Free Response to Motion - District Court of Arizona - Arizona

FLORENCE & BELL, LTD. Sherry Bell 45 West Jefferson Tenth Floor, Luhrs Tower Phoenix, Arizona 85003 (602) 258-8451 Bar I.D. #006819 Attorney for Defendant

IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA UNITED STATES OF AMERICA, Plaintiff, v. JAOD DODDS, Defendant. ) ) ) ) ) ) ) ) ) ) No. CR2004-00951-PHX-DGC RESPONSE TO GOVERNMENT'S MOTION TO CONSIDER

(Assigned to the Hon. Campbell)

On March 15, 2006, this Court found "by a preponderance of the evidence" that Mr. Dodds was not competent. On May 1, 2006, the parties agreed that the Court had to commit defendant Dodds to the custody of the Attorney General pursuant to 18 U.S.C. § 4241 (d)(1). The sole purpose for the commitment was to obtain an opinion of an appropriate medical facility on the issue addressed on 18 U.S.C. § 4246 (a) ... whether Mr. Dodds' mental disease or defect is such that his release would create a substantial risk of bodily injury to another person or serious damage to property of another. At that time, the Court ordered pursuant to § 4241(d)(1) that defendant Dodds would be committed to the custody of the attorney general for a reasonable period of time, not to exceed four months. This minute entry is dated May 3, 2006,

approximately five months from the day it was signed. The State's motion for reconsideration contains no additional evidence which was not presented at the original court hearing on May 15, 2006. The government sent Mr. Dodds to the very person who originally offered the opinion that Mr. Dodds was competent and malingering,

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namely Dr. Robert G. Lucking. Not surprisingly, Dr. Lucking reaffirmed his original diagnosis even though it went beyond the scope of the Court's ruling. The only pertinent part of Mr. Lucking's report was the fact that Mr. Dodds did not present a substantial risk of bodily injury to another or serious damage to property of another. Mr. Dodds has been held in custody longer than the four months that was the maximum time the Court ordered, in it's minute entry dated May 3, 2006, for evaluation of whether Mr. Dodds presented a risk to persons or property upon his release. Since the government has ascertained that Mr. Dodds' release would not create a substantial risk of bodily injury to another, or cause a substantial risk of serious property damage to another, he should now be released in accordance with 18 U.S.C. § 4246 (e)(1). The prosecutor's motion is an attempt to keep Mr. Dodds unlawfully confined and is without basis, citing no authority to support the government's position. The Court has heard evidence on this issue and made a finding after a hearing in which Dr. Parrish testified. Under "law of the case" doctrine, a court is generally precluded from reconsidering an issue that has already been decided by the same court or a higher court in the identical case. United States v. Alexander, 106 F.3d 874 (9th Cir. 1997). Only a limited set of circumstances grant discretion to a court to depart from the law of the case, none of which are present in the instant case. Discretion to depart from the prior ruling arises where: 1) the first decision was clearly erroneous; 2) an intervening change in the law has occurred; 3) the evidence on remand is substantially different; 4) other changed circumstances exist; or 5) a manifest injustice would otherwise result. Failure to apply the doctrine of the law of the case absent one of the requisite conditions constitutes an abuse of discretion. Id. at 876 (citing Thomas v. Bible, 983 F.2d 152, 154 (9th Cir.) (cert. denied 508 U.S.
951, 113 S.Ct. 2443, 124 L.Ed.2d 661 (1993).

In the instant case, none of the above-listed factors are present, therefore there are no grounds for this Court to reconsider its prior decision. This matter has been settled and it is clear that Mr. Dodds must now be released. . . .

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RESPECTFULLY SUBMITTED this

3rd

day of November, 2006.

FLORENCE & BELL, LTD.

/s/: Sherry Bell Sherry Bell 45 West Jefferson Tenth Floor, Luhrs Tower Phoenix, Arizona 85003

CERTIFICATE OF SERVICE I hereby certify that on the 3rd day of November , 2006, I electronically filed

the foregoing with the Clerk of the Court using the CM/ECF filing system, which will send notification of such filing to counsel for all parties.

/s/: Heather L. Babel Heather L. Babel

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