Free Motion to Strike - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

Document 2102

Filed 12/31/2006

Page 1 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Action No. 00-cr-00531-WYD-1 UNITED STATES OF AMERICA, Plaintiff, v. 1. WILLIAM CONCEPCION SABLAN, Defendant.

GOVERNMENT'S MOTION TO STRIKE TESTIMONY OF LATE-ENDORSED 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 strike the testimony of William Sablan's lateendorsed expert witnesses and ones for which there has been inadequate disclosure of their opinions. The Court should also preclude other defense witnesses from relying, in whole or in part, on these experts' testing, statement, or opinions. As grounds for this motion, the government states: 1. The Court set a deadline of August 14, 2006 for William Sablan to disclose the names and opinions of his expert witnesses. See Court's Order of June 7, 2005 at 2. 2. On March 30, 2006, William Sablan filed a Rule 12.2(b)(1) notice that he

"will introduce expert testimony and evidence relating to a mental disease or defect or any

Case 1:00-cr-00531-WYD

Document 2102

Filed 12/31/2006

Page 2 of 9

other mental condition bearing on the issue of guilt." At the same time, he filed a Rule 12.2(b)(2) notice that he "will introduce expert testimony and evidence relating to a mental disease or defect or any other mental condition bearing on the issue of punishment during the penalty phase of this capital trial." Expert Witnesses Endorsed After the August 14, 2006 Deadline 3. William Sablan has endorsed numerous expert witnesses after the August 14, 2006 deadline, without seeking leave of Court to do so. These include the following: a. Dr. Robert Scaer ­ On December 18, 2006, the defendant notified the government that it may call in the liability or penalty phase Dr. Robert Scaer, a neurologist, who interviewed the defendant on December 14, 2006. The government did not receive Dr. Scaer's report, which is dated December 18, 2006, until that day. b. Dr. Frank Fortunati ­ On December 18, 2006, the defendant notified the government that he may call in the liability or penalty phase Dr. Frank Fortunati, a psychiatrist, who met with the defendant in 2003 and 2005. The government has previously received a four-page report of Dr. Fortunati dated September 8, 2003. However, on December 18, 2006, the government received two new reports by Dr. Fortunati, dated December 16, 2006. One report is three pages long and relates to meetings that Dr. Fortunati had with William Sablan in September 2005. The other report is 25 pages long and relates to William Sablan's children.

2

Case 1:00-cr-00531-WYD

Document 2102

Filed 12/31/2006

Page 3 of 9

c. Dr. Rita Inos ­ On December 18, 2006, the defendant notified the government that he may call Dr. Rita Inos in the penalty phase. Dr. Inos has been endorsed to testify about Chamorro culture and the conditions of the prison in Saipan. The government has not received a report from Dr. Inos. Rather, on December 18, 2006 the government received a 1 ½ page letter from defense counsel describing her testimony. d. Dr. David Lovejoy ­ On December 18, 2006, the defendant notified the government that he may call Dr. David Lovejoy, an expert in neuropsychology. The defendant has not provided a report for Dr. Lovejoy. In a letter dated December 18, 2006, the defendant stated that Dr. Lovejoy's testimony will "summarize his review of relevant records and background history," will testify regarding "his impressions/opinions," which will be "similar" to Dr. Herbel and Dr. Charles Morgan, and opine that a particular DSM IV diagnosis "may" be the most appropriate cognitive description of William Sablan's current mental state. e. Dr. Kathey Verdeal ­ On December 11, 2006, the defendant notified the government that he may call in the liability or penalty phase Dr. Kathey Verdeal, a toxicologist, who will testify regarding the effects of alcohol on the brain. The defendant has not provided a report of her opinions. In a letter dated December 11, 2006, the defendant provided a two paragraph description of her opinions.

3

Case 1:00-cr-00531-WYD

Document 2102

Filed 12/31/2006

Page 4 of 9

Expert Witnesses For Which There Has Been Inadequate Disclosure 4. Although the following expert witnesses were endorsed by the August 14, 2006 expert disclosure deadline, the defendant has failed to comply with the Court's June 7, 2005 Order by failing to disclose adequately their opinions: a. Dr. Todd Robert Poch ­ On August 14, 2006, the defendant notified the government that he may call in the liability phase Dr. Todd Robert Poch, a psychologist. The defendant's August 14, 2006 notice stated that "We do not have a comprehensive report from Dr. Poch at this time. We will provide it to you upon receipt." The defendant has not yet provided this report. Dr. Poch has examined William Sablan on several occasions, most notably in 2001. Of course, Dr. Poch has testified in this case. If his opinions are limited to those expressed in his testimony in this case, the government has no objection to him expressing such opinions in the liability phase of the trial. b. Dr. James Jacobson ­ On August 14, 2006, the defendant notified the government that he may call in the liability phase Dr. James Jacobson, a psychiatrist. The defendant has not provided a report of his opinions other than to state that "Dr. Jacobson will testify regarding William's mental condition." He may have evaluated William Sablan in 2001. c. Dr. Laura Post ­ On August 14, 2006, the defendant notified the government that he may call in the liability phase Dr. Laura Post, a psychologist. Dr. Post conducted a neuropsychological examination of the defendant in 2001. Although Dr.

