Free Motion in Limine - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Action No. 00-cr-00531-WYD-2 UNITED STATES OF AMERICA, Plaintiff, v. 2. RUDY CABRERA SABLAN, Defendant.

GOVERNMENT'S MOTION IN LIMINE RE DEFENSE EXPERTS

The United States of America, by Troy A. Eid, United States Attorney for the District of Colorado, through Brenda Taylor and Philip A. Brimmer, Assistant United States Attorneys, moves the Court to limit the testimony of certain defense experts for which there has been inadequate disclosure of their opinions. As grounds for this motion, the government states: 1. The Court set a deadline of January 4, 2008 for Rudy Sablan to disclose the names and opinions of his expert witnesses. See Court's Order of December 28, 2007. On January 4, 2008, the government received a letter from the defense disclosing expert witness opinions pursuant to Fed. R. Crim. P. 16(b)(1)(c). A copy of this letter is attached as Exhibit 1. 2. After reviewing the defendant's January 4, 2008 letter, the government

believed that the defendant's expert disclosure did not meet the Rule 16 standard. As a

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result, the government sent a letter dated January 14, 2008 to the defense identifying the areas of insufficient disclosure and asking that additional information be supplied. A copy of this letter is attached hereto as Exhibit 2. 3. In response to the government's letter, the defendant has supplied some information. For example, the defendant sent the government current curricula vitae, has indicated that Dr. Spencer Friedman will testify in the penalty phase only, and has allowed an interview of and has provided testing data for Dr. Rex Paulsen. However, the defense has not otherwise supplied supplemental disclosures. 4. Rule 16 requires that the defendant provide "a written summary of any testimony that the defendant intends to use under Rules 702, 703, or 705" and requires that "[t]his summary must describe the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications." Rule 16(b)(1)(C). Failure to provide such disclosures is grounds for excluding that portion of the expert witness's testimony. United States v. Barile, 286 F.3d 749, 758-59 (4 th Cir. 2002). 5. The defendant's disclosures concerning the following expert witnesses are deficient under Rule 16: a. Dr. Craig Hemmens ­ Dr. Hemmens testified at the motions hearing in this case in November 2002 and, to the extent he offered opinions there, the government needs no further disclosure regarding those opinions. However, according to the defendant's January 4, 2008 disclosure letter Dr. Hemmens will also offer opinions on the

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following topics: 1. "[C]odes of conduct among prisoners which impacted the actions of Rudy Sablan in this case." Exh. 1 at 1. The defendant does not disclose what the codes are. In other words, the defendant has merely identified a topic of Dr. Hemmens, instead of disclosing, as required by Rule 16, his opinion on that topic. 2. "[T]he practice of inmates `cooperating' with the government and thereby obtaining important benefits" and "how important these benefits are to the inmate and how they can influence their testimony and impact their credibility as witnesses." Exh. 1 at 2. There are two problems with this disclosure. First, it is improper for an "expert" witness to lecture the jury about what can influence a witness's testimony or "impact their credibility as witnesses." In other words, there is no such thing as a "witness credibility" expert. Instead, determining the credibility of witnesses is a matter that the Court will instruct the jury about and which the jury will decide as part of its deliberations. Second, if he is allowed to express opinions about these matters, the defendant has failed to identify what his opinions are. Once again, the January 4, 2008 letter merely identifies the topic of his testimony, not his opinions. 3. "[T]he limited options available to an inmate in Rudy Sablan's position as reflected in the cell video....Prison codes play a significant role in most inmate confrontations, not only for the inmates fighting, but for witnesses and those in close proximity." Exh. 1 at 2. This disclosure does not identify what Dr. Hemmens'

