1. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SUPERIOR COURT OF THE DISTRICT OF COLUMBIA CRIMINAL DIVISION x UNITED STATES OF AMERICA ve Criminal Action No. 2008 CF1 27068 (Price) 2008 CF1 26996 (Ward) 2008 CF1 26997 (Zaborsky) JOSEPH PRICE, DYLAN WARD, AND VICTOR ZABORSKY, Defendants. Washington, D.C. Friday September 11, 2009 The above-entitled action came on for a status hearing before the Honorable FREDERICK WEISBERG, Associate Judge, in Courtroom Number 318, commencing at approximately 2:00 p.m. THIS TRANSCRIPT REPRESENTS THE PRODUCT OF AN OFFICIAL REPORTER, ENGAGED BY THE COURT, WHO HAS PERSONALLY CERTIFIED THAT IT REPRESENTS THE TESTIMONY AND PROCEEDINGS OF THE CASE AS > RECORDED. > APPEARANCES: On behalf of the Government: PATRICK MARTIN, Esquire Assistant United States Attorney On behalf of the Defendants: BERNARD GRIMM, Esquire for Mr. Price ROBERT SPAGNOLETTI, Esquire for Mr. Ward DAVID SCHERTLER, Esquire for Mr. Ward THOMAS CONNOLLY, Esquire for Mr. Zaborsky Washington, D.C. Julie T. Richer, RPR (202) 879-127912 13 14 15 16 17 18 19 20 21 22 23 24 25 PROCEE THE DEPUTY CLERK: Calling the codefendant status 10 EIR EGES hearing of the United States v. Joseph Price, 2008 CF1 2708, Dylan Ward, 2008 CF1 26996, and Victor Zaborsky, 2008 CFL 26997. MR. MARTIN: Good afternoon Your Honor, Patrick Martin for the United States. MR. SPAGNOLETTI: Good afternoon, Your Honor. Robert Spagnoletti for Mr. Ward, who is present. MR. SCHERTLER: Your Honor, David Schertler on behalf of Mr. Ward also. MR. GRIMM: Bernard Grimm on behalf of Mr. Price. MR. CONNOLLY: Good afternoon. Tom Connolly on behalf of Mr. Zaborsky. THE COURT: Good afternoon. Are you expecting Mr. Kirschner MR. I'm not, Your Honor. He's actually out of the jurisdiction. THE COURT: Okay. Well, as far as I can tell, this that I'm holding in my hand is now this. So I think we should operate from this most recent faxed document. MR. SCHERTLER: We would agree, Your Honor. THE COURT: That's good news to me. So maybe we can use that as sort of an agenda as to what still needs to be accomplished.10 11 12 13 4 15 16 7 18 19 20 21 22 23 24 25 You want to take the lead, Mr. Spagnoletti, and you can tell me what items, even from this list, are in dispute? MR. SPAGNOLETTI: Yes, Your Honor. We're actually going to take -- I'll take several of the items, and then Mr. Grimm and Mr. Connolly. THE COURT: Okay. MR. SPAGNOLETTI: The items that are listed in yesterday's memorandum are still, I'll say, in dispute, not all of them, but certainly before the Court for either some kind of action or discussion. First for my purposes today is Item No. C, the radio transmission. We've asked the government to produce -- they have produced a 911 call that was made that night, but they have not produced radio runs and other communications that occurred among the law enforcement and medical personnel that came and transported Mr. Wolf from Swann Street to the hospital. When we've asked them for it, they've claimed that it's Jencks and not producible at this time. We see things slightly differently. It's obviously an item in their possession, but also independently relevant, because the time frame that events occurred in this particular case are extremely relevant, based on what the charges are here, as well as whatever medical procedures may have occurred to or for Mr. Wone from10 1. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the point at which he left 1509 Swann and got to the hospital, because there were allegations of needle marks and other things that may have other explanations. So we've asked him for those recordings, because they may have substantive evidence for our purposes, and certainly they are very material to the defense. THE COUR’ Well, let me stop you a second. Are you distinguishing radio communications or recordings, as you put it, from medical records which you do get? MR. SPAGNOLETTI: Yes, Your Honor. THE COURT: Or can get? MR. SPAGNOLETTI: Yes. And I'm not saying that we haven't received those medical records, but I'm saying there may have been sort of live, present-sense communications and other utterances and statements made there that are independently relevant, aside from being impeachment material for these potential witness. THE COURT: Whether they're independently relevant or not, isn't the government right that by the terms of Rule 16 they're precluded as things that are not producible -- MR. SPAGNOLETTI: We would disagree. THE COURT: -- if they are Jencks statements? MR. SPAGNOLETTI: Well, the fact that it may also be Jencks doesn't preclude the fact that they have other obligations to produce it. I mean Brady --10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: I don't know. I'm not sure I know the answer to that, but I think I've always assumed that if it was a statement of a witness or a potential witness that would be producible as a Jencks statement, it is, by definition, not producible under Rule 16. I could be wrong about that. MR. SPAGNOLETTI: Yeah. I don't see those things -- we don't see those things as mutually excluded -- exclusive, and so therefore the fact that there may be substantive information and evidence in those tapes, the time frame, for example, how long it took, who was saying what and doing when, that is independent evidence and material to the defense -- I think we can all agree to that -- and in the possession of the government and so therefore, under Rule 16, producible. THE COURT: It may be that there's a middle ground that if you could identify the material evidence that you need culled out of those, like the time that a particular unit was dispatched or the time that he arrived at the hospital or those kinds of things, wouldn't be statements, but they would be potential evidence that you -- I'm not sure why the government won't turn these over anyway. MR. SPAGNOLETTI: We aren't either, Your Honor -- THE COURT: But if they're standing on the rule, I have to apply the rule as written. Maybe I'll hear from --10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that was a point I actually thought could be resolved. But do you have a different view of all this? why won't you turn it over anyway? MR. MARTIN: No, Your Honor. Well, first of all, Your Honor, we try to play by the rules here obviously. We've gone above and beyond in a lot of different areas of discovery, providing information, we believe, but we're not willing to go in this way because it is potentially a witness statement that would be Jencks. It would be the classic case where you have a non-- we have a witness who's going to take the stand, and if that witness takes the stand, then they become producible at that stage. We agree with the Court that Rule 16 explicitly says this is not a rule that would allow for the discovery of statements or recordings of witnesses, except via the Jencks statute. THE COURT: Well, certainly if there were exculpatory information in it, you would have to produce it under a different obligation. MR. MARTIN: Of course, Your Honor. THE COURT: So why isn't it ripe that, if there's evidence of an evidentiary value in it that's not the statement itself that is material to the preparation of the defense, that you could extract that from the statement, at least on request, and turn it over? MR. MARTIN: Two responses, of course, Your Honor.10 ql 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The EMS run sheet has been provided that provides for times of dispatch and times of presenting the person, I believe, to the ultimate end state, which is the hospital, so that information is available in other venues. But if we had a particularized request as to which information they're actually trying to cull out, we could probably respond, as we have on numerous occasions in the past, with a specific response, but we're not going to, writ large, provide recorded communication of a prospective witness to the defense. MR. SPAGNOLETTI: I find it impossible to imagine how they can cull out some parts of this tape. THE COURT: Well, they don't know what you're asserting is material to the defense. But on the examples you gave, what treatment was rendered in transit from Swann Street to the hospital, for example, if you need that, and it might be in the statement, they could probably produce a narrative of what that was. MR. SPAGNOLETTI: We certainly would want that because we do find it to be material, but I don't think that we should -- again, we should be, because Rule 16 does also say that the stuff that is -- the material that is -- things that are material