DEFENDANT *'S MOTION FOR CHANGE OF VENUE

AND

REQUEST FOR ORAL ARGUMENT AND EVIDENTIARY HEARING

Timothy *, by and through undersigned Counsel, moves the Court for an Order transferring this proceeding to another Federal District outside the State of Oklahoma. This Motion is made pursuant to the provisions of Rule 21(a) of the Federal Rules of Criminal Procedure, Mr. *'s Sixth Amendment Right to an impartial jury, and Fifth Amendment Right to due process of law.

The Motion is based upon the fact that there exists in this District so great a prejudice against Mr. * that he cannot obtain a fair and impartial trial at any place fixed by law for holding court within this District, or, in fact, within the State of Oklahoma.

Pursuant to Rule 14(F) of the Local Rules for the United States District Court for the Western District of Oklahoma, a brief citing authorities and setting forth the factual basis for the Motion is filed concurrently herewith. Counsel requests that the Motion be set for an Evidentiary Hearing and the opportunity to present oral argument.

DATED this 21st day of November, 1995.

Respectfully submitted,

TABLE OF CONTENTS

1. INTRODUCTION 1

II. FACTUAL BASIS FOR THE MOTION 5

A. THE DAILY OKLAHOMAN 7

B. THE LAWTON CONSTITUTION 12

C. THE TULSA WORLD 14

D. LOCAL TELEVISION COVERAGE 17

E. PUBLICITY CONCERNING VICTIM IMPACT 19

F. RESULTS OF PUBLIC OPINION POLL 22

III. THE STANDARD FOR CHANGE OF VENUE 24

A. PRESUMED PREJUDICE 24

B. IMPACT UPON THE COMMUNITY 29

C. THE STANDARD UNDER RULE 21(a) 32

IV. APPLICATION OF THE LAW TO THE FACTS 41

V. CONCLUSION 45

TABLE OF AUTHORITIES

Brinlee v. United States,

496 F.2d 351 (8th Cir. 1974) 41

Bruno v. United States,

308 U.S. 287, 60 S.Ct. 198, 84 L.Ed. 257 32

Chambers v. Florida,

309 U.S. 227, 241, 60 S.Ct. 472, 479, 84 L.Ed. 716 27

Coleman v. Kemp,

778 F.2d 1487 (11th Cir. 1985) 29,30,31

Estes v. Texas,

301 U.S. 532 at 542 and 543 (1967) 45

In Re: Murchison,

349 U.S. 133, 75 S.Ct. 623, 99 L.Ed.2d 942 (1955) 44

Irvin v. Dowd,

366 U.S. 717, 723, 81 S.Ct. 1639, 1643 (1961) 4,24-26, 41

Marshall v. United States,

360 U.S. 310, 79 S.Ct. 1171,

3 L.Ed.2d 1250 (1959) 32-34,38

McNabb v. United States,

318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 32

Murphy v. Florida,

421 U.S. 797-803, 95 S.Ct. 2034-2037 33

Offutt v. United States,

348 U.S. 11, 14, 75 S.Ct. 11, 13 (99 L.Ed. 11) 44

Pamplin v. Masson,

364 F.2d 1 (5th Cir. 1966) 34

Rideau v. State of Louisiana,

373 U.S. 723, 83 S.Ct. 1417 (1963) 24,26,27,32,33,41,45

Sheppard v. Maxwell,

384 U.S. 333, 86 S.Ct. 1507 (1966) 4,24,28,41

ii

Singer v. United States,

380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965) 40

Tumey v. State of Ohio,

273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 44,45

Turner v. State of Louisiana,

379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965) 45

United States v. Abrahams.

453 F.Supp. 749 (D. Mass. 1978) 35,36,43

United States v. Borders,

693 F.2d 1318 (C.A. 11th. 1982) 41

United States v Burr,

25 Fed.Cas. 49, 50 (#14692g)(C.C.Va. 1807) 31

United States v Chapin,

515 F.2d 1274, 1288 (D.C. Cir. 1975)

cert. denied, 423 U.S. 1015, 96 S.Ct. 449,

460 L.Ed.2d 387 (1975) 35

United States v. Fiorio,

12 F.R.D. 296 (S.D. N.Y. 1952) 36

United States v. Haynes,

398 F.2d 980, 984 (2d Cir. 1968) 31

United States v. Holder,

399 F.Supp. 320 (D.S.D. 1975) 39,40

United States v. Ingleman.

489 F.Supp. 48 (E.D. Mo. 1980) 38,39

United States v. Marcello,

280 F.Supp. 510, 513 (E.D.La. 1968),

affirmed 423 F.2d 993 (5th Cir. 1970),

cert. denied, 389 U.S. 959, 9O S.Ct. 2172,

26 L.Ed2d 543 (1970) 5,40,41

United States v. Mazzei,

400 F.Supp. 17 (W.D. Pa. 1975) 41

United States v. McNeill,

728 F.2d 5 (1st Cir. 1984) 33

iii

United States v. Moody,

762 F.Supp. 1485 (N.D. Ga. 1991) 33,34

United States v. Tokars,

839 F.Supp. 1578 (N.D. Ga. 1993) 37,38

13 F.R.D. 296 at 298 37

U.S. Const. Amd. V. 24,32

U.S. Const. Amd. VI 24

18 U.S.C. § 844(h) 41

18 U.S.C. § 1001 35

18 U.S.C. § 3593(a) 19

28 U.S.C. ~ 116(c) 6

Federal Rules of Criminal Procedure Rule 21(a) 4,5,32,37,38,40,41,43

Local Rule 3(D) 6

Local Rule 14(F) 1

Local Rule 35(A)(3) 6

Local Rule 35(D) 6

Oklahoma Almanac, at 793 (45th ed. 1995-1996) 7

iv

Pursuant to the provisions of Rule 14(F) of the Local Rules of the United States District Court for the Western District of Oklahoma, and in support of his Motion for Change of Venue, Timothy * submits the following:

I. INTRODUCTION

If there was any doubt about the impossibility of the Defendant getting a fair trial in Lawton, it was removed at a press conference in Lawton on Monday, November 20, when the civic leaders including the Mayor and the president of the Lawton Chamber of Commerce announced the formation of "Task Force 169" (the official number of persons killed in the bombing including the rescue worker, Mrs. Anderson). The purpose of the task force is to coordinate the Lawton civic, business and governmental involvement and planning for the trial. No proof of ours could be more persuasive that Lawton cannot host a fair and impartial trial under justice, but rather seeks to hold another memorial service just before the scaffold is constructed. Bob Payton, co-chair of "Task Force 169" stated:

Even the name of the task force will serve as a way to keep all those involved

focused on its mission. This tragedy was the worst of its kind in our nation's history, and

now it appears the Lawton - Fort Sill metropolitan area will play a role in its final act.

As Oklahomans, we are all in this together, and we appreciate the assistance that

has already been provided by our friends in Oklahoma City.

Nothing could underline more the fact that the entire State of Oklahoma has been deeply and profoundly affected by this case, and a jury from Lawton cannot objectively sit in judgment. The press release from the Lawton Chamber of Commerce is attached hereto as Exhibit "U".

The people of Oklahoma have "lived" this case differently than have people in other jurisdictions. Bound together as Oklahomans, the people of the state have reached out to the victims. They have participated in a direct and personal way with recovery and assistance to the victims. They have eagerly awaited daily detailed reports concerning the physical and emotional destruction caused by the bombing. They have held and attended numerous prayer and memorial services. Reflective of this, seventy percent of the persons surveyed in the Lawton/Mangum Division have some close personal tie to the victims. (Exhibit "B", Affidavit of Dr. Kent Tedin, page 13).

The fevered passion of the community of Oklahoma has been escalated by local news reports concerning the case. Timothy * has been tried, convicted, and sentenced to death by the media in Oklahoma. Before one single witness has testified at trial subject to cross examination, the media has daily, repeatedly, and without constraint detailed the "evidence" against *. While many reports concern court proceedings or documents filed, an overwhelming amount of coverage involves statements by federal officials speaking on condition of anonymity or "investigative reporting". Not one witness has testified in any open court proceeding that Timothy * rented the Ryder Truck that is said to have carried the bomb. Not one "eyewitness" has testified before the public that they saw Timothy * in downtown Oklahoma City on April 19, 1995. Michael Fortier and Lori Fortier have not testified in open court, but statements from "sources" concerning their grand jury testimony receive banner headlines. All these allegations are reported as &ct on a daily basis.

The constant bombardment has made most Oklahomans highly news conscious. Those reports have sometimes questioned the sequence of events or the role of "John Doe #2". The articles do not question whether Timothy * was involved. That "fact" is taken as established. These articles and reports include the following statements:

1. Timothy * is a "drifter, known for "extreme right-wing views, and was chased from the Michigan Militia for violent rhetoric described as "anarchist".

2. * is stoic, militaristic, anti-government, cold, rigid, and emotionless.

3. * is paranoid and fits the profile of an authority killer someone who is motivated by personal outrage rather than ideology.

4. * was a purchaser, user and distributor of Methamphetamine.

5. Michael Fortier drove through downtown Oklahoma City in December, 1994, with * and * told him of plans to bomb the Murrah Building.

6. Michael Fortier cased the building with *, going floor to floor, and the two posed as job applicants for purposes of identifying federal agencies.

7. Timothy *'s diary, now in the possession of the Government, detailed plans to carry out bombings in two other cities.

8. Lori Fortier testified before the grand jury that * demonstrated the configuration of the bomb with soup cans on the kitchen floor.

9. * was in Oklahoma City three days before the bombing and told Terry * "something big is going to happen."

10. * rented the Ryder truck which carried the bomb at Elliott's Body Shop in Junction City, Kansas, using an assumed name.

11. * was seen by numerous witnesses in Oklahoma City on the morning of April 19, 1995. These witnesses have picked * out of a line up, photo spread, or identified him as John Doe #I depicted in the Government's composite.

12. A twenty-two second surveillance tape puts * in the Ryder Truck in downtown Oklahoma City just before the blast.

13. *'s clothing and car contained traces of ammonium nitrate fertilizer, believed to be the key ingredient in the improvised explosive. Thus, "chemical tests point to *.

14. Approximately one month after Mr. *'s arrest, Oklahoma Governor Frank Keating declared in a television interview that authorities investigating the bombing "got the first creep that did it and apparently are moving in on the rest."

15. The President of the United States, the Attorney General, the Governor of the State of Oklahoma, and the Oklahoma County District Attorney felt that the death penalty must be imposed.

These matters have also been reported nationally, but nowhere have they appeared with such frequency or had as much impact as in the State of Oklahoma. Media research concerning reports about the case demonstrates that between April 20, 1995 and October 30, l995, 2,268 articles concerning Timothy *, Terry *, and the Oklahoma City Bombing appeared in the Daily Oklahoman. During the same time period, the Tulsa World carried 1,298 such articles. The number of articles carried by twenty-one other newspapers around the United States was significantly less. For example, the Denver Post carried 317 articles. (Exhibit "A", Affidavit of Robert Nigh, Jr.). The impact of this media saturation upon the people of the State of Oklahoma cannot be denied. A poll conducted by the defense demonstrates that people in Oklahoma are infinitely more knowledgeable about the case than are people in nearby jurisdictions. Forty-four percent of the people in the Lawton/Mangum Division of the United States District Court for the Western District of Oklahoma have formed an opinion about *'s guilt. Ninety-six percent of those believe that * is guilty. The intensity with which this opinion is held is dramatically higher in Oklahoma than it is elsewhere. (Exhibit "B", Affidavit of Dr. Kent Tedin, page 6).

