Free Trial Brief - 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 26 27 28

PAUL K. CHARLTON United States Attorney District of Arizona Richard I. Mesh Assistant U.S. Attorney Arizona State Bar No. 02716 Two Renaissance Squares 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America CR-04-0276-01-PHX-SMM Plaintiff, v. Robert C. Hazlett, Defendants. The United States of America through its undersigned attorneys, hereby submits this Memorandum in support of its request that the court permit a bench trial of this matter rather than the matter being resubmitted for a second jury trial. At a pretrial conference in this matter, the court expressed its reservation to proceeding as the trier of fact without a jury at the request of the parties in this case without some assurance that the court's post-trial discussion with dismissed jurors would not serve as an impediment to its entering a verdict in this matter. In that regard, the court directed counsel for the defendant government to provide legal memorandums on this issue of judicial disqualification under the circumstances present in this case. The government has conducted a diligent search, both statutory as well as case law and can find no authority that would prohibit the court from now serving as the trier of fact in this matter. In this regard Title 28, U.S.C. §455, its annotations, and 22 ALR Fed. 709, dealing with judicial disqualification failed reveal any case similar to the one at hand where the post trial comments of now dismissed jurors would serve as a basis for the trial judges reclusal. The combination of the court's disclosure of it's post-trial discussion with dismissed jurors and the government's and defendant's waiver of any disqualification issue based upon that GOVERNMENT'S MEMORANDUM ON JUDICIAL DISQUALIFICATION

Case 2:04-cr-00276-SMM

Document 228

Filed 12/06/2005

Page 1 of 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 26 27 28

contact would clearly prevent this issue from being raised from either appellate posture or a subsequent of Writ of Habeas Corpus. Courts are often exposed to the comments, remarks, and statements, concerning an unsentenced defendant in the course of sentencing co-defendants. It is expected that experienced judicial officers can and will segregate such information from that to be legally and properly admitted as evidence in the guilt phase of other defendants trials. In the same fashion, court's are often exposed to factual information concerning untried defendants by way of a motion to suppress evidence, which if granted, then may no longer serve as a basis for a subsequent judicial determination of guilt of that defendant. On the basis of all the foregoing, it is respectfully requested that the court accept the defendant and government's waiver of any issue concerning judicial disqualification because of the court's discussion of now dismissed jurors and proceed to provide a verdict in this matter based upon the evidence adduced in the course of the first trial. Respectfully submitted this 6 th day of December, 2005. PAUL K. CHARLTON United States Attorney Districts of Arizona S/Richard I. Mesh Richard I. Mesh Assistant U.S. Attorney

I hereby certify that on December 6, 2005, 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 registrant(s): Booker T. Evans Attorney at Law Quarles & Brady 2 North Central Avenue Phoenix, AZ 85004-2391 Attorney for Defendant S/Richard I. Mesh

Case 2:04-cr-00276-SMM

Document 228

Filed 12/06/2005

Page 2 of 2