The Oklahoma City Bombing Trial Transcripts
Terry Nichols
Friday, November 28, 1997 (afternoon)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Criminal Action No. 96-CR-68
UNITED STATES OF AMERICA,
Plaintiff,
vs.
TERRY LYNN NICHOLS,
Defendant.
REPORTER'S TRANSCRIPT
(Trial to Jury: Volume 97)
Proceedings before the HONORABLE RICHARD P. MATSCH,
Judge, United States District Court for the District of
Colorado, commencing at 1:43 p.m., on the 28th day of November,
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 RYAN, United States Attorney for the Western
District of Oklahoma, 210 West Park Avenue, Suite 400, Oklahoma
City, Oklahoma, 73102, appearing for the plaintiff.
LARRY MACKEY, SEAN CONNELLY, BETH WILKINSON, and
GEOFFREY MEARNS, Special Attorneys to the U.S. Attorney
General, 1961 Stout Street, Suite 1200, Denver, Colorado,
80294, appearing for the plaintiff.
MICHAEL TIGAR, RONALD WOODS, ADAM THURSCHWELL, REID
NEUREITER, and JANE TIGAR, Attorneys at Law, 1120 Lincoln
Street, Suite 1308, Denver, Colorado, 80203, appearing for
Defendant Nichols.
THOMAS KELLY, Attorney at Law, 2500 Republic Plaza,
370 17th Street, Denver, Colorado, 80202-4004, appearing for
third parties The Arkansas Democrat-Gazette and Rodney Bowers.
* * * * *
PROCEEDINGS
(Reconvened at 1:43 p.m.)
THE COURT: Be seated, please.
HEARING ON MOTION TO QUASH SUBPOENA
We have the motion to quash subpoenas served upon a
third-party witness, Rodney Bowers, of The Arkansas
Democrat-Gazette with Mr. -- there you are, Mr. Kelley.
And you filed the motion. And I hadn't required a
written response, but I think -- I have the motion. I have the
affidavit of Rodney Bowers which was attached to it and a
motion to set this hearing on it.
I think maybe the easier thing for us to do,
Mr. Kelley, is to hear from Mr. Tigar about what is proposed to
be asked of this witness.
MR. KELLEY: I would appreciate that, your Honor.
THE COURT: You're not claiming an absolute privilege
not to respond to the subpoena but a privilege that has been
discussed as a qualified privilege in the cases.
MR. KELLEY: That's right. And I've also learned it
is uncomfortable waltzing in here and being the first to speak,
because I can't know as much about the case as people --
THE COURT: Yes. Well, I think we ought to know what
is the purpose of the defendant's subpoena -- and we ought to
know the purpose of it and see what problem there is, if any.
MR. KELLEY: Thank you, your Honor.
THE COURT: Mr. Tigar, if you will address . . .
DEFENDANT'S ARGUMENT
MR. TIGAR: If your Honor please, in the
examination -- cross-examination, rather, of Roger Moore, I
asked him about a number of prior versions of events that he
had given to a number of people. The alleged robbery of Roger
Moore is, of course, in the indictment; and our motions to
strike it out of there on various grounds have all been denied
by the Court.
We therefore take it that Mr. Moore's prior statements
to other people inconsistent with his testimony here are
admissible and at the very least, of course, they're admissible
as impeachment; but they may also be admissible as substantive
evidence under Federal Rule of Evidence 801. That's all we
seek.
As I fairly set the stage with Mr. Moore: Didn't you
tell so-and-so this about the robbery; and he said, No, I
didn't. I never had such a conversation. I'll -- I intend to
put the witness on and say, Did you have that conversation; did
Mr. Moore say such and such?
The article in question that we use as the basis for
our inquiry is one in The Arkansas Democrat-Gazette that quotes
a confidential informant and a bunch of other stuff. We don't
intend to go into any of that.
THE COURT: This is the 6-22-95 article --
MR. TIGAR: Yes, your Honor.
THE COURT: -- which quotes Mr. Moore?
MR. TIGAR: Yes, your Honor. And -- another water
cup, your Honor. I think I should stand somewhere else.
THE COURT: Or maybe we ought to put everybody on a
water ration.
MS. WILKINSON: It wasn't my cup this time, your
Honor.
MR. TIGAR: So, your Honor, I fail to see that there
is a privilege issue here. The matter is no different from
Mr. Moore having spoken to anybody in the street.
THE COURT: So the only thing you intend to ask him
about is what Mr. Moore said to him.
MR. TIGAR: That's correct, your Honor.
THE COURT: On the occasion of the -- apparently an
interview.
MR. TIGAR: Right. And I don't know from the article
how much of that was by telephone and how much of it was in
person. Obviously, we'd have to establish some foundation for
that. But that's it. That's all we intend to ask. And I know
of no case law that says that's covered by a privilege.