It is against this backdrop that Timothy * moves for a change of venue pursuant to the provisions of Rule 21(a) of the Federal Rules of Criminal Procedure. He simply seeks "a fair trial by a panel of impartial 'indifferent' jurors.. Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1643 (1961). He seeks a trial by jurors who are not members of "Task Force 169".

The due process right to a fair trial inures to the benefit to of an accused in a federal trial through the Fifth Amendment to the United States Constitution. The due process standard requires that the defendant in a criminal case receive a trial by an impartial jury free from outside influences. Where there is "a reasonable likelihood" that prejudicial news prior to trial will prevent a fair trial, a motion for change of venue must be granted. Sheppard v. Maxwell, 384 U.S. 333, 362, 86 S.Ct. l507 (1966).

The standard for change of venue in a federal prosecution under Rule 21(a) assures a defendant even more protection against prejudicial pretrial publicity and community passion than the constitutional standard. It does not require "the same certainty which warrants the reversal of a conviction" under the due process standard. United States v. Marcello, 280 F.Supp. 510, 513 (E.D.La. 1968), affirmed 423 F.2d 993 (5th Cir. 1970), cert. denied, 389 U.S. 959, 90 S.Ct. 2172, 26 L.Ed.2d 543 (1970). Under Rule 21 (a), "the well-grounded " that the defendant will not receive a fair and impartial trial requires a change of venue. Id. (emphasis in original).

Under either standard, Timothy * is entitled to a change of venue outside the State of Oklahoma.

II. FACTUAL BASIS FOR THE MOTION

It is difficult to describe the actual amount of prejudicial publicity concerning the case that has occurred within the State of Oklahoma. It can accurately be said that the people of Oklahoma have been inundated with news concerning the case. In support of this motion, Counsel submits 1087 pages from the Daily Oklahoman, 317 pages from the Lawton Constitution, 313 pages from the Tulsa World, and 926 Pages of transcripts from local television broadcasts. The sources of news include local television broadcasts, local daily newspapers, national television, local and national radio, and national magazines and newspapers. The media reports concerning the case continue unabated at this date.

The content of these reports has been extremely prejudicial to Mr. *. For purposes of demonstrating the negative impact of these reports a partial listing of prejudicial articles with a description of their content has been prepared. This is by no means an attempt to undertake the insurmountable task of detailing each of the prejudicial articles or reports. Whether inherently prejudicial, or simple factual reporting concerning Timothy * and the bombing, it cannot be doubted that the mountain of coverage has served as a constant reminder to the people of the State of Oklahoma of the April 19,

__________________

The majority of Daily Oklahoman articles concerning the case are submitted herewith as Appendix "1". The Lawton Constitution articles are "submitted as Appendix "2". The Tulsa World articles are submitted as Appendix "3". Transcripts of local news broadcasts are collectively submitted as Appendix "4".

1995, tragedy and the Government's focus upon Timothy *. Articles concerning the victims

understandably elicit sympathy and compassion. When the same articles reference Timothy * they can serve only to create an adverse inference in the minds of those persons from which an Oklahoma jury would ultimately be drawn.

The focus of this factual presentation will be upon the media reports which were received in the Western District of Oklahoma, including Oklahoma City, and the Lawton/Mangum Divisions.' "By Order dated September 14, 1995, the Court designated Lawton, Oklahoma" as the place of trial pursuant to the provisions of 28 U.S.C. § 116(c) and Local Rule of Court 3). Local Rule 35(A)(3) provides the jurors from the Lawton/Mangum division will be drawn from Beckham, Caddo, Comanche, Cotton, Greer, Harmon, Jackson, Jefferson, Kiowa, Stephens, Tillman, and Washita Counties. Local Rule 35(D) provides that voter registration lists from these counties shall be used to select names of grand and petit jurors is as follows:

The total population of registered voters in the Lawton/Mangum Division as of 1990, per county.

_____________________

The lists and descriptions of prejudicial articles from the Daily Oklahoman, Lawton Constitution and Tulsa World are attached hereto as Exhibits "C", "D., & "E" respectively. The list and description of the television news broadcasts is attached as Exhibit "F".

3 Because coverage in the Northern District of Oklahoma illustrates the statewide impact of the bombing upon news reporting, reference will also be made to coverage there.

REGISTERED VOTERS IN THE LAWTON/MAGNUM DIVISION

The total population of registered voters in the Lawton/Mangum Division is 136,342.

A. THE DAILY OKLAHOMAN

Beginning on Thursday, April 20, 1995, and continuing for a period of thirty-five days, the Daily Oklahoman ran at least one front page article concerning the case. During this same period, a considerable portion of each edition of the newspaper was devoted to the case. The Oklahoman's "Terror In The Heartland" section ran for three days. "Together In The Heartland" ran for seventy-seven days consecutively. The articles concerning the case continue on a daily basis. An extremely large number of these articles are prejudicial to Mr. * because they detail alleged "facts in the case, many of which are inaccurate, many of which were authoritatively declared by federal officials speaking on condition of anonymity, and many of which are of questionable admissibility. A mountain of other articles detail the trauma experienced by victims of the offense.

______________________________

Oklahoma State Election Board Registration by Party as of January 15, 1994, Oklahoma Department of Libraries, Oklahoma Almanac, at 793 (45th ed. 1995-1996).

The impact of such negative publicity can be seen by reference to the number of households in the state which receive the newspaper. Attached hereto as Exhibit "G" is the Audit Bureau of Circulation report for the twelve (12) months ending September 30, 1994. This report establishes the following:

1. Geographically, the vast majority of the State of Oklahoma is within the Daily Oklahoman's designated market area. The only exception is the Northeast corner of the state (which is covered by the Tulsa World). (Exhibit 'G", page 2).

2. The actual gross distribution for the Daily Oklahoman in the State of Oklahoma is 229,681. The actual gross distribution for the Sunday Daily Oklahoman is 338,621. (Exhibit 'G', page 6).

3. Of the 245,400 estimated occupied households in Oklahoma County, 112,077 of them subscribe to the morning Daily Oklahoman. 165,743 of these subscribe to the Sunday Oklahoman. (Exhibit "G", page 6).

4. Of the 107,100 estimated occupied households in the Lawton/Mangum Division, 12,418 of them subscribe to the Daily Oklahoman morning Edition. 17,376 of these subscribe to the Sunday Oklahoman edition. (Exhibit 'G", page 5 - 6).

The influence of the Daily Oklahoman in Oklahoma politics is even more impressive than the numbers shown by the circulation. In 1926 one authority on contemporary Oklahoma said that E. K. Gaylord, the owner and publisher of the Daily Oklahoman, "is the most influential man in Oklahoman today. See Harlow, Successful Oklahomans, page 133. Thirty years later, another writer confirmed that E. K. Gaylord, because of his position as publisher of the Daily Oklahoman, was the most powerful and influential man in the state. See Jones, Oklahoma Politics, 1907 - 1962 (1974) page 187, " prize winning reporter for a New Mexico newspaper characterized the Oklahoman as "one of the greatest newspapers in the country today" Jones, supra, 187. John Gunther, the journalist, called Gaylord the closest thing to a political boss Oklahoma has. Gunther, Inside U.S.A., page 972. Whatever position the Daily Oklahoman supports usually wins. The paper led the fight for single statehood when the Republicans and the Indians wanted separate statehood: single statehood prevailed. Oklahoma did not elect a Republican governor until Henry Bellmon when the Daily Oklahoman endorsed him over the Democrats. The newspaper editorialized for the defeat of a recent Oklahoma City mayor and he was defeated by a two to one margin. The Oklahoman never supported the repeal of prohibition until 1959 when prohibition was finally repealed. In 1958, an obscure Republican lawyer, Bruno Miller, was elected a common pleas judge, the only Republican elected to any position in Oklahoma County because the Oklahoman endorsed him. For a more complete discussion of the role of the Oklahoman in the fight for repeal, see the Eagleton Institute Case Study, Oklahoma Goes Wet, by Robert S. Walker (1961). In Oklahoma; particularly in western Oklahoma, the Daily Oklahoman has a pervasive influence on the state's political, social, and economic thinking.

The Thursday and Friday Daily Oklahomans, April 20th and 21st, 1995, respectively, were devoted almost entirely to the bombing. Counsel will not attempt to set forth in this brief each of the prejudicial articles that appeared thereafter, but will provide a summary and quotes from five of the most prejudicial. Counsel implores the Court to consider Exhibit "C for a more detailed analysis. The real prejudice began OD April 22, 1995, and continues to this date:

(1) Saturday. April 22. 1995. page 1. banner headline: "Bomb Suspect Charged.: subhead line: "Man Upset by '93 Raid Near Waco". Below the banner headline was a half-page picture of Timothy * surrounded by F.B.I. agents and other police officers. The article contained statements that the F.B.I. indicated * was the suspect in a composite drawing depicting a man three witnesses had said was outside the Murrah building nine minutes before the bombing. Thc article quoted the F.B.I. as saying * was one of the men who rented the Ryder truck at Elliott's Body Shop in Junction City, Kansas.

The article stated * "sat grim-faced" during his initial appearance and stated that be had been led into the building chained hand and foot. The article indicated he stood "ramrod straight. during questioning by the magistrate. On page 12 the article continued that a crowd of 300 people outside the Noble County Courthouse booed and shouted "murderer" and "killer" as * was led from the Noble County Jail. Noble County Sheriff Cook, purportedly said, "He looked pretty cold to me". A picture inset in the article indicated that prosecutors were expected to seek the death penalty against *. (Appendix "1", page 49).

(2) Wednesday. April 26. 1995. page banner headline: "Chemical tests Point to *. The sub-headline "F.B.I. Theorizes 'John Doe 2' May Be Dead.. That article stated, "The Oklahoman was told that defendant Timothy * had been linked to the deadly Oklahoma City bombing by a fertilizer chemical found on his clothes and in his car, and at least one witness picked him out of a line-up. The report stated that investigators found traces of ammonium nitrate - a fertilizer chemical - on *'s clothes and on the floor board of his car. The article quoted a source as stating that one of four witness had picked * out of line-up. The article which continued on page 2 under the heading "* indicated the F.B.I. reported * had used the alias "Tim Tuttle" or "Terry Tuttle" and also indicated an F.B.I. informant said that a man using the alias "Terry Tuttle" had tried to buy 100% liquid nitro model airplane fuel at a hobby shop. An F.B.I. agent stated that type of model airplane fuel can be used to make "improvised explosives". (Appendix"c ·1., page 112).

(3) Friday. May 26. 1995: "Together in the Heartland". section: "Bomb Investigators Got 'First Creep' Keating Says.:

Governor Frank Keating said Thursday that authorities investigating the Murrah Building bombing 'got the first creep that did it' and apparently are 'moving in on the rest'.

In response to a question a few minutes later, Keating said he thought he could be open minded if he were called to be a juror in the trial of the first man arrested in the bombing, Timothy *....

'I think that every one is very emotionally involved with * and with the bombing, but I think Oklahomans . . are open minded to the facts of the case,' he said.

'I happen to think the facts of the case are very heavy against him; but, obviously, if I were a juror I would be open minded to the facts. I'd want to know what it is that the government would be present. I think every body would feel that way.'

