Free Reply to Response - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona BILL C. SOLOMON Assistant U.S. Attorney Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Arizona State Bar No. 020012 Telephone (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, CR-04-0951-PHX-DGC Plaintiff, v. Jaod David Dodds, Defendant. The United States of America, by and through its attorneys undersigned, hereby GOVERNMENT'S REPLY ON MOTION TO RECONSIDER

15 replies to Defendant's Response To Government's Motion to Consider. 16 In his response, defendant insinuates that this court cannot reconsider it's March 27,

17 2006 order, finding that defendant is not competent to stand trial, because the order is law of 18 the case. Defendant, however, is mistaken. 19 "The law of the case doctrine originated in the courts as a means of ensuring the

20 efficient operation of court affairs." City of Los Angeles, Harbor Division v. Santa Monica 21 Baykeeper, 254 F.3d 882, 888 (9th Cir. 2001). The doctrine "applies to the principle that in 22 order to maintain consistency during the course of a single lawsuit, reconsideration of legal 23 questions previously decided should be avoided." United States v. Houser, 804 F.2d 565, 24 567 (9th Cir. 1986). Application of the law of the case doctrine is discretionary. United 25 States v. Smith, 389 f.3d 944, 949 (9th Cir. 2004). The doctrine is neither an inexorable 26 command, nor is it a limit to a court's power. Id. 27 28

Case 2:04-cr-00951-DGC

Document 59

Filed 12/05/2006

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The Ninth Circuit Court of Appeals has acknowledged: The power to vacate judgments was conceded by the common law to all its courts. Within its proper limitations it is a power inherent in all courts of record and independent of statute. It may be exercised by the court either of its own motion or on motion or suggestion by a party or interested person.

5 Santa Monica Bay Keeper, 254 F.3d at 887 (emphasis in original) (internal quotations 6 omitted). The legal effect of the doctrine of the law of the case depends upon whether the 7 earlier ruling was made by a trial court or an appellate court. Houser, 804 F.2d at 567. All 8 rulings of a trial court are subject to revision at any time before the entry of judgment. Id. In 9 other words, "a district court may reconsider its prior rulings so long as it retains jurisdiction 10 over the case." Smith, 389 F.3d at 948. 11 Here, this court may reconsider its prior order, as it clearly retains jurisdiction over the

12 case. Because this court, not an appellate court, made the earlier ruling, the ruling is subject 13 to revision by this court at any time before the entry of judgment. 14 Defendant relies solely upon United States v. Alexander, 106 F.3d 874 (9th Cir.

15 1997), to support his contention that this court is precluded from reconsidering its prior order 16 based on the law of the case doctrine. In that case, the district court granted a motion to 17 reconsider only after the jury was unable to reach a verdict and the court had declared a 18 mistrial. In addition, the motion to reconsider was granted by a judge to whom the case had 19 been reassigned after the initial order was made. Just as was the case in Smith, Alexander is 20 inapplicable to the case currently before this court. 21 In his response, defendant states, "Since the government has ascertained that Mr.

22 Dodds' release would not create a substantial risk of bodily injury to another, or cause a 23 substantial risk of serious property damage to another, he should be released in accordance 24 with 18 U.S.C. § 4246(e)(1)." (Response to Government's Motion to Consider, p. 3). To the 25 contrary, the risk panel reached a consensus "that while Mr. Dodds is a dangerous person, 26 this is not related to a mental disease or defect, but is the product of his Antisocial 27 personality Disorder." (8/23/06 Forensic Evaluation Report, p. 6). 28 2
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As set forth above, this court may reconsider its March 27, 2006, order wherein it

2 found defendant incompetent to stand trial, as it clearly retains jurisdiction over the case. 3 Because this court, not an appellate court, made the earlier ruling, the ruling is subject to 4 revision by this court at any time before the entry of judgment. Given the risk panel's 5 assessment of Mr. Dodds as a danger, coupled with Dr. Lucking's April 6, 2005, report 6 wherein he opined that Mr. Dodds is able to understand the proceedings against him and to 7 assist properly in his defense, the United States respectfully requests this Court grant the 8 motion to reconsider. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
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Respectfully submitted this 5th day of December, 2006.

PAUL K. CHARLTON United States Attorney District of Arizona s/Bill C. Solomon BILL C. SOLOMON Assistant U.S. Attorney

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Sherry Bell

CERTIFICATE OF SERVICE
I hereby certify that on December 5, 2006 , I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:

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Case 2:04-cr-00951-DGC Document 59 Filed 12/05/2006 Page 4 of 4 s/Bill C. Solomon