IN THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF COLORADO
 Criminal Action No. 96-CR-68
 UNITED STATES OF AMERICA,
     Plaintiff,
 vs.
 TIMOTHY JAMES McVEIGH,
     Defendant.
 and
 Miscellaneous Action No. 97-X-20
IN THE MATTER OF PETITION
OF COLORADO-OKLAHOMA
MEDIA REPRESENTATIVES
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
                     REPORTER'S TRANSCRIPT
                  (Trial to Jury - Volume 10)
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
         Proceedings before the HONORABLE RICHARD P. MATSCH,
Judge, United States District Court for the District of
Colorado, commencing at 8:00 a.m., on the 3D day of April,
1997, in Courtroom C-204, United States Courthouse, Denver,
Colorado.



 Proceeding Recorded by Mechanical Stenography, Transcription
  Produced via Computer by Paul Zuckerman, 1929 Stout Street,
    P.O. Box 3563, Denver, Colorado, 80294, (303) 629-9285
                          APPEARANCES
         PATRICK M. RYAN, United States Attorney for the
Western District of Oklahoma, 210 West Park Avenue, Suite 400,
Oklahoma City, Oklahoma, 73102, appearing for the plaintiff.
         JOSEPH H. HARTZLER, SEAN CONNELLY, LARRY A. MACKEY,
BETH WILKINSON, SCOTT MENDELOFF, JAMIE ORENSTEIN, AITAN
GOELMAN, and VICKI BEHENNA, Special Attorneys to the U.S.
Attorney General, 1961 Stout Street, Suite 1200, Denver,
Colorado, 80294, appearing for the plaintiff.
         STEPHEN JONES, ROBERT NIGH, JR., and RICHARD BURR,
attorneys at Law, Jones, Wyatt & Roberts, 999 18th Street,
Suite 2460, Denver, Colorado, 80202; JERALYN MERRITT, 303 East
17th Avenue, Suite 400, Denver, Colorado, 80203; MANDY WELCH,
Attorney at Law, 412 Main, Suite 1150, Houston, Texas, 77002;
CHERYL A. RAMSEY, Attorney at Law, Szlichta and Ramsey, 8 Main
Place, Post Office Box 1206, Stillwater, Oklahoma, 74076; and
CHRISTOPHER L. TRITICO, Attorney at Law, Essmyer, Tritico &
Clary, 4300 Scotland, Houston, Texas, 77007, appearing for
Defendant McVeigh.
         MICHAEL E. TIGAR, Attorney at Law, 1120 Lincoln
Street, Suite 1308, Denver, Colorado, 80203, appearing for
Defendant Nichols.
         THOMAS B. KELLEY, Attorney at Law, Faegre & Benson,
2500 Republic Plaza, 370 17th Street, Denver, Colorado,
80202-4004, appearing for the petitioners.
                          PROCEEDINGS
    (In open court at 8:00 a.m.)
         THE COURT:  Be seated, please.
         Yesterday, a pleading was filed as a petition by the
Colorado-Oklahoma Trial Group and the Colorado-Oklahoma Print
Media Group for access to all phases of the voir dire
proceedings and opposition to closure of any portion of those
proceedings.
         I said "yesterday."  Actually, it was filed on April 1
at 4:40.  I attribute no significance to the date of the filing
and have considered it seriously.
         The motion or petition addresses a concern that the
Court would hear and determine motions to excuse jurors or
panel members for cause under the statutory standards in
chambers, not in open court.  And I must confess that in fact
the procedure that I worked up with counsel to move this along,
this voir dire process and jury selection process, included the
meetings with them at 8:00 a.m. on the days following the
appearances of the panel members to discuss challenges for
cause; and I did so without proper regard, I think, for the
order that I entered on January 24 on media motions and did not
therefore conduct a hearing before following or starting to
follow that process.
         When this petition was filed, I stopped it so that as
of this moment we have discussed, I think, six persons for
cause.
         In keeping with the order on media motions, I set this
matter for hearing now and am prepared to consider it, along
with counsel for the parties in this trial; and also, counsel
for Mr. Nichols has requested an opportunity to be heard.
         I see --
         MR. TIGAR:  Yes, your Honor.
         THE COURT:  If you can find room up here, Mr. Tigar,
you're welcome to come up.  I do think that your client has
standing in connection with this matter, because what we do
here, we're likely to also do in his trial; and indeed, what
happens in this could -- as in all parts of the trial of
Mr. McVeigh's case, could affect Mr. Nichols' case.
         MR. TIGAR:  Thank you, your Honor.
         THE COURT:  So we'll hear from you.
         Mr. Kelley -- there you are -- I'll hear from you in
support of this -- of this petition.
                     PETITIONERS' ARGUMENT
         MR. KELLEY:  Your Honor will understand we did not
file 20 minutes before 5:00 on April 1 to get our filing on
that date.  We just wanted to get it in front of the Court as
quickly as possible; and I thank the Court for the opportunity
to be heard.