THE COURT: Well, Mr. Kelley, what do you say to that,
now that we know the purpose of the subpoena?
THIRD PARTIES' ARGUMENT
MR. KELLEY: Well, I think our record also shows that
this reporter knows everything he knows as a newspaper
reporter. I don't think that's in issue. And I've been over
Mr. Moore's testimony; and near as I could tell, the only thing
Mr. Tigar asked Mr. Moore about that Reporter Bowers would be
able to impeach him on is a question that appears on page 114
of the odd-line transcript. I don't know if that's of any help
to anyone. I take it back.
It's on page 115. There are two questions asked. The
first one:
"Do you remember telling the reporter that the guy had
been standing there since dawn?" They could determine that.
And the answer was, "Yes." He admitted saying it.
So on that statement, there is no need for any
impeachment.
The second is on the next page, 115: "Do you remember
ever saying to Mr. Rodney Bowers or any other reporter:
'Whatever I was doing for the FBI is F-blank' --" it's an
expletive deleted -- "'up because they blew my cover'?"
"Answer: Absolutely not."
And that's the one item that does appear in the -- I
think the article is June 22.
And this is an interview with Mr. Moore on that
shortly after the robbery occurred but after the bombing in May
or so of -- May and June of 1995. And the pertinent paragraph
is -- reads as follows:
"Subsequently Moore said, 'Whatever I was doing for
the FBI is F-blank up because they blew my cover,'" and goes on
to say, "He," Moore, "who has sold ammunition at gun shows
across the nation, declined to discuss his involvement with the
FBI."
THE COURT: Well, there is also some material in here
about a list of serial numbers.
MR. KELLEY: Maybe I missed it, but --
THE COURT: I'm talking about the published article.
MR. KELLEY: -- but I don't recall Mr. Moore being set
up for impeachment --
THE COURT: Well, look, you know, I'm not going to
rule on what's impeachable and what isn't impeachable with your
client not here testifying. You're seeking to excuse him
completely from a subpoena. That's the issue.
MR. KELLEY: That's right.
THE COURT: All right.
MR. KELLEY: In support of that request, your Honor, I
think we have shown that the only thing he has to say --
THE COURT: Well, that's not -- what I'm not going
into with you, what is impeachment and what isn't. I'm not
going to deal with that without the witness here.
MR. KELLEY: Well, your Honor, I think showing why he
is being called to testify is part of the burden that has to be
met to satisfy Silkwood.
THE COURT: Well, your motion is denied. Have him
here.
MR. KELLEY: Your Honor, I -- I would like to argue
why a privilege is being claimed.
THE COURT: Well, I understand that you want me to
have Mr. Tigar say exactly what questions are you going to ask
this man and then rule on whether that's proper impeachment;
right?
MR. KELLEY: No. I want your Honor to apply the
three-part test that is set forth in the Silkwood test.
THE COURT: That's how you want me to apply it, isn't
it?
MR. KELLEY: Well, I think what the Court has to look
at is relevance. That is Item No. 1 in the Silkwood test. And
yes, I think that's what the Court has to look at.
THE COURT: Well, the one question that has been asked
is relevant. That's not collateral impeachment in this case.
You make that point in your motion that you can't impeach on a
collateral matter; right?
MR. KELLEY: Yes.
THE COURT: All right. This is not collateral
impeachment.
MR. KELLEY: If your Honor finds that it's relevant,
there are two other points that have to be addressed in the
Silkwood case, the first of whether it goes to the heart --
heart of the claim --
THE COURT: Silkwood case is a civil case, you
recognize.
MR. KELLEY: That's right, but relevance is a concept
that is very identifiable in criminal cases as well.
THE COURT: Well, the basic law here is Branzburg vs.
Hayes still.
MR. KELLEY: Well, I understand that.
THE COURT: All right.
MR. KELLEY: The Tenth Circuit in Silkwood --
THE COURT: I don't think that the Silkwood case is
controlling on this matter.
MR. KELLEY: Well, Branzburg did indicate -- and
circuits all over the country have so applied it to require
that there be some balancing of a reporter's interest in
maintaining flow of information from sources and the actual --
THE COURT: You put in your motion that he's too busy
to come here. Now, is that a ground for me to excuse him from
a subpoena; that he's busy?
MR. KELLEY: Nobody is saying that is a ground by
itself.
THE COURT: Well, why did you put it in the motion?
MR. KELLEY: Because case after case has said that
taking a reporter from the job of reporting the news for a day
or two is not something that should be done unless there are
grounds for overcoming the privilege.
THE COURT: Well, go ahead and complete your argument.