The article said Keating's statements were reminiscent of President Nixon's declaration that Charles Manson was "guilty" of committing the gruesome stabbing of actress Sharon Tate and others in Beverly Hills, California. (Appendix "1", page 523).

(4) Saturday. June 17. 1995. page 1: "* Put At Blast Site In December: Suspect. Friend Cased Area". The article stated that a close friend of *'s, Michael Fortier, told the F.B.I. that he and * drove through Oklahoma City in mid-December and looked at 'a building'. The article indicated Fortier was still trying to negotiate a deal in exchange for cooperation. The article indicated that the Oklahoman had been told that previous reports that * and Fortier inspected the building just days before the bombing were "wrong". The article stated,"'The timing is significant because it is further evidence *, 27, had planned the bombing for months. F.B.I. agents have said the fertilizer used to make the bomb was bought at a Kansas Coop in September and October, 1995, and hidden in sheds rented under aliases". The article stated that F.B.I. agents had been told * was in Oklahoma Cay on April 16th - three days before the bombing - and left his car. (Appendix "1", page 667).

(5) Sunday. September 3. 1995. page 1: "* Demonstrated Bombing. Grand Jury Told". The article quoted extensively from testimony supposedly provided by Lori Fortier to the Grand fury investigating the bombing case:

Government witness, Lori Fortier, told the Federal Grand Jury that * arranged the cans in the shape of a triangle on the kitchen floor of her Arizona trailer. She testified August 8th, one day are being granted immunity from prosecution.

She said * was demonstrating - weeks before the deadly terrorist attack on the Oklahoma City federal building - how the force of an explosion could be directed at an intended target. She said another time * drew a diagram on a piece of paper to demonstrate how to blow up a building.

'The soup cans were to represent fifty-five gallon drums,' a source With knowledge of the investigation told the Oklahoman....

*, a 27 year old drifter, is accused of detonating a 4,800 pound fertilizer bomb outside the Alfred P. Murrah Federal Building on the morning of April 19.

(Appendix ."1", page 1010).

B. THE LAWTON CONSTITUTION

Like the Daily Oklahoman, the Lawton Constitution began intense coverage of the bombing on April 20, 1995. For the balance of the month of April and much of the month of May, a great deal of the newspaper was devoted to the case. There was a decided upturn in coverage after September 14, 1995. when the Court ordered that the trial be held in Lawton. Like the articles that appear in the Daily Oklahoman, an extremely large number are prejudicial to Mr. * because they detail alleged "facts" in the case, few of which may be admissible at trial, many of which are inaccurate, and many of which were released by federal officials speaking on condition of anonymous. A number of other articles concerning the case detail the trauma experienced by victims of the offense.

The impact of such negative publicity in the Lawton/Mangum Division can be seen by making reference to the number of households in the division which receive the newspaper. Attached hereto as Exhibit "H" is the Audit Bureau of Circulation Report for the twelve months ending December 31, 1994. That report establishes the following:

1.Geographically, all of Comanche County (the most populous county in the division) is within the Lawton Constitution's designated market area. The designated market area also includes parts of Caddo, Cotton, Kiowa, and Tillman Counties (Exhibit "H", page 2).

2. The actual gross distribution for the Lawton Constitution in the State of Oklahoma is 24,733. the actual gross distribution for the Lawton Constitution's Sunday edition is 31,823. (Exhibit "H", page 4).

3. Of the 39,900 occupied households in Comanche County 21,186 of them subscribe to the Lawton Constitution. 25,588 of them subscribe to the Lawton Constitution Sunday Edition. (Exhibit "H",.page 5).

A sample of five of the articles concerning the case is set forth herein. Counsel asks the Court to consider Exhibit "D" and Appendix "2" for a more detailed analysis. The real prejudice began on April 22, 1995, and continues to this date:

(1) Wednesday. April 26. 1995. page l: "Two Charged With Conspiracy". The article which began on page 1 and continued on page 2A stated that F.B.I. officials indicated the car * was driving when he was stopped shortly are the bombing showed traces of nitrates and high explosives. On page 2A the article stated * had chemical traces on his clothing linking him to the bombing. (Appendix "2", pp. 40 & 41).

(2) Thursday. April 27. 1995. page 1: " F.B.I.: Diary Outlined Bombing Plans". The article stated:

"Federal Investigators have located a diary in which Timothy * and

associates outlined plans for simultaneous bombings in Phoenix; Omaha, Nebraska;

and Oklahoma City. The suspects concentrated only on the last site when they ran

out of time to acquire enough explosives for all three, sources told the Ft. Worth

Star Telegram Wednesday night.

"Two high ranking federal officials said they were told that the so called

* Diary details the bombing strategy and indicates that the buildings

had been 'cased', suggesting the bombers knew that a day care center was in the

Alfred P. Murrah Federal Building".

The article continued on page ID and quoted a federal law enforcement official as stating that three witnesses saw * in front of the Federal Building minutes before the explosion. (Appendix .2-, pp. 46 - 49).

(3) Saturday. April 29. 1995. page 1: "Video Shows Possible Second Get Away Car". The article stated in the first paragraph that Timothy *'s missing Arizona plate appeared on a mystery vehicle in a video tape taken just before the bombing and authorities believe that "John Doe #2" may have used that vehicle for his getaway. The article quoted a law enforcement source who spoke on condition of anonymous. The article also quoted a senior federal official as stating that "*'s statements in the Noble County Jail were an attempt to throw people off his Kansas connections. " (Appendix "2", page 55).

(4) Thursday. May 4. I995. page 1: "Probe Hits Dead End After Two Weeks". The article stated that the investigation had yielded "One steely suspect who's keeping his mouth shut". The article continued:

"There have been initial successes: the arrest of Timothy *, a rich

harvest of evidence linking him to the bombing, and connections to James and Terry

*, two Michigan brothers in custody who shared *'s penchant for bomb

making and anti government rhetoric.. (Appendix .2a, page 75) (emphasis is supplied).

(5) Tuesday. July 11. 1995. page 7C: "Criminologist Says Bomber Likely to Be 'Authority Killer' Type. The article quoted expert criminologist, Robert Ressler, as stating * shows many of the signs of the paranoid personality type responsible for tragedies such as the assassination of President Kennedy and Jonestown. The article described the Oklahoma City Bomber as an "authority killer" who is motivated by personal outrage rather than ideology. (Appendix .2., page 221).

C. THE TULSA WORLD

Beginning on Thursday, April 20, l995, and continuing for the balance of April, the Tulsa World ran a front page article every day concerning the case. For the month of April and much of the month of May, a great deal of the newspaper was devoted to the case. The Tulsa World began its coverage under the heading "Bombing Terror". The heading was later changed to "Bombing Aftermath" and finally to "OC Bombings" in red ink. Like the coverage provided by the Daily Oklahoman and the Lawton Constitution, an extremely large number of these articles are prejudicial to Mr. *.

The impact of such negative publicity can be seen by making reference to the number of households in the state which receive the newspaper. Attached hereto as Exhibit T is the Audit Bureau of Circulation report for the twelve months ending December 31, 1994, for the Tulsa World. That report establishes the following:

For the month of April and much of the month of May, a great deal of the newspaper was devoted to the case. The Tulsa World began its coverage under the heading "Bombing Terror". The heading was later changed to "Bombing Aftermath" and finally to "OC Bombing" in red ink. Like the coverage provided by the Daily Oklahoman and the Lawton Constitution, an extremely large number of these articles are prejudicial to Mr. * The impact of such negative publicity can be seen by making reference to the number of households in the state which receive the newspaper. Attached hereto as Exhibit "I" is the Audit Bureau of Circulation report for the twelve months ending December 31, 1994, for the Tulsa World. That report establishes the following:

1. Geographically, the entire northeast comer of the State of Oklahoma is within the Tulsa World's designated market area. This area covers all of the state that is not within the Daily Oklahoman's designated market area. (Exhibit "I", page 1).

2. The actual gross distribution for the Tulsa World in the State of Oklahoma is 175,457. The actual gross distribution for the Sunday Tulsa World is 239,968. (Exhibit "I", page 5).

3. Of the 213,900 occupied households in Tulsa County, 114,930 of them subscribe to the Tulsa World. 152,086 of them subscribe to the Sunday Tulsa World. (Exhibit "I", page 5).

The Thursday and Friday Tulsa World, April 20th and 21st, 1995, respectively, were devoted almost entirely to the bombing. Counsel will not attempt to set forth in the brief each of the prejudicial articles that appeared thereafter, but will provide a summary and quotes from some of the most important. A sample of five of the articles concerning the case is set forth herein. Counsel implores the Court to consider Exhibit "E" and Appendix "3" for a more detailed analysis. The prejudice began on April 22, 1995, and continues to this date:

(1) Wednesday, April 26, 1995, page 1:

"Brothers Charged: U.S. Says They Experimented With Bombs". The article stated that F.B.I. tests reportedly matched residue from the bomb with clothing and materials in the car * was driving when he was arrested by a state trooper near Perry, Oklahoma. The article quoted an unnamed federal law enforcement official in Washington as stating that the vehicle showed traces of nitrates and high explosives. The article continued that while * was once voted the most talkative member of his high school class he would now only give his name, rank and army serial number. (Appendix "3", pp. 32 & 33).

(2) Saturday, April 29, 1995, page 1:

"Bombing Aftermath: Car Tag Is Still Missing". The article quoted "sources" as stating that a missing license plate from a car owned by Timothy * might have been slapped on a getaway vehicle used by "John Doe # 2" to flee the blast at the Murrah building. The article stated that a video tape from a security camera near the Oklahoma City building showed the tag sought by agents on a car other than *'s yellow 1977 Mercury Marquis. The article continued on page 2 and stated that "a source" told the Tulsa World that a piece of tire from the truck had been located and matched tire tracks found outside a Herrington, Kansas, storage shed to which * and * had access. The article also stated investigators were focusing on the possibility that * and John Doe # 2 may have been involved in robberies in which the bandits used explosives. (Appendix "3", pp. 47 & 48).

(3) Tuesday, May 9, 1995, page 1:

"Agents Trace Suspects Tracks". The article first stated that on March 23, in Kingman, Arizona, Timothy * had rented the video movie "Blown Away", described as a "white knuckled" thriller about a mad bomber who terrorized Boston. The article continued on page 3 and stated that security camera video tape showed the Ryder truck parked in front of the federal building with * in the truck. The article quoted an N.B.C. report citing law enforcement sources. (Appendix "3", pp. 82 & 84).

(4) Thursday, May 11, 1995, page 1:

"Hearing Today For *". The article detailed the complaint against Terry * but continued on page 3. On page 3, the article stated that in the months before the Oklahoma City bombing, * was selling crystal methamphetamine in Kingman, Arizona, "according to three people acquainted with him". The article characterized crystal methamphetamine as a powerful addictive stimulant. (Appendix "3", pp. 90 & 92).