to the defense that are in their possession are discoverable, that we should be -- we're left guessing. We certainly know that there was a radio run or10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 radio communications that occurred, during the time when Mr. Wone left 1509 to when he got to the hospital, that are discussing something that was going on with Mr. Wone. The something that was going on, given the allegations in this case, are critically important to the defense. And therefore it's hard to imagine they cannot -- they can be allowed to not give it to us. If they don't call those witnesses, then are we then not ever going to know what was on those tapes, when it was purely Jencks? THE COURT: That's actually an interesting point because the rule says witnesses who are potential witnesses. And I've worried about the past where the government could denominate somebody a potential witness and then protect material and then never produce it because they don't call the witness. And then if it came to that, you'd get it, but you'd get it late because I'd figure out a way to get it to you. But I don't sense that that's what's going on here. I assume in good faith these are witnesses that are going to be called, and if they're witnesses that are going to be called, their prior statements are producible under Rule 26.2 but not under Rule 16. That's the way I read the rule. If you have authority to the contrary -- I looked quickly since I got your memo last night and don't have any. MR, SPAGNOLETTI: There's no -- we have ~~ in earlier pleadings we have talked about this in general10 qa 12 13 14 15 16 17 18 19 20 21 22 23 24 25 terms, so we have no additional authority other than that. However, I would -- we'll start -- we're willing to start with the proposition that we would like that information culled out of the tapes. and if it turns out that that suggests or leads to other information, then we can perhaps renew that request. THE COURT: What's the "that" in that sentence, "that information" culled out? MR. SPAGNOLETTI: Well, assuming that there's information that's culled out about the treatment that he was provided. THE COURT: Well, that's one example. Are there others that you think is material, or is that the main one? MR. SPAGNOLETTI: That is the main one. The time frame may -- again, it's a relatively short amount of time that we're talking about here, but in light of what that the treatment information may demonstrate, given what the run sheet looks like, we may have to go back and ask for something else. But we are willing to at least start off with the medical treatment information and go from there. THE COURT: You certainly would want to know, and T would think it would be almost producible under Brady if Mr. Wone, alive or otherwise, was injected with substances intended to resuscitate him, for example, on the way to the hospital.10 ce 12 13 14 15 16 17 18 19 20 21 22 23 24 25 That's something where your allegation is that he may have been injected with paralytic agents, which may or may not be provable, but that's the allegation. Certainly if there's evidence that suggests otherwise, you'd have to produce that anyway. MR. MARTIN: I'd agree in concept, yes, but this assumes quite a bit that —— THE COURT: TI totally agree. MR. MARTIN: -- in the communications, of course, that there's some substantive discussion. THE COURT: Well, the problem is they're shooting in the dark. They don't know what's in there, but they think it might be in there. MR. MARTIN: And that's true, Your Honor. Of course, that happens in a lot of different discovery avenues where the government, because of its Brady obligations and otherwise, has to make an independent determination. When we have a close call, Your Honor, our office is good, I think, about presenting something ex parte. So where it comes close -- and we're willing to do that in this case with redacted notes, etc. We would do that so. THE COURT: All right. In any case, maybe the best way to proceed on this is to send a written communication of the things that you consider material to the preparation of your defense that may be contained in the 1010 1. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 things that the government is unwilling to produce because they're not producible at this time, and then it may be that the government can respond. MR. SPAGNOLETTI: Absolutely, Your Honor. I just would like to say this is not really a shooting in the dark Kind of a thing. I mean we're talking about a very reasonable assumption over a very short period of time, given what the circumstances are. I don't think this is sort of a blind request. THE COURT: JI didn't mean that in the sense of a fishing expedition. I meant it that you don't know whether that treatment was rendered, but you can assume it might have been. MR. SPAGNOLETTI: Exactly. I was really referring to Mr. Martin's suggestion that this is not unlike other situations where we're asking for generic information. Here we have a good faith basis to believe that that would have been discussed on the call. THE COURT: Okay. MR. SPAGNOLETTI: Following along the same lines in terms of being willing to turn things over for in camera review, we can go jump to the letter E, to the redacted documents. It's a very small number of documents, and the reasons for all but one of them is that the redactions occur smack dab in the middle of recorded information about our ql10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 clients' statements. We are not looking to ascribe any sort of ulterior motive to the government, but I think there would be some measure of relief, if you will, if the Court were to take a look and these and just assure that we have what we're entitled to have. THE COURT: Can we stop on that one? Because if it's part of the defendant's statement, if that's what was redacted, words that the defendant gave, I don't see how that could possibly be redactable. MR. MARTIN: You're right; we don't. We produced those. Now, there are, in the course of -- I think specifically Mr. Spagnoletti is referring to notes taken by officers. And, of course, in the course of taking notes of a defendant's statement made, you know, put quotes around things or may say essentially, in substance, "This is what the defendant said," but may have a thought of their own or may have, you know, a name of somebody else or address that needs to be followed up on. And certainly those internal thoughts and communications to be memorialized are not discoverable. And so that's what we've done in terms of redacting, but we are willing to provide those to the Court, and have the Court see for itself whether we've properly redacted them. THE COURT: Why don't you. Is it a discrete number of documents? 1210 ql 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. MARTIN: It's about an eighth of an inch. MR. SPAGNOLETTI: It's very small, Your Honor. THE COURT: When? MR. MARTIN: I could probably have it to you as early as next week, Monday. THE COURT: Fine. Wednesday of next week is fine. MR. MARTIN: Thank you, Your Honor. MR. SPAGNOLETTI: And then the last of my designated topics, Your Honor, is Item D on expert disclosures. And actually we met yesterday with -- I met yesterday with Mr. Martin and Mr. Kirschner to talk a little bit about the ongoing nature of the disclosures required under Rule 16 about potential expert witnesses. And they recognize that their disclosures have been on an ongoing basis. However, it is getting more challenging. And T realize the trial date is not until May, but to help to Prepare ourselves and our expert witnesses, given the amount of time that that requires to do, to start putting some time limits on when we're going to get the information that we need about the basis and opinions that these experts are having and in some circumstances even their Cvs. THE COUR’ Is it correct to say that the dispute on this item is only over timing? You've resolved what's going to be produced? Of course you don't know until it is produced. 1310 1. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. SPAGNOLETTI: Exactly, Your Honor, but it's really a timing issue more than anything else. THE COURT: The reason I hesitate to and I think I'm pretty flexible and will continue to be, but I hesitate to impose firm time limits because what I then get is, at 9 a.m. on the morning after the time limit, at least a letter, if not a two-inch filing, that says they promised it by last night, and here it is this morning, and we don't have it yet. I don't want to be bothered with that, frankly. MR. SPAGNOLETTI: Well, I understand, Your Honor. And actually I'm not here to ask you to impose a set deadline today for such production, but we did want to raise this issue with the Court -- THE COURT: I agree with you. MR. SPAGNOLETTI: -- because it is, in this case -- given the amount of forensic evidence and other allegations, expert testimony is going to form a huge part of, we expect, of the Government's case and certainly of our case as well. THE COURT: TI agree. MR. SPAGNOLETTI: So we -- just to flash forward to what I think is going to happen at the end of this hearing, we are going to ask the Court for a further status in maybe early November sometime, by which we were hoping to 1410 ql 12 13 14 15 16 7 18 19 20 21 22 23 24 25 have a firmer grasp on what we're looking at. THE COURT: Are we able to say today which expert witness materials we're talking about, or is it still too early for that? MR. SPAGNOLETTI: Well, there was a -- Mr. Grimm sent a letter to Mr. Kirschner and Mr. Martin on August 3rd, I believe, that outlined who we knew so far, based on the disclosures made by the government and what we were still waiting for. So I -- we realize that there's going to be some give and take and flexibility with this in terms of as they make decisions, but they certainly have a list from us of what, at a minimum, we're looking for. THE COURT: All right. And with -- MR. MARTIN: The only thing I'd say with respect to that, Your Honor, is of course the FBI files have been turned over. Any personnel with the FBI that has been identified -- and there are a lot -- as potential experts for the government, their reports are in the hands -- in addition to the reports, some notes, some background material, so that is all now with the defendants. Now, I'm not suggesting that we may not identify somebody else with the FBI or somebody else that might testify in similar areas at some point in the future, but all identifiable FBI experts, they've got the information they're entitled to, we believe, under Rule 16, 1510 11 12 13 14 15 16 7 18 19 20 21 22 23 24 25 They've also got the report of Dr. Goslinoski, the ME. They've got the report of a blood spatter expert by the name of Mr. Bob Spaulding. They've got, at least identified by name, a couple other experts. And I think we're probably, in terms of identifiable experts, about 95 percent of disclosure under what's required under Rule 16. They've got the CVs, the curriculum vitaes. THE COURT: Well, but they are entitled to a summary of the opinion and the basis for the opinion. I guess that's what's missing on at least a couple of them if they have only the name. MR. MARTIN: Well, I think their -- I think our position would be with respect to any reports, where there are findings and conclusions in their reports, that is a fair substitution of what's required by the rule. THE COURT: I agree. MR. MARTIN: In certain cases -- and I can only think off the top of my head of two or three people, we haven't provided a lengthy summary. THE COUR’ Have or have not? MR. MARTIN: We have not, and I can think of only two or three people, and that's kind of developing, I would say. So that's why I say I think we're much more than halfway there, maybe three quarters of the way there. But we're going to continue to produce that information. 1610 ul 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: All right. And it's a two-way street obviously. Have you made an ongoing demand for defense experts or you intend to make one? MR. MARTIN: I think we made our first verbal one yesterday, and I think we probably need to put it into writing, but yes, the demand is out there, at least in terms of notice. THE COURT: TI mean the problem with timing is that even when the government fully complies with its obligations, that's the beginning of when you start lining up your people and getting reports from them, and I don't want to run up against the trial date and have late disclosure of defense experts and then have the government squawking that they need more time. MR. SPAGNOLETTI: We understand, Your Honor. And certainly based on the experts that the government has disclosed thus far, it allows us to at least start to anticipate where they're going, but certainly it won't be until they have told us who they are finally that we can finally button down ourselves. THE COURT: All right. MR. SPAGNOLETTI: But Mr. Martin's discussion of FBI case files is a perfect segue-way to Mr. Grimm, who is going to chat on that. MR. GRIMM: Good afternoon, Your Honor. 710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Good afternoon. MR. GRIMM: There's been -- this is just beyond your standard sexual assault case or homicide case where the government sends 10 to 15 things to the FBI. You're talking about just high-tech electropherograms, mass spectrometry. I mean if I paid attention in chemistry, I still wouldn't know what they're doing. Very high-tech, very complicated things. There's been numerous communications between the United States Attorney's Office in writing and the FBI back in writing. We believe that those communique are discoverable under Rule 16, one as being material, two as further information concerning the basis and grounds for an expert's opinion. When you consider that in the context of the Supreme Court's decision or the recent trend on confrontation and the defendant's right, it seems to me grounded in that right would also be this communication. If you also look at -- the National Academy of Science's recent xeport is that the FBI or experts are influenced by -- if someone sends them a letter saying, "We think this is the fingerprint of Mr. Price," for example, that will influence someone's decision, not to say that happened here. But we have fluid that's sent down. We have suggestions of seminal samples. We have touch DNA. And I think if the government wrote to experts and said, for 1810 ql 12 13 14 15 16 17 18 19 20 21 22 23 24 25 example, “We think that this evidence can -- is connected -- is trace evidence of Mr. Ward or Mr. Price or Mr. Zaborsky," and the FBI writes back, "We think that's Rule 16," if they write down and say, "We want the defendants included or excluded," by definition, the FBI will not, by their own Protocol -- we know this; we talked to an expert -- will not report out a third person, a Brown Beale type person. So we think it would be proper to get those communications to properly cross-examine an expert that says, "I excluded the defendant,” and we'd be able to cross-examine them. For example, using my example, "Well, Mr. Martin sent you a letter saying, "We only want it if the defendants are included or excluded, not third persons; if you find a third person, don't report it out.” And I'm not saying that someone's trying to engage in subterfuge or bad faith, but we think at a minimum that those communique are disclosable. I can give the Court an example. I have an FBI report that lists communications dated September 4, 24, 30, October 6, and October 10 between the United States and the FBI. They all -- some of them may be innocent, but if they're asking -- it's the -- it would be the second full paragraph where it references communications. I have a copy. THE COURT: I'm sorry. What am I supposed to be 1910 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 looking at? MR. GRIMM: Yes, Your Honor. THE COURT: I see the reference you're talking about. MR. GRIMM: Yes, and those are referencing -- THE COURT: Oh, that's what you're seeking to have discovered? MR. GRIMM: Yes, Your Honor. Because if that affects how an examiner or an analyst or chemist or DNA expert or serologist or handwriting expert examines something, whether they're including, excluding, the tests they subject it to, the tests they don't subject it to, we think that that is -- one, I think it's material, but two, I think it's probably more appropriate -- I think it's 16(a) (1) (c) regarding the basis for the expert's opinion. THE COURT: I assume -- I'd have to think about what you're saying in a minute and hear from Mr. Martin, but I assume you would agree, then, that the same thing would be producible by the defense? MR. GRIMM: If I sent a letter to my expert and I said, "What I'm looking for is third party person we think committed the crime, and we think his fingerprint is on this screen door that we sent you," and he doesn't find it, that letter goes to Mr. Kirschner and Mr. Martin, yes. THE COURT: I've always assumed that those kind of 2010 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 