MR. KELLEY: Your Honor, this test, the Silkwood test,
requires that the evidence not only be relevant -- and I think
in this case we have a witness who has been impeached several
times on several subjects, and there are several areas in which
evidence of this kind can be brought in. Thus, I don't think
there has been a meeting of the burden to show that this is
somehow uniquely important and relevant to the defense that's
being put on.
What is being -- what Counsel is trying to show is
either that this witness said at the time he was interviewed by
the reporter untruthfully that he had been working with the FBI
presumably in some fashion other than cooperating in this case,
or that he's testifying untruthfully and denying having said
that. And it certainly won't be the first time that a witness
denies having said something to a reporter.
There is a privilege, your Honor. There is a
recognized privilege for someone in Mr. Bowers' position. When
he testifies, what he says will be published nationally. In
terms of how it affects his ability to gather news, I think the
Court could just --
THE COURT: Well, do you have any appreciation of the
importance of Mr. Moore's testimony in this case?
MR. KELLEY: Yes, sir.
RULING
THE COURT: All right. And the credibility of
Mr. Moore goes to whether the jury is to believe that Terry
Nichols robbed him. And that is a rather significant point in
the Government's case, and this is a capital murder case.
Have Mr. Bowers here. Your motion is denied.
MR. KELLEY: Thank you, your Honor.
THE COURT: And you can be here when he's here so that
areas that may be within the scope of the qualified privilege
can be ruled on at that time. But there is a sufficient
showing here to require him to appear.
And with respect to the timing and importance of his
work and our interruption of it, I'm sure that that can be
arranged with Counsel to minimize the time involved.
MR. KELLEY: Thank you, your Honor.
THE COURT: All right.
HEARING ON MOTION TO STRIKE TESTIMONY
THE COURT: Now we have the matter of whether there
has been a violation of Rule 615 in connection with the
testimony of Ronald Kelly, so I wish to proceed on that.
Mr. Kelley, you're excused. You don't --
MR. KELLEY: Thank you, your Honor.
THE COURT: -- have to hang around for this.
The Court of Appeals may not be open today. I don't
know.
DEFENDANT'S ARGUMENT
MR. TIGAR: In cross-examining Mr. Kelly, your Honor,
we brought out the basic facts, and I would suggest that he be
brought in in case anyone has additional questions to make. I
obviously --
THE COURT: Well, I didn't know whether you wanted to
ask him some additional questions beyond what was done with the
jury here.
MR. TIGAR: No, I don't have any additional questions,
your Honor, unless they are suggested -- it's just
inconceivable to me that these witnesses were not instructed
with respect to this matter. The custody of Q507, this piece
of paper (sic), has been a matter in sharp dispute ever since
the issue first surfaced; and I was, quite frankly, quite
surprised to hear about these conversations. I don't know if
the Government wants to develop more of a record here. I would
certainly now like to ask Agent Wilson to come in. I
understand he's been kept, also, to get his version of these
conversations. But I did not have any more questions of
Mr. Kelly. Perhaps the Court did, or the Government.
THE COURT: All right. But you will want to call
Mr. Wilson.
MR. TIGAR: Yes, your Honor.
THE COURT: Yes. All right. Well --
PLAINTIFF'S ARGUMENT
MS. WILKINSON: Your Honor, could I just address the
legal issue of a violation of Rule 615 --
THE COURT: Yes.
MS. WILKINSON: -- to set the stage for calling
Mr. Wilson?
My understanding is that the rule says that the
purpose is that at the request of a party, the court shall
order witnesses excluded so they cannot hear the testimony of
other witnesses; and it may make the order of its own motion.
We all agree that is impermissible for one witness to
hear another witness' testimony, or once the witness is
finished with his testimony, for him to discuss it with another
witness.
I do not think that Mr. Kelly said he discussed
Mr. Wilson's testimony with him. Mr. Wilson was on the stand
Wednesday afternoon at the close of -- towards the close of
business. Mr. Wilson got off the stand. My understanding is
there was no conversation between them when Agent Kelly took
the witness stand. I can't remember if he came -- well, he
came on, I think, Friday.
THE COURT: I believe his testimony is that after he
testified in the Timothy McVeigh trial, he talked.
MS. WILKINSON: Meaning when he said he talked a month
ago -- a month or two ago to Mr. Wilson.
THE COURT: Yes. It's not what happened this week;
it's what happened after his testimony in the McVeigh trial.
MS. WILKINSON: I didn't understand --
THE COURT: Isn't that right, Mr. Tigar?
MR. TIGAR: Yes, your Honor, that's my understanding.
I'd also like to respond to that interpretation of Rule 615.
MS. WILKINSON: I didn't understand that -- Mr. Kelly
to be saying he discussed his testimony from the McVeigh case
with Mr. Wilson.
