Free Response to Order to Show Cause - District Court of Delaware - Delaware

Case 1:07-cr-00074-GMS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

UNITED STATES OF AMERICA, Plaintiff, v. ELVIN DEMPSEY, Defendant.

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Criminal Action No. 07-74-GMS

DEFENDANT'S RESPONSE TO COURT'S ORDER TO SHOW CAUSE Defendant, Elvin Dempsey, by and through his undersigned counsel, Eleni Kousoulis, Assistant Federal Public Defender, hereby files this response to the Court's Order to Show Cause. For the reasons that follow, Mr. Dempsey respectfully submits that the Court should not decide his Motion to Suppress Physical Evidence and Statements until after a second hearing has been conducted in this matter. In support of this response, Mr. Dempsey avers as follows: 1. On November 8, 2007, Mr. Dempsey filed a Motion to Suppress Physical Evidence

and Statements. 2. motion. 3. Prior to the hearing, Mr. Dempsey subpoenaed Tracy Watson to testify on his behalf. On January 17, 2008, the Court conducted an evidentiary hearing on Mr. Dempsey's

Ms. Watson, however, failed to appear at the hearing. 4. Defense Counsel asked the Court to issue a bench warrant for Ms. Watson based on

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her failure to appear at the hearing. The Court agreed to issue the bench warrant and continued the hearing to provide Defense Counsel with the opportunity to locate Ms. Watson. 5. After the hearing, the Court through its staff, informed Defense Counsel that it would

not issue a bench warrant on Ms. Watson because the previously issued subpoena contained the wrong courtroom number. 6. Defense Counsel did not immediately reissue the subpoena to Ms. Watson because

she believed that a witness could not be subpoenaed until after a court date had been scheduled. Additionally, based on this understanding, Defense Counsel was waiting for the Court's notice of a new hearing date before reissuing a new subpoena. 7. Defense Counsel acknowledges, nonetheless, that it was incumbent upon her to

contact the Court to request a new hearing date, instead of assuming that the Court would sua sponte issue a new court date. Counsel apologizes to the Court for this misunderstanding and inconvenience caused by Counsel's failure to request a new court date. 8. Defense Counsel's actions were not willful or in bad faith, and she respectfully submits

that her misunderstanding of the Court's procedure should not affect Mr. Dempsey's ability to have a full hearing on his motion and to develop a complete record. Mr. Dempsey's case is meritorious, and Defense Counsel believes that this case requires a full adjudication based on all of the evidence.

9.

Therefore, Defense Counsel respectfully requests that the Court schedule a new

hearing date consistent with the Court's calendar, permit the testimony of Ms. Watson and any necessary rebuttal testimony, and decide Mr. Dempsey's motion after considering all of the evidence in this matter. 2

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10.

Defense Counsel prepared a new subpoena for Ms. Watson, which is attached as

"Exhibit A." Upon issuance of the new hearing date, Defense Counsel will immediately serve a subpoena, in the nature of the subpoena attached hereto, on Ms. Watson. WHEREFORE, Mr. Dempsey respectfully requests that the Court schedule a new evidentiary hearing date, which will allow Defense Counsel to reissue a subpoena to Tracy Watson, and that it decide his motion after the additional hearing in this matter. Respectfully Submitted,

/s/ Eleni Kousoulis Eleni Kousoulis, Esq. Assistant Federal Public Defender Counsel for Defendant, Elvin Dempsey Federal Public Defender's Office 704 King Street, Suite 110 Wilmington, Delaware 19801 (302) 573-6010 [email protected]

Dated: February 12, 2008

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