         I understand we're short of time, and I'm going to not
spin a lot of First Amendment rhetoric; but I think going back
to January 24, we now are at the quintessentially public stage
of this case; and I don't have to say that this is probably the
most important case of the century in terms of many things,
including public perception of the judicial branch of the
federal government and the fact that the federal government
operates according to a rule of law.
         We're dealing with jury selection.  Press Enterprises
has made it clear that that is an important phase of this
quintessentially public stage of the proceedings.
         Determining who is going to serve this incredibly
important function of deciding guilt or innocence, deciding
life or death in this case, is an essential part of the
process, and it's a -- essential for that to occur in public if
there is going to be any accountability of the system to the
public, any confidence in the system.
         Accountability of individual jurors is another matter;
and as I understand it, the selection process is proceeding
anonymously.  That's a separate issue.
         THE COURT:  I didn't hold a hearing on that, either;
but looking back on it -- but I didn't -- do you have any
objection to that?
         MR. KELLEY:  At this point, I am not -- I am -- have
not been instructed to interpose any objection to the selection
process occurring anonymously.
         THE COURT:  There is substantial precedent for doing
that, as I'm sure you're aware, in other cases of less
publicity than this one.
         MR. KELLEY:  Usually, those involve something along
the lines of threats to the safety of jurors, threats of
tampering.
         THE COURT:  Well, that's one of the things; but
obviously the protection of the jury pool from those persons
who may seek to simply publicize them and also those persons
who may seek to influence them, not by threats but by
persuasion.  I think that's a factor here, and that was one of
the things that we considered in adopting this procedure.
         MR. KELLEY:  I have not been sent here today to
complain about anonymity during the selection phase.
         THE COURT:  Well, I'm backing up and announcing and

consistent with my order here that no part of it be sealed or
concealed from the public without a finding and prior notice
not allowing you to be heard, I'm backing up and doing it now.
That's why I'm doing it in this manner.
         MR. KELLEY:  Our petition has not addressed really
anything but the closure of challenges for cause.
         THE COURT:  Right.  That's the focus I've placed on
it, too; and let me just review that with you a little bit
because, as you well know, the ordinary procedure that would be
followed in jury selection, at least with me, would be that
persons -- the jury pool is in the courtroom; persons one at a
time through the chance system of spinning the jury wheel and
pulling out their cards would be called into the jury box in
sequence.  The voir dire would take place collectively of those
persons and then individually.  Then counsel would be called
forward for a side bar for challenges for cause, as well as the
question -- additional questions; and challenges for cause
would be taken here.
         And of course, that's done so that the people in the
jury panel are not listening to those challenges to avoid any
effects on those who may be challenged; and then the motion to
excuse is rejected and they end up sitting on the jury because
there aren't enough peremptories available, or those persons,
not only in the jury box but out there in the gallery waiting
to be called, would get some indication of counsel's position
with respect to how they view the particular jurors.
         I mean, that's the way we would normally do it.  And
it doesn't -- you know, it doesn't involve usually this kind of
public interest.  I mean there is a public interest in every
trial, as well there ought to be; but the process -- I'm
speaking now just to what the traditional process is -- does
include these side bars, which in a sense are secret.
         MR. KELLEY:  Well, I'll accept that, your Honor,
although I should say that yesterday I contacted as many former
AUSAs as I could reach and was told that in criminal cases, the
practice here was to hear those challenges in open court.
         THE COURT:  Well, those people have never tried a case
in front of me, then, because I've done it this way all the
time.  The challenges are done at side bar, including Batson 
vs. Kentucky issues.
         MR. KELLEY:  I have not been able to find any case
authorizing challenges for cause to be heard in private in the
face of a Press Enterprise I objection.
         THE COURT:  And I've not seen any the other way,
either.
         MR. KELLEY:  But I think and --
         THE COURT:  Have you?
         MR. KELLEY:  I have not.
         THE COURT:  All right.
         MR. KELLEY:  There is one case, which I'll have to
confer with my associate to cite to the Court, where the court
applied Press Enterprises and found that it was appropriate to
hear a challenge by the Government to a juror when the grounds
for the challenge was that that juror was inadvertently -- or
unknowingly involved in an undercover federal investigation; in
other words, citing unique circumstances as the basis for
overriding Press Enterprises.
         And I'll ask Steve Zansberg, my associate, to give me
the cite to that case.
         I think notwithstanding whatever the practice might be
of wanting to conduct these as a side bar to keep it from the
individual jurors -- and that's, I assume, the essential
reason --
         THE COURT:  Well, the reason is -- the reasons are as
I've just explained them, so that the persons who are the
subject to the motion to exclude are not listening to it and
the other members of the jury panel are not exposed to it.
         We don't -- that doesn't obtain here, in that those
persons are not in the courtroom.
         MR. KELLEY:  Well, my responses to that, your Honor,
are two:  One is that I think in a case like this, the process
has to go -- undergo the test of Press Enterprises I.
         THE COURT:  I don't question that; but one of the
aspects of that is what is the tradition of public access.
         MR. KELLEY:  Well --
         THE COURT:  That's why I mentioned the routine
practice.
