Time: Fri May 09 06:24:18 1997
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Date: Fri, 09 May 1997 06:12:29 -0700
To: (Recipient list suppressed)
From: Paul Andrew Mitchell [address in tool bar]
Subject: SLS: OKC/McVeigh, another interesting lesson... Actually TWO!
(fwd)
<snip>
>
>Subject: OKC/McVeigh, another interesting lesson... Actually TWO!
>
>This is Mr. Jones talking. (Defense lead attorny) He's discusssing the
>Oklohoma's medial examiner's refusal to release information about the
>victums of the bombing. Claiming Oklohoma state law forbids him from
>releaseing the the information from anyone other than the source.
>
>
>Mr. Jones:
>
> First with respect to the Attorney General's [OK AG] claim of
>
> privilege, that has a kind of a nostaglic pre-Appomattox Court
>
> House flavor to it; but the truth of the matter is the South
>
> lost the Civil War and the supremacy clause governs. Ind the
>
> decision that we cite in our brief on page 3, the Coopers &
>
> Lybrand case, the court holds that there is no confidential
>
> accountant/client privilege under federal law and that in a
>
> fundamentally federal proceeding such as this, the court may
>
> not recognize a state-created privilege.
>
>
>One thing I see in many of these cases is the Federal "supremcay" notion.
>Ie, the Civil War, at the minimum, wiped out the 10th amendment when it
>comes to the judicary. If it wiped out the 10th, even if it's only in
>regard to statutory and judicial proceedings, it's difficult to imagine it
>not wiping all of it out. I know of no legal argument where one part of
>the Constitution is invalid and the rest valid. It's either all or nothing.
>Seems we see something different here.
>
>
>Now follow this for an interesting twist!
>
> THE COURT: Well, but I -- I separated that out from
>
> this matter of the fact that the medical examiner has presently
>
> custody of records that didn't -- he didn't generate.
>
> MR. JONES: That's true, but they were furnished to
>
> him and they're in his custody now.
>
> THE COURT: But there is a state statute that says
>
> he's got the authority to get them, but he can't give them to
>
> anybody else.
>
> MR. JONES: That's true, but it seems to me clearly
>
> that that statute fails --
>
> THE COURT: Well, I don't think that's a privilege
>
> issue.
>
> MR. JONES: Well, perhaps -- If it's not a privilege
>
> issue, then on what basis can you withhold subpoenaed evidence
>
> in a criminal case?
>
> THE COURT: Well, because it isn't his evidence.
>
> These aren't his records. He had the power to get them --
>
> MR. JONES: I understand --
>
> THE COURT: -- but he doesn't have the power to give
>
>
> them to anybody. That's the way I understand Oklahoma law.
>
> You're an Oklahoma lawyer. You know better than I do.
>
> MR. JONES: I wouldn't concede that, your Honor; but I
>
> don't see how that's any different than -- I understand the
>
> point the Court is making; but how is that different than those
>
> tax cases that we are all unfortunately familiar with where I
>
> give my tax records to my CPA to prepare my tax return and
>
> while they're at his office, the Federal Government subpoenas
>
> them?
>
> THE COURT: Yeah, but the CPA is your agent.
>
>
>
>That's the interesting part! IN FACT, your privledge is NOT protected w/the
>CPA. If you give your records to your CPA, HE CAN and WILL turn them over
>to the gov. upon subpoena.
>
>
> MR. JONES: Exactly. He is --
>
> THE COURT: And the medical examiner is not
>
> voluntarily the agent of any of the people who were killed.
>
> MR. JONES: I understand the distinction the Court is
>
> making. It may be a good one; but basically, what I say is
>
> that once you are in possession of something, no matter how you
>
> got it, and somebody subpoenas it, as long as you're in
>
> possession of it, it can be subpoenaed, particularly in a
>
> criminal case and particularly if it's evidence.
>
>
>See, JONES is RIGHT. Well let me restate that, HE IS CORRECT in the way
>things have been going. ONLY the individual has the right to NOT disclose
>them. That's IT.
>
>I love this stuff!! See how much you learn? ;-)
>
<snip>
========================================================================
Paul Andrew, Mitchell, B.A., M.S. : Counselor at Law, federal witness
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