Free Motion for Miscellaneous Relief - District Court of Colorado - Colorado

Case 1:00-cr-00481-WYD

Document 1688

Filed 06/28/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Case No. 00-cr-00481-WYD UNITED STATES OF AMERICA, Plaintiff, v. ROD SCHULTZ, Defendant.

MOTION FOR LEAVE TO INTERVIEW TRIAL JURORS and TO STAY THE PROCEEDINGS UNTIL SUCH INTERVIEWS CAN BE COMPLETED

COMES NOW Rod Schultz, by counsel, moves for leave to interview the trial jurors, and in support thereof states as follows: 1. Local Rule 47.1-Criminal Rules reads: " o a y r t re sa communicate with, or cause another to communicate with, N pr o aony hl t t l a juror or prospective juror before, during, or after the trial without written authority s nd yh j iaof etw o t cs ias nd o ta" i e b t u c l fcro hm h aes s ge frr l g e di i e i i. 2. Before dismissing the jury at the end of the trial this court stated: "t m dc i it s ae o t gatuh rt at ry Wh h en,y I y eio n h cs nto r sc w ie u oi . i m asb ' s sn i n tn h t c operation the rule, that no party, no party's attorney, or any party representing one of the parties can contact you about any aspect of your service is jurors in this case. If anyone does contact you, then you should be immediaty o f m ca br" e nty y hm e . l i s Trl.Tr., Day 43, page 7296 3. The defense requests the court to revisit this ruling, and to grant permission allowing the defense to contact the trial jurors, for the reasons stated below;

Case 1:00-cr-00481-WYD

Document 1688

Filed 06/28/2007

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4. The government begins its responsive pleading by trying to shape the issue before the court concerning the failure of Schultz' counsel to contact and/or present trial evidence from the alleged victim, Pedro Castillo,y ru g t r in b a i " e so gn he reasonable probability that Castillo's testimony would alter the outcome of the ta" rl i. 5. Wh eh gvrm n de a u df s cusl f l to contact Pedro i t oe et os r e e ne one sau l e n g e ' i re Castillo was a matter of trial strategy, and not lack of effective assistance of counsel even though the alleged victim would have testified Schultz did not beat h , e i o t gvrm n s ru etsh scn e m nst ui i t g t fh oe et a m nit eod l eteotn m h s e n ' g e e United States v. Taylor, 454 F.3d 1075, 1079 (10th Cir. 2006), as quoted by in the r pnet tt ria esnb poaitt t u frone s e os, a" e s r oal rbb i h , to cusl s h he a e ly a b ' upoes nlr r t r u o t poed g w u hv be d f et nrf i ae os h e l fh rcei s ol ae en ie n" so r , e st e n d fr . In short, the government simply argues the jury would not have been persuaded by Castioset oy S c a u et appears desperate. See paragraph 8; l 't i n. uh r m n l sm g 6. To support such argument the government relies almost entirely on the trial court's order denying Schultz' motion for new trial, wherein the court identified three inconsistencies in Castillo's t etad p e " s te n n oi d Given the am s n inconsistencies, even in Castillo's own statements, I find that an acquittal would not probably result from Castillo's t et" s te n . am s 7. The issue of a witness' credibility, including the inconsistencies referred to by the trial court in its finding, are clearly matters in the province of the jury and not the court. This is most clear from the court's instructions to the jury at the trial. The court instructed the jury:

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" Instruction number 13. You, as jurors, are the sole and exclusive judges of the credibility of each of the witnesses called to testify in this case. And only you determine the importance or the weight that their testimony deserves." Trl.Tr., Day 32, page 6886 (emphasis added) Earlier that same day the court had read Instruction no. 5 to the jury which ep i d" h ei nen h cs consists of the sworn testimony of the xln T e v ec i t ae ae d e wt s s Trl.Tr., page 6881 Iedd htnt co b s t g" o' t i es ..." n e tne t i r t n y ti :Y ur o a su i an e base your verdict only on the evidence received n h cs..."Trl.Tr., page 6883 i t ae e And later ended Int co n.2 so o s" o a t slj gs fh sut n o1 a fl w :Y u r h o u e o t r i l e e e d e ei ne ee e it s ae Trl.Tr., page 6886 v ec r i dn h cs. d cv i " 8. During the testimony of government witness George Bess the court considered an objection b poeu r dn b s t g" y rsct Myas y ti :Again, it's up to the jury to decide if o an t riei ne r o ei ne Tl r D y 4pg 39. h es v ec o ntv ec. rT. a 1,ae 10 The following e d d " . , day, the court addressed the government's objection to the defense calling Ellis Lard to testify by finding the government had not presented any evidence that he was incompetent, and the defense had a right to call witnesses to disapprove the government's allegations. Trl.Tr., Day 15, page 3416 In short, the trial court rightfully ruled throughout the trial that the credibility of witnesses was solely up to the jury; 9. The importance and weight of the testimony that should have been received from Pedro Castillo cannot be overstated. The government charged that Rod Schultz beat Pedro Castillo (along with Correctional Officer Michael LaVallee). Castillo was not called as a witness at trial, and the jury found Schultz guilty of beating the inmate. The inmate was located many months after the trial, immediately stated Schultz had never struck or beat him. Instead, he stated Schultz had treated

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him quite well. He repeated those statements during his testimony at the hearing on the motion for new trial. It defies all reason, logic, commonsense, or any type of rational thought to suggest the testimony of the alleged victim denying the defendant had beat him as charged would not have been most convincing to the jury; 10. The defense requests leave of court to contact those who served on the petit jury ata tpoi t mwt cp s f atl s te ets tr l o rv eh i, d e i oi o C sl 's t n a reported by the h e io a m private investigator, the affidavit he signed for the government, and his testimony on October 4, 2004, and to ask whether there would have been a reasonable probability they would have acquitted Rod Schultz if Castillo had testified; 11. The responses of the trial jurors are most relevant and material to the second Taylor element for claims of ineffective assistance of counsel, which is the precise claim set forth in the pending motion, and the defense requests the proceedings on the pending motion be stayed until such interviews can be completed. WHEREFORE, for the above reasons the defense requests leave to contact the trial jurors to determine if there is a reasonable probability their verdicts regarding Rod Schultz would have been different if they had heard Pedro Castillo testify, and to stay the proceedings until such interviews are completed. Respectfully submitted,

s/ Neil MacFarlane_______________________ Neil MacFarlane 9975 Wadsworth Pkwy, K2-433 Westminster, CO. 80021

Case 1:00-cr-00481-WYD

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Filed 06/28/2007

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I hereby certify that on June 28, 2007 I electronically filed the foregoing with the clerk of court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Robert Mydans [email protected] and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants by mailing that same, postage prepaid, on June 28, 2007. Wan Kim, Jessica Dunsay Silver, and Karl Gellert U.S. Dept. of Justice Appellate Section-RFK 3728 Ben Franklin Station P.O. Box 14403 Washington, D.C. 20044-4403

s/ Neil MacFarlane_______________________