(5) Saturday, June 10, 1995, page 18:

"The Radicalization Of Timothy *". The article purported to describe Timothy *. The article stated that in a lifetime marked by rejection and solitude, weapons were a single unwavering constant, "... and if they helped him to define himself, they now define him to the world": "Stripped of the weapons he loved, * is virtually mute. Providing only his name, rank, and serial number, he now regards himself as a prisoner of the very government he once defended with determined fervor. It has become the enemy." The article concluded: "Restless, * left Kingman a few months later, only to come and go several times through the year. The last time his blue Pontiac pulled out of the town was April 12th. Five days later, he rented the yellow Ryder rental truck that carried the bomb that blew up in Oklahoma City." (Appendix "3", page 164)

D. LOCAL TELEVISION COVERAGE

The local television news coverage concerning the case has been at least as prejudicial, if not more so, than the newspaper reporting concerning the case. The number of times that Timothy * has been shown being escorted from the Noble County Jail shackled and chained cannot be accurately estimated. The news reports detailed here come from the local stations inside the State of Oklahoma. Focus will be upon KFOR--Channel 4, KOCO--Channel 5, and KWTV-- Channel 9, whose broadcast coverage extends widely in the Western District of Oklahoma . Reference will also be made to KSWO--Channel 7, the ABC affiliate in Lawton, whose coverage area includes the Lawton/Mangum Division . Reference will also be made to coverage provided by the three local Tulsa stations to show the statewide impact of prejudicial reporting. No effort will be made here to detail each of the prejudicial news broadcasts but reference will be made to ten of them.

The broadcast coverage maps for channels 4 and 5 are attached hereto as Exhibits "J" and "K" respectively. Channel 9 has been unwilling to provide a coverage map. Coverage map is attached hereto as Exhibit "L".

The broadcast coverage maps for KTUL (Ch. 8) and KJRN (Ch. 2) are attached hereto as Exhibits "M" & "N" respectively. KOTV (Ch. 6) does not have a current coverage map, but market data is attached hereto as Exhibit "O".

Transcripts of local news broadcasts concerning the case are contained within Appendix "4". A partial list and description of additional prejudicial news broadcasts is attached as Exhibit "F".

1. Friday, April 21, 1995, KOCO, 10:00 p.m.--

"Soon after Wednesday morning's bombing a 1977 yellow Ford Mercury was driving northbound on interstate 35. It was driving without plates. Inside the car was a man that already devastated a nation and was about to change the small town of Perry, Oklahoma."

2. Monday, April 24, 1995, KJRN, 10:00 -

From our Scripps-Howard News service tonight, we have learned the bombers may have been planning a second similar attack next month in another city. Possible sites for a second attack are Omaha, Nebraska, and Minneapolis, Minnesota. Omaha officials tell the Scripps-Howard News Service, Tim *, spent time there two weeks ago asking about the federal building. His questions were so pointed about where certain offices were located, it drew the suspicion of Federal Agents. And officials say * has even tried to rent a Ryder truck in Minneapolis. This latest development leaves authorities to be more concerned the Oklahoma City tragedy may be part of a nation wide conspiracy involving radical extremists..

3. Wednesday, April 26, 1995, KFOR, 6:00 p.m.

"Suspect, Timothy *, sees himself as a political prisoner. Others see him as a baby killer in the bombing of the federal building. Brad Edwards has been looking into the latest on the accused.

Reporter: the latest information shows that letters * wrote to a newspaper three years ago, revealed his hatred for the political system..

4. Thursday, April 27, 1995, KJRN, 10:00 p.m.

"Other news - the latest on the Oklahoma City bombing - and suspect, Timothy *. His attorneys don't want anything to do with him. They're even trying to get the case moved out-of-state. He seems to be the most despised man in Oklahoma. Today, *, the only suspect charged in the bombing, appeared in Oklahoma City Federal Court..

5. Monday, May 8, 1995, KFOR, 10:00 p.m.

"Sources tell NBC News that federal investigators now have more evidence that clearly puts Timothy * at the federal building, just minutes before the bombing. That evidence is video tape. The news channel first reported shortly after the blast, that police had seized several video tapes less than two hours are the explosion. Some of those tapes belong to Southwestern Bdl. The F.B.I. later. confirmed it had surveillance from several surrounding businesses in its possession. But what may turn out to be the most crucial piece of video tape is twenty-two seconds long. It shows * stopped in the Ryder truck on Robinson Street, about five hundred feet east of the Murrah Building. Apparently waiting for a delivery truck to move away from the front of the building. But that same camera doesn't show enough of the truck to tell whether there's a second passenger inside. We know of at least a dozen surveillance tapes within a two block area of the bombing. The F.B.I. is also looking at tapes from restaurants and convenience stores near the Murrah Building".

6. Wednesday, May 24, 1995, KWTV, 5:00 p.m.

"Timothy *'s army buddy, Michael Fortier, is back in the headlines. TheWashington Post reports Fortier has further implicated * and Terry * in the bombing. Fortier says he declined *'s request for help with the blast. He also tells sources Terry * is the one who actually mixed the chemicals for the bomb.

7. Monday, July 17, 1995, KFOR, 6:00 p.m.

"For the first time, a witness places bombing suspect, Timothy *, inside the Murrah Building. A source who worked on the fifth floor of the federal building tells the news channel Timothy * was in his office on a Friday, a week or two before the blast. The witness says other workers inside the Murrah Building also saw *. Tomorrow, Timothy * will be transported from the federal prison at El Reno to the Federal Courthouse in downtown Oklahoma City. He's being required to turn over a hand writing sample to the Federal Grand Jury investigating the case".

8. Saturday, September 2, 1995, KWTV, 5:00 p.m.

"And some other big developments in the bombing case today: Timothy * once demonstrated how a bomb ,could be made more effectively, according to reports. The Sunday Oklahoman says Michael Fortier's wife, Lori, told the grand jury * took cans of soup and showed her how to arrange barrels of explosives in a triangle to create a massive bomb. Michael Fortier, you'll recall, was convicted in connection with the bombing.

9. Tuesday, September 19, 1995, KFOR, 5:00 p.m.

"The investigation may still be ongoing. But in the Dallas Morning News, you'll find every detail and plan behind the bombing plot. The paper reports that Timothy * showed a diagram of the truck bomb to his friend, Michael Fortier. He even asked for Fortier's help in testing the bomb. The paper says that when Fortier refused, * told him to read a chapter from a book about right wing survivalists. Fortier - who has pleaded guilty to charges of knowing about the plot--says * told him several weeks before the bombing that he and Terry * had declared war on the federal government".

10. Tuesday, September 19, 1995, KOTV, 5:00 p.m.

The Dallas Morning News reports that bombing witness, Michael Fortier, says Timothy * asked him last year to go into the Arizona desert to help test an explosive formula. Fortier says * showed him a truck bomb diagram prior to April 19. The report also quotes Fortier as saying that * and Terry * were declaring war on the federal government.

E. PUBLICITY CONCERNING VICTIM IMPACT

Title 18 U.S.C. § 3593(a) provides that the Government shall file and serve notice upon the defendant of aggravating factors relied upon in support of the death penalty:

The factors for which notice is provided under this subsection may include factors concerning the effect of the offense on the victim and the victim's family, and may include oral testimony, a victim impact statement that identifies the victim of the offense . and the extent and scope of the injury and loss suffered by the victim and the victim's family, and any other relevant information. Id.

On October 21, 1995, the Government filed and served its notice of intention to seeks the Death Penalty as to the Defendant Timothy James *. In that notice the Government stated:

"The United States will rely on the following non statutory aggravating factors to justify a sentence of Death: . . .

4) Victim Impact evidence concerning the effect of the Defendants' offense(s) on the victims and the victims' families, as evidenced by oral testimony and victim impact statements that identify the victims of the offense(s) and the extent and scope of injury and loss suffered by the victims and the victims'' families..

(Government's Notice of October 21, 1995, at page 3).

The Defendant will challenge the Federal Death Penalty Statute, the Government's Notice, and the procedure utilized concerning the Death Penalty in separate filings. Should those efforts fail, and in the event Mr. * is convicted, it will not be necessary for the Government to provide Victim impact evidence if the trial is held within Oklahoma. That evidence has been presented everyday since April 19, 1995, in newspaper reports and television coverage. The people of Oklahoma have lived the victim impact.

Counsel for Timothy * does not question the propriety or necessity of such coverage, nor do we question the public's reasons for attentiveness to such coverage. To the contrary, it is a credit to the people of the community of Oklahoma that they pour out their hearts, their prayers, their time, and their resources to those injured or impacted by the bombing. The point is instead that when a man is on trial for his life, he is entitled to have the evidence which might justify imposition of a sentence of Death produced in court, subject to the rules of procedure and the limitations of due process. No potentially qualified juror in the State of Oklahoma can have ignored or set aside media reports concerning victim impact. Perhaps Governor Keating said it best:

"Family also assumed a new and cherished meaning for Oklahomans. In so many cases, we watched as families learned of the loss of parents, brothers, sisters, children, and even grandparents. The ripples moved outward, touching every neighborhood and home. It was almost impossible in the weeks after April 19th to find a resident of central Oklahoma who failed to know at least one family member directly wounded by the bombing. We all knew someone who died, or someone who was injured. We learned, once again, the meaning of the term 'extended family'. This family extended to the very boarders of our state, and beyond"

.

(Governor Frank: Keating, "The Oklahoma Standard", in Oklahoma Virtue 9, 12 (1995). (Copy attached here to as Exhibit "P").

There is no way to accurately portray the volume and content of humanitarian depictions of the people affected by the blast, but some examples can be provided. The Daily Oklahoman, for a number of days after April 20, 1995, included an entire section concerning victims entitled "Healing in the Heartland. The majority of those articles are contained in appendix Volume 1. The Daily Oklahoman has carried the obituary and a brief biographical description of each person killed in the blast. There have been countless articles concerning children left orphaned, and the parents of children that were killed. There have been heart wrenching descriptions of persons maimed and their efforts at physical and emotional recovery. Understandably, these reports continue to this date.'

Further evidence of the statewide impact of the bombing is contained within the Oklahoma Department of Mental Health and Substance Abuse Services application for federal assistance, the application stated in pertinent part:

"Never before has a city or state been faced with such a massive, human caused disaster. On April 19, 1995, at 9:02 a.m., the Alfred P. Murrah Federal Building was bombed. It is estimated 646 individuals were in the building at the time of the explosion. 168 died and approximately 700, in the building and surrounding area, individuals were injured....

Not only was there " great damage to physical structures, the bombing had a great emotional impact on all citizens of Oklahoma. Individuals who were killed in the bombing or who were in the blast area at the time of the bombing reside in six central Oklahoma counties, which surround the Oklahoma City metropolitan area, however, most of these individuals reside in Oklahoma County, the county in which Oklahoma City is located. Family members of the victims, injured and survivors are from throughout the state of Oklahoma and the nation. Many of these individuals immediately came to Oklahoma City in search of their loved ones.

"It is difficult to live in the State of Oklahoma and not know someone who was killed, injured and/or at the bombing site when the explosion occurred.(See Map 2 on page 7 for a visual description of the State of Oklahoma.) In addition, fire fighters, police, emergency services workers, National Guard, mental health, and other rescue workers came from throughout Oklahoma and the nation to assist in the rescue effort. These individuals saw a great deal of death and destruction, and now have returned to their home communities

. . .

"Even those who had no connection to the site or to those who died or were injured, were significantly exposed to the trauma through the media and the near total preoccupation with the event and its aftermath. Local media focused exclusively on the bombing for weeks following the incident, thus exposure was so pervasive throughout the days and weeks that followed.

(Alfred P. Murrah Federal Building Bombing Crisis Counseling Regular Service program Application at pages 3 - 5 (Exhibit "Q").

__________________

A very small sample, list and description, of articles concerning victim impact from the Daily Oklahoman, Lawton Constitution and Tulsa World are attached hereto as Exhibits "R", "S", and "T", respectively.

