IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

UNITED STATES OF AMERICA, )

Plaintiff, )
)
vs. ) CR-00-N-0422-S
)
ERIC ROBERT RUDOLPH, )
Defendant. )

EX PARTE MOTION TO ALLOW DEFENDANT ACCESS TO A LAPTOP COMPUTER

FOR NECESSARY CASE PREPARATION

Judy Clarke
FEDERAL DEFENDERS OF SAN DIEGO, INC.
225 Broadway, Suite 900
San Diego, California 92101
Telephone: (619) 544-2720
Facsimile: (619) 374-2908

William M. Bowen, Jr. (BOW012)

WHITE, ARNOLD, ANDREWS & DOWD P.C.
2902 21st Street North, Suite 600
Birmingham, Alabama 35203
Telephone: (205) 323-1888
Facsimile: (205) 323-8907

Michael Burt
LAW OFFICE OF MICHAEL BURT
600 Townsend St., Suite 329-E
San Francisco, California 94103
Telephone: (415) 522-1508
Facsimile: (415) 522-1506
 COMES NOW the Defendant by and through undersigned counsel, and moves this

Honorable Court ex parte to enter an Order allowing him reasonable and confidential access at

the Jefferson County jail to a laptop computer so that he can meaningly review and discuss with

his attorneys the approximately 500, 000 pages of discovery and a similar quantity of defense

work product generated in this case to date.

STATEMENT OF FACTS

Before his removal, Mr. Rudolph’s prior lead counsel had provided to or discussed with

Mr. Rudolph only a tiny fraction (approximately 500 pages) of the approximately 500, 000 pages

of discovery and a similar quantity of defense work product thus far generated in this case.

Present lead counsel wants to remedy that glaring defect forthwith, but because the massive

quantity of material generated in this case cannot possibly be manually reviewed, organized, and

summarized in the eight months remaining before trial, it is necessary to utilize computer

technology to facilitate Mr. Rudolph’s review of the material.

The defense has a laptop computer onto which all the discovery and work product can be

downloaded. Equipped with Word, WordPerfect, Adobe Reader, Excel, an ISYSS search tool, a

security password and nothing else, the laptop would serve as an efficient and secure means for

Mr. Rudolph to educate himself on the complex allegations in this case so that he can

meaningfully discuss those allegations with his defense team . Unlike in some cases (see, infra),

Mr. Rudolph is not requesting access to the Internet. His request thus does not raise any

legitimate security concerns. Despite this fact, authorities at the Jefferson County jail have

refused counsel’s request to allow Mr. Rudoph to have access to a laptap. The only explanation

offered for this refusal is the patently absurd one that if Mr. Rudolph is granted such access, so

must everyone else in the Jefferson County jail. However, Mr. Rudolph’s case is unique in that

he is facing the death penalty and the complexity and scope of the government investigation
against him is unprecedented. Given the unique nature of this case, and in light of the law now to

be discussed, Mr. Rudolph should be granted reasonable and confidential access to a laptap

computer under the conditions outlined above.

ARGUMENT

As a matter of law, the Jefferson County jail is required to permit Mr. Rudolph access to

a laptop computer for the purpose of reviewing the documentary evidence in this case. This

requirement arises under the Fifth, Sixth, and Eighth Amendment, as well as 18 U.S. C. §

3142(i) of the Bail Reform Act.

Every defendant in a criminal action has a right to due process of law. U.S. Const.

Amendment V. The right to due process includes the right of access to counsel and legal

research material. Smith v. Bounds, 430 U.S. 817, 821 (1977). Every defendant in a criminal

prosecution has the right to counsel. U.S. Const. Amendment V. The right to counsel includes

the right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686

(1984).

The right to assist in one’s own defense is a corollary of the right of access to an attorney.

“ One of the most serious deprivations suffered by a pretrial detainee is the curtailment of his

ability to assist in his own defense. Wolfish v. Levy, 573 F. 2d 118, 133 (2d Cir. 1978), revd on

other grounds, Bell v. Wolfish, 441 U.S. 520 (1979).

