Free Transcript - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Court Recorder: APPEARANCES: vs. SCHRIRO, ET AL, FARRALL,

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ) ) ) ) ) ) ) ) ) )

Plaintiff,

No. CV 04-00260-PHX-EHC Phoenix, Arizona March 3, 2008 1:30 p.m.

Defendant.

TRANSCRIPT OF STATUS CONFERENCE BEFORE THE HONORABLE EARL H. CARROLL UNITED STATES DISTRICT COURT JUDGE

For the Plaintiff:

By: Michael Llewellyn Burke Justin Francis Marceau FEDERAL PUBLIC DEFENDERS OFFICE 850 W. Adams St., Suite 201 Phoenix, AZ 85007 BY: Katia Mehu Craig Soland OFFICE OF THE ATTORNEY GENERAL 1275 W. Washington Phoenix, AZ 85007-2997 Vicki Reger A/V Tronics, Inc. 365 E. Coronado Rd., Ste. #100 Phoenix, AZ 85004-1525

For the Defendants:

Transcription Service:

Proceedings recorded by electronic sound recording, transcript produced by transcription services.

A/V TRONICS, INC. Case 2:04-cv-00260-EHC-BPV
E-Reporting and E-Transcription Phoenix, AZ (602) 263-0885 Tucson, AZ (520) 403-8024

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2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE CLERK: March 3, 2008 Come to order. Please be seated.

CV 2004-260, Farrall v Schriro, et al, on for status conference. THE COURT: MR. MARCEAU: All right. For the Petitioner we have?

Your Honor, I'm Justin Marceau, and

this my co-Counsel, Michael Burke, from the Federal Public Defender's Office. THE COURT: MR. MARCEAU: THE COURT: And you're representing the Plaintiff? We are representing Mr. Farrell. Seemingly the Attorney General of the

United States of Arizona does not know on which side of the courtroom the respondents or defendants sit. Counsel? MR. SOLAND: Well, for the record, Your Honor, they Is that correct,

sat down first and we didn't want to kick them out of their -out of their seats. (Laughter) MR. MARCEAU: THE COURT: what's your name: MS. MEHU: THE COURT: MS. MEHU: THE COURT: My name's Katia Mehu, Your Honor. I was talking about the newcomer. Oh, the newcomer. On your right. It's squatting, yes. Well, you have -- you're a newcomer here;

A/V TRONICS, INC. Case 2:04-cv-00260-EHC-BPV
E-Reporting and E-Transcription Phoenix, AZ (602) 263-0885 Tucson, AZ (520) 403-8024

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3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. SOLAND: THE COURT: MS. MEHU: THE COURT: MS. MEHU: THE COURT: My name is Craig Soland, Your Honor. There you go. And now, your name?

My name is Katia Mehu, Your Honor. And you're here supervising Mr. Soland? I am, Your Honor. All right. Well, we haven't seen

Mr. Soland here for a long time, and he's welcome, as everyone is. But I think I have and perhaps should recuse in this case,

a picture including Mr. Soland in it, I think on a trip to the Navajo Indian Reservation, right? MR. SOLAND: THE COURT: Pardon, I didn't -Did you go up to the Navajo Indian

Reservation on a helicopter -MR. SOLAND: THE COURT: MR. SOLAND: THE COURT: I -- I did --- for a tour. -- go and I sat behind you. I was up with the pilot. But in any

event, so here we are for a -- a case that has bee remanded by the Ninth Circuit, because the Petitioner had another limited period of time to file something, and it was filed within that period of time. Now, so how long is it, Petitioner's preparation and timing proposed in this case? MR. MARCEAU: Your Honor, we have, since our request

for a stay for 90 days, we've conducted a great deal of

A/V TRONICS, INC. Case 2:04-cv-00260-EHC-BPV
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4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 case? MR. MARCEAU: Your Honor, there was a -- there was investigation, met with the client for about ten hours over three visits. And actually we're -- we're prepared today to

request, sort of formally, that an evidentiary hearing be scheduled. Our initial investigation of this based on Mr. Farrell's habeas petition has led us to at least four witnesses of the dozen that we've interviewed, that have direct evidence suggesting that the victims have recanted, either shortly after the indictment, or some more recently. And we think that

there's, you know, in the interest of judicial economy, there's little question that with four witnesses we can make a colorable claim of prejudice. And so we propose scheduling a hearing at some point out, and it could be a short, not a protracted hearing, and this Court could assess the credibility of these witnesses, and once and for all dispose with this petition. THE COURT: What is the underlying charge in the

15-count indictment, involving various sex crimes with children. And there was a guilty plea as to two of those

counts, and we're -- we have been investigating all of the charges of the indictment, since our -THE COURT: MR. MARCEAU: Well --- appointment.

