Washington, DC (October 25, 1996) -- "Judge Mastch's bold decision requiring separate trials for Oklahoma City bombing defendants Timothy McVeigh and Terry Nichols is living proof of the importance of an independent judiciary in preserving fundamental rights for the accused in America today.
"At a time when Congress and the presidential contenders appear willing to do or say anything to seem 'tough on crime,' Judge Matsch's ruling should be commended by all Americans who believe in the United States Constitution. The Constitution says both of these men are innocent until proven guilty, and each of them is to be judged separately and fairly. That way all, including the victims and survivors of the bombing, can be more certain of the ultimate outcome."
Clarke explained that the government's refusal to redact Nichols' statements to the FBI made Matsch's decision to grant the defendants separate trials the only fair and just solution to the government's obstinance. "Judge Matsch found there would be an unacceptable risk that the jurors would use Nichols' out-of-court statements against McVeigh, which no jury instruction could cure," Clarke explained. "You can't 'unring' the bell once the jury's heard it.
"In 1968, the Supreme Court decided in Bruton v. United States that a defendant's Sixth Amendment right to confront and cross-examine witnesses against him is violated if the jury gets to hear his codefendant's confession implicating him, and the codefendant does not testify. Nichols' statements to the FBI present a classic Bruton situation. It would be grossly unfair to simply instruct the jury that they should only consider Nichols' statements against Nichols and not McVeigh. In a Bruton situation, like this one, that just does not work."
Judy Clarke is Executive Director of Federal Defenders of Eastern Washington and Idaho, the federal public defenders for the Northwest United States.
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