Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cr-00103-REB

Document 734

Filed 05/04/2006

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IN THE UNITED STATES DISTRICT FOR THE DISTRICT OF COLORADO CASE NO. 04-cr-00103-REB UNITED STATES OF AMERICA, Plaintiff, v. 1. NORMAN SCHMIDT,

Defendant. _____________________________________________________________________ NORMAN SCHMIDT'S RESPONSE TO GOVERNMENT'S MOTION TO CORRECT/AMEND THE THIRD SUPPLEMENTAL SCHEDULING ORDER ____________________________________________________________________ COMES NOW, Defendant Norman Schmidt, by and through his attorneys, Peter R. Bornstein and Thomas J. Hammond, and responds to the government's Motion to Correct/Amend the Third Supplemental Scheduling Order (document #727). Mr. Schmidt states the following: 1. This issue has been discussed previously. Mr. Schmidt agrees that there

is no requirement - statutory, rule, or case - that mandates that the government must provide any type of witness list to the defense in a federal criminal case. 2. The Court, however, has the discretion to order that the government

provide a witness list to the defense. In addition to the cases cited by the government, this Court may find Judge Kane's analysis in United States v. Price, 448 F.Supp. 503 (D.C. Colo. 1978) to be helpful. 3. The point here is simple. After several years of investigation and significant

expense, the government has referenced a sheer multitude of potential witnesses who may 1

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testify at trial in this case. The number of potential witnesses is well over one thousand (1,000). Although the government has no burden to provide a witness list, counsel for Mr. Schmidt (and presumably counsel for each of the co-defendants who proceed to trial in this case) have legal and ethical duties to prepare for each witness the government will call for trial. Consequently, Mr. Schmidt must conduct interviews of the potential witnesses. Failure to investigate, by means of face to face interviews of the government's trial witnesses, exposes counsel to violations of the accused's Sixth Amendment right as well as violations of due process. The financial strain on the CJA budget will be significant. Four of the five defendants in this case are court-appointed. Numerous witnesses, potentially hundreds, must be interviewed and many of the witnesses are located outside the State of Colorado. The potential financial cost is staggering. The time cost to counsel is similarly staggering. 4. This Court has the discretion to order that the government provide a realistic

witness list to the defense. One result of providing a witness list is that the defendants in this case will then have the opportunity to focus on the witnesses that are known to be trial witnesses, and to determine whether it is even necessary to interview non-trial witnesses. By knowing who the real trial witnesses are, the defendants do not have to waste time and resources which may otherwise be expended in order to provide each defendant with the process due when the stakes are so high as in this case. 5. Another result of requiring a witness list, in a case in which the government

has represented will take approximately five weeks of court time, is that the Court and the defendants will be provided with a basic roadmap and therefore be able to be ready for cross examination of each government witness much more efficiently than without a 2

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witness list. 6. The government has suggested that is willing to provide a non-binding

witness list to the defense by December 1, 2006, on the condition that all defense counsel (counsel for Mr. Beros is given forty five (45) days from December 1, 2006) provide a similar non-binding witness list to the government by December 31, 2006. 7. Counsel for Mr. Schmidt object to providing such a witness list because it

violates the concept that the defendant has any burden at all in a criminal case. However, counsel will abide by any order of the Court. 8. The real issue here is that a December 1, 2006, deadline is dangerously

close to the trial in this particular case. If one were to assume that the government would provide a hugely expansive list (whether based upon caution or simple pre-trial strategy, both of which have occurred in similar 100-plus witness cases within the last three years), then the list accomplishes nothing and defense counsel are forced to expend massive amounts of time and other resources. If, on the other hand, the government provides a realistic witness list by the end of August or September 2006, it will relieve defense counsel from the burden having to scramble during the last stage of trial preparation. After all, the Court was prepared to order disclosure of the government's trial witnesses by the end of this month.

Respectfully submitted, 3

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____________________________ Peter R. Bornstein 1600 Broadway, Suite 2350 Denver, Colorado 80202 (303)861-2500 fax (303)832-0420 e-mail: [email protected]

s/ Thomas J. Hammond Thomas J. Hammond Thomas J. Hammond, P.C. 1544 Race Street Denver, Colorado 80206 (303)321-7902 fax: (303)329-5871 e-mail: [email protected]

CERTIFICATE OF SERVICE I hereby certify that on May 4, 2006, I electronically filed the foregoing NORMAN SCHMIDT'S RESPONSE TO GOVERNMENT'S MOTION TO CORRECT/AMEND THE THIRD SUPPLEMENTAL SCHEDULING ORDER with the Clerk of the Court using the CM/ECF filing system which will send notification of such filing to the following e-mail addresses: Wyatt Angelo, Esq. [email protected] Peter R. Bornstein, Esq. [email protected] Mitchell Baker, Esq. [email protected] Thomas E. Goodreid, Esq. [email protected] Robert P. Sticht, Esq. [email protected] Declan O'Donnell, Esq. [email protected] Matthew Kirsch, Esq. [email protected] Paul B. Daiker, Esq. [email protected] Ronald Gainor, Esq. [email protected] Daniel Smith, Esq. [email protected]

s/ Thomas J. Hammond

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