The opinion of the court was delivered by: The Honorable Philip M. Pro
DANIEL G. BOGDEN United States Attorney KATHLEEN BLISS Assistant United States Attorney 333 Las Vegas Blvd., South, Ste 5000 Fifth Floor Las Vegas, Nevada 89101 (702) 388-6336 THOMAS E. PEREZ Assistant Attorney General -- Civil Rights Division PATRICIA SUMNER Trial Attorney 601 D. Street NW, 5th Floor Washington, D.C. 20530 (202)616-4719
PROPOSED COMPLEX CASE SCHEDULE PURSUANT TO LCR 16-1(a)
Pursuant to Local Rule 16-1(a)(1) and (2), counsel for the United States, Daniel G. Bogden United States Attorney, and Assistant United States Attorney, Kathleen Bliss; Thomas E. Perez, Assistant Attorney General -- Civil Rights Division, and Patricia A. Sumner, Trial Attorney; and Federal Public Defender, Rene Valladares, as counsel for defendant Ross Hack; E. Brent Bryson and Gabriel L. Grasso, as counsel for defendant Melissa Hack; and James Hartsell, as counsel for defendant Leland Jones, respectfully submit this proposed Complex Case Schedule, requesting that this Court set a trial date and enter an Order "fixing the schedule for discovery and pretrial motions."( LCR 16-1(a)(1)--(a)(4)).
1. The Indictment in this case was returned by a federal Grand Jury seated in Las Vegas, Nevada, on February 28, 2012. (Docket # 1).
2. Defendants Melissa Hack and Leland Jones were arraigned and entered pleas of Not Guilty on February 29, 2012. (Docket # 5). Defendant Ross Hack appeared for his arraignment and plea hearing March 9, 2012, and enter his plea of Not Guilty. (Docket # __). The Court set a trial date of May 8, 2012, and joined the defendants for trial. This Court should find, however, that under the law and circumstances of this case, this case is complex and an appropriate complex case schedule is warranted.
3. The case presents complex and novel issues of fact and law in that the Indictment charges the defendants with murdering Lin Shersty and Daniel Newborn on federal land, causing their deaths through the use of a firearm, during and in relation to first degree murder, in violation Title 18, United States Code, Sections 1111, 924(c) and (j). (Docket # 1).
4. 18 U.S.C. §§ 1111 and 924j are death penalty eligible offenses. See 18 U.S.C. § 3591.*fn1 Defendants Ross Hack and Melissa Hack are charged with a death penalty eligible offense, so the government must comply with the Department of Justice's "death penalty protocol."*fn2 See United States Attorneys' Manual, § 9-10.000 et seq. Leland Jones is not subject to the death penalty because he was a juvenile (17 years old) at the time of the alleged murders. See Roper v. Simmons, 543 U.S. 551 (2005) (holding that the Eighth and Fourteenth Amendments forbid imposition of death penalty on offenders who were under age of 18 when their crimes were committed). The death penalty protocol includes a recommendation by the United States Attorney and by the Assistant Attorney General on whether or not to seek the death penalty. Defense counsel has the opportunity to present facts, including mitigating factors, to the United States Attorney and to the Assistant Attorney General for consideration. A Department of Justice review committee then reviews the United States Attorney's and Assistant Attorney General's recommendation and provides defense counsel the opportunity to present mitigating evidence. The review committee then makes its own recommendation to the Attorney General who makes the final decision about whether the death penalty will be sought by the government.
5. Counsel for defendants Ross Hack and Melissa Hack need appropriate time to prepare for their presentation to the United States Attorney and to the Assistant Attorney General.
6. The time needed to complete the Department of Justice's "death penalty protocol" is properly excluded under the Speedy Trial Act. See United States v. Murillo, 288 F.3d 1126 (9th Cir. 2002) (holding that the Department of Justice's death penalty protocol is a "valid reason to grant an ends of justice continuance" under 18 U.S.C. § 3161 (h)(8)(A)); United States v. Mathis, 96 F.3d 1577, 1581 (11th Cir. 1996) (same).
PROPOSED COMPLEX CASE SCHEDULE
7. On or by May 1, 2012, the government will provide discovery in this case that involves production of evidence under Fed. R. Crim. P. 16; that is, materials within the government's possession that were obtained from the state relative to the investigation and prosecution of John Butler, the criminal history reports for each defendant, and statements made by each defendant. The government will not provide the statements of defendants collectively, but each defendant will receive only his or her statement and no others. The government will not produce the statements of any witness or concomitant impeachment evidence (Giglio) obtained by the government in the course of the federal investigation.
PROPOSED COMPLEX CASE SCHEDULE
1. Considering the schedule, below, the parties request a trial date no earlier than November 1, 2013.
2. The Initial Discovery Phase.
The parties propose that the government shall continue to meet its obligation to disclose and provide the following:
a. all statements, documents, and objects, including audio and video recordings, required to be disclosed under Federal Criminal Rules of Procedure 16(a)(1)(A)- (F).
b. all search warrants, orders authorizing the interception of wire, oral or electronic communications, and supporting affidavits, that relate to evidence that may be offered at trial.
c. all officers reports, forensic evidence reports and any information required under Kyles v. Whitely, 514 U.S. 419 (1995), with the exception of witness statements as defined at 18 U.S.C. § 3500 and any impeachment information relative to that witness.
3. The Discovery Motions Schedule To Resolve Any Discovery Disputes.
The parties acknowledge a duty to make good faith efforts to meet and confer with each other to resolve informally any dispute over the scope, manner and method of disclosures before seeking relief from the Court. A breach of the duty to meet and confer, by either party, may serve as a basis to grant or deny any subsequent motion for appropriate relief made before the Court. If the parties are unable to agree or resolve disputes after good faith efforts to do so, the parties propose the following discovery pretrial motions schedule:
a. Preauthorization Motions, that is, all motions related to the Death Penalty Protocol, shall be filed on or by September 1, 2012.
b. Responses to Preauthorization Motions shall be filed on or by September 30, 2010.
c. Replies to Preauthorization Responses shall be filed on or by October 15, 2012.
d. Defendants shall submit to the United States Attorney and to the Assistant Attorney General their Memoranda relative to ...