Free Response to Motion - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Criminal Action No. 1:00-cr-00531-WYD UNITED STATES OF AMERICA, Plaintiff, v. WILLIAM CONCEPCION SABLAN, Defendant.
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William Sablan's Response to the Government's Motion to Strike Testimony of Late-Endorsed Defense Experts _______________________________________________________________________ Defendant William Sablan, through undersigned court-appointed counsel, submits this response to the "Government's Motion To Strike Testimony Of Late-Endorsed Defense Experts. (Document 2102). Factual Background 1. On June 7, 2005, the Court issued a Scheduling Order. (A copy is attached). According to its terms, the government was to provide notice of its "expert witnesses and testimony" by July 14, 2006; the defense was to provide notice of its "expert witnesses and testimony" by August 14, 2006; and all parties were to provide a list of non-expert witnesses by October 13, 2006. The Order also scheduled the hearing on Phase III motions for May 15 through June 2, 2006. Thus, the Court contemplated that the Phase III hearing would have been completed before the parties were required to submit their
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notices regarding expert witnesses. The Court's sequencing of events appropriately recognized the defense need to know the results of its Phase III motions before finalizing its disclosure of experts, for contrary to the government's uninformed argument, the contours of the penalty phase influence defense decisions about which witnesses to call, not only for that phase, but also for the guilt/innocence trial.1 3. Despite the fact that the hearing on Phase III motions hearing did not occur as scheduled, instead being repeatedly delayed due to the government's failure to provide adequate proffers, the defense notified the government, to the extent possible, of its anticipated expert witnesses on August 14, 2006. (The letter is being filed separately, without its enclosures, under seal.) The letter states, in pertinent part:
The defense hereby provides this notice of expert witnesses and testimony which may be presented during the guilt/innocence trial. 1) Dr. Todd Robert Poch . . . 2) Dr. James Jacobson . . . 3) Dr. Rose Manguso . . . 4) Dr. Ruben Gur . . . This analysis is relevant to the government's complaint of "the late endorsements" of Dr. Robert Scaer and Dr. Mark Cunningham. (Gov. Mtn ¶ 3d). Depending on the Court's rulings on the nonstatutory aggravating factor future dangerousness, Dr. Scaer's testimony regarding the benefits of psychotropic medications to William could be extremely relevant on the issue or completely unnecessary. The defense cannot make a final decision until the Court rules. The same is true in relation to Dr. Cunningham. In any event, the defense disclosed that it may call both, and on December 18, 2006 provided Scaer's report and a summary relating to Cunningham. Moreover, in relation to Dr. Cunningham, the government is well aware of the nature of the testimony he would present, not only from the defense's August 14th letter ­ "we may call Dr. Mark Cunningham to provide expert testimony regarding future dangerousness. His C.V. is enclosed" ­ but also from the testimony he has given in other cases, including cases the government has cited in this case, e.g., United States v. Sampson, 335 F. Supp.2d 166, 226228 (D. Mass. 2004). 2
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5) Dr. Charles Morgan. . . We may also call Drs. Herbst and Post. You are familiar with their role in William's past, as well as their opinions. If called, they will testify regarding William's mental condition. Dr. Herbst's C.V. is enclosed. We will request Dr. Post's C.V. and provide it upon receipt.[2]

4. As noted in the letter's introductory sentence, the defense disclosed the experts it anticipated calling in the guilt-innocence trial only. This limitation is consistent with Fed. R. Crim. P. 16(b)(1) and the Federal Death Penalty Act. See United States v. Catalan Roman, 376 F. Supp. 2d 108, 113 (D. Puerto Rico 2005) (the language of Rule 16 indeed appears limited to the guilt phase, inasmuch as it refers to testimony that "defendant intends to use under Rules 702, 703, or 705 . . . as evidence at trial") (citing United States v. Beckford, 962 F. Supp. 748, 754 (E.D. Va. 1997) (same)); 18 U.S.C. § 3593(b) ("[i]f . . . the defendant is found guilty of . . . an offense described in section 3591, the judge who presided at the trial . . . shall conduct a separate sentencing hearing to determine the punishment to be imposed"). The disclosure is also consistent with the Court's June 7, 2005 Scheduling Order, because the order did not specify that penalty

