Free Motion to Continue - District Court of Arizona - Arizona

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FULLER LAW OFFICE, P.L.C. 7551 South Willow Drive Suite 102 Tempe, Arizona 85283 Telephone: 480. 345.1315 Fax: 866.332.4288 David R. Fuller (AZ Bar#: 013007) ATTORNEY FOR: DEFENDANT

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA UNITED STATES OF AMERICA, No. CR 04-585-PHX-FJM Plaintiff, vs. LARRY JAMES RADY, Defendant. Defendant, by and through his undersigned counsel, hereby moves this honorable court to enter an order continuing the trial. 1. The trial is currently scheduled for September 7, 2005 at 9:00 a.m. in Phoenix, Arizona. A status conference is currently scheduled for August 29, 2005 at 4:00 p.m. 2. On May 24, 2005 this court conducted a status conference where the parties apprised the court of the progress of the DNA testing and videotaping thereof. 3. Since May 24, 2005 the parties have been able to coordinate the DNA testing and videotaping thereof. That testing took place on August 2, 2005 at LabCorp in Durham, North Carolina. DEFENDANT'S MOTION TO CONTINUE TRIAL (DEFENDANT'S SIXTH REQUEST)

Case 2:04-cr-00585-FJM

Document 68

Filed 08/23/2005

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4.

Defense counsel received a DVD of the videotaping on or about August 8, 2005 and delivered a copy of that DVD to the government's attorney on August 9, 2005.

5.

A quantifiable amount of DNA was recovered from several of the weapons tested. A comparison of the recovered DNA with Mr. Rady's DNA was performed and the results were received by defense counsel on August 22, 2005.

6.

Counsel for Defendant and the government's attorney have been communicating regarding the results and status of the DNA testing of the alleged firearms. It appears from the certificate of analysis that Mr. Rady can be excluded as the source of DNA on one of the tested items (the alleged silencer). See attached exhibit 1, at page 2, paragraph 3. The analysis goes on to indicate that Mr. Rady "cannot be excluded as a contributor to the genetic material" on two of the other items tested. See attached exhibit 1, at page 2, paragraphs 1-2.

7.

Counsel for the Defendant and the government have had preliminary discussions regarding the results and agree that additional time is needed to obtain, examine and review the previously requested material from LabCorp regarding the testing protocols and procedures. See DEFENDANT'S MOTION TO PRESERVE SPECIMEN SAMPLE FOR INDEPENDENT DNA TESTING AND TO PRODUCE SCIENTIFIC RECORDS, REPORTS, RAW DATA AND PROTOCOL PROCEDURES filed on or about August 4, 2005. Further, given the nature of the results and the government's likely desire to introduce testimony regarding the findings that some the characteristics (e.g., "a male") of the comparison "cannot

Case 2:04-cr-00585-FJM

Document 68

Filed 08/23/2005

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exclude" Mr. Rady, it is respectfully suggested that an expert in the area of DNA analysis is necessary for the defense to determine how relevant and reliable such testimony may be. It is entirely possible that the findings may merely suggest that any male "cannot be excluded". 8. The defense will need additional time to locate and coordinate a qualified expert to review the DNA testing protocols, procedures and results to adequately assess this evidence. Conversely, the analysis may show more definite characteristics. At this point, neither party knows. 9. Given the status outlined above, an additional sixty (60) day trial continuance is being requested. 10. Counsel for the government, Gary M. Restaino, does not object to this continuance request.

WHEREFORE, Defendant, by and through his undersigned counsel, hereby moves this honorable court to enter an order continuing the trial date in this matter for approximately sixty (60) days and extending the deadline within which to file motions. RESPECTFULLY SUBMITTED on August 23, 2005.

/s David R. Fuller Attorney for Defendant ORIGINAL electronically filed on August 23, 2005

Case 2:04-cr-00585-FJM

Document 68

Filed 08/23/2005

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