THE COURT: He discussed the evidence, and his
testimony was about the evidence. And it was about this very
point, wasn't it?
MS. WILKINSON: I believe it was about who took the
photographs, which ultimately is not the real point -- I
understand that witnesses should not be discussing their trial
testimony; but the ultimate point is that they were
discussing -- my understanding is -- from his testimony is who
took the photographs, which doesn't -- and the testimony didn't
change. I mean, Mr. Kelly still believes that Mr. Wilson took
the photographs, and Mr. Wilson still thinks that he did not
take the photographs. And I believe that's what was presented
to the jury. But if defense counsel wants to call Mr. Wilson,
that's fine.
THE COURT: All right.
MS. WILKINSON: Our point is -- Counsel has the
ability -- has already had the ability to question Mr. Kelly in
front of the jury and bring out those points and can make those
arguments, obviously --
THE COURT: Well, who has been dealing with these
witnesses from the prosecution?
MS. WILKINSON: I have, your Honor.
THE COURT: And did you instruct them with respect to
the requirements of the order of sequestration under Rule 615?
MS. WILKINSON: I don't recall whether I instructed
Mr. Kelly specifically. I recalled when I prepared them for
testimony, I prepared each of them separately, as is our
procedure. I called Mr. Wilson into my office with another
agent, not an agent who is testifying about this issue,
prepared him, sent him out, and brought in Agent Wilson. I
believe that agents know they're not allowed to discuss the
trial testimony. I know Mr. Kelly is not an agent and has
never testified as a non-expert before, so perhaps that was my
mistake, your Honor. I may have instructed him. I just can't
say that I specifically instructed him; so in that regard, it's
my fault. But it was my understanding that FBI employees know
they're not supposed to discuss their trial testimony.
And I questioned them separately for exactly that
reason, so I would get their recollections. And their
recollections don't match, which happens sometimes with
witnesses.
THE COURT: Well, that isn't the issue here. The
issue is whether there has been a violation of Rule 615.
MS. WILKINSON: I understand that, your Honor; and if
it was my lack of direct instruction, I'm not -- I can't tell
you whether I instructed them or not. I tell all witnesses
when they get off the stand, of course, not to discuss their
testimony. I thought I did that with Agent Kelly long ago; but
whether I gave him a specific instruction when he came back to
the office for preparation, I can't tell you that I did.
THE COURT: Well, what was told to the witnesses who
testified at the McVeigh trial about the continuing Rule 615
obligation to this trial?
MS. WILKINSON: I don't believe we gave any general
instruction. I'll have to confer with Mr. Mackey, but I don't
believe we gave them any general instruction.
MR. MACKEY: There was none, Judge. No one on behalf
of the Government identified every specific witness that we
anticipated would be called in the Nichols case and gave them
in oral or written fashion an instruction that "Please
anticipate you may be a witness again, and therefore don't talk
about the case." We did not do that. Obviously, when this
case geared up, jury selection began and the evidence began
flowing, that instruction was given; but nothing was
anticipated months in advance of the start of this evidence
with that -- with that kind of foresight. Perhaps it should
have been. It was not done. I did not do so.
THE COURT: It would have been helpful, yes.
All right, Mr. Tigar.
DEFENDANT'S FURTHER ARGUMENT
MR. TIGAR: If your Honor please, in an earlier
motion, we briefed the issue of the Tenth Circuit's
interpretation of Rule 615, your Honor may recall, with respect
to meetings held in Oklahoma City with prosecutors.
THE COURT: Yes.
MR. TIGAR: And at that time, we pointed out that
under the case law construing Rule 615, the rule is considered
to prohibit consultations among witnesses who know that they
are going to be called in a proceeding. Thus, it is not simply
the literal text of the rule: The Tenth Circuit goes beyond
and has this additional protection of the process.
Agent -- excuse me. Mr. Kelly states that no one ever
told him he wasn't supposed to do this. Mr. Kelly says in the
McVeigh trial Agent Wilson took the pictures.
On direct examination here, he comes and says, "No,
Agent Wilson didn't take the pictures. I was mistaken," and
then on cross-examination says, well, maybe he wasn't mistaken;
now he just doesn't remember.
The significance of the pictures becomes clear --
THE COURT: Well, I think what he said was it's still
his best recollection --
MR. TIGAR: Yes.
THE COURT: -- that Mr. Wilson took the pictures.
MR. TIGAR: Yes. That was where he finally wound up,
although he said, as I recall, on direct examination that he
had been mistaken at the earlier time. The record will show
what the record shows.
THE COURT: Yes.
