Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona JOHN R. LOPEZ, IV Assistant U.S. Attorney Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Arizona State Bar No. 019182 Telephone (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, CR-03-1098-PHX-EHC Plaintiff, v. Jeanette B. Wilcher, Defendant. GOVERNMENT'S OPPOSITION TO DEFENDANT'S THIRD MOTION TO PRECLUDE VIDEOTAPED DEPOSITION OR, IN THE ALTERNATIVE, MOTION TO REDEPOSE CONNIE GILLASPIE

The United States, through undersigned counsel, hereby opposes Defendant's Third Motion to Preclude Videotaped Deposition Or, In the Alternative, To Redepose Connie Gillaspie, for the reasons set forth in the following Memorandum of Points and Authorities.. Respectfully submitted this 3rd day of April, 2006. PAUL K. CHARLTON United States Attorney District of Arizona /S/ John R. Lopez IV JOHN R. LOPEZ, IV Assistant U.S. Attorney

Case 2:03-cr-01098-EHC

Document 207

Filed 04/03/2006

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MEMORANDUM OF POINTS AND AUTHORITIES Defendant moves the Court for a third time to preclude from trial Connie Gillaspie's deposition testimony and to redepose Ms. Gillaspie. In essence, Defendant argues that she is entitled to redepose Ms. Gillaspie because her previous attorney allegedly conducted an insufficient cross-examination during Ms. Gillaspie's deposition. Defendant's argument fails because the major purposes of the confrontation clause are satisfied when (1) a witness testifies under oath; (2) a witness undergoes cross-examination; and (3) the jury is permitted to observe the demeanor of the witness. See United States v. Sines, 761 F.2d 1434, 1441-42 (9 th Cir. 1985) (Admission of videotaped deposition testimony of a witness at trial did not violate the confrontation clause because defense counsel was afforded an opportunity to cross-examine the witness under oath and the jury was able to observe the witness' demeanor.) Each of the confrontation clause requirements were met when Defendant's previous attorney cross-examined Ms. Gillaspie under oath during her videotaped deposition. Consequently, Defendant is not entitled to redepose Ms. Gillaspie. Defendant's request to preclude Ms. Gillaspie's deposition testimony or to redepose Ms. Gillaspie should also be denied because Ms. Gillaspie's ill health does not allow her to attend the trial in Arizona or submit to a second deposition. As described in Ms. Gillaspie's physician's letter attached to the government's Second Supplemental Filing in Support of its Opposition to Defendant's Renewed Motion to Preclude Videotaped Deposition or, in the Alternative, Motion to Redepose Connie Gillaspie, filed on March 2, 2006, Ms. Gillaspie has lost a significant portion of her vision, hearing, and cannot sit for a prolonged period. In addition, Ms. Gillaspie is still recovering from a hip fracture and is taking medications daily for pain that alter her cognitive ability. For these reasons, the government submits that Ms. Gillaspie is not in a condition to provide additional testimony.

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Case 2:03-cr-01098-EHC

Document 207

Filed 04/03/2006

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Accordingly, for the foregoing reasons, the government respectfully requests that the Court deny Defendant's Third Motion to Preclude Videotaped Deposition Or, In the Alternative, To Redepose Connie Gillaspie. Respectfully submitted this 3rd day of April, 2006.

5 6 7 /S/ John R. Lopez IV 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 JOHN R. LOPEZ, IV Assistant U.S. Attorney PAUL K. CHARLTON United States Attorney District of Arizona

Case 2:03-cr-01098-EHC

Document 207

Filed 04/03/2006

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CERTIFICATE OF SERVICE I hereby certify that on April 3, 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: Deborah Euler-Ajayi Asst. Federal Public Defender 850 W. Adams Street, Suite 201 Phoenix, Arizona 85007 Attorney for Defendant / S/ JOHN R. LOPEZ IV

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Case 2:03-cr-01098-EHC

Document 207

Filed 04/03/2006

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