. The Constitution requires it. Fundamental
fairness demands it.



MARCH 25, 1997