4

Case 1:00-cr-00531-WYD

Document 2102

Filed 12/31/2006

Page 5 of 9

Post's 2001 report has been discussed in other reports which the government has, the defendant has not provided the government with a copy of her report. d. Dr. Mark Cunningham ­ On August 14, 2006, the defendant notified the government that he may call Dr. Mark Cunningham on the issue of future dangerousness. No report or summary was provided until December 13, 2006, when defense counsel provided a letter stating a one sentence description of his opinions. e. Dr. David Lovejoy and Dr. Kathey Verdeal ­ As noted above, the government has received only brief descriptions of their proposed testimony from defense counsel. Argument 4. Rule 16(d)(2) of the Federal Rules of Criminal Procedure gives the district court broad discretion in imposing sanctions on a party who fails to comply with a discovery order. United States v. Wicker, 848 F.2d 1059, 1060 (10 th Cir. 1988). See also United States v. Russell, 109 F.3d 1503, 1511 (10 th Cir. 1997) (Wicker is satisfactory precedent to deal with violations of pretrial disclosure orders). The factors that the district court should consider in determining whether a sanction is appropriate are (1) the reasons for the delay in producing the requested materials, including whether or not the party acted in bad faith; (2) the extent of the prejudice to the other party as a result of the delay; and (3) the feasibility of curing the prejudice with a continuance. United States v. Nichols, 169 F.3d 1255, 1268 (10 th Cir. 1999), citing Wicker, 848 F.2d at 1061. If the

5

Case 1:00-cr-00531-WYD

Document 2102

Filed 12/31/2006

Page 6 of 9

district court determines that sanctions are appropriate, it should impose the "least severe sanction that will accomplish ... prompt and full compliance with the court's discovery orders." Wicker, 848 F.2d at 1060. 5. First Wicker Factor ­ Reasons for Delay: The government anticipates that the defense, as a justification for its untimely endorsement and/or inadequate disclosures, will claim that it could not provide endorsements or disclosures until such time as the Court rules on the Phase III motions. However, any claim based on the Phase III rulings falls flat. First, the defendant did disclose a number of witnesses in December 2006, despite the fact that the Court has not ruled on Phase III motions. Obviously, it was possible to endorse certain witnesses and disclose their reports without knowing exactly how the Court will rule. Second, several of the witnesses endorsed in December 2006 are endorsed for the liability phase of the trial. For example, Dr. Robert Scaer, Dr. Frank Fortunati, Dr. Kathey Verdeal, and possibly Dr. David Lovejoy fall within that category. How does the Court's Phase III rulings (on the penalty phase) affect William Sablan's ability to endorse liability phase expert witnesses on a timely basis? Third, it is unclear why the Court's Phase III rulings have anything to do with the adequacy of disclosure for the witnesses that the defendant endorsed in August 2006. For example, there does not appear to be any connection between Dr. Poch's or Dr. Jacobson's reports and the Phase III rulings.

6

Case 1:00-cr-00531-WYD

Document 2102

Filed 12/31/2006

Page 7 of 9

6. Second Wicker Factor ­ Prejudice to the Government: The late endorsements and inadequate disclosures by William Sablan have prejudiced the United States. The court in United States v. Catalan Roman, 376 F. Supp. 2d 108, 116 (D. P.R. 2005), noted the importance of the government being able to rebut expert testimony: Be it expert testimony regarding a medical condition, or crime scene ballistics or how defendants' background informs their behavior, it takes time to develop expert testimony in rebuttal. In addition, the rebuttal expert also requires access to the basis of the other expert's conclusions in order to effectively test them. And the importance of the thorough and effective rebuttal of an expert, to whom the jury may give undue credence, cannot be minimized. Citing United States v. Rosales, 19 F.3d 763, 766 (1 st Cir. 1994) and United States v. Hines, 55 F. Supp. 2d 62, 64 (D. Mass. 1999). Each of these reasons applies with particular force in this case, which involves many expert witnesses. 7. Third Wicker Factor ­ Remedy: The government is not asking for a continuance. However, in order to rebut the late and inadequately disclosed expert witnesses, the United States (a) needs to conduct a mental examination of the defendant; (b) needs to receive complete disclosure of the defendant's expert witnesses, including their raw testing data and notes of any meetings with William Sablan; and (c) must be allowed to call its own experts to rebut the expert testimony of the defendant. In the event that the government is not allowed this relief, the United States requests that the Court strike the late endorsed and inadequately disclosed expert witnesses and bar any reliance by other defense experts on their testing data, statements, or opinions.

7

Case 1:00-cr-00531-WYD

Document 2102

Filed 12/31/2006

Page 8 of 9

WHEREFORE the United States requests that the Court strike the testimony of the above-named witnesses and preclude other defense witnesses from relying on any part of their testing, statements, or opinions.

Respectfully submitted this

31st

day of December, 2006.

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

8

Case 1:00-cr-00531-WYD

Document 2102

Filed 12/31/2006

Page 9 of 9

CERTIFICATE OF SERVICE I hereby certify that on this 31st day of December, 2006, I electronically filed the foregoing GOVERNMENT'S MOTION TO STRIKE TESTIMONY OF LATEENDORSED 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 William Sablan Patrick J. Burke [email protected] Nathan Dale Chambers [email protected] [email protected] Susan Lynn Foreman [email protected]

s/ Janet D. Zinser Janet D. Zinser Supervisory 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]

9