OKC Bombing Trial Transcript - 06/03/1997 16:04 CDT/CST

06/03/1997



              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.
 ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
                      REPORTER'S TRANSCRIPT
                 (Trial to Jury - Volume 131)
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
         Proceedings before the HONORABLE RICHARD P. MATSCH,
Judge, United States District Court for the District of
Colorado, commencing at 9:00 a.m., on the 3d day of June, 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., RICHARD BURR, and
RANDALL COYNE, 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; 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.
                         *  *  *  *  *
                          PROCEEDINGS
    (In open court at 9:00 a.m.)
         THE COURT:  Please be seated.
         We're resumed in 96-CR-68, United States against
Timothy James McVeigh, for a hearing of a number of the
motions.  Before calling up these motions, though, I want to
take care of a matter relating to the custody of the exhibits.
We have during the trial agreed that exhibit -- the physical
exhibits, the objects, could be kept in the custody of the
Government through counsel, and I propose to continue that.
         Mr. Jones, what's the --
         MR. JONES:  That's satisfactory, your Honor, through
the completion of the trial.
         THE COURT:  All right.  So we will permit,
Mr. Hartzler, your people to regain custody of the physical
exhibits, most of which are now on the floor in the adjacent
courtroom.
         MR. HARTZLER:  Thank you.
         THE COURT:  All right.
         Now, the motions to be heard are the defendant's
motion to declare the Victims Rights Clarification Act
unconstitutional, a motion with a brief in support.  And I'll
hear that first.
         Then there is a motion for prepenalty phase voir dire
of the jury.  There's a motion for a brief recess between the
Government penalty phase presentation and the defendant's
penalty phase presentation.  There are defendant's motions in 
limine, several, dealing with anticipated evidence; and because
it's anticipated -- information, I guess we should begin
saying, in the words of the -- in the word of the statute.
Those motions were filed under seal because they related to the
possibility of evidence, some of -- or information, some of
which I believe has changed in the Government's planning.
         And there's also a plaintiff's motion in limine with
respect to defense information to be introduced.  So those I
think are the pending motions, and we'll hear them in the order
I've just announced them.
         So we'll begin with the motion to declare the Victims
Rights Clarification Act unconstitutional and brief in support,
and that of course addresses the -- some of the issues that
were dealt with in this Court's previous memorandum opinion and
order on a similar motion filed before the trial began.
         So who's to speak in support of the motion?
         MR. COYNE:  I am, your Honor.
         THE COURT:  All right.
   DEFENDANT'S ARGUMENT ON VICTIMS RIGHTS CLARIFICATION ACT
         MR. COYNE:  May it please the Court.  For the second
time during the pendency of this capital case, Congress has
declared war on the independent, nonpolitical, federal
judiciary, what Chief Justice Rehnquist has called the crown
jewel of our democracy.  They've done it this time by passing
what's titled the Victim Rights Clarification Act.  We submit
that that statute passed by Congress for the specific purpose
of interfering with this Court's ruling in this case, under
Rule 615 of the Federal Rules of Evidence, is unconstitutional
for a number of reasons.
         First, the statute violates the separation of powers
clause.  It violates Mr. McVeigh's Eighth Amendment right to
heightened reliability during his capital sentencing
proceeding.  It violates the ex post facto clause, the Sixth
Amendment fair trial guarantee, and the Fifth Amendment rights
to due process and equal protection.  And we move that the
Court strike down this statute as unconstitutional.
         Now, I won't burden the Court with the lengthy
recitation of the history of your Honor's rulings in this case.
But the purpose of those rulings, I think, is worth bearing in
mind this morning.  The purpose was to avoid prejudicial
pretrial impact from possible emotionally traumatizing effects
of what penalty phase witnesses may see and hear at the trial.
         It shouldn't surprise anyone that this statute suffers
from as many defects as I've enumerated, given the incredible
haste with which Congress slapped the statute together and
passed it so that it could, again, interfere with this Court's
ruling in this pending capital case.
         The bill was introduced in the House just six days
before the en banc Court of Appeals upheld your Honor's Rule
615 ruling, and then the legislation sped through both houses
during the course of two weeks.
         THE COURT:  I don't think it's correct to say that the
Tenth Circuit upheld the ruling.  It declined to rule.
         MR. COYNE:  And in so --
         THE COURT:  It had the effect of leaving the order in
force.
         MR. COYNE:  Agreed, your Honor.  The order remained
intact after the -- your ruling was twice challenged on appeal,
but they did not reach the substance of that ruling on appeal.
         THE COURT:  Right.
         MR. COYNE:  Congress wasn't entirely unaware of the
constitutional problems that it raised.  And if I may quote
from the congressional record, I think the remarks of
Representative Scott in particular sum up one of the problems
that I see, and that is in particular the separation of
problems (sic) difficulty.  "The bill violates the
constitutional framework of separation of powers in its undue
retroactive interference with a ruling in a pending criminal
case.  It is an obvious attempt to obtain legislatively a
ruling in the Oklahoma bombing case different from the one
already entered into by a federal judge according to the law
and according to the facts in the particular case."
         Now, the statute didn't leave your Honor with much, if
any, discretion, at least as I read it.  It speaks in terms
which are mandatory.  18 U.S.C. Section 3510 provides in
pertinent part that this Court and any other United States
district court shall not order any victim of an offense
excluded from the trial of the defendant accused of that
offense because such victim may during the sentencing hearing
testify as to the effect of the offense on the victim and the
victim's family or as to any other factor for which notice is
given as required under Section 3593.
         The statute also amends 18 U.S.C. Section 3593 in
pertinent part to read:  "The fact that a victim attended or
observed the trial --" and again mandatory language -- "shall
not be construed to pose a danger of creating unfair prejudice,
confusing the issues, or misleading the jury."
         What seems to be happening is that Congress in this
case has decided to overrule Federal Rule of Evidence 403 at
least as regards to victims.
         Now, the separation of powers principle, as I'm sure
the Court's aware, developed from the framers' deep-seated
hatred of legislative interference with the courts at the
behest of private individuals and factions, and that's
precisely what we have in this case.  We have victims who
appealed the Court's rulings, victim rights associations who
appealed the Court's rulings, attorneys general who lobbied
Congress on behalf of overturning this Court's ruling, all
binding together for the purpose of disturbing a ruling that
this Court entered for the purpose of protecting the fair trial
rights of Mr. McVeigh.
         This specter created by state politicians and private
parties inserting themselves into the legislative arena for the
purpose not just of affecting the law and changing it, but of
changing the law in the middle of an ongoing capital trial is
one which I submit brings into disrepute both branches of
government, the legislative and the judicial branch.
         The Supreme Court has never hesitated to strike down
provisions of law which seem to accord to one branch powers
more appropriately disseminated among other branches.  That's
taught to us by the Mistretta case, and yet in this instance,
the Congress has done -- has reached into the middle of this
capital trial and it has overruled this Court's order.  In
essence what Congress did after the judicial process had run
its course was to resolve itself into a super supreme court so
that it could overrule this Court's decision and ignore any
other decisions of any other courts contrary to it.  The
precedential value of such incursion into the judicial process
is staggering, and one which I think needs to be taken into
consideration.
         Plaut vs. Spendthrift Farms stands for the principle
that the legislature cannot control the actions of the courts
by directing the particular steps which shall be taken in the
progress of a judicial inquiry; yet in this case, the Victim
Rights Clarification Act does precisely that:  It directs this
Court that it cannot apply Rule 615 to protect this defendant
and countermands this Court's order, twice considered after
some thought and deliberation, revisited after some extensive
briefing and argument, and by legislative fiat just overturns
it.
         If I could turn to another constitutional flaw; that
is, the Eighth Amendment requirement that Mr. McVeigh is
entitled to a capital sentencing proceeding which has
heightened reliability.  Indeed, when the United States Supreme
Court struck down the death penalty in Furman vs. Georgia, it
was concerned, deeply concerned about the irrational and
unpredictable manner in which the death penalty had been
imposed.  Yet by permitting victim impact testimony in this
case, which has been tainted by inflammatory trial testimony,
the Victim Rights Clarification Act ensures that those same
constitutional problems will pervade Mr. McVeigh's sentencing
hearing.
         The Supreme Court has said it is vitally important,
your Honor, both to the defendant and to the community that any
decision to impose the death sentence be and appear to be based
upon reason rather than caprice or emotion.  And I think those
were the principles which guided your Honor's early decisions
when you decided to sua sponte, without any motion by the
defendant or the Government, to invoke Rule 615 to protect the
integrity of this very important capital trial and sentencing
proceeding.
         When victim/witnesses are exposed to the type of
inflammatory, emotional, heartrending testimony permitted
during the guilt phase of this trial, passion, prejudice, and
perhaps even mistake are as inevitable as they are
understandable.
         This Court did not rule in a vacuum.  Indeed it had
before it several examples of emotional outbursts by victims in
direct response to attendance at proceedings in this case.  I
won't lengthen my argument by reciting those; they're noted in
our brief.  But I would like to say that the wisdom of the
Court's decision, I think, has been shown even during the
course of the trial and beyond as after the appearance of
certain witnesses, at least -- Jennifer McVeigh, Lori Fortier
come to mind -- there were again emotional responses of victims
outside the courthouse in response to those testimony.
         Those are the types of effects, your Honor, that we
can't cabin off.  Those are also the types of effects that are
very difficult to detect.  And for that reason, we respectfully
submit that the Court's suggested procedure of taking these
victim impact witnesses on voir dire for the purposes --
purpose of determining whether in fact they have been affected
by attendance at trial proceeding is one which may prove
unsatisfactory and may not ferret out the bias which may have
infected their testimony.
         If I could turn to the ex post facto clause argument
just briefly, we submit that this particular statute does
violate the ex post facto clause.  It is being applied
retroactively; Congress passed its statute and then reached
back and imposed it on this Court, on this defendant, on this
process.
         Perhaps the most critical element of that particular
argument is whether or not this statute, Victim Rights
Clarification Act, acts to disadvantage Mr. McVeigh.  According
to Lynce vs. Mathis, a case cited in our brief, the narrow
issue is whether the statute's consequences disadvantage, in
this case Mr. McVeigh, by increasing his punishment.
         Well, the very purpose of victim impact testimony is
of course to persuade the jury to impose the most severe
sentence possible; in this case, a death sentence.  The
statute's consequences, on the other hand, allowing that
victim/witness testimony which has become contaminated and in a
real sense supercharged by attendance at court proceedings,
dramatically increases the risk that Mr. McVeigh will be
sentenced to death.
         We submit, therefore, that application of the Victim
Rights Clarification Act to Mr. McVeigh during his ongoing
trial will have both the purpose and effect of increasing the
quantum of punishment.
         Just briefly, your Honor, if I could note our fair

trial argument under the Sixth Amendment and our due process,
equal protection arguments under the Fifth Amendment, I won't
lengthen my presentation by spelling those out -- they're set
out in the brief -- other than to note that the Supreme Court
has consistently emphasized that a criminal defendant's right
to a fair trial guaranteed by the Sixth Amendment is the most
fundamental of all freedoms.  And that fair trial right, of
course, extends beyond a guilt phase proceeding and into a
sentencing phase proceeding.
         Mr. McVeigh is entitled to that fair trial; and
indeed, your Honor's orders under Rule 615, I submit, were
tendered for that very purpose:  To ensure the integrity of a
very important capital sentencing proceeding in this case.
Thank you.
         THE COURT:  All right.  Thank you.
         Mr. Sean Connelly, are you going to respond to
Mr. Coyne?
   PLAINTIFF'S ARGUMENT ON VICTIMS RIGHTS CLARIFICATION ACT
         MR. CONNELLY:  Yes, your Honor, just briefly.
         The Victims Rights Clarification Act made two
procedural clarifications in federal sentencing law in capital
cases.  The first, which this Court has already applied, said:
"The United States district court shall not order a victim
excluded because that victim will offer victim impact testimony
or other sentencing testimony in a capital case."  The Court
has applied this by rescinding its prior orders, so that's no
longer in effect -- that's no longer in dispute, I don't think.
I think the only issue at this point is the amendment to
Section 3593(c) which says that the fact that a victim attended
part or all of the trial proceedings, or in this case
closed-circuit broadcast, shall not be a basis for excluding
that victim on grounds of unfair prejudice or other types of
arguments that could otherwise exclude somebody under 3593(c).
         We submit, contrary to defendant, that this is a
constitutional exercise of Congress's power to prescribe the
rules of procedure in federal courts.
         I'd like to address briefly the three constitutional
arguments that have been made.  Each of them is precluded by
controlling case law.  First, it is not a violation of
separation of powers for Congress to prescribe the rules of
procedure that a court must follow in a criminal or any type of
proceeding in federal court.  The Supreme Court's made clear in
the Plaut case that Congress can alter the rules of procedure
even after they've been applied by a court in a given case as
long as it does so prior to final judgment.  And indeed as long
as it does so, it can even reopen final judgments as long as
the judgment is not final in the sense of all appellate
remedies haven't been exhausted through the Court of Appeals
and ultimately through the Supreme Court, the highest court.