District courts have the authority to release or detain individuals appearing before them

on criminal charges. 18 U.S. C. § 3041. If the court decides the defendant must be detained, the

court has the authority to determine the conditions of the defendant’s confinement pending trial.

18 U.S. C. § 3142(i)

Under the Due Process Clause, “a may not be punished prior to an adjudication of guilt

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in accordance with due process of law.” Bell v. Wolfish, 441 U.S. at 535. restriction’s on a

pretrial detainee’s access to counsel must be reasonably related to a legitimate government

purpose. “(I)f a restriction or condition is not reasonably related to a legitimate goal–if it is

arbitrary or purposeless– a court may permissibly infer that the purpose of the governmental

action is punishment that may not constitutionally be inflicted upon detainees qua detainees.” Id.

at 539.

When a pretrial detainee’s interest in effective communication with defense counsel is

“inadequately respected during pretrial confinement, the ultimate fairness of their eventual trial

can be compromised.” Johnson-El v. Schoemehl, 878 F. 2d 1043, 1051 (8th Cir. 1989). Courts

may enjoin prison or jail officials from taking actions that interfere with a detainee’s right to

effective assistance of counsel. Cobb v. Aytch, 643 F. 2d 946, 960 (3d Cir. 1981).

Because of the nature and quantity of evidence in this complex death penalty case, Mr.

Rudolph cannot assist in his own defense nor assist his counsel without access to a text

searchable computer database containing the documentary evidence. To require him to review

the documents and transmit his comments on the evidence by more conventional means (mail,

phone, interview) would result in a pretrial detention so lengthy as to amount to punishment

prior to an adjudication of guilt.

What Mr. Rudolph is asking for is not unusual in complex cases, especially death penalty

cases. For example, in United States v. Moussaoui, No. 01-455 (E.D. Va. 2002, the district court

entered an order commanding the local jail to allow the defendant access to a laptop computer

for case preparation in a capital case. (Order attached). And in United States v. Lawrence, No.

CR 02-260 P (W. Dist. Wa. 2003), the court in a non-capital case went even further and ordered

access to a laptop computer, as well as access to the Internet. (Order attached). The Lawrence

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court’s response to the Bureau of Prison’s security concerns about the Internet connection is

even more compelling in the present case where no such Internet connection is requested.

CONCLUSION

For the foregoing reasons and based on the authorities cited herein, it is respectfully

submitted that the Court enter an Order allowing Mr. Rudolph reasonable and confidential access

at the Jefferson County jail to a laptop computer so that he can meaningly review and discuss

with his attorneys the approximately 500, 000 pages of discovery and a similar quantity of

defense work product generated in this case to date.

Respectfully submitted,
JUDY CLARKE
BILL BOWEN
MICHAEL BURT

Counsel for Eric Robert Rudolph

BY:_________________________________
MICHAEL BURT
Dated: August 20, 2004

Judy Clarke
FEDERAL DEFENDERS OF SAN DIEGO, INC.
225 Broadway, Suite 900
San Diego, California 92101
Telephone: (619) 544-2720
Facsimile: (619) 374-2908

William M. Bowen, Jr. (BOW012)

WHITE, ARNOLD, ANDREWS & DOWD P.C.
2902 21st Street North, Suite 600
Birmingham, Alabama 35203
Telephone: (205) 323-1888
Facsimile: (205) 323-8907

Michael Burt

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LAW OFFICE OF MICHAEL BURT
600 Townsend St., Suite 329-E
San Francisco, California 94103
Telephone: (415) 522-1508
Facsimile: (415) 522-1506

CERTIFICATE OF SERVICE
I do hereby certify that I have served upon the attorney for the government the
defendant’s DEFENDANT’S MEMORANDUM OF LAW IN OPPOSITION TO AN
ANONYMOUS JURY by facsimile and U.S. Mail, first class postage prepaid and addressed to:

Michael W. Whisonant
Robert J. McLean
Will Chambers
Assistants United States Attorney
U. S. Department of Justice
Office of United States Attorney
Northern District of Alabama
1801 Fourth Avenue North
Birmingham, Alabama 35203-2101
This the 13th day of August, 2004.

________________________________
Bill Bowen