The government is apparently and inexplicably confused about Dr. Laura Post. Dr. Laura Post did not perform a neuropsychological exam on William in 2001. Dr. Laura Post is a psychiatrist who practices in the Mariana Islands. She has been known to the government since October 27, 2000 when she was interviewed by FBI Agent Daniell and Investigator Eliassen. Moreover, her opinions were revealed in court on May 26, 2004. (The relevant portion of the sealed transcript is part of a separate filing.) In addition, Dr. Herbel's October 1, 2004 report briefly summarized Dr. Post's role in William's treatment. To eliminate the government's confusion, Dr. Post saw William Sablan in Saipan approximately a dozen times in 1997-1998. Her primary diagnosis was psychosis which was treated with psychotropic medication. 3

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phase experts had to be disclosed.3 5. Defense counsel's August 14, 2006, letter continued as follows:
We've also conferred with other experts in fields such as toxicology and psychotropic medications. At this point, we're not certain that we will introduce their testimony at trial and we don't have reports from them. We are awaiting the results of upcoming hearings, including clarification of the Atkins issues, before making that decision. As soon as the Court rules on pending Motions, we will make those decisions and advise you accordingly. I note that the Phase III Motions should have been concluded by the end of this month. They have been postponed through no fault of William Sablan's.[4]

6. If the government disagreed with the defense interpretation of the Court's order and the applicable rules, it was incumbent upon it to seek additional disclosures from defense counsel, consistent with this Court's practice of having parties meet and confer on certain issues, or file something with the Court. The government did neither. See e.g. Catalan Roman, 376 F. Supp. 2d at 118 (after the defendants were found guilty and the

Thus, the defense is not precluded from presenting the testimony of either Dr. Frank Fortunati or Dr. Rita Inos at the penalty phase, particularly because the government has known of Dr. Fortunati's opinions regarding William's mental health since September 8, 2003. Fortunati prepared two reports on December 16, 2006, both of which are relevant to the penalty phase, and have been provided to the government. One is similar to Dr. Scaer's report, that is, William benefits greatly from psychotropic medication. The second, and more extensive report, relates to the adverse impact William's execution would have on his family. (The government has filed a motion in limine in response to the second report. (Document 2104)). Barring any unexpected rulings relating to the guilt/innocence trial, the defense anticipates calling Dr. Fortunati only for purposes of the penalty phase. Subsequently, Dr. Robert Scaer, an expert in the field of psychotropic medications, and Dr. Kathey Verdeal, a toxicologist, were endorsed by the defense. As the government concedes, it received Dr. Scaer's report on December 18, 2006 and a summary of Dr. Verdeal's opinions on December 11, 2006. (Gov Mtn ¶¶ 3a and 3e). These disclosures are timely pursuant to the Court's and counsel's discussion on November 16, 2006. (See paragraph 7 below.) 4
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penalty phase had commenced, the court granted the government's motion to compel defendants to disclose their penalty phase experts). 7. Subsequently, on November 16, 2006, the Court and counsel discussed disclosure of penalty-phase witnesses. The Court stated: "Let me make the December 18 deadline the deadline for witnesses for both the guilt and penalty phase . . .." (Hrg Tr at 190 (filed under seal)) (emphasis added). 8. Thus, the defense has been timely with its disclosures.5 9. Moreover, the reports and summaries provided by the defense to the government are more than adequate under Rule 16.6 (The defense is separately filing, under seal, the summaries provided to the government in relation to Dr. Mark Cunningham, Dr. David Lovejoy, and Dr. Kathy Verdeal for the Court's review. The filing will also include testimony given at a closed hearing held on May 26, 2004, which includes a description of Dr. Post's opinions.) Rule 16(b)(1)(c) (emphasis added) provides that: The defendant must, at the government's request, give to the