         MR. KELLEY:  I think that may well be the routine
practice in this court.  I am not able to find any recognition
of a tradition.  To the contrary, Press Enterprises I talks
about the tradition of access to this qualifying process.
         You can't -- I don't think anyone can seriously
disagree that challenges based upon whatever reason for
disqualifying jurors from service is an integral part of that
selection process.  Then you have to deal with the question of
whether there are other ways of dealing with the problem.
         THE COURT:  Right.
         MR. KELLEY:  When the jury is selected in open court,
the jury can simply be excused when those arguments are made.
         In this case, they are not even present.  They have
taken an oath to -- not taken an oath.  Excuse me.  They've
been instructed not to read publicity concerning the case.  I
think one other concern your Honor mentioned was the
possibility that jurors hearing the grounds for challenge might
be affected in terms of the answers they give.  Did I
understand that correctly?
         THE COURT:  Yes.
         MR. KELLEY:  Well, the jurors again are under an oath
to answer questions truthfully.  I don't think is any reason to
presume that oath is not going to be followed.  If there is, we
have to question what we're doing here.  Certainly, if you get
a juror who has such an agenda that he or she is willing to
answer untruthfully, either to get off this jury or to stay on,
that juror certainly is going to find a way to do it without
studying the nuances of the challenge, unless we're answering
questions that are the equivalent of an MMPI.  I think the
chances of it being effective or useful on the issue of candor
are minimal.
         Balance that against the obvious public interest in
witnessing the selection process -- and I just -- I simply
don't think the Press Enterprises test can be met.
         THE COURT:  Okay.
         MR. KELLEY:  Before I exit, I would like to ask
clarification on a couple of other points; but I think maybe we
should deal with this issue first.  Would I be permitted to
raise a couple of other points later?
         THE COURT:  You've raised enough to chew on right now,
so I'll invite the participation of counsel for the parties.
         MR. KELLEY:  Well, let me just outline the other
concerns I have that I hope the Court might address today.
         THE COURT:  I'll come back to that.
         MR. KELLEY:  Thank you.
         THE COURT:  We're dealing with the focus of the
petition.
         MR. KELLEY:  Thank you, your Honor.
         THE COURT:  I'll hear from the Government.
                     PLAINTIFF'S ARGUMENT
         MR. CONNELLY:  Your Honor, our position is that this
court has conducted voir dire consistently with the First
Amendment.  This case bears no resemblance to Press Enterprise 
I, where the trial court closed all six weeks of individual
voir dire questioning.  The Supreme Court's First Amendment
cases, Globe Newspaper and other cases, recognizing press right
of access to criminal trials, have consistently said that there
is no presumptive right of access to matters that are
traditionally held at side bar or in chambers.  We would submit
that this is precisely that type of case.
         The Court has talked about its own practice of hearing
cause challenges at side bar.  I think that's consistent with
the general trend of federal courts around the country from
quick survey of people in terms of Illinois, Indiana, D.C.,
New York.  I think traditionally these types of challenges are
not made in open court.  The practice, as I understand it, is
that a court, as does this Court, will ask counsel to come to
side bar and make any challenge and rule on the challenge at
that time outside the presence of the juror and outside the
presence of the jury pool; and that's precisely the practice
that we submit that the Court has been following and should
follow.
         I think the Court has accurately identified the
threshold issue is not whether there is a compelling to do it
this way, but rather is there any presumptive First Amendment
right of access to the media to these side bar or in-chambers
conferences on legal questions of law.  We would submit there
are not.
         The Justice Department regulations, 28 C.F.R. 50.9,
require us to support open proceedings except for matters
consistent with the First Amendment that traditionally have
been held at side bar or in chambers.  This is precisely that
type of matter, your Honor, we would submit.
         I think the Court can accommodate the interests in
this case by continuing on with its practice of hearing
for-cause challenges on a daily basis in chambers and then,
after a requisite number of jurors are qualified, to come back
in court and say that we have heard from 80 or 100 jurors and
these are my rulings on cause challenges and therefore we have
52 left at this point.  And it can therefore at that point hear
peremptory challenge in open court; and the press and public
are well advised at that point as to not only having seen the
entire voir dire, or all the voir dire, except for those
individual questionings that for some compelling reason need to
be conducted in chambers, but basically having seen all the
voir dire can evaluate at that point how many people have been
found qualified to serve and how many have been successfully
challenged for cause and can observe at that point the
peremptory challenges of the parties.
         I think that satisfies, your Honor, the First
Amendment right of access that has been recognized in Press 
Enterprise; and again Press Enterprise didn't say that
everything has to be conducted in public.  What it did strike
down was the entire closure across the board of all six weeks
of individual voir dire questioning in that capital murder case
in California.
         THE COURT:  Well, there are -- there is a public
interest, of course, in the bases upon which the challenges are
made and the Court's rulings.  But as with a number of these
issues, the timing of the disclosure makes a difference; and
we're, of course, now addressing disclosure as the process is
under way and where the disclosure could have the substantial
probability of adverse effects.  I mean that's the standard as
we all know.
         There may be -- obviously all of these matters are
recorded with the court reporter and transcripts can be made
available later.