         Congress has clearly exercised its power under Plaut
and under the Rules Enabling Act and power to prescribe the
rules of procedure in federal court; so we submit that under

Plaut, there is no basis for any separation of powers argument.
In fact, Plaut is a 1995 decision, but the principle goes as
far back as to Chief Justice Marshall in 1801 in the Schooner 
Peggy case where Congress changed the rules that governed a
case that had become decided by the district court, and a
forfeiture case, had been affirmed by the Court of Appeals, the
Supreme Court Chief Justice Marshall in the Schooner Peggy case
applied the new rules that Congress had established for that
very case and applied it because the case had not yet become
final in the sense that all appellate rights had been exhausted
up to and including the Supreme Court.  So we'd submit that as
a controlling case when there's basis for any separation of
powers attack on it.
         The next argument is ex post facto, and as this court
recognized in its opinion back in September 1996, overruling
challenges to the Government's allegation of nonstatutory
aggravating factors that the defendant claimed would violate
the ex post facto clause, the Court said that there's been no
change in the definition of the offense or in the applicable
punishment, the only change is a matter of sentencing
procedure.  And the Court cited Dobbert vs. Florida.  Dobbert
involved a case where the Florida legislature, after the
defendant's crime had been committed, changed sentencing
procedure in that case so that the judge no longer had to
automatically defer to a jury recommendation of life in prison.
The judge after the legislative enactments was entitled to
override a jury recommendation of life and impose a death
sentence.  The defendant in that case argued there was an ex 
post facto violation, and the Supreme Court unanimously said
that it's simply a change in sentencing procedure.  It may work
to the detriment of the defendant, but it's merely a change in
procedure.  It is not as required under ex post facto case law,
a redefinition of the elements of offense nor is it a increase
of the punishment after the fact of the crime.  So we submit
that this Court's decision back in September relying on Dobbert
also disposed of any ex post facto challenge.
         The only other argument is that allowing a victim who
watched part or all of the trial to testify at sentencing would
violate the Fifth, Sixth, and Eighth Amendments.  Again, that
has to be an argument as applied that the victims' testimony is
somehow so tainted by the exposure to any part of the trial
that that victim constitutionally may not testify.  We would
submit there's no basis for such a broad constitutional
prophylactic rule and in effect it is asking the Court to make
Rule 615 of constitutional stature, and it has never been
interpreted that way.  The Sixth Amendment gives the defendant
a right to confront witnesses, not to exclude them from part of
the trial.  And this argument if taken to its logical context
would result not only in striking down this statute but also
similar or even broader statutes applied in many, many states
around the country; and we submit there's no basis for a
constitutional prophylactic rule, that simply by attending all
or part of the trial, a victim is constitutionally disabled
from testifying.
         If the Court has any other questions, I'm sure I'd be
happy to answer them.  But otherwise, that's our response.
         THE COURT:  All right.
         MR. COYNE:  If I may just briefly, your Honor?
         THE COURT:  Yes, Mr. Coyne.
DEFENDANT'S REBUTTAL ARGUMENT, VICTIMS RIGHTS CLARIFICATION ACT
         MR. COYNE:  Your Honor, Mr. Connelly's fond of Chief
Justice John Marshall; so am I, and in a case called Marbury 
vs. Madison Chief Justice Marshall wrote that it is exclusively
the province and duty of the judiciary to say what the law is.
But more apropos to this point, in Fletcher vs. Peck, an 1810
decision written by Chief Justice Marshall, he wrote, quote,
"It is the particular province of the legislature to prescribe
general rules for the government of society; the application of
those rules to individuals and society would be seem to be the
duty other departments."  Congress in this case had prescribed
a rule of procedure, a rule to bind this Court in this case, a
rule for this Court's benefit, for the benefit of the
defendant; that was Rule 615.  You applied the rule in this
case, and it was your duty to do so.  And what happened was
Congress stepped in.
         Also, just to briefly remind the Court that during a
March 7, 1997, conference, though without the benefit of oral
argument or briefing, it seemed that the Court shared some of
the separation-of-power concerns that we voiced this morning.
         Other than that, if there are no questions, thank you,
your Honor.
         THE COURT:  All right.
          RULING ON VICITMS RIGHTS CLARIFICATION ACT
         Well, I've considered the briefing that's been
submitted and the arguments here; and in addition, I would
recognize that yesterday there was a pleading filed, motion of
the victims, the Oklahoma City bombing, to reassert the motion
for a hearing on the application of Victims Rights
Clarification Act of 1997, attached to which was the brief that
was earlier submitted on March the 21st, 1997, by counsel for
the named persons, and have considered that as an amicus
briefing because it is not my view, and it's not been argued by
the Government that the view -- that the statute creates
standing for the persons who are identified as being
represented by counsel in filing that brief.
         Now, I already expressed my general views with respect
to the constitutional issues presented here.  First of all, in
the previous opinion of course I said that we never may -- we
may never get to the question of constitutionality because that
arises only upon a guilty verdict.  Now there is a guilty
verdict, so we must address the constitutional issues.
         I did, however, go forward to talk about the
separation of powers and the ex post facto issues, but it is
important, I think, to emphasize that the legislation in
question here does not dictate a rule of decision in the case.
It is, in my view, the equivalent perhaps of an amendment to
Rule 615 of the rules of evidence.  The Supreme Court has
recognized that Congress has a constitutional authority in the
matter of the rules of evidence, the Rules Enabling Act, the
normal process by which the rules of evidence were developed
and are developed in that they come from the judicial
conference, then the Supreme Court, then to the Congress.  And
in essence the Congress has negative veto, but also the power
to amend and the power to initiate rules on their own
proceeding, their own legislative process.
         Now, I therefore do not consider it to be an ex post 
facto issue, nor do I consider it to be a violation of the
separation-of-powers principle.
         So it comes down to really the question of whether
there are Eighth Amendment and Fifth Amendment implications to
permitting testimony during the penalty phase hearing from
persons who attended or observed the trial; and, of course,
what the statute says -- and this should be emphasized -- is
that the fact that a victim attended or observed the trial
shall not be construed to pose a danger of unfair prejudice,
confusing the issues, or misleading the jury.
         The most important word there, in my judgment, is
"danger."  It is not a statute that says that the Court does
not have the inherent power and authority to determine that any
particular witness's observation of the trial has so influenced
or affected that witness as to put the testimony of that
witness into the category of being a matter that could unfairly
prejudice the jury, confuse the issues, or mislead the jury.
         As I indicated in anticipation of the possibility of
this moment in my earlier opinion, that matter can be
determined factually when we have the Government proffering
these witnesses.  And accordingly, it's my intention to permit
the defense, prior to the testimony of any witness who has
attended or observed the trial, to determine whether that
witness has indeed -- and his or her testimony has indeed been
influenced in some way by what he or she observed during the
trial.
         It's my understanding that the persons who may be
offered as witnesses here by the Government have not seen the
entire trial; and therefore, it is with respect to what
particular testimony or parts of the trial they saw.  And also,
it relates to what their testimony will be here, because there
are limits as to what any victim/witness can testify to,
whether that person has observed any portion of the liability
trial or not.  And that's a matter that has been raised by
these motions in limine filed by the defense.
         Care must be taken here to ensure that this next phase
of the trial be one within the proper constraints of the Eighth
Amendment and the Fifth Amendment as the Supreme Court of the
United States in varying opinions filed by the several justices
in Payne vs. Tennessee caution; that, you know, a penalty phase
hearing cannot be turned into some kind of a lynching and that
the people who testify with respect to the area of victim
impact that's mentioned in the statute, the death penalty
act -- that this cannot become such a matter of emotion and
testimony which would inflame or incite the passions of the
jury with respect to vengeance or the passions of the jury with
respect to empathy for grief or those human emotions that are
inappropriate in making a measured and deliberate moral
judgment as to whether the defendant should be put to death.
That's the issue to be presented to the jury.
         And I do not intend any of the evidence --
"information," as it's called -- be presented to this jury to
permit them to exercise anything other than a disciplined moral
judgment in the process that's already been described in my
previous opinion, that sequential process that the jury must go
through, as they will be instructed in closing instructions
after the death penalty information has been presented.
         So what I'm going to require here is that the
Government identify in advance of the appearance of these
witnesses who they are, what they did see -- I mean those
portions of the trial that they observed, either here in this
courtroom or through the closed-circuit transmission,
television transmission to Oklahoma City, and then what it is
that their testimony is proposed to cover at the trial.
         And we'll deal with that outside the presence of the
jury when we have that information.  So that's the ruling.
         Our second matter is the request for prepenalty phase
voir dire of the jury.  I've considered that, and no response
has been required.  I believe that I understand the point of
it, and do you wish to present argument in support of it?
         MR. COYNE:  Your Honor, we're happy to rest on the
pleading on that.
            RULING ON MOTION FOR VOIR DIRE OF JURY
         THE COURT:  All right.  Well, I don't intend to do a
new voir dire of the jury.  What I do intend to do, however, is
to give them some preliminary instructions.  And both sides
have submitted some, and I have now prepared some prehearing
instructions which I'll provide to counsel at the morning
recess.  Actually, I don't have to wait till the morning
recess.  I have them right here.
         You, Ms. Hasfjord, distribute those to both sides.
         I don't intend to have you stop and read them right
now; but we'll discuss them yet today, of course.  I have taken
some from the proposals made by each side.  And what I intend
to do is to give these prehearing instructions to the jury, all
18 jurors and alternates, advising them as to what's ahead, a
process that we'll go through the stages of it and also what
the ultimate question -- questions are in general.  And then I
propose to simply ask all 18 of them the general question:
Now, are there any of you who for any reason feel that you are
unable to proceed and fairly deliberate and decide the issues
to be presented to you in accordance with this overall
instruction?
         And if any persons answer yes, we will pursue those
answers individually with whoever responds yes, excusing the
other persons and do that type of voir dire.  And that's the
process I intend to follow.
         Now -- so the motion for a full voir dire is denied.
         There's also a motion for brief recess between the
Government's presentation and the Defendant's presentation of
information here in the penalty phase.  This, too, was
submitted with the authorities supporting the proposal
included.  I don't know if you wish to be heard further on
that, Mr. Jones.
         MR. JONES:  Very, very briefly, your Honor.
         THE COURT:  Please proceed.
           DEFENDANT'S ARGUMENT ON MOTION FOR RECESS
         MR. JONES:  May it please the Court, I would not argue
the law that we cited because, of course, the Court has read
it.  I simply wanted to state to the Court that the motion is

filed in an abundance of caution because, of course, the Court
has not yet ruled on the respective motions in limine.  We do
not know what perimeters the Court will formally adopt with
respect to the Government's evidence in chief in the second
stage, nor do we know what the Court's ruling will be with
respect to the Victim Rights Clarification Act as it relates to
the individual witness; and finally, we do not know how the
witness will respond once the questions begin and the answers
are given.
         So in an abundance of caution, we filed this motion to
suggest to the Court -- and we ask for five days, and it may
very well be that the circumstances will dictate a lesser time,
or perhaps even a greater time -- so that the Court will be
aware in advance of our thinking on this matter.
         From what I understand in speaking with Government
counsel, they anticipate that even with opening statements --
that they believe they can present their testimony in three
days, as I understand it.  If that is in fact the case, then we
would not commence before Monday morning, which would allow, of
course, at least two days.  Should they rest early sometime on
Friday, then at a minimum, we would request that the Court
recess and we be permitted to begin Monday morning; and if they
go over to Monday, then I'm sure the Court can make the
appropriate adjustments there if it feels that it is necessary.
         Nevertheless, in an attempt not to interfere with the
orderly process of the trial and to not waste the time of the
jury or the Court, we wanted to present our concerns at this
point so that the Court would have them in mind as it hears the
Government's first stage evidence.
                  RULING ON MOTION FOR RECESS
         THE COURT:  All right.  Well, I'm not going to rule in
advance that there will be any delay between the Government's
introduction of information and the Defendant's.  Obviously, if
I determine as a result of what happens in the Government's
part of the case that there should be a time-out for whatever
reason, I'm perfectly prepared to do so; but I believe as you
have recognized, Mr. Jones, it all depends.  And as I
understand it, the motion is presented for purposes of
protecting the record and advising the Court in advance that it
may be necessary to sort of have a deep-breath time-out, not
that the defendant is not prepared to go forward with the
evidence.
         MR. JONES:  Your Honor, you're right.
         THE COURT:  Because I understand you are prepared to
go forward.
         MR. JONES:  We are, your Honor.
         THE COURT:  All right.  So with that clear
understanding, I'm formally denying the motion but will
obviously consider any motion presented as a result of what
happens in the trial.
         Now, we have these several motions by the defense and
also some motions or a motion by the Government asking the
Court to rule in advance on some parts of the proposed
information to be submitted both in writing and testimonially.
