Free Report - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Case No. 1:00-cr-00531-WYD UNITED STATES OF AMERICA, Plaintiff, v. WILLIAM CONCEPCION SABLAN, Defendant. WILLIAM SABLAN'S POSITION PAPER RE: STATUS CONFERENCE ON SEPTEMBER 20, 2006

Defendant William Concepcion Sablan ("William"), by and through undersigned counsel, in preparation for the Status Conference set for September 20, 2006, submits this position paper regarding the 12 pretrial scheduling issues set forth in the Court's Minute Order dated September 14, 2006. Pretrial Scheduling Issues: 1) Whether additional motions will be filed, such as motions in limine, other motions challenging the admission of evidence at trial, motions regarding expert or lay testimony or any other motions regarding the trial or trial procedure, and what those motions will be; Defendant's position: 1) The defense will probably be filing motions in limine and similar Motions. The defense cannot advise the Court what those Motions will be at this time. The parties are presently scheduled to submit Witness Lists on October 13, 2006. The defense objects to the simultaneous submission of Witness Lists as being inconsistent with the government's burden of proof and customary pretrial procedures. However, assuming the Court insists that these Witness Lists be filed simultaneously on October 13, it would be prudent case
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2) the time frame as to when such motions will be heard; 3) whether other issues will need to be resolved prior to trial (with the exception of the issues and motions that are set to be heard the week of November 6, 2006);

management to direct the Government to also submit its List of Exhibits on October 13. In addition, the government is now obligated to provide the defense with a written summary of the expert testimony it intends to use on the issue of the defendant's mental condition. Until the government meets this obligation, the defendant will not be able to complete its disclosure of witnesses. At least three things must occur before the defense can make decisions about Motions in limine. First, the government must provide the defense with Lists of Witnesses and Exhibits. Second, the government must provide its Disclosure of Expert testimony relating to the defendant's mental condition. Third, the Court must rule on the Phase III Motions. 2) It appears that the Motions referenced in Paragraph 1 probably can't be filed until midNovember. So, it is doubtful that they could be heard until mid-to-late December. 3) In addition to items referenced in Paragraphs 1 and 2 above, the Court should again address the Atkins issue. This issue has been fully briefed. The defense acknowledges that it is a difficult issue because there is a dearth of federal law on the subject. At the Hearing on May 15, 2006, the Court indicated that it was going to read the supplemental briefs more thoroughly, but that it had no predisposition about what the decision would be with regard to the burden of proof, or when the Atkins issue should be determined, or by whom. The government takes the position that the defendant should not have "two bites at the apple." The government opines that "having the jury resolve the Atkins issue is more true" to the significance of mental retardation to capital sentencing and the role of the jury. The defendant believes that the jury should review the evidence of mental retardation as a
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gateway factor. This approach is supported by Atkins' categorical exclusion of mentally retarded offenders from sentences of death, as well as by the lower courts' interpretation of Atkins as providing an exemption or immunity from such a sentence. If handled as a gateway factor and the jury finds that the defendant is mentally retarded, its deliberations should end, and the jury would not start the process of weighing aggravating and mitigating factors. Under this approach, a pretrial Hearing will not be necessary. 4) the approximate 4) As noted above, the parties are scheduled number of fact and expert to submit witness lists on October 13, 2006. witnesses that each side The government has the burden at both the will present at both the trial on the merits and at any penalty phase. guilt phase and the penalty What witnesses the defense may call is phase of the trial; largely dependent on what witnesses the government calls. It is therefore impossible for the defense to estimate the number of witnesses it may call until the government discloses its witness lists. The defense notes that, pursuant to Court Order, it has provided the prosecution with a preliminary List of Expert Witnesses. However, the defense cannot be certain at this time which experts will be called, in either the Guilt-Innocence Phase or the Penalty Phase. 5) the length of jury 5) The defense believes that it will take 2-3 selection and voir dire weeks to select a jury. It is absolutely given that this is a capital imperative that each prospective juror be case; initially examined in camera. Please see the defendant's Memorandum Regarding Proposed Jury Selection Procedures, which is attached hereto. 6) the need for a jury 6) A jury questionnaire is absolutely questionnaire; imperative. Please see the defendant's Memorandum Regarding Proposed Jury Selection Procedures, which is attached hereto. 7) how challenges to 7) Each side has 20 peremptory challenges, jurors should be handled; with additional peremptories for the alternate jurors. Please see the defendant's
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Memorandum Regarding Proposed Jury Selection Procedures, which is attached hereto. 8) the jury instructions to 8) With regard to the Guilt-Innocence jury be given at both the guilt instructions, they could first be discussed at phase and penalty phase the conclusion of the November 6-9 Hearing. and the anticipated time While Guilt-Innocence jury instructions cannot frame needed to address be fully and finally resolved until the those instructions; conclusion of all the evidence, significant progress can be made with a half a day of Court time in November. The penalty phase instructions are more problematic because the Phase III issues have been so prolonged. Therefore, the penalty phase instructions should be deferred. Issues surrounding penalty phase instructions may be complex and require more than one day of Court time to resolve. 9) the length of both guilt 9) The government is in a better position to phase and the penalty estimate the length of the Guilt-Innocence phase of the trial; Phase. Similarly, the government has the burden in the Penalty Phase, so the government's estimate of how long it will take to present its evidence will be critical. It also is difficult to estimate the length of the Penalty Phase until the Court rules on the Phase III Motions. Only then will the defense understand what the government's evidence will be during the Penalty Phase. 10) whether the parties 10) If the jury returns a verdict of guilty to first anticipate the penalty degree murder, the penalty phase can and phase commencing should commence immediately. The Court immediately after the guilt wisely decided to spend considerable time on phase or whether there the Phase III motions to reduce the possibility should be a break in of a delay between the guilt-innocence phase between the two phases; and the penalty phase. 11) related to the prior 11) If the jury returns a verdict of guilty to first issue ­ whether the parties degree murder, the defense will file whatever anticipate that motions will Motions are deemed appropriate at that time. be filed or issues raised However, such motions should not after guilt phase that may significantly delay the commencement of the impact the commencement penalty phase.
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of the penalty phase; and 12) how the trial schedule will be set each week.

12) The trial is scheduled to begin on Tuesday, January 16th. Other than the week of January 16th, the defense believes that we should work five days per week until the jury is selected. After the jury is selected, during the GuiltInnocence Phase and the Penalty Phase, we should take Fridays off. The defense notes that February 19th is President's Day; nevertheless, we should take off Friday, February 23rd, which means that will be a three day week. Trial Days should be 8:30a.m.- 4:30p.m.

WHEREFORE, the defense submits this Position Paper.
Dated: September 19, 2006 Respectfully submitted,

/s/ Patrick J. Burke
Patrick J. Burke Patrick J. Burke, P.C. 1660 Wynkoop Street, Ste 810 Denver, CO 80202 (303) 825-3050 Nathan Chambers Chambers, Dansky & Mulvahill 1601 Blake Street, #300 Denver, CO 80202 (303) 825-2222 Susan L. Foreman 1660 Wynkoop Street, Ste 810 Denver, Colorado 80202 (303) 825-3050 CERTIFICATE OF SERVICE

I hereby certify that on this 19th day of September, 2006 a true and correct copy of the above, WILLIAM SABLAN'S POSITION PAPER RE: STATUS CONFERENCE ON SEPTEMBER 20, 2006 was filed with the

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Clerk of the Court using the CM/ECF system and was served via electronic mail to the following: Brenda Taylor ([email protected]) Phil Brimmer ([email protected]) /s/ Jennifer J. Feldman

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