         MR. CONNELLY:  I think Press Enterprise recognizes
that.
         THE COURT:  And you're not opposing that.
         MR. CONNELLY:  No.
         THE COURT:  That's after a jury is selected, for
example.
         MR. CONNELLY:  I think there are two possibilities.
One is after a jury is selected; one is at the end of the case.
Press Enterprise, the media made access -- at the time the voir 
dire was going on, it was denied.  They made access at the time
the jury was empaneled, and it was denied, and they made a
request for access at the close of the case after the defendant
has been convicted of a capital crime, and it was denied as
well.  And the Supreme Court reviewed that entire record and
said that there are grounds for delayed release of transcript
if there is a good reason for it.
         I think, your Honor, though -- I think your Honor is
correct that in order to deny right of access when the media is
presumptively entitled to it, there must be some compelling
reason; and I would submit, as the Court has pointed out,
though, that there is a threshold issue:  Is this the type of
matter that has traditionally been held open in court, and we
would submit that that burden has not been met.
         And then the other question is -- in addition to
history and tradition is one of logic:  Is the one that is
really central to the press and public being able to observe
that the proceeding is being conducted in the way it is
supposed to be conducted.  We would submit that as to that
point, certainly an after-the-fact release of transcripts would
be appropriate, as well as the Court's explanation in open
court that we have now heard from 90 jurors and the following X
number of jurors have been excused for cause and then we
therefore have a qualified pool of 52 and we're going to hear
peremptory challenges.  And then -- so I think that is

contemporaneous with the Court's actual empaneling of the jury.
         And then after the fact, either after the jury is
empaneled or even after the trial, the actual rulings and bases
for challenges can be released.  And we think that's consistent
with the First Amendment; and there is certainly nothing in
Press Enterprise that frowns on that kind of practice.  In
fact, it says that when there is good cause for keeping
something sealed, then a later release of transcript can
satisfy the First Amendment; and we think that it will do so in
this case.
         THE COURT:  All right.  Thank you, Mr. Connelly.
         Mr. Jones, are you addressing this for Mr. McVeigh?
                 DEFENDANT MCVEIGH'S ARGUMENT
         MR. JONES:  Yes, your Honor.
         If the Court please, our position is identical to that
set forth by Mr. Connelly on behalf of the Government; but
since this is a capital case, I'll take just a moment and put
on the record formally our position, although I must say that I
concur wholeheartedly with the analysis of Government counsel.
         With respect to my own knowledge of tradition, of
course, I've not appeared before the Court except in this case;
but in the venue where this indictment was returned, which was
the Western Judicial District of Oklahoma, where I have
practiced for 30 over years in front of all of the individuals
who have been judges in that district, the unbroken tradition
is that challenges for cause are made at side bar with the
court and counsel for the parties; and if someone wants to
examine the record at the conclusion of trial, why, there is a
stenographic record made.
         And on rare occasions -- I can think of one in
particular involving a -- a somewhat noted political case -- it
does become an issue for appeal and the record is spread.  But
clearly, our experience in Oklahoma has been that these are
types of matters that are handled at the side bar conference.
         I will acknowledge that in the state courts of
Oklahoma, challenges are generally made in the public record,
but I don't see that that tradition is applicable to the
practice in the federal court.
         No. 2, as Mr. Connelly implicitly acknowledges, the
right of the public to knowledge about jury matters is not
absolute.  There are numerous limitations on it.  After all,
jury deliberations are secret.  Anonymous juries have been
approved in repeated instances by the various federal circuits.
In many circuits, even the identity of grand jurors, while not
directly at issue here because these are petit jurors, remains
sealed even after their work is completed.  And clearly, jury
questionnaires have fallen into that categories of matters that
are sealed until the completion of the case and for some time
after that, depending upon the circumstances.
         While I think Mr. Kelley makes an elegant argument on
behalf of the First Amendment, as always, the First Amendment
has to be balanced against the fair trial command of the Fifth
Amendment and, of course, the Sixth Amendment, as it impacts
upon this issue.
         In this particular case, even if the tradition favored
Mr. Kelley -- and I think that the Court itself is in the best
position to know what its tradition has been -- there are, of
course, compelling reasons why the practice of the Court with
respect to the jury should be followed.  First, it was agreed
upon by the Court and counsel for Government and ourselves and
reflected unanimity of opinion on the need for confidentiality,
both as to the identity of the jurors publicly, as to the
questionnaire, and as to the procedures with respect to the
challenges for cause.
         No. 2, there have been several instances in this case,
which I will not elaborate upon but which are addressed in the
pleadings on other issues concerning what I would consider to
be somewhat blatant attempts to influence the jury by media
sources who obtained information that they were not supposed to
have and then held it until after the Court had sent out its
notices and then released it in such a way that people that
might have been summoned to serve on this jury or to be
considered would sort of be a selected audience to read or
receive this material.
         So I think that that is another factor that has to be
born in consideration here with respect to the compelling
reasons.
         There is also an issue of security, not just the
security and integrity of the process but the physical security
and safety of the jurors, which is, after all, a consideration.