MR. TIGAR: The point is that Mr. Kelly, having been
part and parcel of this dispute over the provenance of Q507,
cannot have been unaware of the significance. Indeed, in the
last trial it was suggested by the defense that Q507 had been
retrieved by a civilian and that -- and had been brought in,
and then you had a lot of testimony about that, so that there
was never any doubt in the Government's mind that this custody
issue and where Q507 was and who got it and who took a picture
of it and when they took a picture of it was something that was
very, very important.
Now, Agent Wilson did not testify in the last trial;
but since he was in the chain of custody, he could reasonably
anticipate that he might be called and at some point -- the
Government doesn't tell us when -- he received notice that he
should be available to testify in this case.
As a special agent of the FBI, he should know what
that means.
Mr. Kelly, as a 19-year veteran of the FBI, should
also know what that means. And here we have the statement that
corroborates that nobody ever told him.
Your Honor, this is a violation of the rule as to this
important issue, and we do think that Agent Wilson should be
called. Perhaps, as I say, there are other questions of
Mr. Kelly. And at that point, we made a motion at the bench
and we repeat it now: We believe that the testimony of Agent
Kelly and Agent Wilson should be stricken and that then the
Court should consider what that does about the chain of custody
of Q507.
THE COURT: All right.
PLAINTIFF'S FURTHER ARGUMENT
MS. WILKINSON: Your Honor, may I address one other
issue --
THE COURT: Yes, sure.
MS. WILKINSON: -- just to make the record complete?
We did not know that we were going to call Agent
Wilson, obviously, in the McVeigh case, since we did not.
About a month before or two months before we were getting ready
for this trial, I called Agent Wilson in because I had reviewed
the transcript from the McVeigh case and thought that Mr. Tigar
may challenge the chain of custody of Q507.
I believed Agent Wilson was the photographer. His
name is on the log. His name is on the back of the
photographs. So when I brought him in and he said he was -- he
did not think he was the photographer, I then called in
Mr. Kelly again to confront him, to see if we had an error in
the McVeigh case, knowing I would have some obligation if we
did to report that and to make that clear in this case.
THE COURT: What do you mean you confronted him? Did
you have a three-way conversation?
MS. WILKINSON: No. No. I brought him in separately
and asked him separately what was the basis of his
recollection. I can see why he recollected that and reviewed
the documents and thought that Agent Wilson was the
photographer; but when Agent Wilson tells me he's not the
photographer, I realize there is a conflict.
THE COURT: Well, is there any record other than this
log --
MS. WILKINSON: There isn't, your Honor. That's the
problem. I mean, we have these -- can I finish, Mr. Tigar,
please.
MR. TIGAR: Of course. I thought you were finished.
THE COURT: You know, I wanted to know independently.
MS. WILKINSON: No, we've searched, your Honor. As
soon as I realized there were two conflicting memories, which
as we've said happens sometimes, we tried to track it down. We
cannot determine who the photographer was. So we felt like we
had to leave the record the way it was, but I had to -- I say
"confront" -- talk to Mr. Kelly and see what the basis was of
his recollection.
THE COURT: So after inquiry of the FBI, the only
information you have about recording this process is the log
that we have in evidence.
MS. WILKINSON: That's right.
THE COURT: Which Mr. Wilson says is incorrect.
MS. WILKINSON: Right. He says that he kept the log
but he didn't take the photographs.
THE COURT: Yes.
MS. WILKINSON: Nowhere on it does it say he was the
photographer. I assumed that, and I assume what happened was
on the back of the photographs where it says "Agent Wilson" and
the roll number that FBI lab processes these photographs and --
and I assume because the photograph log says Mr. Wilson's name
on it, they put his name on the photographs just like when
Ms. Hester came forward about the FBI key -- I mean the picture
of the key -- she was the photographer and kept her own log.
But there is no other written record to determine who the
photographer was.
THE COURT: Well, is there a record of who was
assigned to this team, this chemical team?
MS. WILKINSON: You've seen what we have, which is
that 302 that they put on top; and all that has is Mr. Kelly's
name and Mr. Wilson's name. They recall other people being
there at certain times, but there is no record of who the
photographer was. And, you know, again, I think they just --
THE COURT: Well, do we have a record about who the
photographer was on these other items?
MS. WILKINSON: It's all the same roll of film.
THE COURT: All the same roll.
MS. WILKINSON: And that's the problem. And
obviously, someone was directing Mr. Wilson to write down the
photographs, and that's why we see that he doesn't write down
every photograph that was taken. So, you know, I can only
guess as to what happened with the photographer; so we
presented -- when I interviewed both of them, until a couple
days ago, we still weren't sure whether we were going to call
Mr. Wilson at all or just call Mr. Kelly. We finally decided
we should present all the evidence, and now I feel like by
presenting all the evidence we're just trying to show there is
a discrepancy in the memories. And I believe what happened was
not knowing -- not talking to either of the individuals about
it, they had been both confronted by me separately and
challenged quite vigorously as to their memories to try and
figure out what happened; and they must have gotten back
together, talked about it when they were looking at the
evidence, I assume, trying to figure out what happened.