Counsel for Timothy * does not presume to speak for the victims, but has tried to be ever mindful of them. Counsel submits it would be a greater disservice to them to have a trial that risks reversal because of the denial of the request for change of venue than it would be to have no trial at all. Surely a trial site can be selected which will allow attendance of witnesses and interested parties but which will not do violence to Timothy *'s due process rights. The Lawton/Mangum Division is not such a venue.

F. RESULTS OF PUBLIC OPINION POLL

The results of the public opinion poll conducted by Dr. Kent Tedin and Dr. Richard Murray of the University of Houston demonstrate that the impact of the publicity previously described upon the people of Oklahoma has been profound. Dr. Tedin conducted a survey of potential jurors from the Lawton/Mangum Division, Denver, Colorado, Kansas City, Kansas, and Albuquerque, New Mexico. 400 respondents were interviewed from each of these venues.

The survey indicates a very distinct, definable difference between people in Oklahoma and people in other parts of the country. Potential jurors in Oklahoma are far more knowledgeable about the facts of the case, have paid much closer attention to the publicity concerning the case, and have a much higher degree of confidence in their opinions about the case. People in Oklahoma are far more likely to have taken direct action in an effort to help the victims of the offense. (Exhibit "B", page 13).

Specifically, over 80% of Lawton area residents could, without prompting, recall the names of one or both defendants. Less than one half of the respondents in the out-of-state venues could recall the names of either defendant. (Exhibit "B", page 17). There was a far greater personal impact of the Oklahoma City bombing on Lawton District potential jurors than there was to the venues out-of-state. 70% of the potential Lawton/Mangum jurors knew or had family or friends who knew someone killed or injured in the bombing, compared with 36% in Denver, 37% in Kansas City, and 28% in Albuquerque. (Exhibit "B", page 13). 52% of the Lawton/Mangum respondents made a financial contribution, gave supplies, or blood to victims of the bombing. This compares to 24% in Denver, 38% in Kansas City, and 28% in Albuquerque.

Respondents in the Lawton area are more likely to have formed an opinion about the guilt of Timothy * than are those from out-of-state venues. 44% in Lawton have formed an opinion, compared to 40% ln Denver, 37% in Kansas City, 39% in Albuquerque. 96% of those with an opinion in Lawton believe that * is guilty. (Exhibit "B., page 6). While the percentage of people that believe * is guilty is not dramatically higher in Lawton, the intensity with which that opinion is held is dramatically higher there. In Lawton, over half of those with an opinion about *'s's guilt are absolutely confident in their opinion. By contrast, just 18% of those with an opinion in Denver, and 23 % in Kansas City expressed absolute confidence in their opinion. Albuquerque was the closest to the Lawton sample, with 44% rating their opinion of *'s guilt as absolute. (Exhibit 'B", page 7).

The impossibility of obtaining a fair trial in the Lawton/Mangum Division is best demonstrated by examining the disqualifying factors combined. 70% of the potential Lawton/Mangum jurors made a financial or personal contribution to the victims of the bombing, or knew or had family or friends who knew someone killed or injured in the bombing. Of the 30% who did not fit into that category, 42% had formed an opinion that * was guilty. Thus, a total of 82% of the potential jurors in the Lawton/Mangum Division indicated that they had one of these close personal connections to the case or had formed an opinion that * was guilty. (Exhibit "B", fn. 8, page 14). This set of circumstances led Dr. Tedin and Dr. Murray to reasonably conclude that a fair and impartial jury cannot be impaneled in the Lawton/Mangum Division.

III. THE STANDARD FOR CHANGE OF VENUE

A. PRESUMED PREJUDICE

The Sixth Amendment to the United States Constitution guarantees to the accused a public trial by an impartial jury. The Fifth Amendment guarantees that no man shall be deprived of life, liberty, or property, without due process of law. That these bedrock principles must govern justice in a "free society" is beyond question. They will have far less meaning, however, if they are not applied to transfer venue outside the State of Oklahoma in the case of United States of America v. Timothy *.

The Supreme Court of the United States has given practical meaning and definition to these Constitutional provisions in the landmark decisions of Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639 (1961), Rideau v. State of Louisiana, 373 U.S. 723, 83 S.Ct. 1417 (1963), and Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. l507 (1966). An examination of these decisions is the necessary starting place for a meaningful determination of venue. The facts of those cases will be set forth here in some detail, because they have striking similarities to the facts of this case. Collectively, these constitutional decisions recognize that when there has been pervasive media coverage concerning a case which has the effect of establishing the guilt of the accused, or when a community has been so inflamed that there is a reasonable likelihood a fair trial cannot be obtained, prejudice must be presumed. The instant case falls squarely within both of those descriptions.

In Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639 (1961), Lesli Irvin had been convicted of murder and sentenced to death in the Circuit Court of Gibson County, Indiana. Irvin's conviction and death sentence had occurred in the wane of six murders committed in the vicinity of Evansville, Indiana, during 1954 and 1955. The defendant's motion for change of venue from Vandenburg County was granted, but the case was transferred to the adjoining county of Gibson. Irvin's motion for change of venue out of Gibson County was denied.

The adverse publicity in the six to seven months preceding the trial was overwhelming. Headlines announced Irvin's police lineup identification, polygraph examinations, his confession to six murders and indictment for four of them in Indiana. The newspapers reported Irvin's offer to plead guilty in exchange for a ninety-nine year sentence, but also the determination of the prosecutor to secure the death penalty against him.

As a result of this pervasive coverage, 90% of the prospective jurors examined entertained an opinion as to Irvin's guilt. Before the case began, eight out of the twelve jurors that heard the case indicated they thought that Irvin was guilty.

The United States Supreme Court determined that the trial judge's findings of juror impartiality constituted manifest error.

In defining the parameters of the constitutional rights to a fair trial and an impartial jury the Supreme Court cautioned that it is not required that jurors be totally ignorant of facts or issues. The Court recognized that "modern" methods of communication make it inevitable that potential jurors will have formed some impression concerning a highly publicized criminal case:

To hold that the mere existence of any preconceived notion as to the guilt or

innocence of an accused, without more, is sufficient to rebut the presumption of a

prospective juror's impartiality would be to establish an impossible standard. It is

sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.

Id. at 723, 724.

With that caveat the Court articulated the Constitutional provisions which must guide the

inquiry:

In essence, the Right to Jury Trial guarantees to the criminally accused a fair trial by a panel of impartial, "indifferent jurors. The failure to accord an accused a fair hearing violates even the minimal standards of due process....In the language of Lord Coke, a juror must be as "indifferent as he stands unsworn". Co. Litt. 155b. His verdict must be based upon the evidence developed at the trial....This is true, regardless of the heinousness of the crime charged, the apparent guilt of the offender or the station of life which he occupies.

Id. At 722.

As to juror assurances of impartiality, the Court recognized that while heartfelt and well

intentioned, they cannot be taken as dispositive:

No doubt, each juror was sincere when he said that he would be fair and impartial to petitioner, but psychological impact requiring such a declaration before one's fellows is often its father.

Id. at 728.

Justice Frankfurter in concurrence noted that under our system of justice the prosecution has the burden of establishing guilt through evidence in court, under circumstances which assure a fair procedure:

These rudimentary conditions for determining guilt are inevitably wanting if the jury which is to sit in judgement of a fellow human being comes to its task with its mind ineradicably poisoned against him. How can fallible men and women reach a disinterested verdict based exclusively on what they heard in court when, before they entered the jury box, their minds were saturated by press and radio for months preceding by matter designed to establish the guilt of the accused. A conviction so secured obviously constitutes a denial of due process of law in its most rudimentary conception.

Id. at 729, 730 (Frankfurter, J., concurring).

In Rideau v. State of Louisiana, 373 U.S: 723, 83 S.Ct. 1417 (1963), Wilburt Rideau was

convicted and sentenced to death to Calcasieu Parish, Louisiana, for the murder of a bank employee in Lake Charles. On February 16, 1961, a bank in Lake Charles was robbed, and the perpetrator kidnaped three of the bank employees and killed one of them. Within hours Wilburt Rideau was apprehended by the police and placed in jail. The next morning, a local television station broadcast video tape confession lasting twenty minutes depicting interrogation by the sheriff and admissions by Rideau that he had committed the robbery, kidnaping, and murder.

Rideau moved for a change of venue on the grounds that to proceed to trial in the parish after the broadcast would deprive him of the right to a fair trial. Three of the members of the jury which heard the case indicated in voir dire that they had seen the televised confession.

In reversing Rideau's conviction, the Supreme Court did not examine the transcript of voir dire proceedings. The Court held that the question of who originally initiated the "devised interview was basically irrelevant." The Court stated:

The record shows that such a thing as this never took place before in Calcasieu Parish, Louisiana. Whether it has occurred elsewhere, we do not know. But we do not hesitate to hold without pausing to examine a particularized transcript of the voir dire examination of the members of the jury, that due process of law in this case required a trial before a jury drawn from a community of people who had not seen and heard Rideau's televised "interview". "Due process of law, preserved for all by our Constitution, commands that no such practice as that disclosed by this record shall send any accused to his death.", Chambers v. Florida 309 U.S. 227,241,60 S.Ct.472,479, 84 L.Ed. 716.

Id. at 727.

The Supreme Court made this decision cognizant of the fact that only three members of the jury had seen the televised interview two months before the trial. Moreover, all of the jurors declared that they would give to the defendant the presumption of innocence and set aside anything that they might have heard, seen or read about the case. Id. at 732 (Clark, J., dissenting).

Rideau teaches that some communities cannot serve as the venue for a trial in a manner consistent with due process, no matter what the percentage of prior exposure or assurance of impartiality revealed by the voir dire. The Rideau Court did not require a showing of actual prejudice or a nexus between the televised confession and the trial.

Sheppard v. Maxwell. 384 U.S. 333, 86 S.Ct. 1507 (1966) is not so much a case about a trial as it is a case about a travesty. Dr. Sam Sheppard was convicted in 1954 in Cuyahoga County, Ohio, of the second degree murder of his wife. Samuel Sheppard's pregnant wife had been bludgeoned to death in the upstairs bedroom of Sheppard's home in a suburb of Cleveland, Ohio, on July 4, 1954. Sheppard was a suspect from the outset. Police made statements to the press concerning scientific evidence linking Sheppard to the crime which was never introduced at trial. Sheppard himself made many public statements to the press and wrote feature articles asserting his innocence. A number of articles calculated to evoke sympathy for Sheppard were printed together with news coverage which was unfavorable to Sheppard.

Newspaper reporters and representatives of wire services were given seats within the bar of the court. The jurors were not sequestered, were not directed to refrain from absorbing media accounts of the case, and their pictures were published in the local newspapers. Their identities were widely known and jurors that heard the case received correspondence from friends and anonymous sources concerning the case. Defense Counsel's motions for Change of Venue and Continuance were denied.

The Supreme Court had no difficulty in finding that this circus deprived Sarn Sheppard of liberty without due process of law. The principles enunciated by the Court are still applicable today:

Due process requires that the accused receive a trial by an impartial jury free from outside influences. Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to insure that the balance is never weighed against the accused. And appellate tribunals have the duty to make an independent evaluation of the circumstances. Of course, there is nothing that prescribes the press from reporting events that transpire in the courtroom. But where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial. the judge should continue the case until the threat abates, or transfer it to another county not so permeated with publicity...But we must remember that reversals are but palliatives: the cure lies in those remedial measures that will prevent the prejudice at its inception.