         The Court has provided security for us.  There are
press references to security for the Court and court officials,
for people coming in here and for the Government; and I think
the jury is entitled to some type of security.  And of course,
the greatest security that can be given is anonymity.
         Then of course there is the issue if we make a
challenge for cause publicly, if the Court overrules that
challenge, then that particular juror knows that for some
reason or another we have challenged the juror, which may
involve our analysis of that juror's credibility or
representations to the Court either on the questionnaire or in
open court.
         If a challenge, on the other hand, is sustained, then
there is always the possibility at public broadcasting of that
to others down the line, who may or may not want to serve on
the jury, which would unduly and improperly influence them.
         So depending on whether you approach it, as
Mr. Connelly has said, from the tradition, or the compelling
interest, the tradition favors the procedures that the Court
has done; and certainly the compelling interest favors it.
         Now, I recognize, as the Court has implicitly
recognized, that this confidentiality does not exist forever;
and when the case is concluded, it may very well be appropriate
then to unseal those records.  But until the jury is selected
and we complete this process -- and I would submit until the
entire trial is completed, it would be wrong and we would
oppose on behalf of Mr. McVeigh the release of any of these
records concerning the identity of the jury, what they said on
their questionnaire, except to the extent that it's brought out
in open court, and certainly the challenges for cause.
         Thank you.
         THE COURT:  Mr. Tigar, you may be heard on behalf of
Mr. Nichols.
                  DEFENDANT NICHOLS' ARGUMENT
         MR. TIGAR:  I thank your Honor for the opportunity to
address the Court.
         It is also my experience that challenges for cause are
heard at side bar in the way that other counsel have described.
         I think, however, that one must make a concession to
Mr. Kelley's position here, and that is that the reasoning of
federal judges in highly publicized cases about the basis for
allowing or not allowing challenges for cause has, since the
dawn of the Republic, been a matter of intense public interest.
The Court may recall that Justice Chase was impeached by the
Senate.  And Article II of his impeachment was that he had
failed to sustain a challenge for cause to a juror named
Bassett a liable case called United States vs. Calendar.
Justice Chase was, I'm happy to report, acquitted by the Senate
of that charge, but it had been preferred to him.
         The incident was recalled by Chief Justice Marshall on
circuit in ruling on challenges in the case of United States 

vs. Aaron Burr.
         However, the public interest in these matters and
their public character doesn't really resolve the issue; and
for that reason, at the end of the day, we wind up agreeing
with Mr. Connelly and Mr. Jones with respect to the remedy
here.
         Press Enterprise, as Mr. Connelly pointed out, does
authorize closure and delay of disclosure.  I think
Mr. Kelley's argument is brilliant; but it is constitutional
overgeneralization with respect to the teaching of that case,
which directly addresses the issue before the Court.
         These prospective jurors here come to us, come before
the Court, because the Court wants to assure, as do the
parties, this guarantee of the Sixth Amendment of an impartial
jury.  There are, as we apprehend, two principal dangers to
that guarantee.  The first is that citizens will be reluctant
to serve.  As the Jury Project found 30 years ago many citizens
are in the most ordinary case reluctant.  It's only after their
service that they realize what a privilege and honor it is.
         That reluctance will be enhanced if jurors seeing in
the press -- and I'll get to how they might do that -- the
basis by which they might get off the jury by some form or
formula of words are influenced in their answers.
         Now, the second danger is that there are folks who
will come forward who really want to be to the jury.  They want
to be on the jury because they have some agenda or other; and
they figure that they can skate through voir dire and get on
this jury.
         Now, I'm not saying it's happened in this case, but
every trial lawyer in this room knows that it happens and that
it happens particularly in celebrated cases.  It certainly was
evident in the voir dire of the last bombing case that I tried
in this building 20 years ago.
         Again, if jurors have the means to know the form of
words that they can use to skate past the voir dire process,
this danger is enhanced.  Jurors in the voir dire process are
witnesses.  They're just like witnesses; and therefore, the
Court and parties are entitled to take steps which, I
respectfully suggest, are analogous to those taken by the
parties under Rule 615 of the rules of evidence.  Jurors aren't
witnesses in the traditional sense and have not been since
1550.  But it's important to protect them from these
influences; and I think the Court could well find based on
what's happened so far that these influences pose a real risk.
         Every single juror who has come here in response to
your Honor's first question has said, Yes, since getting my
summons, I did see a headline; I didn't read the story itself,
but I did see a headline; no, a friend of mine told me about
something; no, I remember seeing something on the television,
but I left the room or I turned it off or I was channel
surfing.
         It's unavoidable and what happens is because this is
the only game in town so far as this trial now happening is
concerned is that headline statements of "Juror Excused for
Cause Because she Said X, Juror Not Excused for Cause Even
Though the Defense Said Y --" that that risk is really
substantial right now.
