Free Response to Motion - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

Document 2595

Filed 06/27/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Action No. 00-cr-00531-WYD-02 UNITED STATES OF AMERICA, Plaintiff, v. 2. RUDY CABRERA SABLAN, Defendant.

GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION FOR RELEASE OF JUROR CONTACT INFORMATION

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, responds as follows to defendant Rudy Sablan's Motion for Release of Juror Contact Information. 1. The defendant's motion seeks the release of the names and contact information for jurors in the trial of co-defendant William Sablan. The defendant wants to contact the jurors for purposes of "[e]xploring and evaluating the perceptions, observations and opinions of William's jurors on various witnesses and evidence." Motion for Release at 1, ¶ 2. The defendant claims that such contact is "essential to effective investigation, trial preparation and development of trial strategy." Id. 2. Rule 47.1 of the Local Rules of Practice for the United States District Court for

Case 1:00-cr-00531-WYD

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the District of Colorado prohibits parties or attorneys from communicating with jurors after any trial without written authority of the trial court. 3. The jury in the William Sablan case returned its decision on April 6, 2007. After the verdict form was read and the jury was polled, the Court informed the jurors about Local Rule 47.1. The Court then told that jurors that it was the Court's intention not to waive application of the rule. In other words, the Court told the jurors that they would not be contacted by representatives of any party. 4. The jurors in the William Sablan case have an expectation, based on Local Rule 47.1 and on statements of the Court, that the parties will not be contacting them. It would undoubtedly create confusion for the jurors to now be contacted about the trial ­ the opposite of what the Court told them would happen. 5. The defendant claims that he has a constitutional right to "effective investigation," meaning the right to contact the jurors who deliberated on his co-defendant's case. Motion for Release at 1, ¶ 2. The government has not found any case in support of that proposition. If a defendant had a right to contact his codefendant's jurors, such defendant would also have the right to be tried after his severed co-defendant in order to exercise his constitutional right to contact the co-defendant's jury. However, defendants have no right to demand the order in which they are tried. See, e.g., Mack v. Peters, 80 F.3d 230, 235 (7 th Cir. 1996) ("defendants have no inherent right to be tried in a certain order"); United States v. Poston, 902 F.2d 90, 99 (D.C. Cir.

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1990) (same). It therefore stands to reason that they also do not have a right to contact the co-defendant's jurors. 6. By virtue of William Sablan's trial taking place first, Rudy Sablan has the benefit of many things that William Sablan did not have available to him: trial transcripts of the government's witnesses and the opportunity to observe the demeanor of witnesses called by both sides in the William Sablan trial. Moreover, Rudy Sablan now has access to mental health information about William Sablan that was disclosed through the trial. Finally, through the penalty phase verdict form, Rudy Sablan has been able to learn much more about what the jurors thought about the evidence in both phases of the William Sablan trial than would be possible with a verdict form in a non-capital case, such as the number of jurors who found the existence of the various mitigators. In short, Rudy Sablan's ability to prepare for trial has been greatly increased by virtue of his trial taking place after William Sablan's trial. 7. In conclusion, the Court told the William Sablan jurors that Local Rule 47.1 would not be waived and that should properly be the last word on the subject.

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WHEREFORE the United States requests that the Court deny Rudy Sablan's Motion for Release of Juror Contact Information.

Respectfully submitted this 27th day of June, 2007.

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 27th day of June, 2007, I electronically filed the foregoing GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION FOR RELEASE OF JUROR CONTACT INFORMATION with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following email addresses:

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

By: s/ Veronica Ortiz VERONICA ORTIZ Legal Assistant 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0100 Facsimile: (303) 454-0403 E-mail: [email protected]

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