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opinions are regarding Rudy Sablan's "limited options." For example, what "limited options" does Dr. Hemmens think that Rudy Sablan had? And what "prison codes" does he believe "play a role in most inmate confrontations"? The defendant provides no disclosure. b. Dr. David Lovejoy ­ Dr. Lovejoy testified on behalf of William Sablan in the penalty phase of that trial. The government has filed a separate motion identifying what topics the government believes that Dr. Lovejoy should not be allowed to testify about in this trial. However, the defendant has disclosed a topic that Dr. Lovejoy did not testify about in the William Sablan trial, namely, that "William's mental conditions undoubtedly affected the actions of Rudy Sablan as depicted by prison guards and on the DVD." Exh. 1 at 2. This disclosure does not identify Dr. Lovejoy's opinions about how Rudy Sablan's actions were affected or state the bases and reasons for those opinions. As a result, it violates Rule 16. c. Dr. Spencer Friedman ­ The defendant's January 4, 2008 letter states that Dr. Friedman will testify that Rudy Sablan "has been faithful to the `code' of conduct he learned in the prison system." The disclosure does not discuss Dr. Friedman's opinions about what "code" Rudy Sablan's learned in prison and why Dr. Friedman believes that Rudy Sablan has been "faithful" to such "code." The defendant should provide the bases and reasons for those opinions. d. Dr. Dale Wingleth ­ It is unclear from defendant's January 4, 2008

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disclosure whether Dr. Wingleth will offer opinions regarding the intoxication of Rudy Sablan, William Sablan, and/or Joey Estrella. Obviously, the government is entitled to know Dr. Wingleth's opinions on who he believes was intoxicated. e. Dr. Terry Kupers ­ Dr. Kupers will testify about prison culture. The following topics concerning his testimony have not be adequately disclosed: 1. The second paragraph of defendant's January 4, 2008 letter (beginning "Dr. Kupers will discuss....") mentions various topics about which Dr. Kupers will testify. However, the January 4, 2008 letter does not disclose what opinions Dr. Kupers has on such topics. Under Fed. R. Crim. P. 16(b)(1)(C), the government is entitled to know "the witness's opinions" and the "bases and reasons for those opinions. 2. The third paragraph of the January 4, 2008 letter (beginning "Dr. Kupers has reviewed....") states that William's mental conditions could have affected Rudy's behavior during and after the death of Mr. Estrella." However, there is no disclosure of the "bases and reasons" for that opinion. f. Dr. Craig Haney ­ The January 4, 2008 letter indicates that Dr. Haney will testify that the housing situation for Rudy Sablan coupled with having a mentally ill cellmate made the "exercise of reflective judgment more difficult" for Rudy Sablan. However, the letter fails to disclose the "bases and reasons" for this opinion under Rule 16. In addition, it is unclear whether he will press opinions about Rudy Sablan's mental state. If so, this would be improper since no Rule 12.2 notice has been filed.

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g. Charles Packard ­ Mr. Packard is apparently building a full-scale model of Cell 124. The government has asked the defense for permission to inspect the model. The defense has not responded to this request. Without the benefit of such an inspection, the government is unable to determine whether the government has objections to its use. The government requests that it be allowed to inspect the model as soon as practicable and also that the deadline for the government to object to its use be extended until a reasonable time after the inspection. WHEREFORE the United States requests that the Court limit the testimony of the above-named expert witnesses.

Respectfully submitted this 12th day of February, 2008.

TROY A. EID United States Attorney

BY: s/ Brenda K. Taylor BRENDA K. TAYLOR Assistant U.S. Attorney U.S. Attorney's Office 1225 17 th Street, Suite 700 Denver, Colorado 80202 Telephone (303)454-0100 FAX: (303) 454-0406 E-mail address: [email protected] Attorney for Government

BY: s/ Philip A. Brimmer PHILIP A. BRIMMER Assistant U.S. Attorney U.S. Attorney's Office 1225 17 th Street, Suite 700 Denver, Colorado 80202 Telephone (303)454-0100 FAX: (303) 454-0403 E-mail address: [email protected] Attorney for Government

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CERTIFICATE OF SERVICE I hereby certify that on this 12th day of February, 2008, I electronically filed the foregoing GOVERNMENT'S MOTION IN LIMINE RE DEFENSE EXPERTS with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses:

Attorneys for Rudy Sablan Forrest W. Lewis [email protected] Donald R. Knight [email protected]

s/ Veronica Ortiz VERONICA ORTIZ Legal Assistant U.S. Attorney's Office 1225 17th Street, Suite 700 Denver, CO 80202 Phone (303) 454-0100 Fax (303) 454-0403 E-mail address [email protected]

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