communications were kind of privileged —- MR. GRIMM: Work product? THE COURT: Certainly work product, yeah, the thought processes of the lawyer, I wouldn't think they'd be Producible. Do you have authorities for what you're asking? understand your point. Your point is if anything in the request shaped the outcome, and you would have no way of knowing the search was limited to produce that outcome, then you're missing information that would be useful to you in cross-examination. MR. GRIMM: Right, search the -- relevant to the outcome or the non-outcome. THE COURT: Right. I understand the point. MR. GRIMM: Because I wouldn't know to ask an expert, “Well, you didn't test for this,” only because they weren't instructed, because I don't know that, and it Probably could be fatal if you ask a question like that in front of a jury where you don't know exactly what happened. So yeah, I also believe that written communications would be disclosable by the defense as well. THE COURT: Do you have any authority? MR. GRIMM: I can submit it to the Court. There is no case that I've found that says that these types of communications are discoverable, although in some cases you see them turned over; some cases you don't. The ones you 2110 ql 12 13 14 15 16 17 18 19 20 21 22 23 24 25 don't are that it's the intellectual sort of banter between the government and its experts, and that's work product. THE COURT: Yeah. That's what -- why isn't that what you're asking? MR. GRIMM: Because at my level I don't engage in intellectual banter, so mine's disclosable, but Mr. Martin's smart and Mr. Kirschner's very smart. But, for example, if I give the Court a raw example, "We're asking you to test to include the defendants. If you find a third party, don't report that out; we'll talk about it," then that would certainly be discoverable. Under that extreme example, it would certainly be Brady. So -- but I think it's discoverable under Rule 16, under the defendant's confrontation right as well, because I guess if we were in trial today and I was able to stumble on it with the FBI expert, then we'd be stopping the trial and trying to incorporate that into my cross-examination. THE COURT: Well, I don't think what we're talking about now is whether you're allowed to ask about that with the witness on the stand. Obviously you can ask him about it. MR. GRIMM: Certainly ask about it, but this -- I'd be armed with the ability to ask an intelligent question or not go in an area, as opposed to just blindly walk down there. So sometimes this comes out, as the Court knows, 2210 a 12 13 14 15 16 17 18 19 20 21 22 23 24 25 when an expert's up there saying, "Well, I wasn't asked to test for that." Then it develops a whole line of cross-examination, "Well, did you get a letter of that?" "Yeah." Then you have to find it and stop and send the jury out. So that would be my request. THE COURT: All right. Are you hearing this for the first time or have they made that demand of you before? MR. MARTIN: I think a little bit of this and a little bit of that. I've got the full version now, so I feel -- we've had some very good discussions, frank discussions with all counsel, particularly Mr. Spagnoletti, with respect to this issue and what is or is not discoverable. When we produced the FBI case file, we produced the vast majority of it, but we did cull out certain things that we believe under the rule that I think the Court's relying on, and it is based generally on the case law. If it's internal communication between the government attorney and a government agent for the purpose of investigating and prosecuting the case, the general standard is no, it's not discoverable. You get the report and you may get something a little more than that, but you don't get all that background information. Now, certainly if it were a case where we had 2310 11 12 13 14 15 16 7 18 19 20 21 22 23 24 25 asked them to only subject testing to the defendants and if anything else came up, don't tell them about it, I think we'd be in bigger trouble than a Rule 16 violation. So I know Mr. Grimm isn't suggesting that, but that is not the case. So that's where we are. We don't think any of it is discoverable. We're not inviting at all the Court to do this, but if at some point down the line the Court would like to look at the rest of the FBI file because there's any good faith suspicion that something like that has happened, it's available, and we'll make it available to the Court. THE COURT: Do you know whether your FBI experts or other experts are going to talk to the defense when the defense -- if the defense seeks to interview them? MR. MARTIN: Well, in fact, we have offered that as a possibility. Now, granted the timeline for that kind of got pushed back because the FBI, I think rightfully, has a policy that until they're finished with their testing and have produced their file, they don't want to necessarily meet with, because they want it to be a full-on discussion, and they don't want half now, half later. So we have offered to make a person available. That person, Miss Moretti with the FBI -- we had a date set, but the FBI file hadn't gone through the channels it has to go through to be released, and so that date had to be pushed off. We're amenable, obviously, and we're waiting for the next 2410 qi 12 13 14 15 16 17 18 19 20 21 22 23 24 25 date to be set so that that can happen. THE COURT: All right. MR. GRIMM: It has, in fact, been offered for the defense en masse to go down and meet with the expert, but it's only on the condition that we do it with government counsel present, so to me that's not a meaningful interview of an expert. I'll offer my experts up, and they can meet with them alone when that time comes. But I think -- just the last word on this is if Mr. Martin sends a note to a homicide detective, that's clearly covered by work product. "Go see Witness X. He may have seen what happened." Tt might be Jencks down the road, but it's work product. They're internal communications, but these are experts. It's specifically laid out in the rule. It doesn't apply to witnesses or case agents. It applies to experts. So I'm saying we've encountered -- and it's not a blame thing, but since the 22nd -- I mean the Court can see to its left. You can do curls with those files on the left and be twice the size when we come in next time. So what I'm asking is that the Court look at it now so we don't have to file motions. Or if the Court wants to see something in writing from me, what the state of the law may be or may not be on this, I'd be glad to file something. THE COURT: Well, I would like authority that would enable me to order Mr. Martin to produce requests he's 2510 qi. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 made of his experts, to test or not test for certain things. That does strike me as pretty much at the core of a work product privilege, with the exception that things that are done that are obviously unethical or potentially exculpatory would be produced under different rules. But anyway, so if you submit something, I'll look into that. And if you -- now that you know the request, if you want to submit opposing authorities or something to me to read to see if it's on the margin between things that you have to produce and what you don't, I'll be glad to look at it. I'm not asking for extra work, but -- I'd rather you resolve these things between yourselves, but if I have to, I will. MR. GRIMM: Last, Your Honor, we filed a motion for discovery and inspection and testing, which includes a total of 26 items that we would like to take custody of. The Court had already previously signed an order on that. 1 think everyone is in agreement of the defendants’ independent right to test. We've been delayed in some of our testing because of producing and having these items available was delayed, and it's not a blame issue. They're with our experts now. I think, speaking for Mr. Martin or at least opening up the gate for that horse, is Mr. Martin's concern 2610 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that much of the evidence that the government has collected in this case is going to ultimately be with the defense, and I understand that concern. There's many items that our tests are in a holding pattern because our experts don't know what the FBI said. We now have those reports that were turned over in the last 10 days so they can finish their conclusions or their reports to us, but we still believe we're asking the Court to sign and execute this order. I would be glad to work out with Mr. Martin. If