Opinion
Case No. 03-40033-01-JAR
May 16, 2003
ORDER DENYING GOVERNMENT'S MOTION FOR CLARIFICATION MODIFICATION OF GENERAL ORDER OF DISCOVERY AND SCHEDULING
The government filed a Motion for Clarification Modification of General Order of Discovery and Scheduling (Doc. 15). This motion refers to the General Order of Discovery and Scheduling this Court uses in criminal cases ("the Order"). After considering the government's requests, and reviewing this Court's standard order as most recently modified before the government's motion was filed, the Court denies the requested modifications and any clarification not found addressed below is also denied. Because the government drafted its motion in numbered paragraph form, the Court will respond in kind.
1. The government's first request refers to the use of "parties" in the Order. Clarification seems unnecessary as parties obviously refers to both prosecution and defense counsel and some of the rules cited in that section of the Order apply specifically to defense counsel. As for Brady and its progeny, the rules of discovery are well established as to both sides and this Court need not provide a treatise on how they have been applied.
2. The government's second issue is with the Court's expectation that this pretrial exchange of information occur without unnecessary motion practice. The government requests the Court to adopt a policy requiring such an exchange and instituting a sanction of summary denial of motions where a party files a motion after failing to communicate with opposing counsel, and failing to set out the communication in the parties's motion. This Court will not adopt such a policy. If an agreement cannot be met with regards to discoverable information, a party can then file a motion with the Court to force compliance.
3. The government's inquiry as to the language of "shall copy for the defendant OR permit the defendant to inspect and copy . . ." seems unnecessary. It is impossible for a reasonable party to interpret this order as requiring the government to bear the expense of copying discovery. The rules of statutory construction are instructive. The word or is a conjunction, bringing together the two options; though or, unlike its sister conjunction and, makes the sentence a set of alternatives, rather than two options that are inextricably bound. Thus, if the government chooses to copy a document for the defense, it may do so. However, it has no obligation to do so, rather, it can permit defense counsel to copy or inspect the documents.
4. In paragraph four of its motion, the government seeks clarification on the Order's citing to the government's obligations under Brady, Giglio and their progeny. In support, the government offers a several page memorandum of law stating its understanding of those principles. This Court will not make a declaratory ruling or adopt the government's memorandum. Counsel need to comply with their obligations under those principles of law. This Court can fathom no reason it needs to educate counsel on principles that are so pervasive in the area in which the government practices that counsel would not understand its obligation. These are not new principles, nor does the Order change the foundational obligations set out in those cases. That does not mean there will not be the rare case where controversy sparks over the material or exculpatory nature of certain information. But that is the exception in which a motion needs to be filed to settle the matter. The vast majority of cases filed by the government do not involve novel issues as to Brady or Giglio.
5. The next inquiry of the government is regarding the meaning of "statements" on pages two and three of the Order. This order in no way changes the meaning of statements as used in the respective discovery rules. If counsel seeks a further understanding, she should consult with her colleagues in Wichita and Kansas City, as they are familiar with and do not appear to struggle to comply with nearly identical discovery orders.
6. Defendant's obligations under 18 U.S.C. § 3500 and Rule 26.2 are included in the most recent amendment of the Order. This motion was obviously filed before the amended order was available in counsel's cases.
7. The government requests that the court order delivery by fax or in-hand on the day of filing to assist with the shortened response time. This matter is also addressed in the Order as recently amended. Beginning on May 20, 2003, this Court will utilize electronic case filing in criminal cases. Every party that has an e-mail on file with the clerk's office will receive same day notification and a link to a copy of the motion. For those who do not provide an e-mail address, they will receive same day faxes of the motion.
8. The government brings up five issues in this numbered paragraph. First, the government argues that this particular fraud prosecution will need more than five weeks from arraignment to review the discovery and allow time for defense to file motions. If this is a case where the evidence or nature of the charges requires an extension of discovery or motions deadline, then counsel needs to file a motion seeking an extension, setting out the special circumstances. This Order covers the majority of cases filed in this Court, which do not have special circumstances or need additional time for filing motions. Furthermore, the government's concerns that there is insufficient time between the discovery deadline and the motions deadline, is premised on an assumption that every party will wait until the last possible date to turn over discovery. Although this Order establishes deadlines for providing discovery, the Court expects the parties to provide discovery as soon as possible, rather than wait until the last possible date to turn over discovery.
Counsel's second argument is that by placing the motions near the trial date, the Court eliminates the possibility of productive plea negotiations because often those are determined by the outcome of the pretrial motions. Counsel may simply have to alter the practice by which they engage in plea negotiations. It is not necessary to wait until after pretrial motions to begin plea negotiations. In fact, negotiations should begin well before that point, once the parties have accomplished discovery. Plea negotiations are often made contingent on the outcome of pretrial motions. Furthermore, this practice of holding pretrial motions before or on the morning of trial is common in the criminal justice system. In fact, the Wichita division of this Court subscribes to this practice and has not seen a breakdown or impossibility of plea bargains because of it.
Counsel's third argument also goes to the timing of pretrial motions hearings. The government argues the current scheduling will eliminate the ability for a defendant to receive points for acceptance of responsibility, arguing that the government will already be prepared for trial. First, the fact that negotiations can begin early and be contingent on the outcome of motions negates this argument. Second, and more importantly, this Court determines whether a defendant will receive points for acceptance of responsibility, not the government, and the Court cannot say that this procedure, as used in other courts, eliminates that possibility.
Counsel's fourth argument is that the trailing docket creates scheduling difficulties for the parties and the Court. To the contrary, the Court is in the best position to evaluate its own scheduling difficulties and a trailing calendar only serves to alleviate many of those problems. Trailing calendars are not novel in this district, nor in many other courts. The government will simply need to stay in contact with the courtroom deputy to evaluate when their trials will begin.
Counsel's fifth argument is that the scheduling order does not provide for a 404(b) hearing. However, the order provides that 404(b) evidence be provided to the defendant at least 14 days before trial. Further, as set out in this Court's Criminal Jury Trial Practices and Procedures, any motions concerning such evidence shall be filed at least 7 days before trial, with a response due no later than 3 days before trial. Any hearing on 404(b) evidence will occur at the same time that all other motions in limine occur, the day of or the day before trial. The scheduling of limine hearings in criminal cases on the day before or morning of trial is not novel or unprecedented. Counsel is correct in assuming that the outcome of those motions may affect trial strategies. But, trial strategy can be affected by many exigencies, including the admission or exclusion of certain evidence, and the content of a witness's testimony at trial. This is the nature of litigation.
Counsel also mentions a scheduling conflict in this motion. Counsel is scheduled for trial in front of another judge on July 3rd and is set on a trailing calendar for June 30th with this Court. As counsel should be aware, this case is not the first set on the calendar for June 30th; and, at this point there is no reason to expect that this case will be called for trial on June 30th. As with all counsel whose cases are set on a trailing calendar, counsel would be well advised to stay in contact with this Court's courtroom deputy, who manages the trailing calendar and attempts to accommodate any scheduling difficulties. If accommodations cannot be accomplished, only then should counsel seek relief in the form of a motion for continuance.
Finally, counsel requests an immediate status conference regarding this case and a change or extension in motion deadlines. If counsel needs more time to file or respond to motions or a continuance of the trial date, then counsel should confer with opposing counsel and file a motion showing good cause.
IT IS THEREFORE BY THE COURT ORDERED that the government's Motion for Clarification and Modification (Doc. 15) has been fully satisfied and is, therefore, denied.