This renders an analysis under United States v. Wicker, 848 F.2d 1059 (10th Cir. 1988), of the factors to be considered in fashioning a sanction for discovery violations completely unnecessary. Moreover, the other cases cited by the government, United States v. Nichols, 169 F.3d 1255 (10th Cir. 1999) and United States v. Russell, 109 F.3d 1053 (10th Cir. 1997) are readily distinguishable. Although the defense was not allowed to call certain witnesses in both cases, the defense attempt to do so occurred after the government had concluded its case-in-chief and without prior notice to the government. The government has complained about inadequate disclosures in regards to Drs. Poch and Jacobsen. The defense, however, included neither on its final witness list and does not intend to call them in either the guilt/innocence trial or the penalty phase. 5
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government a written summary of any testimony the defendant intends to use under Rule 702, 703 or 705 of the Federal Rules of Evidence as evidence at trial if ­ (ii) the defendant has given Notice under Rule 12.2(b) of an intent to present expert testimony on the defendant's mental condition. This summary must describe the witness's opinions, the bases and reasons for those opinions, and the witnesses's qualifications. Thus according to the rule, a summary is sufficient, and the government's attempt to read into it a requirement for an elaborate formal report is unfounded. Furthermore, the rule is applicable to the use of expert testimony at trial and does not specifically apply to the penalty phase. Because the Court's Order did not specify any requirements beyond the rule, a summary is certainly adequate, not only for purposes of the trial, but also for purposes of the sentencing hearing. The Government's Failure to Comply with Rule 16 and the Court's Order 10. Defense counsel's August 14, 2006 letter also included the following request:
In accordance with F.R.Crim.P. Rule 16(a)(1)(G), we request the government's written summary of expert testimony you intend to use on the issue of the defendant's mental condition. Your summary of expert testimony relating to William's mental condition could influence the experts we call during the Guilt/Innocence trial.

The government did not respond. 11. Thereafter, defense counsel repeatedly requested government disclosure: (a) On October 24, 2006, counsel wrote:
Over two months ago, the defense provided summaries of 6

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its expert testimony relating to William's mental condition. At that point, the government was required to provide the defendant with a written summary of its expert testimony relating to William's mental condition. We haven't received such a summary. Can I assume, therefore, that the government does not intend to present any evidence relating to William's mental condition at trial? Pleas let me know at your earliest convenience. Thank you.

(b) In a November 2, 2006 letter, counsel asked:
"Does the government intend to introduce mental health experts? If so, you owe the defense reports or summaries of their opinions."

(c) On November 5, 2006, counsel emailed the government stating:
"The government has owed the defense a summary (or summaries) of the expert testimony it intends to use regarding William's mental condition. I have received no such summaries or reports; and, therefore, assume the government does not intend to introduce such evidence."

The government failed to respond to any of these communications. (Copies of the October and November letters and the November email are attached.) 12. On December 18, 2006, the government filed its list of witnesses. (Documents 2081-1 and 2080-3). The lists does not include any mental health experts. Therefore, it is the government that is precluded from calling mental health experts, including Dr. Martell, particularly at the guilt/innocence phase. 13. During argument on the government's motion for a mental examination, held on January 3, 2007, the Court correctly noted that the two motions were inter-related. The defense submits that the instant motion was filed in a poorly disguised attempt to coerce the Court and defense counsel into a "compromise": the government gets to

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conduct an 11th hour mental examination of William, and the defense gets to keep its expert witnesses. This is reflected by the government's proposed "remedy" for purposes of this motion, i.e., it "is not asking for a continuance" but it "needs to conduct a mental examination of the defendant . . .." (Gov Mtn ¶ 7). The Court wisely denied the motion for a mental examination as untimely, and the Court should likewise deny this motion. WHEREFORE, William Sablan respectfully requests that the Court deny the government's unfounded motion to strike the testimony of defense expert witnesses. Dated: January 8, 2007 Respectfully submitted, Patrick J. Burke Patrick J. Burke P.C. 1660 Wynkoop Street, Suite 810 Denver, CO 80202 303-825-3050 By: /s/ Susan L. Foreman Susan L. Foreman 1660 Wynkoop Street, Suite 810 Denver, CO 80202 303-825-3050 Nathan Chambers Chambers, Dansky & Mulvahill 1601Blake Street, Suite 300 Denver, CO 80202 303-825-2222 Counsel for William Sablan

CERTIFICATE OF SERVICE I hereby certify that on January 8, 2007, I electronically filed the foregoing William Sablan's Response to the Government's Motion to Strike Testimony of LateEndorsed Defense Experts with the Clerk of the Court using the CM/EFC system which
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will send notification of such filing to the following e-mail addresses: [email protected] [email protected] [email protected] [email protected] By: /s/Susan L. Foreman

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