he wants to give up 26 items and get back 10 that have been already tested or not tested and we've decided not to test them, I can do that. I can understand and appreciate his concern that this much evidence in a homicide case being out, even at an independent lab, creates some risk issue for both sides. THE COURT: So how do you want to handle it? It doesn't sound like you're in any dispute about your right to have it tested. It's just a logistical thing. MR. MARTIN: I maybe should address that, Your Honor. THE COUR’ Okay. MR. MARTIN: I think the normal process for this is that inspection and viewing and photographing is how things are done, because the government ultimately will have the burden to put forth evidence, and it's important for us 27wn 10 ql 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to maintain custody and control, even where that's waived, so that we know, hopefully, we'll have that evidence for trial. And for other reasons sometimes it's not available, but we want at least to have the ability to control it if we can. It's our burden. We should have the evidence. Now, in this case we've, I think, bent over backwards, given the nonapplicability of the Innocence Protection Act, to allow some testing because we understand the Court could order some testing, obviously, in its discretion, so we've done that. But it's gotten to the point where there are 270-plus items in this case, but the core of the items, the bed sheet and bed, different things like that in the room -- you know, those might come down to about 50 items. And each and every one of those 50 items, it seemed to us, is what the defense would like to take -- relieve us of and keep for itself, so its experts, T suppose, can look at it every day on an ongoing basis and develop whatever theories they may have to counter our theories. We're not saying that they shouldn't be able to look at the evidence or inspect it or take photographs. But we would like the standard rule to apply, which is unless there is a specific need to test items, given that there's no Innocence Protection Act applicable here, that we should know more about that before we release these items to the 2810 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 defense and so they're not in our custody and control. 1 mean we'd like to follow the general practice, not an exception because Mr. Grimm and his experts would like to have these things handy. THE COURT: I don't think -- I'm not hearing that that's what the defense is requesting. They don't need to keep possession of them, They need to have possession long enough to do whatever analysis they need to have done and then return it to you. It's not that they want the convenience of having it around so they can test it whenever they get around to it and keep it out of your hands. Nobody's saying that. But I doubt whether I would preclude the defense from conducting any scientific testing of any of this evidence without much of a proffer, because they're not required to disclose their defense strategies to you at this point, if your only argument is, "We're reluctant to let it leave our hands," because that argument, a legitimate argument, can be addressed by safeguards, it seems to me, put in place. One is a waiver of the chain of custody for that period of time and that change of hands, and the other is safeguarding how it gets to them and how it gets back to you and when and the timing of it. In fact, I think in the order I wrote the last time, one of the provisions was they would have it and return it immediately upon testing. I 2910 ql 12 13 14 15 16 17 18 19 20 21 22 23 24 25 don't see why that's not sufficient for your purposes. MR. MARTIN: I think that's right generally, Your Honor. But again, our position is that if it's a piece of evidence, for example, the bed sheet that Mr. Wone was on -- and I don't think there's any dispute that it's his blood on that bed sheet, and in fact the reports confirm that -- we don't need to know exactly what they want to do and what further testing they're contemplating. THE COURT: Suppose there's another person's DNA, Mr. Wone and one other person's DNA on that bed, and it's not the DNA of these three defendants. MR. MARTIN: Well, there's no doubt there's going to be or potentially be other people's DNA just because of the circumstances. THE COURT: That's your argument, so it doesn't prove anything, but they're entitled to have it tested. Suppose they have a suspect. MR. MARTIN: I guess that would be very important for all of us to know. We would like to know that. THE COURT: But you're not entitled to know it. MR. MARTIN: Exactly. THE COURT: No, I mean I would -- I would go along with you in terms of the safeguards so you're not deprived of any custody or control of the evidence in a way that handicaps your proof presentation. I don't understand the 3010 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 defense to be arguing otherwise. But I don't think I would go so far as to say they can't test it until they tell you why they want it tested and what they're looking for. I'm sure you'd like to know that. But, you know, I've bent over backwards in the last order -- Mr. Grimm thinks I've failed -- but tried very hard to protect that from your from going to you, because it's the kind of thing that's not producible, their strategies, their mental processes about why they want something tested. It's exactly the reverse of what we were just talking about. MR. MARTIN: Sure, and I -- we understand that and we appreciate it, but it is out of the ordinary, frankly, to turn over the most salient pieces of evidence to the custody and control of the defense absent either an Innocence Protection Act right or something more than just, "We may do some testing. And that's what I'm hearing right now, "We may do some testing." I don't know if they've made ex parte communications to justify their requests for all these items, and I don't know if the Court will require that. THE COURT: I see. Part of the point may be -- maybe I did misunderstand. I don't think the order I would be prepared to enter would say, "Release all this evidence to the defense in case they want to test it." If that's your concern, I wouldn't do that. I would require at least a proffer that, "We 3110 qu 12 13 14 15 16 17 18 19 20 21 22 23 24 25 intend to test this." They may not produce any results to you because they don't have to. "We intend to do scientific testing on this item of evidence. We would like to have it for this period of time to send to an independent lab, upon completion of which we would return it immediately in sterile conditions," or whatever the terminology would be, back to the government. Am I misunderstanding your request? MR, GRIMM: No. Not at all. I don't -- to me -- in any case -- THE COURT: To make it -- to put a finer point on it, you will not request anything that you don't intend -- that you don't know you intend a test on? You'll consult with your experts before requesting an item of evidence, so if they say, "This can be tested, and we'd like to test it,” that's when you will ask for the evidence? MR. GRIMM: Correct. Now that we have the FBI files, maybe henceforth our request might be narrowed, but for example, let's say we get a bed sheet. We might have someone eyeball it, an expert, and say, "I don't think any further testing is required," but I don't have the wherewithal to know that. And we're trying. We actually brought an expert to the U.S. Attorney's office from Florida, and there were four items of evidence that we needed examined that were not available, so that was a lot 3210 qi. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of money and lot of time. There were some items available, but it's not like we're just sitting back. We're actively engaging in this. But obviously I agree with the Court. I can't willy-nilly say, "Give me Item No. 1 through 6000. I'm going to hold it for six months." That wouldn't fair to anybody. It's petty and doesn't get us anywhere. THE COURT: So you'll be requesting items that you in good faith expect to have tested. And you may not test them once the expert looks at them, but then you'll return them immediately. MR. GRIMM: Correct. Now, for example, if you have a pillowcase tested that has blood on it, the sheet may not have blood, but the expert is going to say, "I want to see the sheet too," because under cross-examination you don't want someone to say, "Well, you didn't ask to see the sheet." It may not be subject to testing, but it may be subject to a visual examination. But that -- to me that's testing by an expert. THE COURT: Well, Mr. Martin's point for that is that you can have an order to inspect before you test. Before he has to give you the evidence physically, you can have somebody look at it. And you're saying, "We did, but it wasn't available, so we brought this guy to Florida." Can't that problem be solved? Can't we collect all the 3310 11 12 13 14 15 16 7 18 19 20 21 22 23 24 25 evidence in one location at a time when you know you want to have in inspected, and then you could narrow the request of what you want tested? MR. GRIMM: There's no less than four different people all over the East Coast, some on the West Coast. 