THIS TRANSCRIPT IS PLACED UNDER SEAL BY THE COURT 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY 2 LONDON 3 4 UNITED STATES OF AMERICA, CRIMINAL #96-00060 5 PLAINTIFF, 6 VERSUS LONDON, KENTUCKY JANUARY 24, 1997 7 2:11 P.M. 8 CHALMER C. HAYES, 9 DEFENDANT. 10 11 TRANSCRIPT OF HEARING 12 BEFORE THE HONORABLE JENNIFER B. COFFMAN UNITED STATES DISTRICT JUDGE 13 14 APPEARANCES: 15 FOR THE PLAINTIFF: MR. PATRICK MOLLOY 16 MR. MARTIN HATFIELD ASSISTANT U.S. ATTORNEYS 17 110 WEST VINE ST. LEXINGTON, KY 40507 18 19 FOR THE DEFENDANT: (NO APPEARANCE) 20 21 NATHAN F. PERKINS 22 OFFICIAL COURT REPORTER P.O. BOX 5161 23 LONDON, KY 40745 (606) 878-8450 24 PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY, TRANSCRIPT 25 PRODUCED BY COMPUTER. [Added Note: the excerpt here begins on page 28 and ends on page 40]
1 And I have already indicated that the information about
2 1980, the honorable discharge and the mixed personalities
3 disorder is information that the defense needs to know
5 MR. HATFIELD: Right.
6 THE COURT: The information in the first one,
7 1972, attempted suicide by cutting wrists, talked to
8 counselor, never hospitalized. Your argument has to be that
9 that is too remote in time and would serve absolutely no
10 purpose at all, especially when compared with the
11 information on the FBI rap sheet about mental incompetence
12 and the mixed personality disorder, that it really adds
13 nothing to do this case. That's got to be your argument,
14 doesn't it?
15 MR. HATFIELD: Right, right.
16 THE COURT: I have to say for the life of me, I
17 can't conceive of an argument that the defense would make
18 except to say that it rounds out the picture of Larry Myers.
19 And I - that's not good enough for me. I think that the
20 point that the defense would be able to make will be made by
21 the other information I am going to let him have.
22 MR. HATFIELD: Can I say something?
23 THE COURT: And I'm not going to make you disclose
24 the information about 1972. It would disclose that
25 adolescent suicide attempt and therefore invade Mr. Myers'
1 privacy unnecessarily, in my opinion.
2 MR. HATFIELD: Can I say something before you go
3 through any more of those?
4 THE COURT: Uh huh (affirmative response).
5 MR. HATFIELD: And I think it will relate to this
6 entire episode of mental stability or instability.
7 THE COURT: Uh huh (affirmative response).
8 MR. HATFIELD: We have given a valiant effort, and
9 Pat, I will pat Pat on the back and I will pat the FBI on
10 the back, we've given a yeoman's effort to try to come up
11 with materials concerning Lawrence Myers and the mental
12 competence or incompetence or whatever.
13 THE COURT: You mean hospital records? The raw
15 MR. HATFIELD: Anything we can come up with. What
16 we have come up with from every place we've checked is
17 exactly what we all got faxed to us the other day. It's
18 April finding by a judge, by a court in California on the
19 attempted extortion charge that Larry Myers was mentally
20 incompetent to stand trial. Six months later, Larry Myers
21 is back in court in front of the same judge.
22 THE COURT: Having just been released.
23 MR. HATFIELD: And he's been ruled mentally
24 competent to stand trial. Since that time there have been
25 that's the last adjudication of any kind concerning Larry
1 Myers' competence or incompetence, is in 1985 or '86, when
2 he was ruled competent to stand trial. There has been no
3 finding since then. There is no medical reports that we
4 have access to. We - even in Tennessee, you will recall,
5 there was some discussion about some events down there.
6 THE COURT: Morristown.
7 MR. HATFIELD: And that's where all of these
8 materials we got faxed to us came from. There were some
9 there was something sealed in the record of this trial down
10 there that Lawrence Myers testified in where he was the
11 victim of an attempted assassination for an alleged hiring
12 of a hit man.
13 We were able to have some people down there go to a
14 judge or the solicitor or whoever and get that unsealed,
15 thinking there might be something in that. All that was was
16 the same thing that had been faxed to us as well.
17 THE COURT: So that's really all you have been
18 able to find.
19 MR. HATFIELD: My point - my point in telling you
20 all of this is, that we can go down Larry Myers' mental
21 history from 1972 up to the present date, and I think what
22 the defense is going to have and what we have access to is
23 what we got faxed to us the other day.
24 THE COURT: Well, that's good.
25 MR. HATFIELD: Nobody is going to be able to come
1 in here with a report from a doctor, a psychiatrist or
2 anybody else who knows what a mental illness is and say
3 Lawrence Myers has a mental illness and he's still suffering
4 from it.
5 The only thing that - that really, that the defense can
6 say is that in 1986 or 185 he was adjudged mentally
7 incompetent by a court in California. We can then say,
8 that's true, but six months later he was adjudged competent,
9 and neither one of us have any records to support anything
10 beyond that.
