Free Motion to Preclude Statements - District Court of Arizona - Arizona

1 JON M. SANDS Federal Public Defender 2 District of Arizona 850 W. Adams Street, Suite 201 3 Phoenix, Arizona 85007 4 Telephone: (602) 382-2747 5 DEBORAH EULER-AJAYI State Bar No. 010537 6 Asst. Federal Public Defender Attorney for Defendant 7 [email protected] 8 9 10 11 12 13 14 15 16 17 Jeanette Wilcher, through undersigned counsel, renews her motion to 18 preclude the introduction of Connie Gillaspie's videotaped deposition, or, in the 19 alternative, requests permission to conduct a new and more complete deposition prior 20 to trial. In light of the fact that there are six weeks remaining before trial, an Order 21 22 23 24 25 26 27 28 granting this Motion should not interfere with the scheduled trial date. This motion is supported by the attached Memorandum of Points and Authorities. -vsJeanette B. Wilcher, Defendant. United States Of America, Plaintiff, IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA No. CR03-1098-PHX-EHC RENEWED MOTION TO PRECLUDE VIDEOTAPED DEPOSITION OR, IN THE ALTERNATIVE, MOTION TO REDEPOSE CONNIE GILLASPIE

Case 2:03-cr-01098-EHC

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Excludable delay under 18 U.S.C. §3161(h)(1)(F) and (8)(A) will not

2 occur as a result of this motion or from an order based thereon. Respectfully submitted: November 14, 2005. JON M. SANDS Federal Public Defender s/ Deborah L. Euler-Ajayi___________ DEBORAH EULER-AJAYI Assistant Federal Public Defender

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MEMORANDUM OF POINTS AND AUTHORITIES On January 3, 2005, the defense moved to preclude the government's use

3 of Connie Gillaspie's videotaped deposition. That motion was denied without 4 prejudice on March 15, 2005. 5 6 7 8 9 10 Undersigned counsel was appointed to represent Jeanette Wilcher on August 2, 2005. In reviewing the file, she read the transcript and watched the recording of the December 16, 2004, video deposition of Ms. Gillaspie. Although counsel is not aware of the present status of Ms. Gillaspie's health, or whether she still claims to be unable to travel, undersigned counsel believes that the deposition

11 was incomplete. Ms. Gillaspie is the alleged victim in this case; therefore, her testimony 12 13 will be critical. At trial, her state of mind, her knowledge, her financial acumen, her 14 understanding of the Sansea transaction, and more, would be important topics during 15 cross examination. During the deposition, however, the former prosecutor objected 16 to and would not allow the witness to answer questions on these and other topics. 17 This substantially interferred with and precluded Mr. Ryan's ability to fully cross 18 examine the witness and effectively represent Ms. Wilcher at the deposition 19 20 21 22 23 24 The introduction of Ms. Gillaspie's videotaped deposition at trial also violates the defendant's Sixth Amendment rights as enunciated in Crawford v. Washington,124 S.Ct. 1354 (2004). There was, and is, no evidence that Ms. Gillaspie will not be truly unavailable for trial. Although many of the problems that arose during the deposition, as well

25 as the Crawford objection, were addressed in Mr. Ryan's motion dated January 3, 26 2005, undersigned counsel renews the objections and re-urges this Court to 27 reconsider its ruling. 28

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Copy of the foregoing transmitted by CM/ECF for filing this 14th day 2 of November, 2005, to: 3 CLERK'S OFFICE 4 United States District Court Sandra Day O'Connor Courthouse 5 401 W. Washington Phoenix, Arizona 85003 6 Copy of the foregoing 7 MOTION delivered this 14th day of November, 2005, to: 8 JOHN LOPEZ 9 Assistant U.S. Attorney Two Renaissance Square 10 40 North Central Avenue, Suite 1200 11 Phoenix, Arizona 85004-4408 12 Copy of the foregoing MOTION mailed this14th 13 day of November, 2005, to: 14 Jeanette Wilcher Defendant 15 16 s/ Deborah L. Euler-Ajayi DEBORAH EULER-AJAYI 17 Counsel for Defendant 18 19 20 21 22 23 24 25 26 27 28

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