1 can't get them all in one spot to do this. We need to go to a lab first, then get it tested out, get those results, and then see if other examiners need to come in and test it. I think the law, Your Honor, is if this was a case where someone was shot, if I submitted an order to the Court to have the gun examined, the Court wouldn't ask me to, say, just first have an examiner go look at it in Mr. Kirschner's office to see if there's anything. I mean I think I would have a right to have it independently tested, whether it's for ballistics, fingerprints, touch DNA. MR. MARTIN: I think, Your Honor, frankly it's easier having a single location versus shopping this around the country where these various experts may be. We have the ability to make it available for viewing. And I'm not sure about the characterization that, you know, there were a number of important items not available for viewing. There certainly were some, but we continue to work through those issues. We are talking about 127-plus issues, so for example, there was a butcher block for knives that wasn't available at the time. We've now sent out the viewing 3410 11 12 13 14 15 16 a 18 19 20 21 22 23 24 25 letter saying go ahead and arrange a time with us to see that. And that was just because of the sheer volume of things. THE COUR’ I see. I think you should, rather than waste everybody's time here, because I can't think it through off the top of my head -- I think you should sit down and negotiate the terms of an order which would release specific items for specific purposes for specific times. And then leave open the possibility that there may be additional items that will be inspected and upon inspection may be released for testing, once it's determined that testing is appropriate. I'm going to -- MR. GRIMM: Your Honor, I'm against that. I don't think I need to show probable cause why I need to have something tested. If someone - THE COURT: No, no, you don't. No, no. MR. GRIMM: If I misheard the Court -- THE COURT: Well, I may have misspoken. What I meant was the things that you know you want tested, you can fashion an order similar to the one we did before, and I think I would sign it as long as the government was comfortable that its chain of custody obligations were met. And then as to other items, I don't think I would release them until -- if you're not able to say you're going to have them tested, I don't think I would release them to you until 3510 ql 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you can have them inspected to see whether or not they're subject to testing. MR. GRIMM: Well, two things. One, if I submit a proposed order to the Court with items of evidence, it's after consultation with my colleagues and experts saying this is important to have tested, even if it's just a visual examination. So my -- the orders, the proposed orders we submit are all, I believe, in good faith. Number two, I'm not -- THE COURT: Maybe all we're talking about -- I'm sorry to interrupt you, but maybe all we're talking about is what you're calling "testing" he's calling “inspection. What he's saying is if they want to look at it, they can come look at it any time it's convenient for -- mutually convenient. If they then say, "Now that I've seen it, I want to have it tested," then we'll have to issue another order. So maybe there is a genuine dispute here. He doesn't want to release his entire cabinet of evidence to you to send all over the country to have people look at it and not subject it to scientific testing. MR. GRIMM: We're asking for -- THE COURT: You do have a right to look at it. MR. GRIMM: We're asking for a very small portion of the evidence that was collected in this case for testing. We've gone through every item, and the ones we include in 3610 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the proposed orders, that's what we need. I mean we're already -- to give the Court an example, what's in the new Proposed order needs to be tested and examined, and there's no doubt about that, but we're also missing still six items from the last order the Court signed that were, we were told, not available on that date. THE COURT: But they're not in dispute now. They're going to give you those, right? MR. GRIM That was July Ist. THE COUR’ : No. It's late, but you're going to get it. But let's -- I don't want to mix too many things at one time, I'm now trying to focus on things that you can't say you want tested, but you would like to have your experts look at it, and it's more convenient for you to have them look at it in California than in the U.S. Attorney's office. That's basically what I'm hearing. MR. GRIMM: No. Well, it's more convenient for a single expert to look at all the evidence within 50 miles of this courthouse than shipping to it four different -- three different experts. THE COURT: Then maybe I did misunderstand. why isn't that doable? MR. GRIMM: It is -- THE COURT: Why can't that single expert within 50 miles come to the U.S. Attorney's office? 3710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. GRIMM: That's not -- that violates their own Protocol, They're accredited. They can't examine evidence outside their building. They have confined, sterile areas that they look at it. THE COUR’ Maybe you could send your expert with them. I don't know. I really don't think I should be -- MR. GRIMM: I'll have to hammer it out with Mr. Martin. If I can't, it will have to be -- THE COURT: I hope you can. I mean both of you have legitimate interests that deserve protection, and I don't think it should be disputed. If that's the only way to do it, maybe that's the way it will be done. Before it gets sent anywhere else, you'll know where it's being sent, and you'll get it back if they're not going to send it out further. And if they're going to send it out further, there would have to be a different order, I suppose. But maybe you can work out language that would be acceptable to both of you. MR. GRIMM: Right. But just so we're on the same page so not to waste the Court's time, I don't think there's a burden I need to satisfy, a legal burden to simply have something tested. We're talking about the venue of where it's tested. THE COURT: I think I agree with that. MR. GRIMM: Very well. 3810 1. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: All right. I'm not sure we've done much more than kick that can down the road, but I'm hoping that -- you know, I get the sense that the lawyers are cooperating. It's not as fast as some would like and not as -- maybe not as fulsome as others would like, but you ought to be able to work this out if it's just a matter of language that protects both of your legitimate interests, 1 think. MR. GRIMM: Very well. MR. CONNOLL: : Your Honor, may I have the Court's brief indulgence to speak to Mr. Martin? I may be able to get rid of a whole issue if I just have 30 seconds. THE COURT: That would be great. Connolly is the designated accommodator. I like this. MR. SPAGNOLETTI: Unusual, Your Honor. (Mr. Connolly and Mr. Martin conferred off the record.) MR. CONNOLLY: TI tried, Your Honor. THE COURT: You expect extra credit for that? MR. CONNOLLY: No. I mean listen, we were here in May, and I threw down the gauntlet. They said that Mr. Wone had been -- used paralytic drugs, that there was a sexual assault, and I demanded that the blood get tested. And I'm just being told now it hasn't been tested. I demanded that there be a stipulation that we insisted -- the defendants 3910 11 12 13 14 15 16 a7 18 19 20 21 22 23 24 25 themselves insisted that the blood get tested and that the jury hears that. None of that has been done, so I'm expressing my frustration, and I'm asking for a date in which I know that that testing can get done. THE COURT: Remind me again what we're talking about. Some of the fluid that was recovered at autopsy was sent out for certain