Monday, October 8, 2007

Part 2: Today's Pretrial Hearing for Springsteen and Scott

After Judge Lynch said he would not impose a prosecution-requested gag order, he moved on to other pretrial issues. Despite Joe James Sawyer's arguments that some of Lynch's rulings from pretrial hearings during the first trials (particularly regarding suppression of Springsteen's confession) deserved to be reconsidered for this new trial, Lynch stood firm with his declaration that he stands on the record from pretrial hearings "the first time around" and that they were not going to "reinvent the wheel" this time around.

However, Lynch also made it clear that he WOULD entertain pretrial motions regarding NEW facts, witnesses, laws, or new questions asked of old witnesses.

Carlos Garcia argued that his team deserves copies of any sketches, diagrams, photos, and possible visual recordings (other than news footage) that the prosecutors have and that Judge Lynch should order the prosecutors to turn them over. Lynch told him to show him some case law that says "I even have the authority to order them (the State) to turn over copies of their investigators' diagrams."

Alexandra Gauthier, Sawyer's co-counsel, tried to convince Lynch that he did have that authority because the copies of the diagrams in question were Brady material. After much argument, it was (perhaps begrudgingly by some) agreed that the defense would go through all thirteen boxes of documents and exhibits, making a list of what it considered true Brady material. Then, the defense can try to convince Lynch to order the State to provide copies of those materials.

Judge Lynch renewed his offer to provide a room of their own, with their own key, for the defense attorneys to look over (rather than be given copies of their own) the prosecution's documents, to which the defense is entitled access. They all appeared to agree to this plan for the time being.

Prosecutors said they intend to retry Scott first, aiming for a January or February 2008 trial date. Sawyer wants Springsteen tried first. Garcia said he didn't expect to be ready for Scott's trial until June. Lynch said "I think we can beat June." Sawyer piped up, "We can be ready by April."

Garcia said that the idea of the prosecution's instructing its witnesses not to speak to the defense was "implicit witness tampering" and asked Lynch to instruct the prosecutors to not tell their witnesses not to talk to the defense, if asked. Lynch gave the instruction but added that, if a State witness asks the prosecutors if he/she MUST talk to the defense, the prosecutors may tell the witness that it's his/her choice and not required by law.

Aargh! Lawyer-speak: in plain English, the prosecution can't tell its witnesses, "Don't talk to the defense!" But if a State's witness asks the prosecutors if he/she is required to talk to the defense (if requested by the defense,) the prosecutors are certainly allowed to answer, "Nope. It's up to you."

The next pretrial hearing, which will be another joint hearing, is set for November 14th at 1:30.

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