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E-Reporting and E-Transcription Phoenix, AZ (602) 263-0885 Tucson, AZ (520) 403-8024

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5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: -- with respect to those two counts, are

that at issue now; that he pleaded guilty to? MR. MARCEAU: Your Honor, there was a guilty plea in

State Court, in this case. THE COURT: Well he pleaded guilty in State Court, is

that to be set aside, his guilty plea? MR. MARCEAU: Correct, Your Honor. The -- the

constitutional question at issue is a voluntariness claim, primarily under the Sixth Amendment. And we have been

investigating sort of the elements, the exculpatory elements of innocence, because I think that's what would go to prejudice; sort of showing a reasonable probability that he could produce reasonable doubt in at least one juror. THE COURT: Well -- and so you requested a 90 day

proceeding on November 14th. MR. MARCEAU: THE COURT: MR. MARCEAU: Correct, shortly after our appointment. So you're ready to do something else now? Your Honor, we're, although our

investigation isn't complete, like I said, we have found four witnesses that our investigators tell us are credible, suggesting that this, you know, there is a triable issue here. And so we're -THE COURT: MR. MARCEAU: THE COURT: So --- requesting a hearing. And so now you're going to file a motion

A/V TRONICS, INC. Case 2:04-cv-00260-EHC-BPV
E-Reporting and E-Transcription Phoenix, AZ (602) 263-0885 Tucson, AZ (520) 403-8024

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6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 hearing. for what? MR. MARCEAU: Your Honor, we're prepared to just

present you with an oral motion today, or present a -THE COURT: File something in writing so that

Mr. Soland, and he'll know what timing their looking at and what the problems are. So in any event the motion for a 90-day stay is denied as moot. And Petitioner is to file any other motions

with respect to further proceedings, within 30 days of this date. All right? MS. MEHU: THE COURT: MS. MEHU: May I -- may I have a word, Your Honor? Sure. We are basically here because the We responded

Petitioner has filed his habeas corpus petition. on the statute of limitations issue.

We have not, as of -- as

of this date, addressed the -- the merits of his petition. THE COURT: Well, some of that may come up at this

But in any event it seems to me they're entitled to If you need more time or

have some hearing, if they notice it.

-- to investigate it, I suppose that's another -- another matter. But the motion to stay is denied as moot, and so now whatever else is filed you'll have an opportunity to do something. If you need more time to do something you file a

A/V TRONICS, INC. Case 2:04-cv-00260-EHC-BPV
E-Reporting and E-Transcription Phoenix, AZ (602) 263-0885 Tucson, AZ (520) 403-8024

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7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 much. MR. MARCEAU: THE COURT: Thank you. Thank you all. motion. Okay. MS. MEHU: THE COURT: MS. MEHU: THE COURT: May I have a moment, Your Honor? Sure. That's fine, Your Honor. All right. Well you file the motion and

then the Attorney General's Office can file a response or any other matters that they want, within the same period of time as well. Well the Petitioner's been in custody somewhere around 15 to 17 years? MR. MARCEAU: THE COURT: very quickly. Your Honor, about ten years. I guess that's '99 to 2009; time goes

All right.

Well, there we are; anything else? MR. MARCEAU: MS. MEHU: THE COURT: MR. MARCEAU: THE COURT: No, Your Honor.

No, Your Honor. Nothing? No, Sir. All right. Well, thank you all very

(Proceedings Concluded) -oOo-

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8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Dated: March 31, 2008 Linda J. Heppler A/V Tronics, Inc. 365 E. Coronado Road Suite #100 Phoenix, AZ 85004-1525 I (we) certify that the foregoing is a correct transcript from the electronic sound recording of the proceedings in the above-entitled matter. CERTIFICATE

A/V TRONICS, INC. Case 2:04-cv-00260-EHC-BPV
E-Reporting and E-Transcription Phoenix, AZ (602) 263-0885 Tucson, AZ (520) 403-8024

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