THE COURT: Well, I think we ought to find out what
Mr. Wilson's version of these discussions is.
MS. WILKINSON: Sure.
THE COURT: Mr. Tigar?
DEFENDANT'S FURTHER ARGUMENT
MR. TIGAR: Your Honor, may I just be heard briefly?
If, indeed, Mr. Wilson -- excuse me -- If, indeed,
Mr. Kelly told Ms. Wilkinson some time ago that his
recollection of who took the photographs might now be
different, then under the Court's prior order we should have
received some notification of that, because that's a change,
even if that took place in an interview with counsel. That's
what I understood the Court's order to be. We have never
received any such notification.
And with respect to who the photographer is, that is
Exhibit E5. If the Court looks on the back of each of the
photographs, the sticker says, "Photographer, Mr. Wilson." I
just wanted to make clear that that is the state of the record.
Now we're now told that's something that's done in the
processing laboratory. That had not previously been brought
out. But I do agree we should hear from Agent Wilson.
THE COURT: Let's get him in here, yes.
We had you excused before, but a matter has come up
that makes necessary for us to call you back under the
previously taken oath; so please resume the witness stand.
(Alton Wilson was re-called.)
THE COURT: Mr. Tigar, do you wish to inquire?
MR. TIGAR: Yes, please.
DIRECT EXAMINATION
BY MR. TIGAR:
Q. Agent Wilson, do you remember the first time that you
discussed with members of the prosecution team whether or not
you had taken the photographs that were -- the log of which you
saw earlier today?
A. Yes, I do.
Q. When was that?
A. That occurred during my initial trial preparation, my
initial visit for trial preparation.
Alton Wilson - Direct
Q. When was that, sir?
A. That was approximately September or October of this year.
Q. Of 1997?
A. Of 1997.
Q. By the way, are you aware of why you're here, why you're
back here?
A. No, I'm not.
Q. Nobody has told you?
A. That's correct, sir.
Q. And at that time, which prosecutor did you meet with in
September of 1997, whenever that was?
A. Beth Wilkinson.
Q. And did you discuss with Ms. Wilkinson whether or not you
had taken the photographs?
A. Yes, I did.
Q. Did she tell you that there was a -- some dispute about who
had taken the photographs?
A. I believe she did, yes.
Q. And what did she -- what did you understand the dispute to
be?
A. Whether or not I took the pictures.
Q. Did she tell you about Mr. Kelly's recollection of that
event?
A. I believe she did.
Q. So she told you that Mr. Kelly remembered it differently
Alton Wilson - Direct
than the way you remembered it. Is that right?
A. Pretty much.
Q. And after she told you that Mr. Kelly remembered it
differently than the way you remembered it, what did you say?
A. I told her that I did not recall taking the pictures.
Q. And how long did that first meeting take?
A. Approximately 20 minutes.
Q. Now, did you have another meeting in which you talked about
who took the pictures?
A. I believe I did, sir.
Q. And when was that?
A. This past weekend, sir. Last Sunday.
Q. So there was no meeting between that first one and the one
last Sunday; is that correct?
A. That's correct, sir.
Q. And how long did that second meeting take?
A. About a half hour.
Q. And once again, did you discuss the difference between your
memory and Mr. Kelly's memory?
A. Things were pretty much the same. I reiterated once again
that I did not recall taking the pictures.
Q. Now, in between the first and second meeting, did you have
a talk with Mr. Kelly about who had taken the pictures?
A. I believe I did -- during the first meeting, or my first
trip out here.
Alton Wilson - Direct
Q. You say "during the first meeting." Who was present at
this discussion you had with Mr. Kelly?
A. It was just myself and Mr. Kelly.
Q. Where did the meeting take place?
A. At the U.S. -- I'm sorry. At the command post for this
investigation.
Q. And was that meeting with Mr. Kelly before, or after your
meeting with Ms. Wilkinson?
A. That, I can't recall with certainty, sir.
Q. What did you talk about with Mr. Kelly?
A. The topic of conversation was who took the pictures.
Q. And what did he remember and what did you remember?
A. He stated to me that he recalled that I took the pictures,
and I stated to him that I recall that I did not take the
pictures.
Q. And did you reach some resolution of these different
recollections?
A. We did not.
Q. And did you have -- after that meeting, did you have any
other meeting with Mr. Kelly in which you discussed the
question of who took the pictures?
A. Not that I can recall, sir.
Q. So just the one?
A. That is correct, sir.
Q. After your second meeting with Ms. Wilkinson, did you have
Alton Wilson - Direct
another -- did you have a further meeting with any of the
prosecutors?