Sheppard v. Maxwell, 384 U.S. at 362, 363. (emphasis is supplied).

Read together, these cases establish the following principles:

1. Pretrial publicity concerning a criminal prosecution can so infect the ability of prospective jurors to be impartial that the courts must conclude, in advance of trial, that the accused cannot obtain a fair trial.

2. Pretrial publicity is presumptively prejudicial to an accused's right to a fair trial when one or more of these factors is present:

(a) There is repeated and extensive reporting of evidence of the accused's guilt. Irvin, Sheppard.

(b) Most of the members of the jury pool are exposed to what appears to be indisputable evidence of guilt. Irvin, Rideau.

(c) The reporting appears to account for all of the evidence of guilt or innocence and points toward guilt. Sheppard.

3. In addition, as Mr. * further demonstrates in the next section of his argument, in cases in which there is considerable public passion concerning the crime, the danger is the greatest that pretrial publicity which creates the impression that the accused is guilty will compromise the fairness of the trial. See also Irvin; Rideau; Sheppard.

B. IMPACT UPON THE COMMUNITY

In Coleman v. Kemp, 778 F.2d 1487 (11th Cir. 1985) the Court recognized that the combination of pre-trial publicity and an inflamed community atmosphere could lead to a presumption of prejudice requiring a change of venue.

Coleman had been convicted of first degree murder and sentenced to death in Seminole County, Georgia. Six members of the Alday family had been murdered in their mobile home in Donalsonville, Georgia, under tragic circumstances. The community was outraged and publicity concerning the case was extensive. It included front page articles that identified the defendant and displayed his mug shot. The mayor of Donalsonville requested that businesses close during the funeral to show respect for the victims' family. Articles stated that the defendant had confessed to the crime. There were editorials which stated that the members of the community were angry about the crime, but they wanted to insure that the men charged were the men guilty, and they were capable of rendering a fair decision. Law enforcement officers announced that circumstantial evidence against the suspects was "overpowering". The press revealed that the suspect's fingerprints had been found at the scene of the crime. There was widespread publicity about the horrible manner in which Coleman had murdered the six Alday family members. There were characterizations of the defendant as smirking and remorseless. The fact that the family wanted the death penalty pervaded the community. The county was a small one in which the victims' family was well known and respected, and several of the jurors knew the family.

The United States Court of Appeals for the 11th Circuit granted Coleman's petition for a Writ of Habeas Corpus and reversed his conviction. The Court explained:

The description of the publicity set out earlier in this opinion leaves no doubt but that this small community was overwhelmed and saturated with prejudicial and inflammatory publicity. The showing made by petitioner Coleman in the instant case equals that made in Rideau. As summarized above, the press saturated the community with overwhelming evidence of Coleman's guilt. The explicit details of the inculpatory and eye witness testimony of Coleman's own half-brother, Billy, together with the other publicity in this case, approaches the prejudicial impact of the televised confession in Rideau. In some respects, the instant conviction is even more vulnerable than Rideau. Many of the widely publicized facts were not admissible at Coleman's trial, e.g., his confession to the murder of the Pennsylvania youth, and the fact that he was an escaped convict and his participation in a crime spree along the eastern seaboard....

In addition, Seminole County's population of 7,000 was much smaller than the Calcasieu parish population of 150,000, the significance of which is magnified by the evidence of the community's and the jury's friendship and sympathy for the victims and their family.

Id. at 1540, 1541.

Except for Coleman, we have been unable to find any other case in which the victims of a crime have been so connected to the entire community from which the jury was drawn that every member of the community can be said to have experienced a personal loss because of the crime. In Coleman, the Court recognized that in such a rare case, the relationships between prospective jurors and the victims heighten the prejudicial effects of pervasive, prejudicial pretrial publicity. In such a case, every dimension of the prospective jurors' judgment may be so colored by the pretrial publicity that there is an unacceptable risk that the accused cannot obtain a fair trial.

The rationale of Coleman applies squarely to Mr. *'s circumstances. In Mr. *'s case, the entire State of Oklahoma is the equivalent, for purposes of assessing the impact of prospective jurors' relationships to the victims, of the community of Donalsonville. See e.g. the federal grant application of the Oklahoma Department of Mental Health and Substance Abuse Services, supra ("[i]t is difficult to live in the State of Oklahoma and not know someone who was killed, injured, and/or at the bombing site when the explosion occurred").

That the Eleventh Circuit's analysis in Coleman is correct in a case of this sort is confirmed by analogy to the grounds for cause challenges to prospective jurors. The very beginnings of the criminal justice system articulated the theory behind a challenge for cause. A person "may declare that he feels no prejudice in the case; and yet the law cautious incapacitates him from serving on the jury because it suspects prejudice, because in general persons in a similar situation would feel prejudice. United States v. Burr, 25 Fed.Cas. 49, 50 (#14692g)(C.C.Va. 1807). At common law, jurors were challenged for cause due to relationship with the parties, interest, former jury service in the same cause, or because the prospective juror was a master, servant, counselor, steward or attorney, or of the same society or corporation as a party. These common law grounds for causal challenge retain their vitality and have been expanded. United States v. Haynes, 398 F.2d 980, 984 (2d Cir. 1968).

Since we "suspect [] prejudice, United States v. Burr. supra, in jurors who have a personal relationship with victims - and therefore allow challenges for cause to such jurors when they are called during jury selection - why should the rule of law be different when there is evidence that nearly all the members of a jury pool have a personal relationship with the victims of a crime? Challenges for cause and changes of venue are rooted in the same soil. Both are prophylactic steps taken to assure against the risk of a partial or biased jury. Accordingly, if all or nearly all the members of a jury pool have personal relationships with the victims of a crime, venue should be changed.

Here, according to the public opinion survey by Dr. Tedin and Dr. Murray, nearly 80% of the Lawton area respondents would qualify for cause challenges. There can be no better measure, in advance of trial, that the relationships between prospective jurors and victims demands a change of venue.

C. THE STANDARD UNDER RULE 21(a)

In Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171 (1959), the Supreme Court reversed Howard Marshall's conviction for dispensing prescription drugs without a license. During his trial, seven of the twelve jurors read or scanned newspaper articles which detailed Marshall's previous felony convictions for practicing medicine without a license. The Supreme Court ordered that a new trial must be granted in spite of juror assurances that they would not be influenced by the news articles and could decide the case on the evidence. The Court decided the case on the basis of its authority to federal criminal proceedings, not on the basis of the due process clause of the Fifth Amendment:

In the exercise of our supervisory powers to formulate and apply proper standards for enforcement of the criminal law in the federal courts (Bruno v. United States, 303 U.S. 287,60 S.Ct.198, 84 L.Ed. 257; McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819) we think a new trial should be granted.

Reversed.

Id, 360 U.S. at 313.

In his dissent in Rideau v. Louisiana, Justice Clark articulated the difference between the federal supervisory standard and the due process standard for assuring a fair trial. Justice Clark's statement makes clear that the federal supervisory standard may require remedial action even when the constitutional standard does not:

At the outset, two matters should be clearly established. First, I do not believe it within the province of law enforcement officers actively to cooperate in activities which tend to make more difficult the achievement of impartial justice. Therefore, if this case arose in a federal court over which we exercise supervisory powers. I would vote to reverse the judgment before Cf. Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250

(1959). It goes without saying. however. that there is a very significant difference between matters within the scope of our supervisory powers and matters which reach the

level of constitutional dimension.

Rideau v. Louisiana, 373 U.S. at 728, 729 (Clark, I., dissenting) (emphasis supplied).

Federal Courts have repeatedly recognized the lesser showing of prejudice to require a change of venue in federal cases. In United States v. McNeill, 728 F.2d 5, 9 n.5, (1st Cir. 1984) the Court stated:

In the exercise of our supervisory powers over the federal district courts, we may

make a finding of juror bias on a lesser showing of prejudice than would be required under the constitutional standard applicable to state courts. See Murphy v. Florida, 421

U.S. 797-803, 95 S.Ct. 2034-2037; Marshall v. United States, 360 U.S. 310, 313, 79 S.Ct. 1171, 1173, 3 L.Ed.2d 1250 (1959) (per curium).

The federal district courts have applied the less stringent standard for charge of venue and granted transfers in a number of cases prior to an attempt to seat a jury. Because these cases also bear striking similarities to the instant case, many of their facts will be detailed here. Collectively, these decisions establish that in a federal case Rule 21(a) requires a transfer upon a showing much less compelling than the showing made by Timothy *. Even in cases which have attracted national publicity, it is not enough to shrug off the transfer request and say it matters not. The impact of the publicity upon the local community must be examined. Factors considered include whether government agents have been responsible for prejudicial reports (thus giving them credence) and the amount of investigative reporting undertaken by the media (evidencing local interest). Juror assurances of impartiality mean little when daily news repeatedly describes the "facts" of the case.

In United States v. Moody, 762 F.Supp. 1485 (N.D. Ga. 1991), Walter LeRoy Moody was charged in a 72 count superseding indictment with the 1989 mail bomb deaths of 11th Circuit Court of Appeals Judge Robert Vance and civil rights attorney, Robert E. Robinson. The case received national media attention, including extensive coverage in the New York Times. The return of the indictment was announced in Washington, D.C., by Attorney General Dick Thornburg and F.B.I. Director William S. Sessions. The investigation had taken eleven months and federal agents spent more than 140,000 hours in their work. Moody presented four hundred fifty-eight representative news articles about him and his case that were printed in twelve newspapers published in the Northern District of Georgia. Id; 762 F.Supp. 1488 at n.3. The evidence in support of the motion for change of venue included statements from federal law enforcement officials indicating that the case against Moody was strong. The Court determined "that there has been inordinate, widespread, and prejudicial publicity concerning this case and that government agents had been responsible for much of it." Id, at 1490. ln determining that the Motion for Change of Venue should be granted the Court relied upon Pamplin v. Masson, 364 F.2d 1 (5th Cir. 1966). In Pamplin the Court held:

As we read the Supreme Court cases, the test is: Where outside influences affecting the community's climate of opinion as to a defendant are inherently suspect, the resulting probability of unfairness requires suitable safeguards, such as change of venue, to assure a fair and impartial trial.

Id. 364 F. 2d at 5.

The Moody Court relied upon Pamplin, Marshall v. United States, and the A.B.A. standards for criminal justice to formulate the standard for determination of a motion for change of venue in a federal prosecution court:

The Court interprets the above authorities to require that a Motion for Change of Venue be granted whenever: (1) the Court is satisfied of the existence of great prejudice; (2) outside influences affecting the community's opinion as to the defendant are "inherently suspect"; (3) there is ·reasonable likelihood that prejudicial news prior to trial will prevent a fair trial.; or (4) there is "substantial likelihood" a fair trial cannot be had in the absence of transfer.

Id. at 1487.

The Court found further support for a venue transfer under the federal judiciary's exercise of its supervisory powers. The Court stated that the supervisory power in administration of the federal criminal laws provides "an even more exacting fairness standard on this issue". Id. at 1490. (emphasis supplied).

Ultimately the Court determined that a Change of Venue was appropriate under both standards because Moody had demonstrated a reasonable likelihood that prejudicial news prior to trial would prevent a fair trial (the Due Process standard) and had also made a strong showing under the Court's supervisory standard that he was entitled to a change of venue. Id. at 1490.