         Necessarily, there have been sealed submissions here,
because just as was the case with discovery before the trial
and also certain evidentiary matters raised before the trial,
the sealing was appropriate to avoid publicity about these
matters until we know what is going to be actually produced.
         A preliminary discussion here and indeed the
Government's response to these motions in limine indicate that
the earliest information which was exchanged here has been
revised, in that the Government's plans have been changed
somewhat from the initial identification of what information
would be provided to the defense.
         So I'm not sure what exactly is at issue now,
excepting, of course, this matter of the scope of victim
testimony.  So I'm not entirely sure how most efficiently to
proceed, whether to -- let me just ask first off of
Government's Counsel:  Have you brought Defense Counsel up to
date, as it were, with respect to what you intend to present?
         MR. CONNELLY:  We have, your Honor.  Last night, we
had several phone conversations; and throughout the past week,
we have had.  And I think we've really narrowed the issue
substantially.
         THE COURT:  And, Mr. Burr, are you going to address
these matters?
         MR. BURR:  Yes.
         THE COURT:  Well, perhaps you can identify what is at
issue and I'll attempt to respond.
         MR. BURR:  I'll be glad to do that, your Honor.
         THE COURT:  And, of course, I know what's at issue the
other way around, because the Government's motion to exclude
some of your information has been pretty well identified as
your response -- and have you received the Defendant's
response --
         MR. CONNELLY:  We did this morning.
         THE COURT:  -- filed this morning?
         All right.  Well, Mr. Burr, then, if you want to tell
me the concerns that now exist in light of what you've learned
most recently.
     DEFENDANT'S ARGUMENT ON DEFENDANT'S MOTION IN LIMINE
         MR. BURR:  Your Honor, I think the -- the primary
concerns I will deal with first, and then there are some odds

and ends in some other categories.
         But what has not been addressed in any detail thus far
is the concerns about testimony, partly because the summaries
of the testimony were brief and partly because the guidelines
as to what would limit the testimony are emerging as we all
work through this.  This is, as we've all recognized, a new
area and a difficult area because of the lack of guidance and
the lack of precision of guidelines.
         But I would like to sketch out some concerns we have
about testimony first.  And I have grouped those concerns into
several groups for this reason:  We have a number of concerns
about every witness.  And rather going through each witness,
seriatim, it seemed to make more sense to talk about them in
subject matter groupings.
         THE COURT:  Yes, I agree with that.
         MR. BURR:  First is a concern that some of the
testimony appears to be the equivalent of eulogies, overall
detailed statements about the person's life, childhood,
antemortem honors, accomplishments, postmortem honors, such as
entry into Heaven, which imply comparisons of victims' worth,
and overly idealizing, as we all do, in eulogies to our loved
ones, idealizing the person and presenting a sentimental view.
         Those -- the examples that particularly struck us
about anticipated problems in this area involved the
statement -- shall I mention the names of witnesses?
         THE COURT:  No, I don't think so.  I want to be
protective of their families --
         MR. BURR:  That's one area.
         THE COURT:  -- and their own dignity --
         MR. BURR:  Yes.
         THE COURT:  -- which I understand is a part of your
motion as well.  But if you can address the subject matter
without identifying particular witnesses, I think it would be
appropriate.
         MR. BURR:  That is one concern that reaches over
several witnesses.
         Akin to that is a second concern, which is not so much
eulogizing, but is more memorializing the kind of testimony --
or kind of statements that one might make at a funeral,
designed to invoke empathetic identification with the person
who has been lost, not dealing with the facts of the loss.  And
again, there are several examples of that problem that may
arise.
         A third area is very detailed and graphic testimony
about the nature of the injuries that caused death.  That is
the verbal equivalent of gruesome photographs, designed or not,
likely to evoke highly emotional and visceral responses upon
the articulation of those descriptions.  We submit that that is
the equivalent of admitting postmortem photographs.
         A fourth area --
         THE COURT:  Well, the law does permit, as I understand
it -- the constitutional law, and that's -- and therefore the
statutory law involved here, some information about the
circumstances of the killing in an ordinary -- I mean if we had
a one-to-one murder case -- and I'm just bringing that up
because that's where most of the law is, since Payne; and of
course, as it happens, a good deal of the law has come out of
the Oklahoma Court of Criminal Appeals, I note in the reading
briefs.  But the nature of the killing in a rape/murder or
something like that has been permitted in the death sentencing,
hasn't it?
         MR. BURR:  Yes, your Honor, it has.  But I think even
there, there still are some limits.  And there is -- there are
certainly ways of describing injuries generally and ways of
describing them graphically; and at some point, there is a line
of risk that gets crossed, I think.  It's odd:  Much of this, I
think, is almost in the eye of beholder.
         THE COURT:  Well, are we talking about -- well, I'll
have to ask Government counsel; but I assume part of this
testimony is from the medical examiner.
         MR. BURR:  Some of it may be.  Some of it may be of
survivors of deceased victims themselves.  There are some
examples -- there are some examples -- a couple of examples
that we've noted; but there are more from victim impact
witnesses themselves, not from the medical examiner's office.
But it could come from either source.
         Another category of concern is, for lack of a better
description, highly charged emotional statements, such as the
receipt of a particularly poignant card with a voice message in
it; a poignant poem that was circulated; descriptions of
details about the deceased victims' mourning that seemed to go
beyond the necessary description to depict the person as an
individual.  Yet it's a little hard to describe it without some
concrete examples, but there are some statements that seem
simply to go beyond the limit of emotional content and risk
upsetting the balance between emotion and reason.
         Another category that we would submit is unnecessary
is testimony about vulnerability.  As the Court is well aware,
as we all are, there are a number of small children, young
children killed in this incident.  The mere recognition of that
is certainly sufficient to establish the statutory aggravating
circumstance that deals with victims who are particularly
vulnerable.
         What it adds in terms of --
         THE COURT:  What is your legal position on that
aggravating factor that has been identified in the notice and
is in the statute?
         MR. BURR:  Well --
         THE COURT:  Early on, there was some discussion about
that with respect to what is required to be shown with respect
to the defendant's knowledge and awareness.
         MR. BURR:  Your Honor, I think we took the position
early on that an incident of this sort pretty much makes
everybody equally vulnerable.  Obviously, young children and
older folks and people with disabilities have some
vulnerability to any incident in life that people not in those
categories do not have.
         In terms of the proof as to whether or not our client
intended this or had knowledge sufficient to infer intent, I
don't think the record established -- at least my recollection
of it; I was not here for all the trial proceedings -- but I
don't think the record established that our client had that
kind of foreknowledge from which intent might be inferred.
         THE COURT:  Well, are you moving to strike that
aggravating factor, or -- I'm asking what your position is with
respect to that factor's applicability.
         MR. BURR:  Your Honor, yes, to the extent that that
foreknowledge is required; and I believe that we did argue in
connection with our attack on that facially that it did require
some foreknowledge, as the Eighth Amendment generally does.  We
would submit that the Government has not demonstrated, at least
in the evidence so far, sufficient knowledge that one might
infer intent and certainly no evidence of intent with respect
to vulnerable victims.
         THE COURT:  Unless it be that all of the occupants in
the building were vulnerable.
         MR. BURR:  Well, certainly that's true; but I would
guess at that point that then something like that ceases to
become an aggravating factor.
         THE COURT:  Why not?  Why isn't it?  Because you're
saying that -- and, of course, I'll hear the Government speak
for themselves -- but you're saying that normally the -- the
vulnerable victim law, as I understand it, is that cases come
out of the sentencing guideline because vulnerable victim is an
enhancement factor under the guideline sentencing structure.
And those cases do speak to that you pick out the vulnerable,
the aged, the infirm.  Most of those cases seem to come up in
the securities fraud and that type of crime.
         But it seems to me that the occupants of the building,
without particular regard to age, infirmity, and so forth,
could be considered vulnerable victims, in that here they are
doing their job, no warning, suddenly there's an explosion.
         MR. BURR:  Your Honor --
         THE COURT:  It seems to me the factor could be still
in the notice and sitting there but without separating out the
occupants of the building according to age, infirmity, and the
like.
         MR. BURR:  Of course, as it was noticed, it did
separate out those categories of people.
         THE COURT:  Yes.
         MR. BURR:  And even construed as your Honor has -- and
indeed, it's consistent with what we have argued all along --
the fact that all the victims may have been relatively equally
vulnerable, I think does not add something -- does not pick out
an aspect of this incident that is aggravating, any more than
the nature of the incident itself.  I mean, the explosion of
this device which killed 168 people and injured over 500 people
is a part of the nonstatutory aggravating factors.  And it
doesn't seem to me that you add a distinct aggravating element
by construing that aggravating factor in that fashion.
         THE COURT:  All right.
         MR. BURR:  Another area of concern about testimony is
one that perhaps the Government counsel could clarify in their
response.  The statements that we have been given, the
summaries, is difficult to know who wrote them, whether they
were prepared by counsel, whether they were prepared personally
by witnesses, whether there was a combination of effort.  And
it raises the question as to whether or not if the testimony
tracks the statements it will be the testimony of the witness
or in essence the presentation of something written by counsel.
         We've not been able to determine that; and perhaps
clarification with respect to that would be useful.
         A couple of other smaller categories, because there's
less concern in terms of numbers of witnesses.  There will be
testimony concerning, I think, two law enforcement officers who
died.  And there may be a rather extensive -- it's hard to tell
again from the summary -- explanation of the careers of these
people, in part because it may be necessary to show that they
had been law enforcement officers; but, indeed, the history and
length of employment as a law enforcement officer is not a part
of the aggravating circumstance.  It appears to cross the line
between giving too much information about the life of the
deceased person that again risks changing the focus in the way
that, that Payne and the statute guide against.
         THE COURT:  Well, on that point, would you agree that
one of the appropriate things to be considered here is the
effect of the loss of the life of the victim; the effect in
terms of impact on the community?  I mean, what this person
would be doing today if he or she were still alive.  And do you
agree with that?
         MR. BURR:  I think in a limited factual way, yes, if
there's a function that person served that is sorely missed.
         THE COURT:  Yeah, and --
         MR. BURR:  That could certainly be referenced.
         THE COURT:  With respect to law enforcement people,
then, the work they were doing and what their loss means to the
agency employing them seems to me to be something that's
appropriate.  And in part, their record of accomplishments
stated in an appropriately objective way, what they had done
with the agency when they were living, could be used to project
what they would be expected to do if they were still living.
         MR. BURR:  I suppose if there's a connection between
the two.
         THE COURT:  Yes.
         MR. BURR:  And a limited explication of the history,
that would be appropriate.  It's, again, from the statement in
the summary we've gotten -- it's hard to know whether that
limitation will be observed.
         THE COURT:  All right.
         MR. BURR:  Two other -- oh, one other very small
category is testimony of a minor.  For -- we have asked for a
copy of this minor's statement for some time and have not yet
been provided it.  The minor's father originally was scheduled
to testify; and then the minor was substituted, apparently for
the father.
         THE COURT:  On the loss of the mother, or what --
         MR. BURR:  Yes.
         THE COURT:  All right.
         MR. BURR:  Yes.  And again, it's hard for us to
evaluate the risks involved with this testimony, other than to
note that it comes from a relatively young minor.
         THE COURT:  How old?
         MR. BURR:  12.
         THE COURT:  All right.
         MR. BURR:  There are two or three other limited
categories that I need to mention.  The Government is planning
to present the testimony of Dr. Jordan, the chief medical
examiner; and it is our understanding that that testimony has
been narrowed considerably from its initial notice; that
Dr. Jordan will testify about the deaths and cause of deaths of
16 people, one person who did not die instantaneously, one
person from each of the 11 federal agencies in the building,
one person from the credit union, one from the day-care center,
one person who was a visitor in the Murrah Building, and one
person outside the Murrah Building.  That is certainly in our
view an appropriate narrowing of the testimony about cause of
death, and it is also our understanding that the Government has
asked Dr. Jordan to choose who he would testify about on the
basis of presenting a kind of cross-section of causes of death,
as it were.
         And we don't object to that.  In fact, we appreciate
the Government's effort to limit that testimony.
         What we are concerned about, however, is the scope of
the testimony and again whether or not either with charts,
graphics, or verbal description the words would paint a picture
that would become overly graphic and perhaps gruesome.
         The Government has offered to let us talk with
Dr. Jordan before he testifies, and we'll take up that
opportunity; but I do think there is a pretty strong risk that
this testimony could cross the limit.  And in our conversations
with the Government in raising these concerns about it, we have
not been able to get a very definitive description of the
limits of his testimony.
         THE COURT:  Of course, we've heard from him as a
witness in this case; and it seems to me that he certainly has
the ability, professionally and with objectivity, to put on
testimony that is appropriate.  I mean, obviously we're going
into a different area there; but he also necessarily had to
testify at the trial just completed about cause of death to
some extent and the deaths.
         So I, you know -- I think this is somebody who is an
experienced witness and could understand general guidelines and
follow them.