toxicology? MR. CONNOLLY: That's correct. THE COURT: You want to do -- if there's some left, you want to do some additional toxicology? MR. CONNOLLY: And we -- the government agreed in our last hearing that they were going to do some. THE COURT: That's what I thought. MR. CONNOLLY: And we're now four months down the road. THE COURT: I remember Mr. Kirschner equivocating a little about a) there was going to be enough of a sample and b) whether it would be entirely consumed, which was a problem, but in any case, what's the status of it? MR. MARTIN: I can certainly update the Court and defense counsel. I may have miscommunicated to Mr. Connolly. There has been some testing since the last status hearing. The FBI has done some additional tests. They're not final yet; otherwise they would have been produced, but there has been some testing, and there is some 4010 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 sample left. And from what I understand, it's roughly 4 milliliters at this stage. THE COURT: Remaining? MR. MARTIN: I don't know what number was given before, but now it's 4 milliliters. Now, with that limited sample, frankly, we are consulting with the FBI as to what, if any, additional testing should be done, because finding a needle in a haystack doesn't seem to be necessarily -- THE COURT: Probably a bad pun. MR. MARTIN: -- the best and most prudent course. And we're hopeful, frankly, that if somewhere down the line we obtain more information from other sources, we might be able to focus our search. And it would probably be on the other end of any trial in this matter. But the point being that -- THE COURT: I didn't get that. MR. MARTIN: Well, it doesn't do us necessarily any good to consume completely if at some point down the line we're able to obtain information from other sources, including the defendants, as to what we should be looking for. And we're not necessarily hopeful of that. We're not necessarily hopeful of that, but it could happen. And so the reason I say that, Your Honor, is we're trying not to be willy-nilly about what we do in our testing. we have conducted, I believe, two or three tests since our last 4110 a. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 status hearing. THE COURT: Does "a test" mean a chemical search for a particular agent? Is that what you mean by "a test"? MR. MARTIN: Some are more basic screens in terms of categories of agents, yes, and some are more particularized searches, but yes, that's what it means. So three -- I believe three separate screenings for different types of chemical agents have been done since then, and the final results of those are not back, and I guess "finalized" is the best way to put it. So I was mentioning to Mr. Connolly that if we set a November 4th -- THE COURT: I take it if they were inculpatory, even by oral report to you, you would have disclosed that. In other words, if you said, "We found agent x in the sample" - MR. MARTIN: I think if our analysts prepared the report and all it had to -- and it went through the peer review process and there was the checkmark there, and then, you know, it wasn’t yet final, final in the FBI's version but we at least had the peer review process, yes. And that has not happened. THE COURT: Okay. MR. MARTIN: So I guess my suggestion is -- I know everybody wants to do these tests sooner rather than later. We have a May trial date, a November status hearing. I 4210 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 believe we would be in a better position to tell the Court whether we have any other testing that we plan to do. But we're really in -- THE COURT: And the results of what you've done already. MR. MARTIN: That's correct, Your Honor. THE COURT: And why isn't -- MR. CONNOLLY: That wasn't our agreement, Judge. Our agreement in May, when we were here before you, was: Test the materials, and use any test you want. You've made the outrageous allegation that these guys used paralytic agents on Rob Wone. THE COURT: Don't point at me. MR. CONNOLLY: I know. He has. He's got the burden. He either tests it, test it for anything he wants, or he drops the outrageous allegation. But now to say, "We possibly might not do any further testing on this. We'll suggest that these guys may have done it, but we're not going to actually do any full tests until after trial sometime,” at which time point one of these gentlemen may tell them what to test for -- that wasn't what we agreed to in May. The agreement was full battery of tests, the government use any testing methodology they want to use. We agree to it. We agree to consumption. But you agree that 4310 ql 12 13 14 15 16 17 18 19 20 21 22 23 24 25 this jury is going to hear that we insisted on full testing. And we're not going to tell you what to test for, because we don't want to get into a situation where you say, "You misled us on what agent we should be looking for." That was the agreement in May. And now I hear, "Well, maybe not so much." So I think the agreement in May should stand. we should have a full battery of testing, and then when it's done, the results should get to us in November, and then we can drop this nonsense that a paralytic agent was used. THE COURT: So your concern, your tactical concern, is that if this issue came before the jury, the jury would hear they tested for X, Y, and Z, and it wasn't that. And we've got a little bit left, but we didn't test for A, B, and C, and maybe it was one of those things. MR. CONNOLLY: That's right. THE COURT: And that would still leave the specter that there was an agent that might have been in there that wasn't -- MR. CONNOLLY: That's correct. And that's why we say, "Government, choose the agents. There's only eight or nine of them out there. Choose the agents you want to test against. We're not going to tell you what to test for. Test whatever you think possibly was used here." THE COURT: Well, I think one way or the other I would protect your position at trial on that. I can't tell 4410 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the government what to test for or what not to test for, I don't think, but I don't think I'd let them put you in a position to say, "Well, maybe it's still out there and we didn't look for it.” MR. CONNOLLY: Right. THE COURT: I mean they may be able to say that, but not because they deliberately didn't look for it. MR. CONNOLLY: Right. THE COURT: You're not going to get it from the defendants. I don't know what that's about but -- MR. MARTIN: Well, the only thing I would say is if we had 100 milliliters of blood -- I mean we've all seen the periodic table. We're not talking -- there are any number of combinations of paralytics, any number of incapacitating agents. THE COURT: There are or aren't? MR. MARTIN: There are. There are. And if we thought 4 milliliters was enough to test every potential paralytic and incapacitating agent in the world, we would have done it. We have a limited sample here. So to suggest that, "Hey, run the panoply of tests. We want you to run the panoply of tests because we want to prove that you can't find what we're looking for -~ what you're looking for, what you're alleging," well, we have to be a little bit more particularized and a little bit more targeted in what we're 4510 11 13 14 15 16 17 18 19 20 21 22 23 24 25 looking for. Yeah, we can do a few basic screens to see if any signature characteristics come up with certain drugs, but at a certain point, you need to be able to hone in. And we're just trying to decide, and I think it's fair, given the limited sample we have left -- we're trying to decide how far we should go if we potentially exhaust all of the sample, and then, you know, three days after that, we find out, you know, you should have tested for this one drug, and what you've done so far wouldn't have shown it. THE COURT: Well, what is this -- maybe we're getting ahead of ourselves, but what -- you have evidence from the medical examiner that there were needle marks on the decedent's body, right? MR. MARTIN: Uh-huh. THE COURT: And you have speculation about what may have caused those. You don't have any evidence of anything that caused them, right? MR. MARTIN: Well, no. We have what we call negative evidence. THE COURT: Right. They weren't there before. MR. MARTIN: They weren't there before, and medical personnel have said, "We didn't put them there." THE COURT: Right. Okay. So let's assume that's what you've got. I would not let you argue to that -- from 4610 a 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that alone to the jury that it looks like