In granting the change of venue the Court determined that the case should be transferred well outside the normal range of Atlanta media coverage in order to obtain jurors least influenced by the adverse publicity. The Court also recognized that a venue change is usually more effective if it is transferred to a more, rather than less, metropolitan community because a big case in a small town quickly becomes a "cause celebre" and the focus for even more publicity. See United States v. Chapin, 515 F.2d 1274, 1288 (D.C. Cir. 1975), cert. denied, 423 U.S. 1015, 96 S.Ct. 449, 460 L.Ed.2d 387 (1975). Convenience is also a factor and the Court determined the availability of non-stop plane flights between the two districts was appropriate. Also considered were security and a convenient place for lodging the defendant and witnesses in custody and a place where United States Court facilities were readily available. Id at 1491. The case was transferred from the Northern District of Georgia to the District of Minnesota in St. Paul in the Eighth Circuit.

In United States v. Abrahams, 453 F. Supp. 749 0). Mass. 1978), Alan H. Abrahams was charged with a violation of 18 U.S.C. §1001 in submitting a false affidavit to a magistrate. In support of his Motion for Change of Venue, Abrahams submitted an Affidavit with 78 photocopied pages of articles from Boston Newspapers concerning the case. The record was replete with statements concerning Abrahams' record of convictions and arrests, and there were zealous attempts by the media to arouse the community against him.

At the hearing on the motion for change of venue, the defendant introduced voluminous newspaper articles concerning the case. The bulk of the articles were drawn from the Boston Globe and the Boston Herald American which were the two major metropolitan daily newspapers in Boston with a huge circulation in most of eastern Massachusetts. Articles were also submitted from the New York Times, the Wall Street Journal, the Tampa (Florida) Tribune, and Time magazine. There were also stories which emanated from wire services for distribution and publication in newspapers throughout the rest of the nation. The defendant also submitted 38 pages of broadcast transcripts from local T.V. news. The record was replete with pejorative characterizations of the defendant and descriptions of the evidence against him, which present the greatest hazards to a fair trial. Id at 753. The Court determined that the excessive pretrial publicity created in the District of Massachusetts an atmosphere of pervasive community prejudice so inflammatory as to "substantially reduce the reasonable likelihood of Abrahams attaining a fair trial before a panel of impartial jurors anywhere in the district. Id. at 753.

The Court also determined it would be impossible for Abrahams to receive a fair trial anywhere in Massachusetts, the northeastern section of the United States, New York, New Jersey, or Pennsylvania. The court declined the Government's invitation to grant a minor change of venue from Boston to Springfield. The Court transferred the case from the District of Massachusetts to the Western District of Texas in San Antonio in the Fifth Circuit as a forum where Abrahams could obtain a fair trial before jurors whose verdict would be based upon the evidence.

In United States v. Florio, 12 F.R.D. 296 (S.D. N.Y. 1952), Edward Florio had been charged in United States District Court for the Southern District of New York in connection with activities at the New York water front docks. The case received extensive publicity in part because the New York State Crime Commission was concurrently investigating conditions on the New York water front. Articles appeared on the morning set for jury selection which described Florio as a mobster and leader of a notorious organization known as the "Ed Florio Gang". Reference was made to the fact that Florio was an ex-convict. ln reference to the local nature of the publicity, the Court stated:

The issues which these newspaper articles discussed concerned a matter of peculiarly local interest. Public interest in the work of this commission was and is great and it is understandable that the newspapers of this city would endeavor to bring to the citizens of New York a full coverage of the activities and disclosures of that commission. It was also reasonable to assume that because of this great local interest, the amount of coverage which these matters received and the interest created by these articles in the New York area was far in excess of that accorded this subject elsewhere.

Id, 13 F.R.D. 296 at 298.

The Court granted the defendant's Motion for a Change of Venue pursuant to the provisions of Rule 21(a) and transferred the case to the District of Columbia for trial. The Court granted the Motion for Change of Venue because the publicity had been intense, critically timed, and indubitably prejudicial. The Court granted the Motion in order to prevent subsequent questions concerning the fairness of the proceeding.

In United States v. Tokars, 839 F.Supp. 1578 (N.D. Ga. 1993) the Court undertook a detailed analysis of the due process standard for change of venue and compared it to the standard required under the Supreme Court's supervisory power. In Tokars, the defendant was charged with racketeering, money laundering, drug conspiracy, and various acts of violence including an interstate telephone call to procure the murder of his wife. The case received widespread media coverage in the local newspapers and television reports. Stories concerning the case numbered in the thousands.

Tokars filed a Motion for Change of Venue pursuant to the provisions of Rule 21(a) of the Federal Rules of Criminal Procedure. The magistrate judge conducted a hearing upon that motion and found that while the publicity in the case had been pervasive, the great majority of the reporting had been essentially factual and "is not of the type necessary to support a Change of Venue. The District Court rejected the magistrate's suggestion and granted the defendant's motion. The Court determined that one of the unusual aspects of the case was the large amount of investigative reporting which was undertaken by the local media, the vast majority of which was quite negative to the defendant. The Court indicated it was not clear whether or to what extent various allegations which surfaced in the reports would be reflected in the Government's evidence at trial. Using a quantitative approach only, the Court determined that the magistrate judge was correct in finding that the great bulk of the pre-trial publicity had been factual:

However, combining the extraordinary volume of coverage (virtually all of which

is highly negative to the defendants) with the emotional nature of some of the coverage,

one may infer that a widespread bias exists which could interfere with a fair trial.

Id. At 1582.

The District Court noted that the defendant's own poll revealed that at least 30% of the citizens in the district had no opinion whatsoever about the case. There were a sufficient number of unbiased jurors in the district from which to select a jury panel. The Court noted that the difficult task would be in ascertaining which jurors were in fact unbiased, and the difficulty that prospective jurors would have in subduing subconscious recollection of news coverage. The Court found that the defendant had made a sufficient showing that prejudice should be presumed and that a change of venue was constitutionally mandated.

The Court also held that the federal standard for change of venue had been met:

Turning to an alternative analysis of the Motions for change of venue under the principles of the Marshall case, the Court similarly finds that a change of venue should be granted. The decision on this basis is not a close one. Given the extraordinary degree of pre- trial publicity, the difficulty of identifying truly unbiased jurors, the inconvenience of rescheduling the trial should voir dire prove unsuccessful in identifying unbiased jurors, and the availability of a relatively convenient, suitable alternative venue in Birmingham, Alabama the Court finds that change of venue prior to attempting jury selection is clearly warranted.

Id. At 1584.

In United States v. Ingleman. 489 F.Supp. 48 (E.D. Mo. 1980), Glennon E. Ingleman faced federal charges of damaging a vehicle is interstate commerce by means of an explosive. The case received widespread media attention in the greater St. Louis metropolitan area and during an evening newscast, a St. Louis County Prosecutor indicated that the press release of a key witness' statement would not hurt the government's case. The evidence indicated saturation coverage by the St. Louis media concerning the case. In determining that the defendant's motion for change of venue pursuant to Rule 21(a) should be granted the Court stated:

The trial judge has a non-delegable responsibility under Rule 21 of the Federal Rules of Criminal Procedure and the United States Constitution to insure that a defendant receive a fair and impartial trial.

Id at 49.

The Government argued that the defendant's motion was premature and urged that the decision could be made at the time of voir dire. The Court rejected the Government's argument, and held that massive publicity may diminish the efficacy of voir dire in screening prospective jurors. The Court noted that there were major logistical problems concerning hotel accommodations, transportation and lodging for witnesses, attorneys, and staff. The Court noted that to await voir dire would require summoning hundreds of qualified venireman for a panel which in all likelihood would not be used. Change of venue during voir dire would immeasurably increase the burden, expense and inconvenience on all parties concerned and would result in unacceptable delay. The Court ordered the case transferred from the Eastern District of Missouri at St. Louis to the District of Minnesota.

One of the articles the Court found to be extremely prejudicial included a story in the St. Louis Globe Democrat which quoted the St. Louis Prosecutor, Circuit Attorney Peach. The headline read, "Peach Says He'll Seek Death Penalty Against Ingleman In Bombing". Other headlines that the Court relied upon which have almost uncanny parallels include: "Ingleman Pleads Innocent of Bombing and Conspiracy". The article quoted a U.S. Attorney as stating that one of the witnesses in the case had been granted immunity. Another article was entitled "Widow Tells of Plot to Kill Halm". This article detailed the reason the Government had been willing to cut a deal with an informant.

ln United States v. Holder, 399 F.Supp. 320(D.S.D. 1975) the defendants were charged with federal offenses arising out of the "Wounded Knee takeover" on the Pine Ridge Indian Reservation in South Dakota during the spring of 1973. In support of their motion for change of venue the defendants submitted survey data and evidence of massive publicity surrounding the incident. The defendants demonstrated that there was a deeply felt prejudice toward Indians which was reinforced by the Wounded Knee incident.

The Court granted the defendants' motion without a hearing. The Court determined that the documentary evidence established there was "a reasonable likelihood of impairing the defendants" rights to a fair trial on the charges now outstanding against them in connection with the Wounded Knee takeover". Id. at 328. The Court transferred the case to the United States District Court for the Northern District of Iowa as a venue where the defendants might obtain a fair trial. The Court held that the due process right to a fair trial which inures to the benefit of an accused in a federal trial through the Fifth Amendment required a venue transfer, even prior to voir dire and the attempt to select a jury. The Court relied in part upon United States v. Marcello, 280 F.Supp. 510 (E.D. La. 1968), affirmed 423 F.2d 993 (5th Cir. 1970), cert. denied, 398 U.S. 959, 90 S.Ct. 2172, 26 L.Ed.2d 543 (1970).

In Marcello, the defendant was charged with forcibly assaulting and intimidating an F.B.I. agent in New Orleans. Prior to trial there had been an avalanche of publicity in the New Orleans area which described Carlos Marcello as the leader of the Cosa Nostra or Mafia in Louisiana. There was also a photograph accompanying an article which depicted the defendant striking an F.B.I. agent.

In granting defendant's motion for change of venue prior to an attempt to select a jury, the Court carefully analyzed the provisions of Rule 21(a) and the discretion of the trial court. The Court stated:

It could hardly be suggested that the vital constitutional right to a fair and impartial trial hinges upon the discretion of a trial judge. This should demonstrably illustrate the difference. The rule is preventive. It is anticipatory. It is not solely curative as is a post conviction constitutional attack. Thus, the rule evokes foresight, always a more precious gift than hindsight, and for this reason the same certainty which warrants the reversal of the conviction will not always accompany the change of venue. Succinctly, then, it is the well grounded " that the defendant will not receive a fair and impartial trial which warrants the application of the rule. Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965).

Id at 513.

The Court noted that when publicity had begun to subside the community's interest in the case was revived and revitalized by an article appearing in Life magazine. The Court recognized that Life magazine had a national circulation, but determined that trial in another state was appropriate nonetheless. The Court recognized that "the articles primarily concerned with Marcello were not read in most other states with as much interest, or with the same effect, as here in Louisiana." Id. at 517.