         And so our proposal is that in keeping with this
notion first that the Court should make findings based upon
what has already occurred that those findings would include the
things that I and the other counsel have mentioned and then
that the transcript be sealed.  And I would suggest that after
the jury is seated and this panel of jurors is all properly
instructed about what they have to do that the danger will be
sufficiently attenuated that it could then be released and that
that minimal delay would not at all offend the quite legitimate
interests that Mr. Kelley has here and has so eloquently
presented to the Court.
         THE COURT:  Thank you.
         Mr. Kelley, do you have some rejoinder to these
arguments?
                PETITIONERS' REBUTTAL ARGUMENT
         MR. KELLEY:  Thank you, your Honor.
         I want to thank Professor Tigar for reminding us of
the story of the impeachment of the justice, which we all knew
about but simply forgot about.
         I think --
         THE COURT:  Apparently Congress is rereading some of
that history.
         MR. KELLEY:  It's something I knew nothing about
before I walked in this morning, and I'm delighted that he was
able to inform us.
         Your Honor, starting at the end and working back
toward the beginning, if there is going to be a delay in the
release of the transcript of these in camera proceedings, I
agree with Mr. Tigar:  It should happen no later than when the
jury is seated.  No reason has been cited why it should
continue through the trial.
         If there has been a tradition of hearing challenges
for cause in side bar, the sole reason for it is to keep it
from the group sitting in the box, not to keep it from the
public.  And I submit that in view of the cases that have
considered simply the voir dire process as a whole, under Press 
Enterprises, the tradition is to the contrary.  When there is a
remedy available such as simply excusing the jury to hear the
challenges, that remedy should be utilized.
         I promised the Court a citation on one case that
considered the issue of whether and how challenges for cause
are covered by Press Enterprises.  The case is In re Petition 
of the Tribune Company, 748 F.2d 1518 decided two years after
Press Enterprises, found the standard applicable but satisfied
in the unique circumstances of the need to inform the court
that someone in the box was in effect a government informant.
         Applying the Press Enterprises standard, I don't want
to repeat what I said earlier; but I think nothing has been
shown as to why this court's instructions on not reading or
listening to publicity before coming here will not be effective
in preventing what people are concerned about; namely, the
jurors' reading about the detailed grounds for challenges for
cause.  Seeing headlines, hearing in hearsay form an account of
what happened yesterday, simply isn't going to get them there.
         So for that reason, we would ask the Court to open
these proceedings to the public.
         THE COURT:  All right.  Thank you.
         MR. KELLEY:  May I remind the Court that I'd just like
to be heard on a couple of matters after this one is concluded?
         THE COURT:  All right.
         MR. KELLEY:  Thank you.
                            RULING
         THE COURT:  Well, the matter requires, immediate
ruling, I think, because of the importance of continuing this
process without delay.
         And I have again reviewed my memorandum opinion of
January 24 of 1996, in which I put forth my standards for
determining public access to proceedings, or really conversely
the exclusion of the public from proceedings, since we begin
with the presumption of public access.  And in that opinion, I
addressed the particular matters that were then presented on
the record by saying that the orders would depend upon the
answers to five questions which were really synthesized from
the appellate decisions that we've had, particularly those of
the Supreme Court in Press Enterprises II or Press Enterprise 
II.
         And also, I've -- I think it is important to review
for a moment the statutory requirements, the statutory bases
for the exclusion of jurors in 28 United States Code
1866(c)(2).  That statute provides that prospective jurors may
be excluded by the Court if the person may be unable to render
impartial jury service, and the other is that his service as a
juror would be likely to disrupt the proceedings.
         Now, those are very broad standards; and they become
very fact-specific in any individual case and have to be
considered with due concern and regard for the length of trial
and for the subject matter of the trial.  And of course, that
includes the publicity that the event giving rise to the
charges has had and to the trial proceedings themselves.  So
these are facts that vary greatly from case to case and have to
be considered.
         And of course, in this case, we have adopted some
different procedures here, first of all to establish the jury
pool and then in the proceedings that have been conducted to
this point, recognizing that both length of trial and pretrial
publicity are very serious concerns; and add to that for this
case that there is the possibility of the imposition of the
death penalty and therefore jurors must be qualified under the
precedents as what we have come to call "death qualified,"
death-penalty qualified jurors, which, of course, includes an
exploration of their attitudes and their opinions on a very
basic level, opinions dealing with religion and with respect to
their concerns for the sanctity of human life.
         These are not the kinds of inquiries that were
normally engaged in in voir dire of jurors, where what they're
called upon to judge is more objective.
         Now, I think that has a definite relationship to
answering these questions.  And the first one is does the
matter involve activity within the tradition of free public
access to information concerning criminal prosecutions.
         I'm pleased to hear that my practice for the 23 years
that I've been on this court is not aberrational.  It is, of
course, consistent with what I learned from the judges I
learned from, when I came on the court.  I think it's also
consistent with other judges serving on the court now,
apparently consistent with judges in other districts, including
the district from which this case was removed.
         And I've already articulated the reasons for
conducting side bar conferences when the jury pool is in the
courtroom and the very jurors being addressed by the motions to
exclude are in the jury box.  So the tradition here is not to
get immediate public access to the information concerning the
challenges for cause, as we've come to call them.