         MR. BURR:  Your Honor, we just alert the Court to the
risk.
         Two more categories of testimony I'd like to mention.
The Government intends to call four or five rescue workers to
provide testimony.  And we have several concerns about that.
The first is that insofar as the rescue workers talk about
their efforts at rescuing persons who were direct victims of
the bombing, we think that that's duplicative of the testimony
given by their comrades, their colleagues, in the guilt phase
of the trial.
         THE COURT:  Now, on that point, I take it -- and I
don't remember asking you that directly; but you'll see in
these instructions that I'm proposing to instruct the jury
specifically that they can consider all of the evidence that
they heard as jurors and alternate jurors through the trial.
You agree with that?
         MR. BURR:  Oh, yes; and we were advised the Court
would do that and have no objection to that.
         THE COURT:  All right.
         MR. BURR:  Which I guess emphasizes the point.  None
of the same witnesses are testifying.  They are different
rescue workers who will be testifying during the penalty phase.
But it appears from the summaries of testimony that we've
gotten the content of their testimony insofar as it relates to
victims of the bombing directly would be duplicative of the
testimony of their colleagues in the guilt phase, which will in
a sense be republished to the jury by the Court's instruction.
         There is a secondary concern or a second distinct
concern about the testimony of these witnesses.  And it really
has to do with the -- harkens back to an argument that we made
about the vagaries associated with Congress delegating to the
prosecutor the ability to define nonstatutory aggravating
circumstances.  Because the second area of these witnesses'
testimony will be to testify about the impact of their rescue
efforts on them, on them personally -- the grief, the emotion,
you know -- one could easily have experienced posttraumatic
stress symptoms, for example, from working in the kind of
situation that these folks had to work in.
         And certainly, that is a kind of pain and emotional
distress and suffering that bears some relation to this
incident; but it is not at all like the people who were
directly affected, those people who were physically or
emotionally impacted at the instant that the bomb exploded.
         And I suppose the larger question that it raises is if
people who are indirectly affected, even grievously, by an
incident, can be allowed to give victim impact testimony about
their own condition, where does the line get drawn?  For
example, there has -- there has been an epidemiological study
done in Oklahoma City to assess the effects of this on the
entire population in the city.  I don't have the study at hand,
but my recollection was that some --
         THE COURT:  Well, we're not, there's no indication
they're going to put that in evidence.
         MR. BURR:  No, no, no.  But my concern is that there
is only a difference in degree and not between the people, the
people who -- the rescue workers who were impacted indirectly
and people who were several miles away and suffered traumatic
effects over the next several months.
         THE COURT:  Well, it seems to me, though, there is a
clear -- pretty clear line of distinction between those who had
to come to the scene to effect or attempt to effect rescue of
persons trapped and injured as compared with more peripheral
effects, not to suggest that those aren't real; but, you know,
it's kind of a foreseeability aspect.  Obviously a bombing of
this type is going to require direct and immediate response of
the type that we know happened here.
         Now, without permitting the matter to get cumulative,
it seems to me that some aspect of the experience of those who
were called to the scene qualifies them as victims within the
concept here of victim impact testimony.  But there have to be
limits on it, as there must be in all of this material, to
avoid this becoming incendiary and prejudicial.
         MR. BURR:  I guess the third concern really relates to
what you've just said, and that is:  Not only is the
description of what these folks were doing duplicative of --
for the most part of the trial testimony, it has in almost all
of these folks' summaries -- it's quite clear that they will be
painting quite graphic pictures in words of the scene that they
found and of the experiences they had.
         The final area of concern is as to one witness, the
person who, from the medical examiner's office, came to the
Victims Assistance Center at least daily to provide briefings
for family members there awaiting some word about -- about lost
family members.  That person, as we understand it, will be
testifying about the responses of the people at the Victims
Assistance Center to the information he was providing.
         To the extent that it tracks any of the testimony that
Dr. Jordan may give about conversations with family members of
deceased people, it will be duplicative -- or could be
duplicative.  It also, I think -- depending on the manner in
which it's presented, the detail in which family members'
reactions are recounted and the emotionality that is inherent
in those accounts, it risks tipping the balance between emotion
and reason.
         And again it's not something we're saying cannot be
presented altogether, but it's an area that we have real
concern about risks from.
         Excuse me.
         We have, I think -- those are the areas of concern
about testimony which we had not really detailed in the
pleadings but had simply talked about guidelines for.
         We have made -- on the question of exhibits, we have
made considerable progress, I think, in discussions with
Government counsel; but there do remain some questions about
exhibits, if I could address those briefly.
         THE COURT:  All right.
         MR. BURR:  As to photographs which we think are --
cross the line of being graphic or gruesome, we still have
concern -- we have concerns about a number of the photographs
that intend -- that Government intends to admit through the
epidemiologist witness.  And these are photographs -- Exhibit
No. 1405, depicting an injured victim; 967, which was a
photograph admitted at the -- in the guilt/innocence part of
the trial that the Government intends to republish.
         THE COURT:  What is it?
         MR. BURR:  It's a photograph of Daina Bradley buried
in the rubble.
         THE COURT:  All right.
         MR. BURR:  Exhibit No. 975, and Exhibit 978, 980, and
1016.  These will all be admitted, as we understand it, through
the epidemiologist witness, and would object to them as
crossing the line of graphic and emotion-evoking quality.
         THE COURT:  Do I have copies of these?
         MR. BURR:  I think you do, your Honor, but I'm not
certain.
         THE COURT:  I'm going to recess before hearing from
the Government, so please make sure I have copies of them.
         MR. BURR:  In the same regard, we have an objection to
Exhibit 1436 depicting the injuries of a person who survived.
I'm not certain whether he will be associated with the
epidemiologist witness or not.
         And the final concern about the graphic or distorted
photographs has to do with a newly provided copy of Exhibit
1410 in which the color seems to have been changed to a pretty
unnatural state from the original photograph.
         Your Honor, Mr. Tritico informed me that my
description of Exhibit 967 is not quite accurate; that that is
the photograph of the child who was -- that was admitted to
show dust, I think the --
         THE COURT:  Oh, yes.
         MR. BURR:  -- the drywall dust on some of the victims.
         A second concern -- continuing concern about
photographs has to do with pictures, photographs of people
prior to death, in-life photographs.  As the Court will recall,
a portrait-type photograph of every victim was admitted in the
guilt phase of the trial.
         THE COURT:  Well, every decedent.
         MR. BURR:  Yes, I'm sorry.  Every deceased person.
And there are a number of additional photographs, portrait or
other activity in-life photographs that the Government intends
to offer in this portion of the trial.  We've made our
objection known in the papers about that.  We've made no
progress to my knowledge in negotiating about this, so that's
still an issue for resolution.  And the concern there is
duplicative and again focusing more than the law suggests is
proper on the life events of the deceased person.
         In addition, we were provided three new exhibits this
morning, which are additional portrait exhibits of three
deceased victims.  1129A, 1208A, and 1208B are the new exhibit
numbers.
         Several other areas I can cover very quickly.  Funeral
photographs:  There are two or three of those that we object
to.
         Journals of deceased and injured people:  There are
two of those kept during the course of hospitalization.  We
object to them.
         Poems:  There are poems that we are aware of in
connection with two deceased persons; one written by a deceased
person, the other written by the father of a deceased person,
highly emotional, and I think likely to tip the balance at
least in that small respect between emotion and reason.
         Videotapes:  We object to two.  One is a portion of a
tape taken by a credit union employee during the course of the
morning -- a morning at work, depicting a number of co-workers,
some working, some chatting, some just sort of office -- office
demeanor and office activities that one might find in an
ordinary office.  That does not reveal much in particular about
any person but seems to cross the line, at least in our view,
of emotion.
         And then the second videotape we object to is -- I'm
sorry.  The number for the first one I mentioned, the credit
union tape, is 1483.
         And the second one is 1444, which is news television
station video footage of victims in hospitals, emergency rooms,
halls, trauma centers in the immediate aftermath of the event.
         And finally, some exhibits that are sui generis, but
we think cross the line as to emotionality, and I'll just give
you those numbers:  1478, 1485, a group 1507, 1508, 1509, 1510,
and 1515, all dealing with the same subject matter.
         And then finally, to the extent that the
epidemiologist's article will be introduced as an exhibit, it
contains irrelevant material concerning the increase in
terrorist activity and so on which this person is not qualified
to give and was simply a part of the article she wrote for her
technical professional journal.
         I think that's it as to the specifics, your Honor.
         THE COURT:  All right.  Well, I'm going to take a
recess before we hear the Government's response to this.  Two
things, though, that I want to urge before the recess.  One is
that it is -- and I understand how difficult it is for defense
counsel to raise objections to offers of testimony in the
course of the hearing.  This is quite different from my usual
approach where I attempt to sort of screen the evidence and
rule in advance, and of course in the course of this trial I
required of counsel that they raise their objections in the
open and both ways and ruled in the open.
         Here just the making of the objection can have an
influence on the jury, and I recognize that.  So that's why I
think we need to go to some pains to talk about what the limits
are going to be.  And certainly a number of the things raised
by Mr. Burr are of great concern to me.  I think they're
inappropriate.
         The second thing is that I'm going to take a longer
than usual recess so that Government counsel can caucus a bit
with respect to this, having heard that.  Perhaps a half an
hour --
         MR. HARTZLER:  That's fine.
         THE COURT:  -- will be of assistance to that, and
we'll come back then in a half an hour and hear the response
and proceed on the motion the other way and also the
preliminary instructions I want to talk about before the day is
over, anyway.
         MR. HARTZLER:  Thank you.
         THE COURT:  We'll take a half an hour.
    (Recess at 10:17 a.m.)
    (Reconvened at 11:08 a.m.)
         THE COURT:  Be seated, please.
         All right.  We extended the recess to give an
opportunity for counsel to consider these matters.
         And I take it, Mr. Connelly, you're going to speak to
the issues.
         MR. CONNELLY:  Thank you, your Honor.
         And the time was helpful in terms of responding to the
objections, and I think we have narrowed the focus in several
ways.
         THE COURT:  All right.
     PLAINTIFF'S ARGUMENT ON DEFENDANT'S MOTION IN LIMINE
         MR. CONNELLY:  Just as a general matter, I'd like to
start out with the notion that we are not trying to in any way
inflame the jury or create an issue in this case.  We have, I
think, put on a very focused case that will help the jury make
its reasoned moral judgment as the conscience of the community
as to the appropriate punishment.
         One of the -- Where we do have differences with the
defense is in terms of the notion the defense has that we need
to prove these facts in the least prejudicial manner, in the
sense that if we could prove a technical aggravating factor,
that's all we need to do.  And I think the difference comes
from Payne, where the court said we're entitled to the moral
force of the evidence as well.  And I think we have done it in
a way that is not gruesome.  For example, we have not sought to
offer any postmortem evidence of any of the deceased.  We're
not looking to inflame the jury, to have them decide this case
on passion, but rather to make a reasoned moral judgment.
         One thing I'd like to address at the outset is there
was some complaint about the summaries we prepared.  I'd like
to just give the Court a background in terms of the preparation
of the summaries of the expected testimony.  Back many months
ago there was some dispute that FBI 302's had not been created
for the victim impact witnesses; so basically, what the
prosecutors did in interviewing the witnesses was just put down
everything the witnesses had to say.  There was no effort made
to decide is that permissible impact or otherwise.  It was
basically prosecutors' functioning, as FBI agents would, in
terms of saying, Describe to us what happened in the aftermath
of the bombing, and that is what we presented to the defense;
and it is clearly more detailed and in a lot of subject matter
areas we don't intend to go into.
         What we do intend to do with victim impact testimony
is to call some 40 to 45 witnesses of a variety of categories,
including obviously surviving victims who were injured, victims
who lost deceased loved ones, and people in other categories to
offer objective factual testimony about the circumstances of
the offense and the effects they felt from the offense.
         Turning to the first category, which I'm going to lump
together, Mr. Burr, I believe, complained about testimony that
will be in the nature of eulogies and memorials.  We don't
intend to offer anything like that.  What we do intend to
offer, as we're entitled to, I believe, under the statute and
under Payne and the Constitution, is an objective story
regarding a brief snapshot and understanding of the identity of
the victim and the background of the victim.  For example, the
Court mentioned law enforcement officers.  Some surviving
spouses or family members of a law enforcement officer may get
up and say that the person had a 25-year career in this or that
federal agency and these are the types of things that the
person did and this is the way that I interacted with the
person during life and this is the effect the person had on the
community.
         And it will be brief.  None of this testimony I would
expect to be more than 10 or 15 minutes in scope.  It will
certainly be far less extensive about the background of any one
individual or even all the individuals that we offer combined
than the defendant will present about himself.  The jury will
certainly know more about the defendant individually at the end
of the process than it knows about any one of these victims or
even, I would say, the victims who testify all together.  There
will be far less known about all of them together than there is
known about the defendant.
         There were 168 deceased victims, as the Court knows.