There have been a number of other federal court decisions which have granted Change of Venue under the provisions of Rule 21(a) without much discussion. For example, in United States v Borders, 693 F.2d 1318 (11th Cir. 1982), the defendant's case for unlawfully traveling in interstate commerce with intent to commit bribery was transferred from the Southern District of Florida to the Northern District of Georgia. Id. at 1319. In United States v. Mazzei, 400 P. Supp. 17 (W.D. Pa. 197S), the Court ordered a transfer of venue under the provisions of Rule 21(a) because of adverse pre-trial publicity received by the defendant who was a former member of the senate of Pennsylvania. The Court determined that the case must be transferred to a district outside of Pennsylvania and set the trial at the United States District Court for the District of Delaware. Id. at 20. In Brinlee v. United States, 496 F.2d 351 (8th Cir. 1974), Garland Rex Brinlee was originally charged in the Northern District of Oklahoma with carrying an explosive during the commission of a felony in violation of 18 U.S.C. § 844(h). Subsequent to indictment the action was transferred from Tulsa, Oklahoma, to Bismark, North Dakota, for trial because of the extensive publicity the case had received in Oklahoma. Id. at 353.

IV. APPLICATION OF THE LAW TO THE FACTS Each of the factors which warranted a finding of presumed prejudice in Irvin, Rideau, and Sheppard,, are present in the instant case to a degree previously unsurpassed.

The volume, frequency, and impact of the reports concerning Timothy * simply cannot be denied. Articles in the state's two largest newspapers and in the primary newspaper in the chosen division, have extensively reported Timothy *'s identification by eyewitnesses, his purported plans to conduct other bombings, the physical evidence linking him to the crime, and the statements of his "closest friend" and "confederate" that he had cased the building well in advance of the bombing. Oklahoma jurors have been told that Timothy * was aware of the day care center in the Murrah Building but was unmoved because he had declared war upon the federal government. These statements are given credence because they have been announced by senior justice department officials in Washington and federal officials speaking on condition of anonymity. The governor of the state has declared that the evidence against * is strong, and that sentiment has been echoed by the deputy attorney general of the United States. How can an Oklahoma jury decide this case on the basis of evidence presented in court when they have been exposed repeatedly and continuously to information that ineluctably points to Mr. *'s guilt and that gives the impression that there is no doubt about it.

The prejudicial effect of the flood of published reports that point to Mr. *'s guilt is made far worse by the nature of the offense and the relationships between the people of Oklahoma and the victims. The bombing of the Murrah Building has evoked the deepest pain, the fiercest anger, and the greatest need for retribution that any domestic act of violence has evolved in our nation's history. The power of these emotions is plainly greater in Oklahoma than anywhere else in the United States, because Oklahomans experienced the bombing in a variety of personal ways. Most of the Oklahomans surveyed by Dr. Tedin and Dr. Murray knew someone injured or killed in the bombing. The Governor of Oklahoma and the Oklahoma Department of Mental Health and Substance Abuse Services have determined that nearly everyone in Oklahoma knew someone killed or injured in the bombing. As Dr. Tedin also found, most Oklahomans (as represented by those living in the Lawton area) took some steps to help those injured or left behind - spiritual, through prayer and prayer services and memorial services --and material, through countless donations of money, food, clothing, blood, and time. Because of the intensity of their emotions and the personal relationships they had or felt or developed with the victims, Dr. Tedin also found that Oklahomans have a strikingly better knowledge of the reported facts about the crime and the persons accused of the crime than do persons outside Oklahoma. See Affidavit of Dr. Tedin, Exhibit "B".

These factors are critical to assessing the likelihood that Mr. * can obtain a fair trial in Oklahoma. The picture of Timothy *, the paranoid "drifter with extreme right-wing views", the "baby killer", looms larger than life before the people of the State of Oklahoma. They know his name and they know the evidence that the government says proves he committed the crime. These pejorative characterizations of * and descriptions of the evidence against him present the greatest hazards to a fair trial. United States v. Abraharns. 453 F.Supp. 749 (D.Mass. 1978).

Accordingly, the facts of this case are far more compelling than the facts which have provided basis for change of venue in other cases under Rule 21(a) and the court's supervisory power. The degree of national attention that has been given this case cannot be denied. The heightened degree of attention that the case has received within the State of Oklahoma is equally undeniable. The people of Oklahoma have lived this case differently than has the rest of the nation. The survey conducted by Dr. Tedin demonstrates the significantly heightened awareness about the facts of the case within the confines of the state. The local interest in the case cannot be questioned. In fact, at the press conference announcing the indictment the government declared that because of the interest held by the State of Oklahoma, seven counts of homicide would be reserved for state prosecution.

Massive publicity diminishes the efficacy of voir dire in screening prospective jurors. To await voir dire under such circumstances, creates an unacceptable risk that Mr. * will be tried before a partial jury and immeasurably increases the burden, expense, and inconvenience on all parties concerned, and in this case will lead to unacceptable delay. In order to obtain a fair trial, it may be necessary to move this case well outside the normal range of Oklahoma media coverage. A venue change is more effective if the case is transferred to a more, rather than a less, metropolitan community.

This case is rife with reasons that juror assurances of impartiality concerning the case cannot be trusted. Prospective jurors' minds have been saturated by press and television for months preceding the trial by matters designed to establish Timothy *'s guilt. Timothy * has established a direct nexus between the pre-trial publicity and the knowledge and attitudes that Oklahoma jurors have about the case. Most prospective jurors have, or have developed, relationships with victims that would disqualify them for cause.

In these circumstances, it is enough that there is a serious risk of an unfair trial. The Supreme Court has never required those seeking safeguards for the right to an impartial trial to demonstrate with certainty that their trial will be unfair in the absence of prophylactic measures. It has always been enough that the risk of a biased and unfair trial is present. As the Court explained in another case involving the intrusive influence of the media:

At times the procedure employed by the State involves such a probability that prejudice will result that it is deemed inherently lacking in due process. Such a case was In Re: Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed.2d 942 (1955), where Mr. Justice Black, for the Court, pointed up with his usual clarity and force:

"A fair trial in a fair tribunal is a basic requirement of due process. Fairness, of course, requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness....To perform its high function in the best way "justice must satisfy the appearance of justice".

Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13 (99 L.Ed. II) 'at 136 75 S.Ct. at 625. (emphasis supplied). And, as Chief Justice Taft said in Tumey v. State of Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749, almost thirty years before:

"The requirement of due process of law in judicial procedure is not satisfied by the argument that men of the highest honor and the greatest self-sacrifice could carry it on without danger of injustice. Every procedure which would offer a possible temptation to the average man...to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance, nice, clear, and true between the State and the accused denies the latter due process of law".

at 532, 47 S.Ct. at 444. (emphasis supplied). This rule was followed in Rideau, supra, and in Turner v. State of Louisiana. 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965)"

Estes v. Texas, 301 U.S. 532 at 542 and 543 (1967).

The rule of Estes is that the probability of unfairness and the possible temptation to the average man to forget the burden of proof implicate the provisions of due process. The probability of unfairness in the instant case arises as a result of the absolute saturation of the community of Oklahoma with inflammatory information about the case, and the perception of the community that the entire state is a victim of the offense.

V. CONCLUSION

The Court has directed that Counsel take into consideration the passage of time and the potential effect upon the need for a change of venue. It cannot be questioned that the one year anniversary of April 19, 1995, (less than one month prior to the scheduled trial date) will re-open and revitalize the wounds caused by the bombing. It cannot be questioned that each of the pre-trial stages of this proceeding will attract the interest of the local media and the people of Oklahoma.

There are numerous examples that the passage of time will not reduce the exposure of the jury pool to publicity, much of it biased, inaccurate, and unfair. On Sunday night, CNN presented a broadcast, "On the Road to Oklahoma", a full hour long program on Timothy * and Terry *. Alongside the detailed biography of Mr. * there was not one word that he had been honorably discharged from the service or that he had won the Army Commendation Medal twice and the Bronze Star. ABC News is preparing to broadcast a massive investigative report on the case as is the New York Times.

The fact that the City of Lawton is making major efforts to accommodate the media is just one indication of how much media interest there is which simply translates to public interest. Though there is nation wide interest in the case, no one can question there is more intensity and interest in Oklahoma than any place else.

Our request for polling outside the Tenth Circuit has not yet been approved. That should be approved now. No case law or statute requires this trial be held in the Tenth Circuit and the examples cited herein clearly demonstrate that a move outside the circuit is frequently granted. This brief cites only the reported cases of changes of venue. To deny us a meaningful change of venue to Denver, Kansas City, San Francisco or Charleston when similar changes of venue were granted in far less emotionally laden cases, with far fewer victims and public interest is simply not right.

Tim * is entitled to no less treatment than Leonard Peltier, Alan Abrahams, the Wounded Knee Defendants, Jimmy Hoffa, and Rex Brinlee. The granting of a meaningful change of venue is the true test on whether a fair trial will be granted. To try this case in Lawton is the equivalent to the right of effective assistance of counsel being granted to the Scottsboro Boys because the Judge appointed every member of the county bar association as the accused's counsel: a meaningless gesture to dress up a constitutional right.

This case should be moved to a large city outside of Oklahoma where there are adequate security arrangements already existing. A hastily built cell in a decades old small federal court house is an invitation to disaster. There should be easy access to major interstate highways and a nearby (same city) major airport. There should be adequate and competitive hotel accommodations so the rates are not raised just because every hotel room in the city will be full.'° There should be adequate facilities for the media (Lawson has one television station), the jury pool should be large enough and diverse enough to get a representative cross sample. The trial should be held at some time other than the peak of the major economic activity which will cause numerous prospective jurors to forego a willingness to serve. (Wheat harvest in Southwestern Oklahoma is in the first part of June.)

In short, objectively speaking, Lawton/Mangum would be one of the last places to consider holding the trial and not the first. It is too small, too influenced by prejudice, too unsafe and too inconvenient for everyone.

Our desire for a change of venue is not to disparage Lawton/Mangum. No city in Oklahoma, given the media impact and interest, and the painting and perception of the state as a victim, should host this trial. Counsel has tried more than half a dozen cases in Lawton and other areas in Southwestern Oklahoma with successful results including the defense of anti-Vietnam War protectors in Lawton at the site of Ft. Sill during the Vietnam War. The resourcefulness and patriotism of the "good people" of Lawton is not the issue.

A federal criminal trial, however, is not a vehicle to win or compete for the All American City Award or to boost the economy. This trial is a solemn judicial proceeding to determine the guilt or innocence of two defendants charged with a heinous crime without precedent in our history. Lawton is simply not the place to hold it, and neither is Oklahoma. If Oklahoma City is "chancy" as the court appropriately found, the reason it is "chancy" is not cured by an hour or so drive down

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10 Defendant's counsel has been notified that hotel room rates have been raised $15.00 per night despite reservations of 10 rooms for four months.

the H. E. Bailey Turnpike. The establishment of "Task Force 169" on the eve of the defendant's motion for change of venue could not better underscore the point.

ln order to prepare this brief, together with the exhibits and appendices, it was necessary for Counsel to stop collecting evidence of local coverage concerning the case, and prepare the evidence collected for presentation. At the hearing upon the Motion for Change of Venue, Counsel will submit the evidence of media coverage that has occurred in the interim. Counsel will also submit video tape of the local news broadcasts concerning the case, which demonstrate in a much more dramatic way the negative effect that such publicity must have. We will also introduce the testimony of Dr. Kent Tedin, the expert witness that conducted the public opinion survey.

Timothy * requests only a fair trial by impartial jurors. Counsel submits that the overwhelming evidence submitted with this brief demonstrates that prejudice should be presumed. In the event that finding is not made upon the moving papers, he prays for an evidentiary hearing which will allow him to submit the additional evidence described.

DATED this 21st day of November, 1995.

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