3.April 18 Press-Conference Video — Defense Objection

MR. BRUCK: Yes, your Honor. Thank you.

The issue here is really quite narrow. Obviously, the fact that the defendant's and his brother's pictures were publicized, released to the news media on the afternoon of April 18th, is relevant. And there's not any question about that. The question is whether that fact, which could be proven in any one of a number of ways, should be accompanied by what amounts almost to a closing argument, a lawyer's argument, a very dramatic press conference by Special Agent in Charge Rick Deloria in which he did several things.

Now, again, I want to make clear that we are not -- we are also not the least bit critical of anything Mr. Deloria said or did at this press conference. Our point is simply that it is not evidence in a criminal trial for the reasons that we set out in our motion.

The press conference was a -- was a dramatic, and I think it's fair to say emotional, appeal to the public for support and help. It began by trying to -- by extolling, I think quite properly, the effort that law enforcement had made during the days between the bombing and April 18th, praising the work of the FBI and of local and state law enforcement, and assuring the public that everything that could humanly be done by law enforcement had been done prior to this stage. Then it was what you could fairly describe as a patriotic appeal to the public to do its duty in order to bring the suspects to justice. And the phrase "bring to justice" is repeated several times during the -- during the press conference.

That's why we say that the emotional, prejudicial effect of this really outweighs the nonexistent marginal utility of using the actual press conference, rather -- tape of the press conference, rather than the fact of its release. There are a couple of other things I think that need to be kept in mind about this. This is the same special agent in charge, Rick Deloria, who appeared very, very shortly after his retirement from the FBI, in both the 60 Minutes program that was aired a little while before the first anniversary of the bombing and in the National Geographic reenactment, docudrama, I guess.

In both cases, Agent Deloria made a very emotional presentation. In the 60 Minutes piece, he described his first glimpse of the defendant in court at his arraignment, perhaps unaware that he was looking at a man whose -- half of whose face was paralyzed from bullet wounds and described him as smirking and said that his appearance was despicable. This was broadcast to a national audience.

He also described videotape of the defendant deliberately placing the backpack right behind the child victim in this case, videotape which quite literally does not actually exist. There is videotape from which one can infer various things, and you can put your own interpretation on it, but what he described is something which doesn't exist, but during the voir dire examination you heard jurors say they had seen it. What they had seen was Agent Deloria describing that.

So, you know, you usually think that any given piece of pretrial publicity is not really going to resonate a year or a year and a half later when the jurors come into court, but this did. This does. And the Court expressed concern about Mr. Deloria's performance on these two unauthorized appearances. The government said, Well, we can't do anything about it because he doesn't work for the government anymore, and the Court let it be known, you know, that that was not to occur again. And the Court asked the government whether Mr. Deloria would be a witness. And you were immediately and promptly and unequivocally informed that he would not be, and now here he is.

Now, I realize he's not a witness, he's simply -- not a witness in the sense that he can't be cross-examined, but he will be appearing. The government says the risk of harm is speculative. There's nothing speculative about the fear that jurors who saw those programs will see this clip and remember the feelings that were stirred up in them by Mr. DeLoria's appearance on the 60 Minutes show and the National Geographic show -- an appearance, by the way, that was not only characterized by the things that I've described but also by tearing up. This was pretty intense stuff. Mr. Deloria's a very impressive man with very impressive law enforcement credentials and very impressive performance in this whole story, and we don't take any of that away from him. But if you could ever point to a piece of evidence that is calculated to increase passion and prejudice while contributing nothing of additional value to the state's case, it would be the actual videotape of this press conference.

Let the government prove it however they want. The important thing is that Agent Deloria says at the press conference, Within seconds these pictures will be broadcast over the Internet and through the mass media around the world and throughout the country. That's what happened. That is the operative fact. That's the point that the government is entitled to prove. But they shouldn't do it by the actual videotape of this press conference.