11 THE COURT: Your information that you got here,
12 though, does have a history of a - you know, of Lawrence
13 Myers' mental problems, and it says he took lithium. And
14 that gives the lie to just couldn't get along with people.
15 MR. HATFIELD: Until 1987.
16 THE COURT: Now -- until 1987.
17 MR. HATFIELD: Uh huh (affirmative response).
18 THE COURT: That's what he says. And there are
19 various reasons for taking lithium. I know a few of them.
20 And I - you know, I don't know, I would hesitate to
21 speculate why he was taking lithium. But it might be
22 relevant, it might be relevant to the defendant to know that
23 he was on lithium, coupled with a history of mental
24 problems. But I don't think his adolescent history has
25 anything to do with this. I do think, though, that you need
1 to disclose the information you gained from this interview
2 during his adult life.
3 MR. HATFIELD: Okay.
4 THE COURT: From 1980 forward. Now, most of it he
5 already has. I hear what you are saying.
6 MR. HATFIELD: Right.
7 THE COURT: But I think you need to disclose the
8 information from this interview from 1980 forward. He was
9 in the army then. He was making adult decisions and taking
10 adult actions.
11 MR. HATFIELD: What really bothers me, and, you
12 know, there is a couple of things. I guess this clouds the
13 issue with - as far as how - how far do we have to go? Do
14 we have to sit down and interview ever potential witness
15 that we're going to put on the witness stand and try to find
16 out all about their entire background from their childhood
18 THE COURT: No, I don't think so.
19 MR. HATFIELD: Okay.
20 THE COURT: But this is an indication - and I
21 think you have just got to do it on a case-by-case basis –
22 but this is an indication that when you do have a problem
23 like this crop up, that the information you do get that
24 could --
25 MR. HATFIELD: Impact.
1 THE COURT: - affect –
2 MR. HATFIELD: Right.
3 THE COURT: - his credibility, or at least could
4 reveal another side of his credibility, has to be disclosed.
5 MR. HATFIELD: The second thing that really gives
6 me some concern is based on what I have just said about
7 there being no records, no access that anybody has to
8 records because they are all private, we are basically
9 turning over information to - to the defense that we, for
10 the most part, have been unable to substantiate. We have
11 not seen any kind of medical records that give any kind of
12 diagnosis of anything other than this --
13 THE COURT: You mean if these notes are turned
15 MR. HATFIELD: Well, if the information is turned
17 THE COURT: The information.
18 MR. HATFIELD: We're basically calling up and
19 saying, telling the defense in any case, be it this case or
20 any other, saying these things might have happened. we have
21 maybe some reason to believe that they happened. We have no
22 documents. we have nothing concerning any of this.
23 And maybe what I'm talking about here, maybe it's more
24 of a relevance argument that I should save for Monday
1 THE COURT: I think it is. And I really think it
2 is. And I think this case - this situation in this case
3 arose so uniquely. I really think if you had known - and I
4 don't mean to trash Agent Brannan when he's not here - but
5 if you had known before trial that he had this mental
6 business in his background, you might have treated the whole
7 thing differently. It's just hard to say. It's hard to go
8 back. And that's why I was saying let's pretend we haven't
9 gone to trial.
10 MR. HATFIELD: Yeah.
11 THE COURT: Now, what of the information here do
12 they not already have?
13 MR. HATFIELD: Well, that's the thing, you know.
14 From ‘85 --
15 MR. MOLLOY: Well, first of all - first of all,
16 the first, the first thing that happens after 1980 –
17 THE COURT: Uh huh (affirmative response).
18 MR. MOLLOY: - they know, they will know from
19 documents 1 and 2 that he was discharged.
20 THE COURT: Right.
21 MR. MOLLOY: Discharged, mixed personality
23 THE COURT: Right. ‘81 is where we start.
24 MR. MOLLOY: ‘81.
25 THE COURT: Yes. ‘81 -- well, yeah, I said
1 everything from 1980 forward is where you have to begin
2 giving them information about his mental problems, because
3 he's an adult, he's making the decisions of an adult.
4 They've already got what's here listed as 1980. They've
5 already got the 198- - the being in the army and the 1980
7 The next incident is ‘81 where he went to the psych ward
8 for two weeks and he couldn't speak or stand - or he was –
9 MR. HATFIELD: Following an automobile accident.
10 THE COURT: Following an automobile accident,
12 MR. HATFIELD: See, we don't know if he was in a
13 psychiatric ward or not.
14 MR. MOLLOY: Well, it says psych ward.
is THE COURT: It says psych ward, and that's the
16 only thing in that statement that stands out to me.
17 MR. HATFIELD: He may be calling it that and we
18 don't know.
19 THE COURT: Yeah. And it's just that part right
20 there, I think, in ‘81, in the summer of ‘84 and spring of
21 ‘85 that is the real question. The rest of it generally
22 they know from the packet of information you have already
24 MR. HATFIELD: Exactly.
25 THE COURT: And they have already received.
1 MR. MOLLOY: From the notation that begins, summer
2 of ‘85. They know that.
3 THE COURT: That one?
4 MR. HATFIELD: Yes, they know that. That was in
5 the packet.