         Will the public access play a significant positive
role in the activity and in the functioning of the process is
the second issue.  Now, there is no question -- and Mr. Tigar
addressed it, as well as Mr. Kelley -- that there is a strong
public interest in knowing how the process is functioning and
in particularly -- in particular how the judge is ruling.
There is no question here that every judge conducts a case in
the public forum and should be subject to public scrutiny about
the manner in which rulings are made and what the rulings are.
I don't question that.
         But it is not just the question of how the Court rules
on these challenges.  The challenges themselves are important;
and herein the concerns that are expressed, I think, by
Mr. Jones in his argument are important, and that is that
necessarily there has to be an opportunity for counsel freely
and candidly to state concerns about a particular juror's
manner in which that person has answered the questions put to
him or her both in the questionnaire and in open voir dire.
And it is difficult for me to see how public disclosure of that
contemporaneously with the making of such challenges would be
playing any positive role in doing so.  As a matter of fact, it
seems to me obvious that there is a negative role in it.
         The third issue is is there a substantial probability
that some recognized interest of higher value than public
access to information will be prejudiced or affected adversely
by the disclosure.  It seems to me the answer to that question
is clear in this case that there is a substantial probability
that the opportunity to find fair and impartial jurors and
alternate jurors to serve in this case would be adversely
affected by these disclosures as we go along before the jury
has been selected.
         It is necessary that these motions to excuse or
challenges for cause be made as we go along, because we meet --
we need to get jurors who are, as we say, passed for cause to
the requisite number for the exercise of peremptory challenges;
so there has to be a determination here that we have a finite
number of persons who have been approved on statutory basis
before we can exercise the peremptory challenges.  So we have
to do that, and these challenges have to be called for and the
rulings have to be made to establish the requisite panel.
         Now, it seems clear that if the grounds upon which
counsel suggest exclusion are disclosed and the Court's rulings
are disclosed now, it will affect the other members of the jury
pool, persons who have been called in, because even though
there have been these court directions to avoid publicity,
we've seen in the responses made by persons who have been
called in here for voir dire how difficult that is and how easy
it is for an inadvertent disclosure or for a member of the jury
panel inadvertently to encounter headlines, attention-gathering
blurbs or excerpts, or whatever they might be called in the
trade and the television news and the like.  You know, we have
to recognize the frailty of the human condition, also; and
that's a factor here.
         It's not a question, as Mr. Kelley suggests, that we
have to trust the jurors to answer honestly.  We do that; but
when the questioning gets to not objective things but the most
subjective things possible, which is what we've been doing,
hearing and asking people for their views of human life,
obviously what is disclosed about counsel's view and the
Court's view of other jurors who have gone through this process
may affect people.
         Now, there is then, of course, the most obvious
adverse effect; and that is if a person has been the subject of
a challenge and the Court refuses the challenge and directs
that the person is going to be available for service and then
can only be removed by the exercise of peremptory challenge and
recognizing that there is a limited number of peremptory
challenges, either party in the case can face the possibility
of the person having been challenged serving on the jury.  And
regardless of what effort the person might make to be fair and
impartial, if it's known to him or her that somebody asked them
to be removed on grounds as basic as these and as general as
these, there is a possibility of being influenced against the
party who made the challenge.  And that would affect the
fundamental fairness of the trial process.
         There is also a concern about the good name and
reputation of the people who have been summoned in here to
perform their civic duty.  They're not in here as volunteers.
They're here because they've been summoned to perform a civic
duty.  And I think they have some basic rights of privacy; and
certainly disclosures that have already been made with respect
to the persons who have been called in here have, I'm sure,
created some concern with those people as to their -- their
good name and reputation.  And when it's disclosed that
somebody thinks that they cannot be fair and impartial or that
their service would disrupt the process and then, of course, if
the Court rules yes, that's true, what does that do to those
people?  I mean that's suggesting to the world that they're
being dishonest or that they are not capable of functioning in
the most basic civic duty that we have, and that is to sit on a
jury and judge another person.
         There is also the potential for harassment, including
media harassment of these persons and being interviewed and
particularly as to the ones who were excused with such
questions as, "What do you think about that?"
         There is additionally the concern of any case in which
there is as much public attention as this one can draw:  The
interest of those who may attempt to influence the jury and the
question of physical security is a concern of the Court, not
because of who the defendant is in the case but simply because
of the public nature of the case and that possibility that
always lurks out there that whether a matter is of sufficient
public notice, anyone can gain the attention of the media and
the public by an act which could, of course, be criminal in
nature.  I mean, there are plenty of reasons to suggest that
some motivations for criminal conduct have been just to get
your name in the paper.
         And it's that kind of concern that the Court has that
has resulted in a lot of the extra security precautions here,
not a matter of some suspicion that this particular defendant
and those who may be concerned with his welfare would be, you
know, doing something to harm anyone; it's just that there is
no limit on who out there might want to disrupt the proceedings
or might want to gain attention to some particular viewpoint
that that person might have by doing something to disrupt the
proceedings.