A. No, sir.
Q. So in terms of discussing your memory of who took the
pictures, there are only three meetings; is that right? One
with Ms. Wilkinson, then one with Mr. Kelly and then one with
Ms. Wilkinson again; is that correct?
A. To the best of my knowledge, that is correct, sir.
Q. When Ms. Wilkinson spoke to you the first time, was there
anyone else present?
A. I believe there was one other individual present.
Q. Who was that person, sir?
A. Agent Jim Norman.
Q. And is that the only other individual who was present?
A. Yes, sir.
Q. And the second time you spoke with Ms. Wilkinson, who was
present?
A. Agent Norman again.
Q. And as you sit there today, sir, do you remember whether or
not you took the pictures?
A. I do not recall taking the pictures.
Q. Now, in that first conversation you had with Ms. Wilkinson,
did she also discuss with you the photo log?
A. I believe she did, sir.
Q. And that's the photo log that shows 10 frames. Correct?
Alton Wilson - Direct
A. That is correct, sir.
Q. What did she say about that?
A. Well, that there was a discrepancy between the number of
pictures that were taken and the number of pictures contained
in the photo log.
Q. And did she also say there is a discrepancy with respect to
the numbering of the frames?
A. I believe she did, sir.
Q. Now, did you discuss the discrepancy between the number of
pictures on the log and the number of pictures in the book with
Mr. Kelly?
A. I believe I could have, sir, yes.
Q. And was that in that meeting that you told us about after
you met with Ms. Wilkinson?
A. Either before -- before I met with her or after.
Q. And did Mr. Kelly show you an evidence recovery log on
which he had written certain frame numbers for pictures?
A. That, I don't recall occurring, sir.
Q. Now, did you discuss with Mr. Kelly the discrepancy between
the number of frames that you had recorded and the number in
the book?
A. I'm sorry. Could you repeat your --
Q. The number of actual pictures in the book as distinct from
the number of frames listed in the photo log: Did you talk
about that?
Alton Wilson - Direct
A. I believe I did, sir.
Q. And did you talk about with Mr. Kelly the discrepancy
between the identification of the items described in your photo
log and the items that were actually shown in the pictures?
A. I don't recall that, sir. I don't recall discussing that
with him, sir.
Q. Did -- did you find that there was -- that there looked
like there was some problem with the way that photo log was put
together?
A. Well, because of the discrepancy in the number of photos,
yes.
Q. And that was what you were talking about with Mr. Kelly;
right?
A. Yes, sir.
Q. And did you then talk about this again when you met with
Ms. Wilkinson the second time?
A. That is correct, sir.
Q. And did you discuss with her that you just didn't remember
whether you took the pictures or not? Correct?
A. I -- what I told her was I did not recall taking the
pictures.
Q. And what was the tone of that meeting? Was it cordial,
angry? How would you describe it?
A. Cordial, professional.
MR. TIGAR: Thank you, your Honor. I don't have any
further questions.
MS. WILKINSON: Just a few.
THE COURT: You wish to ask? Yes.
CROSS-EXAMINATION
BY MS. WILKINSON:
Q. Agent Wilson, has your recollection of whether you took the
photos ever changed since you first told the Government what
you knew about the photos?
A. No, ma'am.
Q. And has your conversations with Mr. Kelly affected your
testimony in any way?
A. They have not.
MS. WILKINSON: We have no further questions, your
Honor.
THE COURT: You may step down now.
May he be excused now?
MR. TIGAR: Yes, your Honor.
MS. WILKINSON: Yes.
THE COURT: You may step down now. You really are
excused.
MS. WILKINSON: Thank you, your Honor.
THE COURT: All right.
Anything else to be offered on this matter?
DEFENDANT'S FURTHER ARGUMENT
MR. TIGAR: Your Honor, I just wonder if Government
counsel concedes that at the preparation session for Agent
Wilson that Government counsel said, "This is what Agent --
this is what Mr. Kelly is testifying to; yours is different.
How do you explain it"; that testimony-comparing went on, which
is a new fact.
THE COURT: Well, Ms. Wilkinson, what can you tell us
about that?
PLAINTIFF'S FURTHER ARUGMENT
MS. WILKINSON: Your Honor, I don't remember the exact
conversation I had with Agent Wilson, but I'm sure I suggested
to him that there was a problem with who took the photographs.
I don't think I told him that Agent Kelly testified to this. I
just said that "We have -- we're trying to figure out who took
the photographs. Agent Kelly recalls that you did it."
He said, "I did not do it."
And as we've said, that's the testimony that we've
heard. I don't recall that I said that's exactly how he
testified. I don't think that matters, though. The point is
that I'm sure I made clear to him that there were different
stories.
THE COURT: All right. Mr. Tigar?
