U.S. District Court for the District of Colorado
United States of America,
Plaintiff
v. No. 96-CR-68-M
Timothy James McVeigh and
Terry Lynn Nichols,
Defendants.
TERRY LYNN NICHOLS' MOTION TO COMPEL PRODUCTION OF OIG REPORTTerry Nichols moves the Court pursuant to Fed. R. Crim. Pro. 16 to compel immediate production of the O.I.G. report relating to practices at the F.B.I. laboratory.
At the pretrial hearing on January 29th when this issue was discussed, Mr. Hartzler assured the Court that he was reviewing the document for Brady material. See Tr. 1/29/97 at 71. But Mr. Nichols' entitlement to the OIG report goes beyond Brady. Under Rule 16, Mr. Nichols is entitled to the document if it is in the possession of the government and is "material to the preparation of the defendant's defense." Fed. R. Crim. Pro. 16(a)(1)(C). All a defendant must establish to demonstrate entitlement is to make a prima facia showing that "pretrial disclosure of the disputed evidence would have enabled the defendant significantly to alter the quantum of proof in his favor." Charles Alan Wright, Federal Practice and Procedure, Criminal 2d S 254 at 66-67 n. 21 (1982) (quoting United States v. Ross, 511 F.2d 757, 762-63 (5th Cir.), cert. denied, 423 U.S. 836 (1975)). See also United States v. NYNEX Corp., 781 F.Supp. 19 (D.C.D.C.1991) (government should interpret phrase "material to the preparation of defendant's defense" in discovery rule broadly to ensure fairness to defendant).
Mr. Nichols has a good faith belief that the report makes detailed conclusions about lax procedures at the F.B.I. lab. These dubious procedures were employed to analyze the evidence in this case. As a result of the report, three F.B.I. agents, one of whom was the principle examiner on this case, were transferred. See Exhibit A (David Johnson and Andrew C. Revkin, "Report Finds F.B.I. Lab Slipping From Pinnacle of Crime Fighting: Lax Procedures and Evidence Cited," New York Times, Jan. 29. 1997 at A1).
The defense is now preparing for Daubert hearings during which the very procedures used by the lab will be subject to Court scrutiny. In order to allow the adversary process to function and to allow the Court to make its best judgment about what expert evidence should be presented to a jury, it is not just material, but essential, that the defense have access to the Department of Justice's conclusions about shoddy lab procedures.
Mr. Hartzler, during the January 29, 1997 chambers discussion, suggested that since the defense has access to all the underlying interviews, there is no basis for turning over the full report. The basis is the following. For the past year, Mr. McVeigh's defense team and the Nichols defense team have fought tooth and nail to obtain information about careless procedures at the F.B.I. lab. Many of the allegations initially were made public by a courageous, (and now suspended) F.B.I. agent, Frederick Whitehurst. The prosecutors in this case have taken every opportunity to denigrate Mr. Whitehurst's character, his motives, and the nature of his allegations before this Court. The OIG investigated Mr. Whitehurst's allegations and found them to be corroborated by other witnesses. The OIG weighed competing testimony and concluded that the F.B.I. lab procedures could legitimately be questioned. To the extent that the OIG report criticizes lab procedures generally or procedures used in this case in specific, they are admissions by a party opponent that the Court could certainly consider in determining the Daubert challenges currently pending. In addition, the conclusions of the OIG may well corroborate the testimony of the defense's own expert witnesses.
For the foregoing reasons, Mr. Nichols respectfully requests that the Court order the United States to turn over forthwith the OIG report.
Respectfully submitted,
/s/ Reid Neureiter
Michael E. Tigar
Ronald G. Woods
N. Reid Neureiter
Adam Thurschwell
Jane B. Tigar
1120 Lincoln Street
Suite 1308
Denver, CO 80203
(303) 831-4059
FAX (303) 831-6232
Counsel for Mr. Nichols
National Association of Criminal Defense Lawyers (NACDL)