We have culled from that list a very small number
proportionally; like I say, 40 to 45 total.  But of the
deceased victims, a much smaller number of those go to a
deceased victim.  Maybe 25 to 30 at most go to actually a
deceased victim.  So we are presenting simply a small
representative sample of the type of impact that this crime
had.  We're not trying to belabor the proceedings, as
Mr. Jones, I believe, referred to.  We expect that our
testimony including opening statement will last a total of
three court days.
         So it is not anything that we're trying to belabor the
proceedings or be repetitive or even present the story about
everybody affected by this crime.  It's a much smaller number.
         In terms of how we intend to present that number, like
I say, it will be basically a brief summary of the person's
background so you cannot only identify the victim but also
understand the effect of the loss on the survivors and also on
the community.
         I mentioned the example of law enforcement officers.
Another example would be a surviving person who worked in the
building for a federal agency that in her spare time worked for
crisis hot lines as a volunteer and answered the phones in
crisis hot lines and the type of community service that person
provided.
         Another example might be a person that explained their
generosity; that after the bombing, they discovered that this
person had bought several savings bonds for different members
of the family.  It will basically just be very objective
factual testimony so the jury gets a brief snapshot of the
person who died in the bombing and a snapshot and understanding
briefly of the effect in a very objective fashion upon the
surviving family members and friends and community of that
victim.
         THE COURT:  Now, you say "snapshots."  You're speaking
of a testimonial snapshot; right?
         MR. CONNELLY:  Yes.  Well, that's -- I am speaking of
testimonial snapshot, but there will be literally one snapshot
per victim, maybe two.
         THE COURT:  We already have them.
         MR. CONNELLY:  Not of the family members.  There will
be, for example, a -- and I give the Court examples.  1437 is
an example.  We handed up a book beforehand to the Court of the
types of -- of the entirety of the exhibits we intend to offer.
1437 is a family portrait of actually one of the people killed
in the bombing and -- it was a child killed in the bombing and
the family members.
         THE COURT:  All right.
         MR. CONNELLY:  Another example is 1439.  Just a
snapshot, a single snapshot, will be offered in each testimony
of the married couple, one of whom is deceased.
         So it would be basically one per person.
         THE COURT:  These are not special occasion
photographs.  They're just ordinary photographs.
         MR. CONNELLY:  Some may be.  One -- there will be a
couple of wedding photographs.
         THE COURT:  No, there won't.
         MR. CONNELLY:  Okay.  Well, we'll have to substitute
for that, but -- it will be mainly family occasions.  It could
be family gathered at a holiday, where they all got together
and the family was together, could be just a portrait of the
family done professionally --
         THE COURT:  I have no problem with the family as a
unit; but where there is an additional aspect to it, like
Christmas or a wedding ceremony, those things have implications
that go beyond just what the family unit consisted of.
         MR. CONNELLY:  Okay.  With that understanding in mind,
we'll go back and try as best we can to substitute photographs;
and they will be different than the ones on the list, with the
Court's permission.  But it will simply be a single or in some
cases two at most, if we don't have the whole family involved,
to give an example and a snapshot in addition to the
testimonial snapshot of the surviving family members with their
loved one.
         The next area of -- so that's basically the
testimonial snapshot we'll give; and that will be, with the
Court's ruling, the photographic snapshot that we intend to
offer.
         The next category of challenged information was
graphic portrayals.  Like I've told the Court -- and I'll get
to the exhibits later -- we don't intend to offer any
postmortem photographs.  We do intend, as Mr. Burr indicated,
to have Dr. Jordan testify as to a representative sampling of
the causes of death.  And like Mr. Burr represented and like we
told him, there will be a total of 16 categories of people that
he will distill his sample from: the 11 agencies, the day-care
center, the credit union, the visitors to the building.
         THE COURT:  Well, how many different causes of death?
Are we going to be talking about crushing injuries, also the
blast effects, dismemberment, and that sort of thing as another
category and suffocation as a category?  That type of thing?
         MR. CONNELLY:  Right.  We have not categorized, but we
have asked him to do a representative sampling of the types of
people, the types of causes of death; and they span that
spectrum of causes; plus there was trauma and others, but there
will be different types of death.  There will be a 16th person
that he will testify in his opinion did not die
instantaneously, as some people did not die instantaneously;
and he will testify based on the 16th person, based on gravel
in the lungs and perhaps blood in the lungs, that there were
indications that there was breathing going on after the bomb.
And he will say that just as a representative sample -- that
would be a 16th category of people -- that this person did not
die instantly, nor did everybody else, but that will be his
example of --
         THE COURT:  I take it he's going to be using
understandable medical terminology, not Latin, but --
         MR. CONNELLY:  No, certainly to make it as explainable
and understandable to the jury as possible; and he may make
some reference to an anatomical chart, but there will be no
postmortem or any kind of graphic or any photos at all of the
postmortem victims.
         There was also an argument -- and there will also be
in this area -- there may be some victims who testify how they
identified their loved ones and what they saw and that they
identified their loved ones.  There won't be a lot but there
may be a victim or two that --
         THE COURT:  What does that go to?
         MR. CONNELLY:  I think it goes to the effect of the
offense; and that's under Payne and under the statute -- it's
one of the effects of the offense that is part of the offense.
It caused not only the death but also the surviving family
member to have to come identify the deceased.  And it -- we
don't intend to do it in an overly graphic manner, but there
will be a -- a description of what they witnessed and how they
identified their loved one.
         THE COURT:  Well, what do you mean what they
witnessed?
         MR. CONNELLY:  Well, the condition --
         THE COURT:  Give me an example of what you're talking
about.
         MR. CONNELLY:  Somebody that came in after the bombing
and when their loved one was identified, the condition of the
body and the arrangements that had to be made in terms of
identifying the person and then in terms of putting the person
to rest.
         THE COURT:  The funeral arrangement.
         MR. CONNELLY:  Well, no -- well, as part of the
process of the funeral arrangements that they had to make the
identification --
         THE COURT:  I'll exclude that.
         MR. CONNELLY:  Okay.  So it will just be Dr. Jordan in
that area.
         THE COURT:  Yes.
         MR. CONNELLY:  The next category is the emotional --
what the defense claims is overly emotional testimony and
exhibits.  And I think there has really been one particular
exhibit that's identified, and that's Exhibit 1472, which
should be in front of your Honor; and that is -- the defense
called it a poem.  They mentioned two poems.  One poem they
objected to, we don't intend to offer, which was a poem
actually by a deceased before their death.  But 1472 is a poem
by the father of a victim -- not a poem.  It's really a
one-page writing.  The Court can read it, if it would like.
         THE COURT:  That's excluded.
         MR. CONNELLY:  Next area that's been objected to are
rescue workers, and I'd like to -- and it will not be
representative of what the Court and jury heard.  First, I'd
like to give two examples of the type of testimony that we
intend to offer from two different rescue workers; and they're
both, I believe, members of the Oklahoma City Police
Department.
         The first will testify about entering the building and
holding a woman's hand who was alive when he was holding it,
and he literally felt the pulse stop and she died.  That will
be one story that the rescue worker will talk to.
         Another member of the Oklahoma City Police Department
will talk about being with a victim as he died as well.  And
that victim -- the first victim is not known.  The woman who
died, this rescue worker doesn't know who that was.  The second
rescue worker does know the name and identity of the victim.
And there will also be testimony -- some testimony about the
emotional effects that these rescue workers, who otherwise are
fairly hardened people, felt as a result of what they were
exposed to.
         THE COURT:  The two you've just mentioned.
         MR. CONNELLY:  Yes.  And there will -- I think there
may be a total of five -- four -- a total of four rescue
workers that went in.  The two I mentioned will testify to
those stories that I just discussed.
         THE COURT:  And are they going to testify to some
course of treatment, or something like that?
         MR. CONNELLY:  I don't believe --
         THE COURT:  Or are they simply going to give their own
perception of their own experience?
         MR. CONNELLY:  One will talk about nightmares that
they've had, recurring nightmares.  There will certainly be no
psychiatric -- it will just be the effects that it had on
them --
         THE COURT:  All right.
         MR. CONNELLY:  -- in a nonprofessional sense.
         THE COURT:  So you're putting them forward as victims,
also.
         MR. CONNELLY:  As victims, also --
         THE COURT:  And that's the legal premise.
         MR. CONNELLY:  Not exclusively.  Obviously, that is
certainly an important legal premise; but I think it also goes
to the effect of the offense on the victims that they -- that
they encountered in the building.
         THE COURT:  Well, yeah.  I'm separating out the
effects on the rescue workers from their narrative of the
experience of death as they perceived it of two of the
deceased.
         MR. CONNELLY:  I think the rescue workers will go on
both those points.
         THE COURT:  All right.
         MR. CONNELLY:  The next category of testimony that's
been objected to is testimony by a -- actually, the director of
operations of the Oklahoma State Medical Examiner working under
Dr. Jordan; and in that person's official capacity, that
person -- part of his duties was to give twice-a-day briefings
for the approximately 15 days that recovery efforts were
underway in the Murrah Building until -- I believe it's May 5
when the building became too unsafe for any further recovery
efforts.  That person would brief the survivors on the status
of the recovery efforts and would twice a day give a briefing
in which he would be asked questions about how many people were
recovered today and have you found -- have you recovered this
person or that person.  There was a woman every day that would
ask, "Have you recovered any more children?"  And she had lost
her son.  And every day he would have to say, "No, ma'am."  It
will be a very objective, factual recitation of his experience
in terms of dealing and discharging his official
responsibilities as an employee of the medical examiner's
office.
         THE COURT:  Will that include some description of the
response of the persons being briefed?
         MR. CONNELLY:  I think -- well, I think to the extent
it's factual and they say that they asked this question and
this is the type of question, yes.
         THE COURT:  But I mean a description of the emotional
response?
         MR. CONNELLY:  I think it will be more factual in
terms of testimonial:  They asked this, they asked this, and
there were X number of people here that day typically.  It will
be very factual.  No, he will not be trying to characterize
their emotions.
         THE COURT:  All right.
         MR. CONNELLY:  The next category that was
challenged -- and I just got from our office and I can hand up
to the Court and to the defense, because they don't have it --
is testimony from a minor who lost his mother.  And I'd like to
give the Court some background on how that came about.  We did
not seek to introduce any testimony from children.  Obviously,
there are a lot of children that if we wanted to seek testimony
from, we could have done so.  We are not trying to put this
person on because this person is a child.
         We had originally asked the father to testify about
the impact of the crime on himself and his older son and loss
of their mother and wife; and the father came to us and said,
"It's very important to my son to testify;" and he would like
to do so, and he's worked on preparing a statement that he
would like to offer to the Court -- to the jury at sentencing.
         And we asked him last night -- he was in our office,
and we asked his son last night to just go alone to a
typewriter and to type up a statement of what he would want to
say about his mother.
         THE COURT:  You propose that he read it?
         MR. CONNELLY:  In a sense, yes.  I think we propose
that first we call the father very briefly, not to describe the
impact but just to say, "Was it important to your son?  Is your
son the one who wanted to testify?" and very basically briefly
say that "Yes, it was my son's decision that he wanted to
testify, nobody asked him to testify," and then just take the
father off the stand and then bring in the son and ask
obviously a couple of background questions:  "How old are you?
Where do you live?" and then say, "You know, did you --" I
don't want to -- I think Mr. Ryan will put it on, but I think,
"Did you lose your mother in the bombing and can you describe
the effect of that?"  And he might actually just literally read
this.  So I'd like to hand it up to the Court.  It was just
prepared yesterday by the son.
         THE COURT:  How old is he?
         MR. CONNELLY:  The son -- excuse me -- Mr. Burr said
he was 12.  Actually, he's 10.  He was 8 at the time of the
bombing and is 10 now.
         THE COURT:  All right.  Well, have you visited with
this youngster?
         MR. CONNELLY:  I met him briefly, and Mr. Ryan has
visited a fair amount.
         THE COURT:  What is his level of maturity?  You know,
in the old days, we used to operate on the presumptions of
capacity to testify, and now we don't have that anymore in the
law; but generally, from 7 to 14 there is a presumption against
it.  I just ask for your assessment of this youngster.
         MR. RYAN:  We were very nervous about any children
testifying, and I was initially opposed to this child and --
except as Mr. Connelly indicated, his father wanted him to do
it.  I know this child.  I've met with him half a dozen times,
not in connection with his testimony but just in connection
with the aftermath of the bombing.  And he's a very mature
little boy.  And he is still a little boy, but he is a mature
person --
         THE COURT:  Understands . . .
         MR. RYAN:  -- has never cried, never shed a tear
yesterday, your Honor, when I was with him and when he was
typing this statement out.  He has been through a lot, but I
don't think that you'll see an emotional breakdown by this
child.
         THE COURT:  And understands the obligation of an oath?
         MR. RYAN:  We went over that with him, your Honor.
         THE COURT:  All right.