6 MR. MOLLOY: That was in the packet of
8 THE COURT: That he was one week in Oakland and
9 continued out-patient treatment with lithium. That's in the
11 MR. MOLLOY: No, no, no, no. I said where it says
12 summer of ‘85.
13 THE COURT: I was looking in the spring. I am
15 MR. HATFIELD: It was also in the packet that
16 prior to this occurrence in the summer of ‘85 that he had
17 been, in a hospital out there in California. That's also in
18 the packet.
19 THE COURT: All right. Well, look at summer of
20 ‘85 on down and see if they don't have all of this.
21 MR. MOLLOY: Well, I believe he does have that.
22 The summer of ‘85 is in the packet.
23 MR. HATFIELD: That's in the packet. The rest of
24 them, of ‘85, that was on the rap sheet that we gave them.
25 MR. MOLLOY: That all relates back to the summer
1 of ‘85.
2 THE COURT: Uh huh (affirmative response)
3 MR. MOLLOY: 9-18-85, that's in the packet.
4 THE COURT: The rest of this is just detailing
5 what's in the packet, isn't it?
6 MR. HATFIELD: And then there is the North
7 Carolina charge, 12-8 of ‘86. Again, the fact that he was
8 released from California 3-6 of ‘86, released after
9 California failed to extradite, they are aware of that.
10 That was on the rap sheet.
11 THE COURT: Oh, it was on the FBI rap sheet?
12 MR. HATFIELD: (Nods affirmatively).
13 THE COURT: That he was released after California
14 failed to extradite?
15 MR. HATFIELD: Failed to extradite, yes.
16 THE COURT: Okay.
17 MR. MOLLOY: The only thing that was on the second
18 page that he doesn't know - two things he doesn't know.
19 One, that he continued taking lithium for six months; and
20 number two, no medication or hospitalization since ‘87.
21 THE COURT: I think those two things need to be
22 told to him.
23 MR. HATFIELD: Okay.
24 THE COURT: Back on the first page, the three
25 items, February of ‘81, summer of ‘84 and spring of ‘85, you
1 need to disclose those three things.
2 MR. MOLLOY: I am sorry, Judge, I was making
4 THE COURT: Those three right in the middle that
5 you haven't disclosed, February ‘81, summer of ‘84, and
6 spring ‘85, you need to disclose to the defendants that
7 information. Once again I reiterate, do not give them these
8 interview notes. This is your work product. This is a
9 document as a term of art.
10 MR. HATFIELD- Okay.
11 THE COURT: Now, let's look at the middle issue
12 here, and that is this whole business of, oh, of his history
13 with the FBI and so forth.
14 Now I summarized it a while ago, I thought, pretty well
15 but I'm not sure I could do that again. But I think the
16 real picture here is that he was a confidential source for
17 the FBI, he was consider as being a confidential informant,
18 and I - the status of those two things is explained in these
19 document. So I understand that. And that he was rejected
20 because he was a loose cannon on two grounds: one he had
21 gone and interviewed a grand juror in the Oklahoma City
22 bombing case; and two, he had gone to interview Timothy
23 McVey [sic: McVeigh].
24 Now, I want - before you say anything, I want to show
25 you something, something I have done, I want you to take a
1 few minutes to look at it and then I want you to tell me why
2 it wouldn't be feasible.
3 I think what I have just said is favorable to the
4 defense and material to the defense. And I think that
5 information needs to be disclosed. What is - and why?
6 Because it goes to the history of his dealings with the FBI,
7 it goes to, again, the feasibility of Agent Brannan having
8 begun to open a file on the basis of what Myers says, and it
9 goes to impeaching Myers who, I think, generally denied
10 being a government agent.
11 Now, the actual words of the testimony don't go that
12 far, but when we were at a bench conference, it was really
13 characterized as the issue. In fact, I think you
14 characterized it, Mr. Molloy, well, the real issue here is,
15 is he a government agent or not.
16 It also goes to impeach Mr. Myers and maybe Agent
17 Brannan on how they got hooked up in the first place. And
18 those are the two main issues.
19 For that reason - and I think some of this information
20 needs to be disclosed.
21 Now, what do you do about the references to the other
22 cases? I think you can delete those references and give to
23 the defendant the information he needs for this case. Why
24 delete those references? One, they relate to probably
25 ongoing investigations of the FBI; and two, and most
1 importantly, they are not even remotely relevant to this
3 I just want you to take a minute and look at my penciled
4 brackets. You may want to start with Agent Brannan's
5 declaration, because that's the easiest thing to read.
6 Everything else is sort of in code. And then take a look at
7 that and you will see where I'm coming from and tell me
8 what's wrong with that.
9 Do you want to go --
10 MR. HATFIELD: The penciled brackets are --
11 THE COURT: The penciled brackets are what would
12 be whited out.
13 MR. HATFIELD: Okay.
14 THE COURT: It's going to take a few minutes. Why
15 don't you go in this conference room behind Shirley Denny
16 and spend a few minutes and talk about it so I don't have to
17 stand here and eavesdrop on you.
18 MR. MOLLOY: Thank you.
19 THE COURT: You are welcome.
20 (A pause was had in the proceedings)