DEFENDANT'S FURTHER ARGUMENT
MR. TIGAR: Your Honor, in an investigation of this
length and complexity and particularly with respect to an issue
as controversial as the chain of custody -- where it was found,
who found it, what was done with it, and so on -- the
importance of keeping each witness' recollection separate is
-- is obvious. And it isn't, it seems to us, a no-harm/no-foul
situation; that is, Agent Wilson says, "My recollection has
been the same all along. Well, it didn't affect me."
Mr. Kelly, as the Court will recall, you know, has the
melancholy distinction of having embraced both versions of
events -- that is, the pictures were taken, or were not
taken -- and indeed has the third that he simply doesn't
remember.
So in terms of effect, it's clear that there has been
effect on Mr. Kelly's recollection, followed then by the
Government saying on redirect, "Well, you're sure that's the
same thing, you're sure that's the same thing," trying to drive
it home.
My understanding of the rule is that I'm not supposed
to sit down with Witness A who is telling me a story and say,
"Now, wait a minute here: Witness B has got a different
version of events. Let me tell you what Witness B said, and
now let's see if we can get you on that side of the story," or
doing that.
That's our interpretation of the rule, your Honor.
And then if I'm right about that, if, then the
question is what's the sanction. And we respectfully submit
that the sanction is to strike the testimony of the witnesses
who were dealt with in this improper manner.
THE COURT: But the jury has heard, really, the whole
story, including the fact that Mr. Kelly -- or Agent Kelly --
talked to Agent Wilson. And I think that everything that the
jury has heard here has been repeated, so that we don't have an
effect on the testimony of their having discussed this matter
or with the conference with Ms. Wilkinson.
MR. TIGAR: Except -- well, your Honor, I understand
your Honor's view. The question often in matters of this kind
is not whether some evidence is relevant. Under Rule 37 of the
civil rules, meritorious positions are very often precluded as
a sanction for a violation of the rules of the game. So the
relevance does not seem to us to be the issue.
If, however, we concede for the moment --
THE COURT: I'm not quite sure that "relevance" is the
word. I've listened here carefully to see whether there was
any effect or influence on the testimony by virtue of this
discussion, which I agree should not have occurred.
MR. TIGAR: Your Honor, it's clear that with respect
to Mr. Kelly, there is influence, because he said under oath in
the McVeigh case unequivocally that Agent Wilson took the
pictures and now slides all around: "Well, that's still my
best recollection, but I'm not sure," so forth and so on. We
can see the measure of his suppleness; that is to say, the
effect of this treatment to crook the pregnant hinges of the
knee where thrift may follow fawning: We can see it.
Now, in addition to that, your Honor, if we look to
the analogous provisions of the Jencks Act, 18 U.S.C. Section
3500, it very often happens that a witness is thoroughly
cross-examined, but expressly under the Act there is a
sanction: They don't produce the material, then the direct is
going to be stricken.
That's our position with respect to that; and if the
Court doesn't accept that and the Court wishes to take the
view, well, the jury has heard it, well, the jury -- what the
jury hasn't heard, your Honor, is that this was something that
ought not to have happened; that is to say that a party in the
process has engaged in behavior that is inimical to the
adversary process.
So the alternative relieve we would request, if your
Honor is not going to strike the testimony, is that the jury be
instructed that there is a rule; that it is clear that lawyers
are not supposed to do this. We can work on the language --
and that the jury is entitled to consider that this -- entitled
to consider that the method of preparation of these witnesses
to testify was improper as it judges the credibility of these
witnesses.
RULING
THE COURT: All right. Well, the several motions are
denied. I'm not here to use rulings with respect to the
evidence in this case or the effects of the evidence in the
case to enforce that rule. If it had affected the testimony or
I thought that it had, it would be a different issue, of
course. So I'm denying the motions.
We'll continue with these other matters. 10 minutes?
So -- in chambers.
Court is in recess.
(Recess at 2:27 p.m.)
* * * * *
INDEX
Item Page
Hearing on Motion to Quash Subpoena
Defendant's Argument
Third Parties' Argument
Ruling
Hearing on Motion to Strike Testimony
Defendant's Argument
Plaintiff's Argument
Defendant's Further Argument
Plaintiff's Further Argument
Defendant's Further Argument
Defendant's Further Argument
Plaintiff's Further Arugment
Defendant's Further Argument
Ruling
WITNESSES
Alton Wilson
Direct Examination by Mr. Tigar
Cross-examination by Ms. Wilkinson
* * * * *
REPORTER'S CERTIFICATE
I certify that the foregoing is a correct transcript from
the record of proceedings in the above-entitled matter. Dated
at Denver, Colorado, this 28th day of November, 1997.
_______________________________
Paul A. Zuckerman
