Opinion
Case No. 00-40104-01/02-RDR
August 15, 2002
MEMORANDUM AND ORDER
This matter is presently before the court upon several pending motions. At this time, the court shall address only the following motions: (1) defendant Apperson's motion for production (Doc. #164); (2) defendant Apperson's motion for production (Doc. # 174) (3) government's motion for protective order (Doc. #167); and (4) government's motion for protective order (Doc. #196).
Defendant Pickard has filed a motion to join in defendant Apperson's motions for production (Doc. #177). This motion shall be granted.
On July 16, 2002, the court held a hearing on defendant Pickard's supplemental motion for continuance. During that hearing, the court briefly commented on defendant Apperson's motions for production. The court indicated that we would direct production of the materials requested by defendant Apperson now rather than two weeks prior to the beginning of trial as previously ordered. The government responded with a motion for protective order. This motion makes certain requests concerning the information requested by defendant Apperson and the information referenced in the court's order of July 12, 2002. The government had previously sought a protective order concerning (1) the dissemination of materials related to Gordon Todd Skinner; and (2) the following website: http://www.freepickard.org ("William Leonard Pickard Website").
Sometime ago, the court heard considerable argument from the government concerning the release of some documents by defense counsel to others not formally associated with this case. The government was quite concerned about this development because some of the information subsequently appeared in an article in Rolling Stone magazine about defendant Pickard. Thereafter, the government imposed restrictions upon the disclosure of information to the defendants. Ultimately, the parties reached an apparent agreement on the disclosure of materials, and the court was no longer involved in this area of concern.
The court has briefly summarized these past events because they have an impact on the pending motions. In the motion for protective order filed on July 9, 2002, the government asks the court to bar the dissemination of matters pertaining to Gordon Todd Skinner. The government also asks the court to order the elimination of the aforementioned website.
The government believes that the materials on the Pickard website must have originated from information provided to defense counsel during discovery. The government further contends that a future jury might be prejudiced by the information contained on the website. Accordingly, the government asks the court to enter a protective order barring the further dissemination of matters related to Gordon Todd Skinner and to require elimination of the website.
The court has viewed the website noted by the government. The website contains a variety of information about this case and defendant Pickard. Visitors to the website can make donations to a Pickard defense fund, and they are provided addresses where they can write to Pickard or his wife. The website does contain some information about Skinner and asks visitors to provide additional information about him and his whereabouts. The website specifically notes that the information about Skinner was obtained from "court records or independently acquired by the defense." The website also allows a visitor to access the docket sheet in this case.
The court is not persuaded that the materials contained on the website were the result of discovery provided by the government. The government has not specifically pointed to any information that came from materials that it provided to defense counsel. Much of the information is a matter of public record. Accordingly, the court finds it unnecessary to enter any type of protective order concerning the dissemination of materials related to Gordon Todd Skinner. The court believes that defense counsel understand their obligations under the Omnibus Hearing Report.
The court shall also take no steps at this time to eliminate the website. As this court has indicated in a previous order, the Tenth Circuit has held that a trial court may restrict extrajudicial comments by trial participants, including lawyers, parties and witnesses, based on a determination that those comments present a "reasonable likelihood" of prejudicing a fair trial. United States v. Tijerina, 412 F.2d 661, 666-67 (10th Cir.), cert. denied, 396 U.S. 990 (1969). The court does not find that the government has demonstrated a reasonable likelihood of prejudice. The court believes that any problems caused by the website concerning jurors can be addressed at trial.
In reaching this conclusion, the court notes that the parties have hurled charges of unethical conduct at each other. The court is not persuaded that either side has engaged in any unethical conduct at this point. The court would, however, caution the parties from making unsubstantiated accusations against each other. The court hopes that counsel will work in a civil manner dedicated to the furtherance of justice.
Defendant Apperson has filed two motions for production. In the first motion he seeks a copy of the agreement entered into between the United States and Gordon Todd Skinner. Defense counsel indicates that he has been allowed to read the agreement and to take notes, but has not been allowed a copy of it. The government continues to refuse to provide a copy of the agreement. The government argues that disclosure of the agreement is sufficient. The court sees no reason to prevent the defendants from having a copy of the agreement. The court believes that concerns of efficiency and justice outweigh the refusal by the government to provide a copy of the agreement. Accordingly, the court shall grant this motion.
In his second motion for production, defendant Apperson seeks copies of all the agreements entered into between the United States and its witnesses/informants. He specifically seeks the agreements entered into with the following individuals: (1) David Haley, (2) Gordon Todd Skinner, (3) Michael Bauer, (4) John Halpern, (5) Alfred Svinelli, and (6) Trais Kliphuis. He also seeks a copy of a letter dated June 27, 2002 from Jud Bohrer of the Food and Drug Administration to United States Attorney Jackie Williams.
Again, the court sees no valid reason to deny this request. The government shall be required to provide copies of all of these agreements to the defendants within ten days of the date of this order. Of course, defense counsel continue to be bound by the requirements of the Omnibus Hearing Report concerning the dissemination of materials from the government.
In its most recent motion for protective order, the government makes certain requests concerning the production of information referenced in the court's order of July 12, 2002, and the information requested in defendant Apperson's second motion for production. The government again raises the same problems as noted in the earlier motion for protective order, i.e., prior history of dissemination of information by defense counsel and the presence of the website.
The court is not entirely certain a protective order is necessary concerning this information. The court is aware that the parties are still subject to the provisions of the Omnibus Hearing Report concerning the disclosure of materials. However, given the potentially sensitive nature of this material and the absence of any objections from defense counsel, the court shall grant the government's requests. The court shall direct defense counsel not to disclose any of this information to anyone other than their clients. In addition, the defendants are directed not to disclose this information to anyone. Defense counsel shall return this information to the government following the conclusion of the trial of this matter.
IT IS THEREFORE ORDERED that defendant Apperson's motion for production (Doc. #164) be hereby granted. The government shall provide copies of the agreement with Gordon Todd Skinner to defense counsel within ten days of the date of this order.
IT IS FURTHER ORDERED that defendant Apperson's motion for production (Doc. #174) be hereby granted. The government shall provide the materials requested to defense counsel within ten days of the date of this order.
IT IS FURTHER ORDERED that defendant Pickard's motion to join in defendant Apperson's motions for production (Doc. #177) be hereby granted. The aforementioned rulings also apply to defense counsel for Pickard.
IT IS FURTHER ORDERED that the government's motion for protective order (Doc. #167) be hereby denied.
IT IS FURTHER ORDERED that the government's motion for protective order (Doc. #196) be hereby granted. Defense counsel shall not disclose the information referenced in the order of July 12, 2001, or the other materials that are the subject of defendant Apperson's motions for production to anyone other than their clients. The defendants are also directed not to disclose this information to anyone. Defense counsel shall return this information to the government following the conclusion of the trial of this matter.
IT IS SO ORDERED.