he was given a paralytic agent. MR. MARTIN: Well, and that's not all we're relying on. Of course we're -- THE COURT: I wouldn't let you argue -- well, I shouldn't stop you. Go ahead. what else? MR. MARTIN: The only thing I would say is, well, Your Honor, of course the circumstances of this case are that it appears that there was no struggle by Mr. Wone, and that's completely atypical of these scenes. And the perfection of these stab wounds and the uniformity and the fact that there was no tearing or other marks that would suggest a struggle or him fighting back clearly indicate to us and our experts, both the medical examiner and our blood spatter expert, that he was not moving at all during this. And because a single blow -- and this is not news to anyone -- because a single blow in any of those cases, in the opinion of our experts, would not be incapacitating, he would have fought or moved or done something to make these less uniform, So there's that. THE COURT: Could have been restrained. MR. MARTIN: And there's no indication of restraint. THE COURT: There's no indication of a lot of things. That's your case. 4710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. MARTIN: There is. That's what makes it so weird and odd, but it's all those things that aren't there at the scene in a stabbing case that you would expect there to be that is highly inferential and suggestive of incapacitation. The needle marks are part of it, but it's everything. THE COURT: Well, we will take this up again in November, and maybe Mr. Connolly has a right to be upset about it, but it seems to me you fail to test for paralytic agents at your peril. And I think I'd be most reluctant to let you suggest that there was a paralytic agent based on what you've told me so far. You can have your experts say it looked like he was incapacitated in some way or restrained in some way or didn't fight back, whatever they're able to opine; but unless you have evidence that there was something injected, the fact there were puncture marks I'm not sure would be sufficient. Maybe. I don't know. I'd have to think about that. But I'm not going to put the defense at a disadvantage because you failed to test for some and then say, "Maybe it was one of those; we just didn't look for it." That I wouldn't think would be fair at all. So maybe there's not enough to test for all the ones that you want to test for; maybe there is. Maybe you want to do further testing; maybe you don't. I don't know. 4810 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. MARTIN: And I think at a certain point, Your Honor, certainly well in advance of trial, if it needed to be briefed and if an ex parte motion by the government said, "This is what we've done, and we still believe we should be able to make this argument," we would be happy to do that. THE COURT: That's fine. That's fine. I'm not sure it would be ex parte at that point. They'd like -- MR. MARTIN: I'd like to start there. THE COURT: You can always start there. Now, I'm assuming, though, and I think maybe we went over this the last time, that with what's left, even if the government says, "We've done all the testing that we're going to do with this blood sample," you're not seeking to have it for additional testing. MR. CONNOLLY: No. We've said, "You can consume it all.” THE COURT: That's what I thought. MR. CONNOLLY: "Use the most sophisticated tests you can come up with. THE COURT: All right. So when you initially stood up, Mr. Connolly, what were you saying? Make them finish what they said they were going to do? MR. CONNOLLY: Yeah. Make them finish what they said they were going to do, and let's have a date certain in which it will be done so -- 4910 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Well, it may already be done. You'll certainly get the reports of what's already been done, and hopefully that will be before November. So maybe we should just set this next date. MR. CONNOLLY: That's all I have on this issue and anything else, Your Honor. THE COURT: All right. All right. Are there any others that we didn't take up? MR. SPAGNOLETTI: No, Your Honor. Just the date. THE COURT: The main one I think is the one that Mr. Grimm was talking about in terms of testing, additional scientific testing of items of physical evidence. And that I hope you can negotiate appropriate language and appropriate conditions for, because I'm going to let them do it. I'm just not going to let them do it in a way that's prejudicial to your legitimate rights. So if you can figure out a way to protect both sides’ interests in that, let's do it. What would be the right time frame? MR. SPAGNOLETTI: Your Honor, we were looking at maybe the first week in November. I think November 6th was the date that counsel had floated around, if that works for the Court. THE COURT: The afternoon of the 11th I think is 5010 ql 12 13 14 15 16 a7 18 1g 20 21 22 23 24 25 safer for me than the 6th. I have a hearing that's currently scheduled for the 6th, It may not go but -- MR. SPAGNOLETTI: The 11th is Veteran's Day, 1 believe, Your Honor. THE DEPUTY CLERK: The 11th is a holiday. THE COURT: I'm sorry? MR. SPAGNOLETTI: Is the llth Veteran's Day? THE COURT: I'm sorry. I meant the 13th. I apologize. The next Friday. The 11th is a holiday. MR. MARTIN: That's fine for the government, Your Honor. MR. SPAGNOLETTI: That's fine, Your Honor. THE COURT: Same time? Two o'clock? MR. CONNOLLY: Your Honor, we think it may be fine. We can go ahead and schedule it. There may -- at some of these future conferences we may do a waiver for one or all of the defendants just on this these kind of matters. THE COURT: Well, do you know that it's a bad day? I mean I have lots of available days. MR. CONNOLLY: Judge, I don't know if it's a bad day. There's going to be some out-of-town time during that time, but we don't know at this juncture when that's going to happen, so I'd hate to hold up everybody else, Judge. THE COURT: Could it just as easily be the 6th as the 13th, or you know -~ 5110 ql 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR, CONNOLLY: The 6th is good. We know the 6th is good. The 13th we're a little iffy on. THE COURT: Of the Fridays in that period at 2:00 in the afternoon, beginning with the 30th of October and going all the way through November, except for the 27th, the day after Thanksgiving, every Friday is better than the 6th for me. So if you can pick the one that you think, other than the 6th, that's likely to be good. MR. CONNOLLY: Judge, does October 30th work? THE COURT: Is that -- MR. MARTIN: The 30th? MR. CONNOLLY: October 30th. MR. MARTIN: The 30th is fine. THE COURT: It is? MR. MARTIN: Yes. THE COURT: You'll have the same amount of progress and information by then as you would have had for the 6th? MR. MARTIN: We'll try to go out -- move out as fast as possible, Your Honor. We all have other cases, but defense counsel has made this my priority. MR. GRIMM: Your Honor, I'm sorry. I'm out of town that day. THE COURT: On the 30th? MR. GRIMM: I'm in New York, yeah. 5210 11 12 13 14 15 16 a 18 19 20 21 22 23 24 25 THE COURT: Well -- MR. CONNOLLY: Judge, we're willing to go with the 13th and then schedule around it if we need to. MR. GRIMM: I can do the 30th in the a.m., Your Honor. THE COURT: Hang on a sec. Is the 6th clearly the best for everybody in terms of travel and everything else? I'll do the 6th at 2:00. I'11 go back to where we were. MR. SPAGNOLETTI: The 6th? THE COURT: At two o'clock. All right. MR. CONNOLLY: Have a nice weekend, Your Honor. THE COUR’ Thank you all. MR. MARTIN: Thank you, Your Honor. (The defendants were advised of the requirement to return by the deputy clerk. Hearing adjourned at 3:04 p.m.) 5310 qi 12 13 14 15 16 7 18 19 20 21 22 23 24 25 CERTIFICATE OF REPORTER I, Julie T, Richer, an Official Court Reporter for the Superior Court of the District of Columbia, do hereby certify that I reported, by machine shorthand, in my official capacity, the proceedings had and testimony adduced, upon the status hearing in the case of UNITED STATES OF AMERICA V. JOSEPH PRICE, DYLAN WARD, AND VICTOR ZABORSKY, Criminal Action Nos. 2008 CF1 27068, 2008 CF1 26996, AND 2008 CF1 26997, in said Court, on the 11th day of September 2009. I further certify that the foregoing 53 pages constitute the official transcript of said proceedings, as taken from my computer realtime display, together with the audio sync of said proceedings. In witness whereof, I have hereto subscribed my name, this the 16th day of September 2009. Julie T. Richer, RPR Official Court Reporter. 54