Opinion
Case No. 3:05-cr-148.
June 29, 2006
ORDER
This case was referred to the Magistrate Judge "on the specific issue of the requests filed by defense counsel in the Notice Regarding Discovery" (Doc. No. 20). In that Notice, filed under seal with Court permission, Defendant's counsel list seventeen investigative tasks which they wish to perform in preparing to try this case, and note that the list is non-exhaustive. Id. at 7. They request an order from this Court that does all of the following:
1. Finds that "this non-exhaustive list of tasks are [sic] necessary for a constitutionally sufficient defense of Mr. Baxter";
2. Finds "[t]hat Mr. Baxter's counsel and experts are entitled to complete these tasks with zero risk of an investigation, search, arrest and/or indictment for performing these necessary tasks"; and
3. "It is the government's responsibility to construct, if possible, a mechanism by which these constitutionally necessary tasks can be performed such that defense counsel and its experts' risk of investigation, search, arrest and/or indictment is in fact zero." Id.
Defendant places his principal reliance on the Order of United States Magistrate Judge Frank H. McCarthy in United States v. Shreck, Case No. 03-CR-43-EA (February 8, 2006; copy attached to Doc. No. 20). After the Order in question, Magistrate Judge McCarthy apparently filed a report and recommendations recommending that the Indictment in the Shreck case be dismissed on bases similar to those asserted by Defendant here. That recommendation was rejected by District Judge Claire Eagen in an opinion filed May 23, 2006. In the course of doing so, Judge Eagen approved, with one amendment, a plan offered by the United States to enable the defendant to conduct the investigation he claimed was necessary with the exception that it was not necessary "to create additional images, virtual or real, depicting minors involved in sexually explicit activity."
Defendant also cites a number of unreported Ohio decisions in support (Doc. No. 20 at n. 2), but has not attached copies.
Magistrate Judge McCarthy's Order is a matter of public record, even though the copy filed with this Court was attached to a document filed under seal; a copy is being furnished to Assistant United States Attorney Sheila Lafferty contemporaneously with the filing of this Order.
Defense counsel Boland is also counsel of record for the defendant in the Shreck case.
Upon review of Judge Eagen's Order, it appears to the undersigned that the plan approved by him adequately accommodates Defendant's desire to investigate and prepare for trial, thoroughly and without revealing trial strategy, and the interests of the United States in enforcing the child pornography laws. Counsel for both parties are accordingly ORDERED to file, not later than July 10, 2006, any objections they have to this Court's ordering that Defendant's investigation and trial preparation proceed according to the same plan approved by Judge Eagen.