Time: Fri May 09 06:24:18 1997 by primenet.com (8.8.5/8.8.5) with ESMTP id GAA12199; Fri, 9 May 1997 06:12:32 -0700 (MST) by usr06.primenet.com (8.8.5/8.8.5) with SMTP id GAA22297; Fri, 9 May 1997 06:08:56 -0700 (MST) 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 email: [address in tool bar] : Eudora Pro 3.0.1 on Intel 586 CPU web site: http://www.supremelaw.com : library & law school registration ship to: c/o 2509 N. Campbell, #1776 : this is free speech, at its best Tucson, Arizona state : state zone, not the federal zone Postal Zone 85719/tdc : USPS delays first class w/o this ========================================================================
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