         So for all of those reasons, I think, there are good
reasons to say that in answer to first the substantial
possibility that a recognized interest of higher value may be
adversely affected but (4) the question for the need for
protection of that interest overrides at this time the
qualified First Amendment interest in the public's right of
access.
         And then, of course, the final question is does the
closure of this part of the process -- that is, the
entertainment by the Court of challenges for cause and rulings
on them -- is complete closure essential to protect the
interest considering reasonable alternatives?  And I have
considered reasonable alternatives, which includes further
protection of identity of the jurors by some encryption-like
process.  I've considered that.  It's not practical.
Necessarily, the lawyers have to be free to present their views
about a particular prospective juror based on the record; and
there would be enough from the record then made that would
identify the person.  So there is no reason to protect -- there
is no, I think, reasonable way to protect those interests
without closure.
         Now, the length of the closing of the process is a
matter that I'll address later as to whether these
transcripts -- and all of this will, of course, be a matter of
record -- whether these transcripts of the objections and the
Court's rulings should be opened at the time that the jury is
seated and we're going forward with the trial, or whether
closure should remain -- closure requires sealing of the record
until a later time, I'll address later.  What I'm trying to do
now is meet the immediate needs.
         So I suppose the order is that the petition is denied,
and we will proceed in the way in which counsel and I intended
to proceed.  And we'll hold in camera hearings on the questions
of challenges for cause of particular jurors and the Court's
ruling.
         I don't have much time before we start with jury voir 
dire, Mr. Kelley.  What are these other matters that you're
wanting to call to my attention?
         MR. KELLEY:  Your Honor, I understand that a request
has been made for the transcript of the proceedings in open
court and that request has been denied, I think with some
assurance.  And I would just like to get a finding or a ruling
on that.
         THE COURT:  Yes.  I ordered the court reporter not to
release transcripts except to counsel until we have the jury
seated.
         MR. KELLEY:  And could I ask your Honor for a finding
or a --
         THE COURT:  Yes.  And the finding is that while we
have apparently very good note-takers in this courtroom, there
is a difference between some journalist's notes of his or her
observation of the proceedings and the actual transcript; and
again, for the same reasons that I am closing the challenges
for cause and rulings, I'm closing the transcript to protect
privacy interests of the persons who are seated in here
answering questions.
         MR. KELLEY:  Second, briefly --
         THE COURT:  But they, of course, will be open after we
have a jury empaneled.
         MR. KELLEY:  Yeah.  The word we got on that was with
such assurance that I did not intend to argue it, just to --
         THE COURT:  I announced that when we started on Monday
morning.
         MR. KELLEY:  I apologize.  I haven't been here.
         Because of that, I also do not know whether the Court
intends to begin the trial once the jury is seated with an
anonymous jury.  Does the Court intend to maintain that
anonymity throughout the trial?
         THE COURT:  I do.  It's not an anonymous jury.  The
lawyers in the case and Mr. McVeigh know who the jurors are; so
it's not an anonymous jury in the sense that some of the cases
have discussed.  But their names are not going to be made
public.
         MR. KELLEY:  And what I said earlier about not
objecting to that in the selection phase shouldn't be taken as
acquiescence during the trial, but I understand the Court's
ruling.
         THE COURT:  Oh, I would not be surprised to hear from
you on that.
         MR. KELLEY:  Finally, it's my understanding -- I have
not been here -- that the jurors are called in in such a way
that they are not identified by name or number.
         THE COURT:  No, we're identifying them by number and
address them by number, and I call them into the courtroom by
number.
         MR. KELLEY:  Okay.  And can we assume that when the
peremptory challenges occur that the same numbering system will
be referred to?
         THE COURT:  I expect it to be.
         MR. KELLEY:  So that the public can correlate the jury
sitting with the information given in voir dire.
         THE COURT:  Well, I don't know what they'll be able to
do.  I'm not going to presume what their abilities or aren't.
         MR. KELLEY:  Can we presume there is at least no
deliberate attempt to prevent that?
         THE COURT:  As of now, I don't intend some kind of
encryption there.  That's right.  We intend to address them
here in the courtroom and in those proceedings that are public
by their numbers; and also, of course, in the sealed transcript
by their number.
         MR. KELLEY:  Thank you for indulging me, your Honor.
         THE COURT:  All right.  We're almost at 9:00, but I
think we should take a short -- and you're excused, Mr. Tigar.
         MR. TIGAR:  Thank you, your Honor.
         THE COURT:  We should take a short break to get
organized to resume with the jurors, so we'll take about ten
minutes.
    (Recess at 9 a.m.)
                         *  *  *  *  *
                             INDEX
Item                                                      Page
Petitioners' Argument                            
Plaintiff's Argument                             
Defendant McVeigh's Argument                     
Defendant Nichols' Argument                      
Petitioners' Rebuttal Argument                   
Ruling                                           

                         *  *  *  *  *
                    REPORTER'S CERTIFICATE
    I certify that the foregoing is a correct transcript from
the record of proceedings in the above-entitled matter.  Dated
at Denver, Colorado, this 3d day of April, 1997.

                                 _______________________________
                                         Paul A. Zuckerman