Free Memorandum - District Court of Arizona - Arizona

Carmen L. Fischer Attorney at Law 2 SBN #009975 Phillip E. Hantel 3 Attorney at Law
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A ttorneys for H enry W atkins Louisiana B ar N um ber #25078 Luhrs Tow er - Suite 403 45 W est Jefferson Street Phoenix, A Z 85003-2314 (602) 252-1282

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UNITED STATES OF AMERICA
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DISTRICT OF ARIZONA
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UNITED STATES OF AMERICA,
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Plaintiff,
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v.
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HENRY WATKINS,
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Defendant.
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C a rm e n L . F is ch e r P h illip E . H a n te l L u h rs To w e r, S u ite 4 0 3 45 W . Jefferson Street Phoenix, Arizona 85003 (602) 252-1282

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CR03-1167-PHX-DGC MEMORANDUM REGARDING PRE-ADMISSION OF TRIAL EXHIBITS

On February 2, 2006, this court issued an order advising the parties that it was considering holding a proceeding during April to pre admit all exhibits to be used during trial. (Docket #1173) Henry Watkins submits this memorandum to set forth his position regarding this proposed procedure. Mr. Watkins agrees with a procedure for the government to pre admit its exhibits in the manner set forth in the court's order. However, Mr. Watkins, based the Fifth and Sixth Amendments, objects to the same procedure being applied to the defense prior to the government presenting its case-in-chief and prior to his Fed. R. Crim. P. 29 motion for directed verdict. A criminal defendant has no duty to present any evidence whatsoever. Pursuant to this right, a criminal defendant has the right to determine what evidence to present after the court determines that the government has presented evidence sufficient to permit a jury to decide the case. Requiring a criminal defendant to show and produce his evidence prior to the government completing its case-inchief is tantamount to denying his right to remain silent and right to effective assistance of counsel. Over a hundred years ago, the Court wrote, "The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement

Case 2:03-cr-01167-DGC

Document 1206 1 Filed 02/08/2006

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C a rm e n L . F is ch e r P h illip E . H a n te l L u h rs To w e r, S u ite 4 0 3 45 W . Jefferson Street Phoenix, Arizona 85003 (602) 252-1282

lies at the foundation of the administration of our criminal law." Coffin v. United States, 156 U.S. 432, 453 (1895). "If the court denies a motion for a judgment of acquittal at the close of the government's evidence, the defendant may offer evidence without having reserved the right to do so." Fed. R. Crim. P. 29. The local rules provide that the plaintiff shall present evidence then the defendants shall present evidence. LRCiv 39.1(a) (4) & (5). (LRCrim 23 provides that criminal trials shall follow LRCiv 39.1). Due process clause protects the accused from conviction unless the government presents evidence which establishes guilt beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 362-364 (1970), See also United States v. Solorzano-Rivera, 368 F.3d 1073, 1079 (9th Cir. 2004) and 9th Circuit Model Instructions (2003) 3.2. Even at the start of the evidence, the court will instruct the jurors that, "The defendant has pleaded not guilty to the charge[s] and is presumed innocent unless and until proved guilty beyond a reasonable doubt. A defendant has the right to remain silent and never has to prove innocence or present any evidence." 9th Circuit Model Instructions (2003) 1.2. The Sixth Amendment guarantees a criminal defendant the right to effective assistance of counsel. This right has many nuances. Among them is the protection of the attorney work product which includes the attorney's strategical decisions. The disclosure of defense exhibits prior to the conclusion of the government's case-in-chief, violates defense counsel's duty to effectively represent his client because it forces the defense to disclose evidence of its defense strategy prior to the government beginning their case. As a practical matter, the government has provided virtually no discovery regarding one of the three counts against Mr. Watkins and Mr. Kelly, Count 5. Pursuant to the court's order, the government will disclose discovery regarding the alleged assault of Daniel Gutierrez on February 24, 2006. Thus, Mr. Watkins and Mr. Kelly will start virtually from scratch in preparing a defense to Count 5 making it impossible to determine what exhibits they may present in their defense in late February.

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Mr. Watkins proposes that after the court rules on the Fed. R. Crim. P. 29 motions, the court recess for one week. During that one week recess, a pre admit procedure for the defense exhibits, if any, could be held without violating his constitutional rights. Thus, Mr. Watkins' requests that the court order the government to list their exhibits in late February; permit the defense to list their objections by motion in limine by March 17, 2006 and hold a hearing regarding disputed issues. Respectfully submitted this 8th day of February 2006.

______________________ CARMEN L. FISCHER Attorney for Henry Watkins

A courtesy copy of the foregoing delivered the 9th day of 12 February 2006 to:
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C a rm e n L . F is ch e r P h illip E . H a n te l L u h rs To w e r, S u ite 4 0 3 45 W . Jefferson Street Phoenix, Arizona 85003 (602) 252-1282

Judge David G. Campbell United States District Court Judge

Case 2:03-cr-01167-DGC

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