News Release ~ 03/12/1997

Congress Should Refrain from Meddling in Pending Criminal Cases

"Stealth" Bill Would Usurp Federal Courts' Role

Washington, DC (March 12, 1997) -- It is improper, unwise and unconstitutional for Congress to pass special legislation to try to preside over pending criminal trials from Capitol Hill, the nations's criminal defense bar told the House Judiciary Committee in a letter today (click here for letter), as the panel prepares to rush through legislation directed at reversing rulings of two courts in the celebrated Oklahoma City bombing trial.

The warning of the National Association of Criminal Defense Lawyers (NACDL) comes in response to an unpublicized, hastily-drafted bill, the "Victim Allocution Clarification Act of 1997" (H.R. 924), which is aimed at reversing a decision in the U.S. Court of Appeals for the 10th Circuit in the Oklahoma City bombing case. On Feb. 4, that court upheld a ruling by Federal trial judge Richard Matsch that persons slated to give "victim-impact" sentencing testimony be excluded from observing the trial, like any other witness, to avoid the injustice of their testimony being tainted by others during the trial process.

NACDL President Judy Clarke, executive director of the Federal Defenders of Eastern Washington and Idaho, summed up the importance of the matter:

"What matters more to this Congress -- due process and justice, upon which America is founded, or pandering to the sympathies, understandable though they may be, of the victims of Oklahoma City who have sought this special interest legislation? If Congress persists in making bad law and undermining our cherished judicial system, even greater tragedy will befall our society as a whole from this wretched bombing event."

"The bill is unconstitutional special legislating at its worst -- a shot across the bow of the Third Branch. And it's a blatant violation of the Founders' fundamental principle of separation of powers," said William Moffitt, NACDL Vice President, and Elisabeth Semel, co-chair of NACDL's Legislative Committee, authors of the joint statement to the Congress. The bill, first made available for public review a few days ago, is being swept to a vote without any public hearings or debate.

"Judge Matsch and the Tenth Circuit U.S. Court of Appeals should be allowed to run their courtrooms and conduct these trials without the Congress grabbing their gavels after any ruling not to its political liking," Moffitt and Semel added.

According to federal evidence rules, judges may order all witnesses excluded from trial proceedings until it is their turn to testify, in order to keep their testimony from being unduly influenced. Some of the designated victim-impact witnesses affected by Judge Matsch's ruling -- and who would presumably be affected by H.R. 924 -- are family and friends of those killed in the bombing, who may be testifying as to the effect of the bombing on themselves. The pending legislation specifically provides that a court "shall not order any victim of an offense excluded from the trial." The legislation does not define the term "victim"; however, it does specifically state that the legislation "shall apply in cases pending on the date of enactment."

This is the second time that Congress has taken the unusual step of interfering in the pending federal bombing trial. Last year, Congress ordered Judge Matsch to install closed circuit television cameras in his Denver courtroom so that victims and survivors of the federal building blast in Oklahoma City, unable or unwilling to travel to Colorado for the trial, could watch it at home in Oklahoma. But that act specifically provided that the trial judge not permit persons to watch the televised proceedings if they were going to testify and if their testimony "would be materially affected" by hearing other witnesses' testimony. Today's bill would nullify that safeguard for impact witnesses. And it would do so in the unprecedented fashion of "overruling" a trial judge and forcing him to reopen his ruling in an ongoing criminal proceeding -- a dangerous precedent for the Rule of Law in America.

Moffitt added: 

"Congress should not act as some super court of appeals, placing under a legislative microscope the exercise of discretion by those men and women appointed by the President with the advice and consent of Congress to exercise judicial discretion. High profile criminal cases are the truest test of the American Constitution. Congress, like the other branches of government and each American citizen, has the obligation to respect the judicial processes of this country. This 'emergency' tinkering with the judicial process to affect the outcome of a particular pending case, holds the entire process up to disrepute. And, where that tinkering is motivated not by a sincere desire to improve the process, which could only result from informed and cautious deliberation, but by an unfettered competition for votes, justice possibly cannot result."

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's approximately 9,000 direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.

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