         MR. CONNELLY:  I think that addresses all the
testimonial issues that were raised.  If I missed any, I'm sure
Mr. Burr will remind me.
         Then the objections turn to exhibits.  And the first
category -- oh -- I'd like -- there is a broad category of not
testimony so much as category of impact, an aggravating factor.
As the Court knows, we've alleged that, as provided by the
statute -- that one of the five aggravating factors under the
statute is that the deaths occurred to particularly vulnerable
victims who were vulnerable because of several reasons.  As of
now, we're just saying they were vulnerable because of their
youth, and that would be the children in the building.  There
was some discussion the Court initiated in terms of the legal
elements of that.  I'd like to address that briefly, if I
could.
         THE COURT:  All right.  Sure.
         MR. CONNELLY:  It's our position that the defendant
does not have to know that the victims were particularly
vulnerable.  The statute itself, in contrast to the federal
Sentencing Guidelines, has no knowledge requirement.  Congress
obviously knew how to put a knowledge requirement in.  They did
so:  For example, "knowingly created a grave risk of death."
They know how to use the word "knowingly."  There is no
suggestion in there it had to be "knowing."
         Under Payne, the teaching of Payne is that a murderer
takes his victims as he finds them and doesn't have to know all
their life circumstances; and the fact that victims were
particularly vulnerable, we submit, is a valid aggravating
factor apart from any scienter as to that element.  Scienter
obviously has to be an intentional killing; but if you
intentionally kill somebody or a group of people in a mass
murder, there is no scienter requirement.
         And I contrast the statute with the aspect of the
federal Sentencing Guidelines that the Court referred to, which
says -- I think it's a two-level enhancement of the sentence if
the defendant knew or should have known that his victims were
particularly vulnerable.
         So here again, although that's not drafted by
Congress, it's drafted by an administrative agency with a
layover provision to Congress.
         THE COURT:  Well, Congress has the veto.
         MR. CONNELLY:  Right.  And it doesn't go into effect
until Congress --
         THE COURT:  And presumably Congress knows what
"vulnerable" means.
         MR. CONNELLY:  I think they do, and I think -- they
certainly know a scienter requirement when they want to, not
only in the guidelines but in other parts of the aggravating
factors.
         THE COURT:  Well, I don't need any argument on that.
You have to show an awareness that children were there, if
you're going to use children.
         MR. CONNELLY:  Okay.  I'd like to address that.  I
think there is evidence from which you can infer that.  Can I
inquire of the Court of whether it will be like the guidelines:
"know or should have known"?
         THE COURT:  Yes.
         MR. CONNELLY:  Okay.  There is plenty of testimony in
this case from Richard Williams and others talking about how
the day-care center -- you could see the children as -- from
the street, from the street front.  There was a glass-front
enclosure.  It was on a low floor.  And there is plenty of
testimony from which you could infer that anybody in front of
the building knew or should have known.  I would say "know" but
admittedly --
         THE COURT:  I'll tell you I've considered it at some
length.  The "particularly vulnerable" will not be applied to
the children.  You may argue that the "particularly vulnerable"
applies to the entire -- all of the occupants, because there
they are in a very vulnerable building; and one of the premises
of this case, as I understand it from the prosecution, is that
that building was selected because of its vulnerability, the
glass front.
         MR. CONNELLY:  Would that be a statutory aggravating
factor, or nonstatutory at that point?
         THE COURT:  Well, it's the aggravating factor that
you've put in your notice, which is a statutory factor.  That's
my interpretation of the statute.
         MR. CONNELLY:  Okay.  We accept that interpretation.
         The -- that's the end of the testimonial part, I
think, of the challenges.
         The next challenges are to what the defense calls
"gruesome photographs."
         THE COURT:  Well, what about these videotapes?
         MR. CONNELLY:  Okay.  The videotapes:  We intend to
offer only five videotapes.  Three are not contested.  The two
that are contested, the first one is Exhibit 1483 and will be
approximately 7 to 8 minutes.  It's a home video taken by one
of the victims at the credit union.  It shows a typical day in
the life of the credit union; and on that video are, I think,
about six -- herself and six people that ultimately were
deceased victims of the bombing.  And it's just basically a
quick day -- typical day in the life video that was taken some
months before the bombing.
         THE COURT:  What's the value of that?  What does that
prove?
         MR. CONNELLY:  I think again under Payne and under the
statute, it identifies six of the victims and provides a brief
snapshot, in the words of Payne, of a typical day in their
life.
         THE COURT:  Exclude it.
         What's the other one?
         MR. CONNELLY:  The other one is Exhibit 1444.  That is
about a 3-minute tape taken by a news station.  There is no
challenge to authenticity.  It is a tape to show the serious
bodily and physical injury to all these people as surviving
victims.  I don't think it's graphic in any way.  It's not a
pleasant sight, to be sure.
         THE COURT:  Give me a little more identification of
it.  Is it at a hospital?
         MR. CONNELLY:  It is at a series of locations around
Oklahoma City, a couple of hospitals, a couple of informal
rescue sites.
         THE COURT:  Was it shown on local television?
         MR. CONNELLY:  I don't know that it was shown in its
entirety.  It is an outtake of --
         MS. BEHENNA:  Your Honor, if I could, just to address
this issue, it is an edited version of raw footage taken at one
of the news stations in Oklahoma City that shows scenes
immediately outside hospitals.  One was St. Anthony's Hospital
in downtown Oklahoma City.  The other was University Hospital.
Some of the footage was played on TV.  It shows scenes of
ambulances arriving to the emergency rooms and the ambulance --
or the medical personnel then coming out to the ambulances to
treat the injured and then being wheeled in gurneys and
wheelchairs and walked into the hospitals for treatment.
         THE COURT:  So it simply shows people being taken into
a hospital?
         MS. BEHENNA:  Yes, your Honor.
         THE COURT:  Well, I don't see any prejudice to that.
I mean, that happened.  As long as we're not talking about
people outside the hospital being interviewed about their loved
ones being in surgery and that sort of thing.
         MS. BEHENNA:  No, your Honor.  There is none of that.
         THE COURT:  All right.  All right.
         MR. CONNELLY:  The next category, unless the Court
wants to address something else, are exhibits, "gruesome
exhibits" -- that are claimed to be gruesome.
         THE COURT:  This is what I have up here?
         MR. CONNELLY:  Yes.  They should all be in the book.
Did you pull the ones --
         THE COURT:  Well, someone pulled these; and I think
these are the ones identified by Mr. Burr.
         MR. CONNELLY:  Okay.  I'd like to give some background
on that.  All of those photographs, along with about 15 others
that are not challenged -- Just by way of background, when we
came in this morning, we only understood that they challenged
three photographs; and we agreed to remove two of those three,
and there was only one that was a matter of dispute.  These are
additional photographs that they've now identified as
objectionable.
         By way of background, they will go along with the
testimony of an epidemiologist from the Oklahoma Department of
Health, who did the Journal of the American Medical Association
study.  We don't intend to introduce the study, the actual
exhibit that was objected to, but we do intend to introduce her
testimony; and her qualifications, obviously, among others, are
that she did this study, and each of these photographs --
         THE COURT:  These are primarily injured persons?
         MR. CONNELLY:  These are people that she will testify
that are among two people that suffered near-fatal injuries, to
prove the element that the defendant knowingly caused a grave
risk of death to persons other than those who were actually
killed.
         THE COURT:  Yes.
         MR. CONNELLY:  Every one of those people survived.
Every one of these people, the 29 photos or the 29 people on
our list, survived; and there are many other photos, one per
person.  There are about 20 to 25 photos in total.
         THE COURT:  What are these -- I'm looking at 1208A and
1208B and 1129A.  Do you have those?
         MR. CONNELLY:  Those are the ones that we just
presented today.  Those are not part of the testimony.  Those
are just taken from the charts that were introduced during the
guilt phase, and they would just correspond when a survivor or
a witness testifies with respect to one of their loved ones.
So that's just really something that's already been introduced
before.
         THE COURT:  Yeah.  So why are we doing it again?
         MR. CONNELLY:  Because it's an individual photograph,
that will be a snapshot that they will identify:  This is the
person I'm talking about.
         THE COURT:  I see.  All right.
         MR. CONNELLY:  As opposed to the group photographs.
         THE COURT:  Then there is one that Mr. Burr suggests
is different coloration.
         MR. CONNELLY:  We did that in order to provide a copy
so everybody could see.  And it's just -- the copy machine made
change of coloration, but that is not the actual exhibit.
         THE COURT:  1410 is the actual.
         MR. CONNELLY:  Yes.
         THE COURT:  And this shows some facial disfigurement
of a survivor.
         MR. CONNELLY:  Yes.  And it will all be -- it will all
be testimony going along -- introduced at time of this
epidemiologist in a -- obviously a professional scientist who
will say that "I found that these were the 29 examples of near
death and here --"
         THE COURT:  "This is what this man has to live with."
         MR. CONNELLY:  Right.
         THE COURT:  All right.
         MR. CONNELLY:  So that is -- those photographs.
         Another category challenged was funeral photographs.
We don't intend to introduce any funeral photographs.  We
originally intended to introduce -- there were two on it that
we are not calling, then; that we were trying to introduce
those two photographs.
         There is a third one that they've lumped in the
category of funeral photographs, and that's Exhibit 1527.  And
we'll be happy to withdraw that.
         I'd like to give the Court some background, though, in
terms of the testimony we expect to elicit on that point; and
the Court may want to look at that photograph, even though we
don't intend to introduce it.  That's 1527.  We will withdraw
that, if there is an objection to it.  But background of that
is simply that one of the people killed in the building had not
been recovered.  And as of the time the building became unsafe
for any further recovery efforts on May 5, the surviving family
member -- in this case, the mother -- and some of the other
surviving family members went down there, were allowed inside
by the people on the scene, and placed a rose at the location
of the person, their loved ones, where they thought the body
remained, because they could not take the body out at that
time; and they came out in front of the building and then had a
dove service where they simply released a single dove into the
air.  And that will be -- we don't offer the picture.  We would
like to offer that testimony as part of the effect.  It will be
simply objective:  The body was not recovered --
         THE COURT:  Well, what's the difference between that
and any funeral ceremony?
         MR. CONNELLY:  Well, I don't think it's actually -- I
think it is the effect of the person.  They are similar.  It is
not a funeral service --
         THE COURT:  Well, it's the same thing.  It's mourning
response, loving-memory-type thing; and I don't deny the
importance of that to the persons affected, but I don't believe
that's the type of thing that the jury should consider.
         MR. CONNELLY:  We had thought we were entitled to
offer it, and we will not, with the Court's ruling.
         THE COURT:  All right.
         MR. CONNELLY:  The -- there are no poems.  That's
another category that's been challenged.  The one that we want
to offer, the Court has already ruled on, 1472.
         We will not seek to offer any journals of -- there
were two that we had intended to offer, and we will withdraw
them.
         THE COURT:  All right.
         MR. CONNELLY:  The -- there are two, I think, other
exhibits that are challenged, and I don't think I'm missing any
others.  I think there two left.  One is 1478.  That is a birth
certificate and should be in the Court's packet.
         THE COURT:  I think I saw that.
         MR. CONNELLY:  The father or mother, one or the other,
we would expect would testify -- and that is a certificate to
one of the young victims -- and would testify that as part of
the identification process, they were asked to provide that
with a copy of the person's --
         THE COURT:  I don't see why the exhibit is necessary.
The testimony is all right.
         MR. CONNELLY:  Very well.  And the last -- and the
last -- we won't offer the exhibit.  We will not -- we will
withdraw that.
         The last exhibit which we think we are entitled to
offer clearly is 1485; and that is there will be a witness who
testified that his wife took that photograph a week before the
bombing -- it was a photograph of the children -- and then he
developed that photograph after the bombing.
         THE COURT:  Is this in the day-care center?
         MR. CONNELLY:  Yes.
         THE COURT:  This is all the children there?
         MR. CONNELLY:  Yes.  Not all of them are deceased, but
it is all the children who were present on that day.
         THE COURT:  All right.  I'll admit that.
         MR. CONNELLY:  I don't think, unless the Court has any
further issues it wants to discuss --
         THE COURT:  How many -- so how many are you putting on
from the injuries, the maimed and disfigured and so forth?
         MR. CONNELLY:  I want to say five.  Five to -- people
who were actually injured you're talking about --
         THE COURT:  Yes.  I mean people who have been injured
and -- you had the captain -- the Marine captain who lost his
eyesight and was -- his career was terminated and so forth,
people like that.
         MR. CONNELLY:  I would anticipate about five, unless
somebody wants to correct me.
         We'll get a better number for you.  This is of the 45
total, your Honor.
         THE COURT:  All right.
         All right.  Well, Mr. Burr, do you have any response?
I've already ruled on some of these things.
         MR. BURR:  Yes, your Honor.
         THE COURT:  With respect to the others, it seems to me
that it's within the law to do as they intend.  On these
photographs, I'm assuming that there is adequate testimonial
support for the photographs; but, you know, we can't sanitize
this scene.  Some of the photographs, although they are
disturbing, of course, are representative of what occurred.
