copy from main thread -
I've typed up the relevant part of yesterday's proceedings pertaining to discovery and the judge's ruling (accuracy subject to my hearing - it may contain mistakes) -
Judge Boyce (JB) : Mr Prior I’ll note you don’t have a pending motion to compel. The prosecutor obviously has an ongoing duty to make disclosures for discovery requests in this case, but in terms of you requesting a specific order you’ve got to get a motion filed and a hearing if you want that from the court. I know you have an interest in discovery disclosures like Mr Means but I’m not making any order specific to Mr Daybell today, because there’s no pending motion.
JP: Judge I’m not asking for Mr Daybell, I’m asking it in terms of Mr Means because if Mr Wood provides it to Mr Means he also has to provide it to me. And, and, and, and, and I’m seeking the same information. My hope is that he would have come by way of of, of, of discovery that he was using it under his obligation but at this point we’re not gonna get that stuff unless the court fashions an order in the Vallow portion, so I’m asking on behalf of Mr Means, well I guess not on behalf of Mr Means, Mr Means can speak for himself, but that order needs to be narrowly tailored to direct Mr Wood to do this and Judge we are going to be revisiting this issue in the future, in the short future, regarding more discovery.
JB: Alright. Mr Wood I’ll allow any comment or response to that argument made by Mr Prior, if you’d like.
RW: Well I’d certainly disagree with him that it’s ‘my version of relevance that counts’ or that I said that in a letter. Um I find it odd, we made, what I believe he’s referring to, is a Brady disclosure and said the report will be coming and sent that report, he sent me a letter saying what about audio visual, and I said we’ll look for it and send it, and so this idea that the state’s withholding evidence from Mr Prior or Mr Means I think is ridiculous, it’s repugnant, it’s not grounded in fact. I’ll leave that at that.
JB: Alright thank you Mr Wood. Well I have considered this motion to compel. There’s been briefs filed on both sides, as well as the request for discovery that was filed on December 17th. The state did file an objection. The objection was not filed timely. The court has discretion under Rule 16 as to consider whether or not the objections are waived or whether sanctions should be imposed. In criminal cases often times unfortunately there are delays. I don’t find any grounds at all to consider sanctions, since we do have requests and we’re here at the hearing. Typically sanctions are ordered when you’re saying ‘here, all this time’s passed and there’s still been nothing provided’. There are however some concerns about the objections. I would note those weren’t filed timely and to the extent a discovery request would be beyond the scope of what’s allowed under Rule 16, the court wouldn’t order it whether it was objected to or not, because 16 just provides the parameters for what’s involved in a response to discovery and what needs to be provided. If it’s too broad or if it’s overly burdensome or if it’s not reasonably calculated to lead to discoverable or relevant evidence then the court’s not going to impose that burden on someone to have to provide that, even if they failed to timely object. So, in looking at this motion to compel I will grant the motion in terms of requiring that the state provide a response, to the question as to whether or not the prosecution has discussed the case with those persons identified in the list that starts on line 16 on page 2 of the discovery request. I’m gonna make an exception and not require a response to parts 25, 26 and 27 of the list, as I find those are too broad, and not reasonably calculated to lead to discoverable evidence, or relevant evidence, for purposes of the defense in this case. In terms of the other persons I think those do clearly fall under a response required under rule 16-B-6 which again states that prosecuting attorney must furnish statements made by prosecution witnesses or prospective witnesses to the prosecuting attorney, or the prosecuting attorney’s agents. So, in this response Mr Wood I’m not requiring you to divulge any work product - that would not be your hand-written notes. If there are any written statements you received from any of these people that are identified as witnesses or potential witnesses those would need to be provided, and if you did talk to them and they provided any information in terms of statements regarding relevant facts of the case then I would require you to provide a summary of what those statements were as they relate to the case. So Mr Wood what would be a reasonable time for you to make that disclosure to the defense?
RW: I’d say 14 days your honor.
JB: Alright, I’ll allow that. 14 day timeframe to respond to that and essentially Mr Wood a summary of whether or not you met with those people and whether they told you anything of relevance about the case, or the state’s agents. I think that is discoverable under 16-B. So that’ll be my ruling on the motion to compel. [….] Mr Means I would ask you prepare a [?] for the court to sign in accordance with my ruling today.
MM: Will do your honor.
RW: Your honor if it’s possible we’d like to see the order before it’s signed.
JB: Alright if you’d provide a courtesy copy of that first to Mr Wood. And why don’t you put a signature line on for Mr Wood to approve. If you can’t agree on the terms of the order I’ll be back to look at the record of what I said and either modify the order or just receive it by Mr Means.
MM: I can do that your honor.
RW: Thank you.
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This was the
discovery request and items 25, 26 and 27 (excluded from the order) were -
25. persons associated with the group entitled "Preparing a People"
26. persons associated with the Avow website
27. Any and all person(s) subject to description above.
