Free Response to Motion - District Court of Arizona - Arizona

1 JON M. SANDS Federal Public Defender 2 District of Arizona 3 850 W. Adams, Suite 201 Phoenix, Arizona 85007 4 Telephone: (602) 382-2747 5 DEBORAH L. EULER-AJAYI, #010537 Asst. Federal Public Defender 6 Attorney for Defendant 7 [email protected] 8 9 10 11 12 13 14 15 16 17 18 19 21 vs. Jeanette Wilcher, Defendant. Jeanette Wilcher, through undersigned counsel, and pursuant to Crawford v. Washington, 541 U.S. 36 (2004), hereby objects to the government's United States of America, No. CR03-1098-PHX-EHC Plaintiff, RESPONSE TO GOVERNMENT'S MOTION TO DEPOSE WITNESS IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

20 Motion To Depose Witness. The Sixth Amendment to the United States Constitution guarantees a 22 defendant the right to confront witnesses. This right, in the opinion of Justice Scalia, 23 generally contemplates the right to confront witnesses before the jury. Id., at 59. 24 25 26 27 28 confrontation without first establishing that the witness is unavailable. ...the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant Crawford would not allow the government to use deposition testimony in lieu of live

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had a prior opportunity for cross examination. The text of the Sixth Amendment does not suggest any open-ended exceptions from the confrontation requirement to be developed by the courts. Id., at 53-54. The confrontation right is not a mere "technical right;" rather, it is a

6 deeply rooted right that can be traced to ancient Rome. Id., at 43. Only by live, in 7 court testimony can the jury truly assess this witness' demeanor and weigh his 8 credibility. He is an important witness for the government, and Ms. Wilcher must be 9 allowed to test his credibility, his memory, and his consistency. There are a number 10 11 of government witnesses whose testimony interlock, and if another witness later 12 contradicts this witness Ms. Wilcher would be deprived of her ability to re-call this 13 witness and address an issue that arises unexpectedly during trial. 14 Rule 15(a)(1), F.R.Cr.P. permits the use of deposition testimony in lieu 15 16 17 government's motion establishes that the witness will not be able to travel for the 18 April 4, 2006 trial date, it does not establish that the witness will be unavailable 19 shortly thereafter. Indeed, according to the witness' doctor, the cancer treatment will 20 be completed by April 13, 2006. The doctor says nothing about long-lasting after 21 effects or any other factors that would leave the witness unable to travel after 22 completing his treatments. A brief continuance would allow for completion of the 23 treatment and it would also allow the witness to regain his strength should that be an 24 issue. 25 26 / / / 27 / / / 28 / / / of live confrontation only where there are exceptional circumstances. While the

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Excludable delay pursuant to 18 U.S.C. § 3161(h), is not expected to

2 occur as a result of this motion or an order based thereon. 3 Respectfully submitted: February 27, 2006. 4 JON M. SANDS 5 Federal Public Defender 6 s/Deborah Euler-Ajayi 7 DEBORAH L. EULER-AJAYI Asst. Federal Public Defender 8 9 Copy of the foregoing Response transmitted by CM/ECF for filing 10 this 27th day of February, 2006, to: 11 CLERK'S OFFICE 12 United States District Court Sandra Day O'Connor Courthouse 13 401 W. Washington 14 Phoenix, Arizona 85003 15 JOHN LOPEZ Assistant U.S. Attorney 16 United States Attorney's Office Two Renaissance Square 17 40 N. Central Avenue, Suite 1200 18 Phoenix, Arizona 85004-4408 19 Copy of the foregoing mailed to: 20 JEANETTE WILCHER Defendant 21 22 24 25 26 27 28 s/Deborah L. Euler-Ajayi 23 Deborah Euler-Ajayi

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