         MR. BURR:  Your Honor, I just had a very short odds
and ends.  May I just stand here?
         THE COURT:  Well, whichever is more comfortable.
 DEFENDANT'S REBUTTAL ARGUMENT ON DEFENDANT'S MOTION IN LIMINE
         MR. BURR:  I did not hear a response to Items 1507, to
1510 and 1515.
         MR. CONNELLY:  I'm sorry, your Honor.  There was no --
we're withdrawing those.
         THE COURT:  All right.
         MR. BURR:  And, your Honor, I did have -- I had one
set of photographs I'd like to draw the Court's attention to,
which I had not done before.  They're a series, 1392, 1393, and
1394, which are -- I'm sorry.
         1393 was withdrawn, so it's 1392 and 1394.  They
are -- they are before-and-after photographs of an injured
victim to which we do not object in principle but do have a
particular concern.
         THE COURT:  What is it?
         MR. BURR:  That is the before photograph of -- appears
to be -- I don't know if it's a glamor photograph or what, but
it's a kind of an artfully done portrait which all of us like
to have.
         THE COURT:  I don't see 1393 here.
         MR. BURR:  I think 1393 was withdrawn.
         MR. HARTZLER:  Correct.
         THE COURT:  Oh, 1392 and 1394 don't match up as the
same person.
         MR. HARTZLER:  I think they do.
         THE COURT:  Oh, I see.  All right.  I'm sorry.
         MR. BURR:  And our objection -- if there were sort of
a normal photograph of the pre-injury, we would have no
objection; but this does not appear to be a normal photograph.
I'm not sure how else to describe it other than --
         THE COURT:  I don't have any problem with it.  I
understand your objection, but I believe it's legitimate.
         MR. BURR:  And, your Honor, we would ask as -- there
was a particular set of testimony that we would ask the Court
to review by way of summaries.  Actually, I'm not sure the
Court has summaries.
         THE COURT:  No, I don't, excepting for the one just
provided, which is the statement to be read by the youngster.
         MR. BURR:  It's the summary of the rescue worker
testimony, which we would like to provide to the Court to
examine because of the vivid -- the vivid and graphic
descriptions of what these folks say they will testify to.  I
believe if there were pictures that matched the words, the
Court would exclude them; and the only --
         THE COURT:  Well, these are the two who are going to
testify about the last moments of life of two of the persons in
the wreckage?  Is that right?
         MR. CONNELLY:  Your Honor, I think what we could do is
work informally with Mr. Burr and come up -- these, as I said,
were over-inclusive.  They were summaries --
         THE COURT:  Yes, that's what you said.
         MR. BURR:  We'll try to work that out.
         THE COURT:  The subject matter is obviously
admissible.  The -- you know, to the extent that the
description of it goes beyond what is appropriate, you ought to
obviously caution the witness with respect to it so that it is
as objective as possible without -- and of course you said that
you intend, and I would permit, the person to testify about his
or her reaction to this event.  That's a part of what I believe
to be appropriate victim testimony.
         MR. BURR:  Your Honor, I think just one other matter I
did not hear addressed were the photographs associated with the
epidemiologist.  We had objected to a number of those, and I
don't recall Mr. Connelly responding to that in particular.
         MR. CONNELLY:  I thought as I was talking, the Court
was looking at them; that the seven or so that were objected
out of the 20 --
         THE COURT:  That's showing injuries?
         MR. CONNELLY:  Yes.

         THE COURT:  Yes.  I'm going to admit those.
         MR. BURR:  I'm sorry.  I misunderstood.
         THE COURT:  As I said, that was what I meant when I
said we can't sterilize all of this effects.  That's part of,
you know, what occurred.  And I assume their testimony will, of
course, again be professional as an epidemiologist in the
description of what these injuries consist of.
         All right.
         Well, I'm not suggesting that you remove your
objections.  Your objections stand.  But I'm trying to give
this guidance to both sides so that we can move through this
without putting either in the position of having to argue these
things.
         How about the statement of this, as I understand it,
now 10-year-old youngster?  Do you have that?  I'm going to
permit it.  You object to it.  I'll permit it.
         MR. HARTZLER:  Your Honor, may I double-team with
Mr. Connelly to invite reconsideration of just one item?
         THE COURT:  Yes.
         MR. HARTZLER:  One of the values that we found from
that videotape from the credit union is it depicts a number of
people, and what we're trying to do is to use, in effect,
representative survivors; and frankly, we can show very brief
live -- it's a second on the video film of -- I think it's six
people who were working in the credit union to show them while
they were alive.  And I just wonder if you would consider
looking at the videotape.
         THE COURT:  No, I'm not going to admit it.  It's not a
day in the life of the credit union that's going to come in.
         MR. HARTZLER:  Thank you.
         THE COURT:  Their identities are here, their
photographs are here; and I don't think that how they acted on
a particular day or interacted is probative of anything of
value here.
         And let me say also publicly that I appreciate the
efforts made by Government counsel here to resist what I'm sure
is strong effort by those most directly affected here to tell
the whole story.  I mean, I understand that.  That's part of
the response.  That is a human response to this event and
this -- all of the aftermath.  But of course, what these
lawyers representing the Government know and what they're doing
here is to acknowledge and try professionally to accommodate
that interest but also their obligation to the law and to the
Court to ensure that this hearing be conducted in a manner that
is consistent with the limitations that the Constitution
commands, knowing that those limitations are not at all clear.
         Payne vs. Tennessee involved, you know, cautions given
by every justice who wrote; and almost every justice wrote in
that case.  And there simply is no clear guidance as to where
the line between appropriate, particularly victim-impact
testimony ends and an appeal to passion, the human reactions,
emotive reactions of revenge, rage, empathy -- all of those
things -- begins.
         So I know that these rulings are not going to be
consistent with the views of many; but nonetheless, we have to
guard this hearing to ensure that the ultimate result and the
jury's decision be one made as truly a moral response to
appropriate information, rather than an emotional response.  So
I appreciate the work that counsel has obviously done in
attempting to comply with the guidance given.
         Mr. Burr?
        DEFENDANT'S ARGUMENT FOR VOIR DIRE OF WITNESSES
         MR. BURR:  There was one other matter I wanted to
address briefly.  We had asked in our initial motion in limine
that the Court consider a procedure similar to that promulgated
by the New Jersey Supreme Court in such cases, where there
would be some preliminary voir dire procedure with respect to
witnesses, perhaps even a reduction of the testimony to
writing, so that there would be clarity and no risk or less
risk about unexpected emotion overtaking people.
    RULING ON DEFENDANT'S MOTION FOR VOIR DIRE OF WITNESSES
         THE COURT:  Well, with all due respect to that court,
that's an appellate view of things, and it's not a trial
judge's view of things.  We can't do dress rehearsals, so I'm
not going to do that.  The only voir dire we're going to have
is those who have been attendant at the trial and observing the
trial.
         I believe that this discussion this morning provides
the necessary opportunity to address it, and I'm confident that
if we proceed according to what's been identified here as
appropriate that the outcome will be consistent with the
constitutional limitations, so --
         Now, we have one other matter -- two other matters.
One is these preliminary instructions, and the other is the
objections to the defense proffer; and we have the defense
response to that that was filed earlier today.  Now, I'm not --
you know, I don't know how much you want to argue that.  I have
a view with respect to it and am inclined -- I'm looking for
the response here -- you've generously endowed me with paper
here.  I have a little difficulty -- here it is.
            RULINGS ON PLAINTIFF'S MOTION IN LIMINE
         THE COURT:  Yes.  The use of the scale model that's
described on page 8 at paragraph 6:  I'm not going to permit
the use of the scale model.  But with that exception, I believe
that the other matters that are identified here -- and what I'm
talking about in particular is given the testimony that was
presented and the arguments that were presented at the trial
here with respect to the significance of the material that's
been introduced in evidence in this case, the defense is
correct that they should have the opportunity to present where
these beliefs came from and what the -- you know, the evidence
came in as motive evidence -- to also show circumstantially
perpetration (sic) and intent, and the full context of that
should come in.
         I note, for example, one of the exhibits used in
argument here powerfully was 454, the one "When the government
fears the people, there is liberty.  When the people fear the
government, there is tyranny.  Maybe now there will be
liberty."  It was argued at great length; and I believe that in
context, that can come in.
         Why, you know, it was asked at times here in voir 
dire -- well, it was asked rhetorically, in a way -- "How could
anyone do such a thing?"  And I believe one of the jurors
mentioned, looking at Mr. McVeigh, "How could such a
nice-appearing young man do such a thing?"  I believe that the
defense is entitled to put on an explanation.
         And with respect to the T-shirt that was also used in
argument here -- the back of it, the "tree of liberty"
quotation from Thomas Jefferson -- I'm enough of a student of
history to know that that was written in response to the Daniel
Shays' Rebellion in Massachusetts in 1786, which was certainly
an insurrection against the then-existing government and
particularly in opposition to farm foreclosures; so that's some
background, not that you have to put on history.  But the fact
that there are persons in our country who have those beliefs is
a fact that I believe can come in and be considered.
         But we're not going to try what actually happened at
Waco or at Ruby Ridge or any of those things.  It's an issue of
perception, a matter of perception, not a matter of what the
actual facts were; and I believe that your response today
reflects that.  And the -- as indicated in that response, I
have already instructed defense counsel in the course of an ex 
parte submission under 848(q) as to what some of these limits
were and therefore precluded the use of resources for some of
these purposes except to the extent necessary to develop a
proffer for the record.
         So I'll incorporate that -- those 848(q) colloquies
into this record for purpose of any appeal.
         MR. JONES:  Yes, your Honor.  And so the record is
clear -- I think it is; but just to formally state it, I
understand the ruling your Honor has made today -- and I assume
that's without prejudice to our objection to --
         THE COURT:  Of course.
         MR. JONES:  -- to proceed in the manner outlined in
the proffer and what we originally submitted in the 848.
         THE COURT:  Yes.  Have you developed a written
proffer, too?
         MR. JONES:  There will be one, your Honor.  We're
working on it now.
         THE COURT:  All right.  But I think this is awkward,
because the Government didn't participate.  They couldn't
participate, because this was expressly under 848(q); but I
believe that my response to the requests made -- and the
requests made should be made a part of the court record, which,
of course, will, after this next phase is completed, be a
matter that can be known to the Government.  But rather than
going through all of that, through the adversary process, it
seems to me to be simpler to just incorporate that.  My rulings
are there, and essentially they are that I do not intend to
have a trial of what happened at Waco and I don't intend to
have a trial of what happened at Ruby Ridge.  Those events have
already been the subject of trials.
         Now, there is one other aspect to this, and it's on
page 18 of the response; and I think that what it simply is
saying is that the Court should not require as a predicate for
this type of testimony and submission of information that there
be testimony from the defendant with respect to his views and
beliefs.  And I don't know that the Government was going to
take that position; but I'm, I think, still enough of a lawyer
to know that the question of whether a defendant should take
the stand in a sentencing hearing and testify -- whether that
has an effect on his rights of appeal is a serious question.
         It's one thing when a defendant stands up in the
normal sentencing hearing and exercises his right of
allocution.  And under those circumstances, I don't know of any
court of appeals that ever has held that because a person in
exercising the right of allocution may admit the offense that
he loses his appeal.  I don't know what the situation is,
however, when a person testifies in front of a jury at a
sentencing hearing.
         And I'm not going to require that any defendant -- and
certainly am not going to require it of Mr. McVeigh -- that he
make a choice between an appeal and the opportunity to testify
at a sentencing hearing.
         Therefore, I'm not going to require as a predicate for
this evidence that he testify that these were his beliefs.  The
indirect testimony will be the sufficient predicate.
         Now, I'm asking the Government to accept that, but I
just thought I might cut right to it and avoid a lot of
discussion that I don't think is going to persuade me to any
different view and give you an opportunity to prepare for
tomorrow better.
         MR. JONES:  Judge, it's always a concern in this case
that you're too subtle.
         THE COURT:  All right.
         MR. HARTZLER:  I do think the one thing we would like
to do is possibly propose an appropriate instruction to the
Court when this material comes in as to --
         THE COURT:  Instruction to the jury.
         MR. HARTZLER:  Yes.  We would propose to the Court an
instruction to the jury.
         THE COURT:  Yes.  I'll consider that.  A limiting
instruction, really.
         MR. HARTZLER:  Right.
            DISCUSSION RE PRELIMINARY INSTRUCTIONS
         THE COURT:  Speaking of the instructions, have you
read what I intend to give as a preliminary?
         MR. CONNELLY:  I did, your Honor, quickly; and there
was only one thing that I'd like to comment on, if the Court
will take comments.
         THE COURT:  All right.
         MR. CONNELLY:  I think it's the initial -- want me to
take the podium?
         THE COURT:  Yes.  Probably.
