Free Response to Motion - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

Document 2745

Filed 02/25/2008

Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Criminal Case No. 00-cr-00531-WYD-02 UNITED STATES OF AMERICA, Plaintiff, v. RUDY CABRERA SABLAN, Defendant. ______________________________________________________________________________ DEFENDANT'S RESPONSE TO GOVERNMENT'S MOTION IN LIMINE REGARDING TESTIMONY OF DR. DAVID LOVEJOY (Docket #2730) ______________________________________________________________________________ Rudy Sablan responds as follows to the government's above-referenced motion: The government has previously conceded that evidence of William Sablan's mental conditions is relevant to the issues in this case. The mental health testimony presented in William Sablan's trial is a comprehensive proffer for evidentiary considerations in Rudy Sablan's trial. Rudy Sablan has advised the Court that his intent is to engage in a focused presentation of William's mental health, as it relates to the events on October 10, 1999. The government, however, has designated experts who will apparently contest William's diagnoses. The government's decision to mount this challenge inevitably expands the scope of the evidence which Rudy Sablan must present. It is not possible to provide an accurate, reliable and useful picture of William's mental disability to the jury without a historical summary. Testing and evaluation subsequent to 2001 are an integral part of explaining William's mental issues and in view of the government's challenge, validating the diagnoses.

Case 1:00-cr-00531-WYD

Document 2745

Filed 02/25/2008

Page 2 of 4

William's mental conditions are complex. Their etiology and manifestations span a period of many years and environments from Saipan to Florence, Colorado. The real confirmation and understanding of those conditions did not really occur until 2001 and later. This, of course, is why the government wishes to exclude this important period of analysis and discovery from the jury's consideration. One of the elements of a PTSD diagnosis is recurring episodes and behavior. Dr. Morgan related certain behaviors of William during the 2006 evaluations which were consistent with and supportive of a PTSD diagnosis. (Trans. 3/15/07, pp. 4931-32.) Dr. Morgan's 2006 testing revealed a very high CAPSS score, also indicative of PTSD. (P. 4934) Testing after 2001 also provides important evidence which contradicts the government's theory that William was malingering. Dr. Morgan's report notes that the January 6, 2005 SIRS findings are compatible with the view that William's symptoms were clinically genuine. (Morgan report, p. 23) He also noted the ongoing nature of PTSD symptoms. (p. 16) The idea that delusions which manifested themselves after the homicide should be excluded is neither medically nor logically sound. Dr. Morgan explained, in William's trial, the difference between when a person becomes delusional and when symptoms are noted. When people get unusual ideas in their head, they don't run out and tell everyone about it. It could be, he said, that the explanation for the delayed discovery of clinical symptoms of delusion (like Amelia Earhart) is that someone "finally sat down and detected some clinical pathology." These delusions are the "kinds of beliefs we see in psychotic people, but the ideas have usually been

Case 1:00-cr-00531-WYD

Document 2745

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around in individuals for a long time." (P. 4982) Indeed, in his history in 2006, William told Dr. Morgan these delusions were longstanding beliefs. Much of the later testing is important because all of the tests have "built in" assessments of malingering. William, Dr. Lovejoy noted, took many such tests over time with no evidence of malingering. Indeed, William would need to be a "sophisticated malingerer" and he was "not capable of that." (P. 5917) The government's own doctors, evaluating William for competency, noted that "Mr. Sablan's compelling presentation of experiencing psychotic symptoms during individual interviews would be difficult to feign if he had merely been coached. If Mr. Sablan has never been mentally ill and is feigning his entire clinical presentation, then he is an extremely good actor." (Dr. Herbel, 10-1-04 forensic evaluation, p. 56., Federal Medical Center, Butner.) The decline in William's functioning supports the diagnosis of his mental conditions on October 10, 1999. William, because of his neurological damage, is "vulnerable to a progressive decline in functioning." (Dr. Lovejoy, p. 5917.) Dr. Lovejoy explained that we all begin to lose brain tissue in our late 30's. People with neurologic damage "slide toward dementia in terms of brain tissue loss a lot more quickly than the average person." (Id.) Medication is important in the diagnostic analysis. Dr. Herbel explained that mood stabilizing medications had not been successful, ruling out a primary affective disorder. (p. 56) When anti-psychotic medications were tried, William's symptoms improved. Mr. Sablan, after being placed on a regimen of three anti-psychotic medications improved. "His psychotic symptoms had diminished with treatment to the extent that the examiners opined he was competent to stand trial." (April 20, 2005 Evaluation Update, p. 4.) The evaluators noted that his competency could be compromised if the medication were to be discontinued. William had

Case 1:00-cr-00531-WYD

Document 2745

Filed 02/25/2008

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symptoms of a psychosis; so much so that he was found legally incompetent to go to trial. He was given anti-psychotic medication. He got better, so much so that he was competent for trial. The jury can connect the dots. They are entitled to do so. The material the government wishes to keep from the jury is information it must have, and should have, to fairly evaluate this important factor in the events of October 10, 1999. WHEREFORE, Rudy Sablan requests an order denying the government's motion. Respectfully submitted, s/ Forrest W. Lewis Forrest W. Lewis FORREST W. LEWIS, P.C. 1600 Broadway, Suite 1525 Denver, Colorado 80202 Telephone: (303) 830-2190 Facsimile: (303) 830-1466 E-mail: [email protected] Donald R. Knight KNIGHT & MOSES, LLC 7852 S. Elati Street, Suite 201 Littleton, Colorado 80120 Telephone: (303) 797-1645 Facsimile: (303) 730-0858 E-mail: [email protected] Attorneys for Defendant Rudy Sablan

CERTIFICATE OF SERVICE I hereby certify that the foregoing DEFENDANT'S RESPONSE TO GOVERNMENT'S MOTION IN LIMINE REGARDING TESTIMONY OF DR. DAVID LOVEJOY (Docket #2730) was electronically filed with the Clerk of the Court using the CM/ECF system on this 25th day of February, 2008, which will send notification of such filing to the to the following e-mail addresses: Brenda Taylor [email protected] Philip Brimmer [email protected]

s/Polly Ashley