IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
August 19, 2008
JERRY GRANT FRYE, PETITIONER,
WARDEN, SAN QUENTIN STATE PRISON, RESPONDENT.
DEATH PENALTY CASE ORDER GRANTING PETITIONER'S MOTION TO PRESENT WITNESS TESTIMONY BY DEPOSITION
Petitioner has filed a motion seeking leave to take the deposition of a witness, Shelby Fairfield, and seeking to use the deposition in lieu of live testimony at the evidentiary hearing. Petitioner has indicated the deposition will be taken by audiovisual as well as stenographic means. Petitioner also moves the Court to hold open the evidence on Claim 42 so that his expert can respond to Ms. Fairfield's testimony in the event she testifies to information not included in her prior declarations or discovery.
"On application for a writ of habeas corpus evidence may be taken orally or by deposition . . . ." 28 U.S.C. § 2246. The rules authorize the use of depositions in lieu of live testimony when "the witness is unable to attend or testify because of age, illness, [or] infirmity." Fed. R. Civ. P. 32(a)(3)(B) & (C). Petitioner supported his motion with a declaration showing that the witness is unable to attend an evidentiary hearing due to illness or infirmity.
The Court finds that Petitioner made reasonable efforts to secure the testimony of Ms. Fairfield and to schedule his expert's testimony to follow that of Ms. Fairfield. Due to Ms. Fairfield's recently revealed unavailability, the Court will permit Petitioner to submit additional testimony of his expert in declaration form following the presentation of Ms. Fairfield's testimony by deposition.
In light of this showing, and without opposition from respondent, IT IS HEREBY ORDERED that the motion is GRANTED. Petitioner shall take Ms. Fairfield's deposition on August 20, 2008. The deposition shall be recorded by audiovisual and stenographic means.
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