         MR. CONNELLY:  It's the -- actually, it's the second
paragraph, and I think it comes from a proposed instruction
that the defense submitted.
         THE COURT:  Yes, it is.  I took their No. 2.
         MR. CONNELLY:  I would just urge the Court to avoid
any talk about presumption.  I think this is read such that it
maybe presumes that a sentence other than death is appropriate.
I know if you parse the words, it doesn't say that.  I just
would ask if the Court would consider that the law does not
propose that Mr. McVeigh should be sentenced to death; that he
should receive -- or that any other -- there is no presumption,
in effect, and that the jury should begin with an open mind and
consider all the -- open mind, give meaningful consideration to
all possible sentences.  It's just the part "presumption" -- I
think if you parse it, it's probably correct; but it's possibly
written in a way and possibly intended to be written in a way
that --
         THE COURT:  I see what you're saying.
         Why don't we just say, "Even though you found
Mr. McVeigh guilty of charges which carry a possible death
sentence, the law requires that you approach the sentencing
proceeding with an open mind."
         MR. CONNELLY:  I think that would be very appropriate.
         MR. NIGH:  I would agree with that, your Honor.
         THE COURT:  All right.  That's the way I'll modify
that.
         Do you have any other objection?
         MR. CONNELLY:  Nothing that I -- I didn't have the
chance to read it that I would have liked, and I apologize.
But the rest of it looks like it's --
         THE COURT:  Well, it's very short.  You're a fast
reader.
         MR. CONNELLY:  A lot of people have opinions, though.
         I think it looks fine.
         THE COURT:  All right.  Mr. Nigh?
         MR. NIGH:  Your Honor, there were two other objections
that we had.  On page 3, the second full paragraph beginning
"Your role."
         THE COURT:  Yes.
         MR. NIGH:  We think that that sentence should end
after "moral judgment" and not include about the life -- about
"the worth of a specific life," etc.
         THE COURT:  Well, this language is taken from an
opinion -- from an authority that I recognize more than others:
Mine.  And I intend to give it.  I believe that's the issue.
         MR. NIGH:  I certainly recognize that authority more
than others, too, your Honor.
         THE COURT:  Yes.  Well, I'm not asking you to agree
with it.  Your objection is noted.
         MR. NIGH:  Thank you, your Honor.  These are not so
much objections as requested perhaps modifications.
         In that last paragraph on that page, it indicates that
counsel for the Government and the defendant will make opening
statements.  We may wish to reserve --
         THE COURT:  Oh, all right.
         MR. NIGH:  -- opening statement.  And then it also
indicates that the Government will be allowed rebuttal.  It
doesn't make any provision for the potential for surrebuttal --
         THE COURT:  There isn't going to be any.  I don't know
that there is any procedure for surrebuttal in the admission of
information as we call it.  My understanding of this hearing is
that it proceeds in exactly the same format as the trial, and
the Government does have the burden of proof beyond a
reasonable doubt before a death sentence can be returned,
recommendation.
         MR. NIGH:  That would be --
         THE COURT:  So I'm not going to include surrebuttal,
but I'll certainly modify the opening statements.
         MR. NIGH:  Thank you, your Honor.
         THE COURT:  I assume that counsel for the Government
is going to make an opening statement; and the defense, then,
can either make an opening statement at this time or reserve it
until the time for them to present information, and that's what
I'll say.
         MR. NIGH:  Thank you, your Honor.
         THE COURT:  All right.
         MR. BURR:  We have two other brief matters, if I could
address them.
         THE COURT:  Go ahead.
      DEFENDANT'S OBJECTIONS TO PLAINTIFF'S EXHIBIT 1531
         MR. BURR:  These have to do with an exhibit that we
just got Sunday from the Government.  It's actually a revised
exhibit, Government's Exhibit 1531.  Does the Court -- it's a
chart of statutory aggravating factors.
         THE COURT:  I don't have that.




         MR. BURR:  May I hand my copy to the Court?
         We have several objections to this.  One is that while
certainly Counsel is able to argue the law, we think that --
         THE COURT:  Well, obviously one of them is no longer
applicable:  The young children.
         MR. BURR:  Yes.  In general, we would object to the
Government having a chart of the aggravating factors in advance
of the jury being instructed.
         THE COURT:  Well, actually, this doesn't compare to
the aggravating factors that the Government is relying on.
         MR. BURR:  Our other objection is that, your Honor,
the language is quite different.
         THE COURT:  This is different language.
         MR. CONNELLY:  This is basically, your Honor, trying
to be laymen's language but yet be accurate, and I don't know
that there is any inaccuracy; and it avoids some of the
verbiage --
         THE COURT:  The verbiage is a part of the law, and I'm
not going to allow this paraphrase of the law.
              DISCUSSION RE "GRAVE RISK OF DEATH"
         MR. BURR:  Your Honor, the last thing is this:  The
Government, I believe, has given a different interpretation to
the statutory aggravating circumstance concerning grave risk of
death.  If I could just -- it will take just a moment to
explain this.  But I think it has created a problem of
duplication.
         The statutory language is "The defendant, in the
commission of the offense," skipping immaterial language --
         THE COURT:  This is one of the four?  3591?
         MR. BURR:  This is 3592(c)(5).
         THE COURT:  3592.  Yeah.
         Well, wait a minute.  I'm not going to suggest that
you would misquote the statute, but I'd like to have it in
front of me.
         MR. BURR:  It's important to follow the language
exactly, because --
         THE COURT:  Yes.  Now I have it.
         MR. BURR:  The material part I wanted to focus on was
"created a grave risk of death to one or more persons in
addition to the victim of the offense."
         The Government has now interpreted this statutory
aggravator as applying -- has interpreted the word "victim" to
mean only people who have died.
         THE COURT:  How else should you interpret it?
         MR. BURR:  Well, in the Court's opinion in response to
our challenge to the death penalty statute, I believe the Court
interpreted it as someone who was neither killed nor hurt but
within the zone of risk, as it were, geographic zone --
         THE COURT:  Right --
         MR. BURR:  -- same zone as those who were.
         The Government has now interpreted it as being
satisfied by showing serious injury.  And now because of that
interpretation, it now duplicates the non-statutory aggravating
circumstance in our view that covers people who were seriously
injured, so that there is in effect a double-counting of
injured people in the weight of aggravation.
         THE COURT:  Well, this is a homicide.  The purpose of
the aggravating factors here, by statutory aggravating
factors -- and the non-statutory, too -- is the aggravation of
the homicide; right?
         MR. BURR:  Yes, sir.
         THE COURT:  So necessarily for this purpose under this
section, it seems to me the victim means the decedent.
         MR. BURR:  If that is so, then, your Honor -- then I
think there is a double-counting; because to satisfy the
statutory aggravator we're just talking about, you show that
people were injured:  There was a grave risk death to others --
         THE COURT:  Yeah.
         MR. BURR:  -- reflected by serious injuries to people.
         That same evidence then goes to establishing the
non-statutory aggravating factor focused upon people with
serious physical and emotional injuries.  I think that's the
double-counting problem that we're attempting to point out.
         THE COURT:  I see what you're saying.
         Well, I take it, Mr. Connelly, if you will address
this -- I take it that I've just stated your position that
because this is an aggravation of a homicide, therefore the
victim has to be dead, and therefore it's the grave risk of
death to people who were not killed.
         MR. CONNELLY:  Persons other than the homicide victim.
That's correct, your Honor.  That's our interpretation of the
statute and has always been.
         THE COURT:  That could include -- are you putting it
forth that those are the persons who were injured?
         MR. CONNELLY:  No, no.  The category in this would be
with Sue Mallonee, again.  There are 29 people that she has
identified as suffering near-fatal injuries.  Many, many other
people were substantially injured but didn't suffer near-death
injuries.
         THE COURT:  And some people weren't injured at all
physically --
         MR. CONNELLY:  Right.
         THE COURT:  -- who were in the zone of death.
         MR. CONNELLY:  Right.  And we've identified I think in
Exhibit 1401, consistent with this Court's instruction way back
to identify for the defense a zone of risk of death.  We have
done that, and that's Exhibit 1401; and that identifies
particular buildings and the zone where there was a grave risk
of death.
         THE COURT:  Well, I don't think there is a
duplication, there.
         MR. CONNELLY:  Your Honor, could I ask clarification
on one purpose?  And that was the chart that was solely going
to be demonstrative in terms of walking the jurors through the
aggravating factors.  If we were to use that chart in verbatim
language from the statute as to the statutory factors and then
verbatim language from the notice as to the non-statutory
factors, would that be acceptable?
         THE COURT:  Yes.  I don't have any problem with that.
That's like showing them the elements.
         MR. CONNELLY:  Thank you.
         THE COURT:  But you're going to modify No. 1 from
the -- we're not going to just hand to the jury the notice like
we would an indictment.
         MR. CONNELLY:  I wouldn't expect.  I'd hope we'd do
the Special Verdict Form E, special findings form.
         THE COURT:  That's right.  And I'm waiting to see what
both sides give me on that, which I guess you asked for
tomorrow to do.
         MR. CONNELLY:  And the Court was very indulgent.
         THE COURT:  Yeah.  But modify the language -- my
concern here is with not the use of this but with the
simplification of the language, because I think we need to have
the language of the law here as you have used it in the notice.
         MR. CONNELLY:  It will be verbatim, then.
         THE COURT:  All right.
         Mr. Jones?
         MR. JONES:  The only other matter I have is I wonder
if I might approach the bench with respect to a proffer and the
mechanics of it.  This is something the Court has previously
excluded.
         THE COURT:  All right.  Come up.
         Somebody from the Government?
         MR. JONES:  It will just confuse it, Judge.
    (At the bench:)
    (Bench Conference 131B1 is not herein transcribed by court
order.  It is transcribed as a separate sealed transcript.)













    (In open court:)
                 RULING ON "AGE AND INFIRMITY"
         THE COURT:  All right.  As a result of a brief
conference here, I'm also now ruling that the -- it's been
pointed out to me that the vulnerability provisions here as an
aggravating factor include the age and infirmity and therefore
it doesn't comport with that to say that everybody in the
building is vulnerable; but I want to make clear that my ruling
is based on an implied element of scienter, knowledge, which
can include "reasonably should have known."  And because of
that requirement and considering that there would have to be a
showing here based on the evidence that we've already had --
and there isn't any additional evidence, as I understand it,
that could be offered that would add to what we already have in
the trial evidence -- there is not enough proof that
Mr. McVeigh knew or should have known of the existence of the
child-care center and the -- any other persons who would come
within the statutory parameters.  And therefore I'm excluding
that aggravating factor.
         Now, one other thing that I want to say -- and of
course, there will be people here tomorrow who aren't here now,
but it is very important here, just as I said when we returned
the verdict in this case, that the people in attendance in the
courtroom, all people in attendance in the courtroom, must be
restrained and avoid showing audible or visible reaction to the
testimony, knowing that it will be emotionally powerful even
within the limits that I have defined in this hearing today.
And therefore, I would expect that all persons will avoid those
reactions and expect to react myself if anybody does, you know,
essentially editorialize through their reactions.  I can't
permit it.
         We'll be in recess till 9:00 tomorrow morning.
         Mr. Hartzler?
         MR. HARTZLER:  We have two witnesses that might need
to be voir dired.  Did you want to do that at 8:30?
         THE COURT:  Are they going to be here to testify
tomorrow?
         MR. HARTZLER:  Correct.
         THE COURT:  All right.  8:30.
         Recess.
    (Recess at 12:25 p.m.)
                         *  *  *  *  *
                             INDEX
Item                                                      Page
Defendant's Argument on Victims Rights Clarification Act 11638
Plaintiff's Argument on Victims Rights Clarification Act 11646
Defendant's Rebuttal Argument on
    Victims Rights Clarification Act           
Ruling on Vicitms Rights Clarificaiton Act     
Ruling on Motion for Voir Dire of Jury         
Defendant's Argument on Motion for Recess      
Ruling on Motion for Recess                    
Defendant's Argument on Defendant's Motion in Limine     11660
Plaintiff's Argument on Defendant's Motion in Limine     11680
    (Note that rulings were made by the Court throughout
     the above argument)
Defendant's Rebuttal Argument on
    Defendant's Motion in Limine               
Defendant's Argument for Voir Dire of Witnesses
Ruling on Defendant's Motion for Voir Dire of Witnesses  11712
Rulings on Plaintiff's Motion in Limine        
Discussion re Preliminary Instructions         
Defendant's Objections to Plaintiff's Exhibit 1531       11721
Discussion re "Grave Risk of Death"            
Ruling on "Age and Infirmity"                  
                         *  *  *  *  *
                    REPORTERS' CERTIFICATE
    We certify that the foregoing is a correct transcript from
the record of proceedings in the above-entitled matter.  Dated
at Denver, Colorado, this 6th day of June, 1997.

                                 _______________________________
                                         Paul Zuckerman

                                 _______________________________
                                          Kara Spitler