The undersigned held a hearing on June 16, 2010, on petitioner's motions in limine and for discovery. Tivon Schardl, Robert Bacon, and Joan Fisher appeared for petitioner. Paul Bernardino and Heather Gimle appeared for respondent. After considering the parties' briefs and the argument of counsel, and good cause appearing, the court finds and orders as follows.
At the beginning of the hearing, the court raised two issues. First, the court stated it would be appropriate to record by audiovisual as well as stenographic means the in-court portion of the evidentiary hearing, to preserve testimony. The parties did not oppose audiovisual recording. Second, the court stated it was willing to revise the scheduling order to permit both in-court and out-of-court testimony to be taken after the currently scheduled August 9, 2010 evidentiary hearing date. The parties informed the court they had already been attempting to reach agreement on a proposal for a new schedule, and they have agreed to vacate the August 9 hearing date. The court ordered the parties to inform Courtroom Deputy Matt Caspar by Friday, June 18, if they require a hearing on the proposed new schedule. That hearing could be set on the court's June 23 calendar. In addition, the parties were ordered to file any stipulated proposal for a new schedule, or a description of their disagreements, by June 21.
Petitioner requested the court address the discovery motion before ruling on the motion in limine. Because petitioner seeks information relevant to the question raised by the motion in limine of whether or not respondent had good cause to identify sixteen of his seventeen witnesses as "rebuttal" witnesses, the court agreed, with one exception. The court will defer ruling on the motion in limine and permit petitioner to supplement that motion after he completes discovery. The court expects the parties to include a date for supplementing the motion in limine in their scheduling proposal.
The one issue in the motion in limine that can be resolved now is the admissibility of respondent's witnesses who would testify only to petitioner's post-trial activities. These witnesses are Larry Casner, Gil Polanco, Don Stieper, Marie Rodesillas, Tim Boerum and Naomi Janowitz. Respondent argued that the testimony of these witnesses would be appropriate because petitioner's experts relied upon post-trial examinations, and possibly post-trial facts, to arrive at their conclusions. Respondent's counsel also stated that he intended to cross-examine petitioner's experts about whether certain post-trial factual information would change their conclusions. Then, presumably, if the experts stated that these facts would change their conclusions, respondent would put on witnesses to demonstrate those facts and then question his own expert about them. Even examining this issue in the light most favorable to respondent, this testimony is not admissible. Respondent has insisted that all his lay witnesses who are designated as "rebuttal" should be permitted to testify because they are only "rebuttal."
However, as the court described previously, the purpose of rebuttal witnesses is to contradict or impeach an opposing party's witness. The introduction of new facts regarding petitioner's past trial activities would not qualify as rebuttal. Further, petitioner's post-trial activities are not relevant because they would not have been available at trial. Respondent has not shown otherwise.
III. Methods For Taking Testimony
The court and counsel discussed briefly the methods for taking the testimony of expert witnesses. Because the court has not yet ruled on petitioner's motion to preclude the testimony of respondent's experts Dr. Dunn and Paulette Sutton, it is premature to determine the method for taking each expert witnesses' testimony.
Petitioner has filed a timely motion for leave to conduct discovery. Under Rule 6 of the Rules Governing Section 2254 Cases, a party may "invoke the process of discovery available under the Federal Rules of Civil Procedure if, and to the extent that, the judge in the case in the exercise of his discretion and for good cause shown grants leave to so do." Good cause exists "'where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is ... entitled to relief.'" Bracy v. Gramley, 520 U.S. 899, 908-09 (1997) (quoting Harris v. Nelson, 394 U.S. 286, 300 (1969)). When this showing has been made, "it is the duty of the court to provide the necessary facilities and procedures for an adequate inquiry." Id.
A. All Evidence the Prosecution Would Have Been Required to Produce Pursuant to Brady v. Maryland and State Discovery Laws
The first category of discovery petitioner seeks involves the evidence the prosecution would have been required to provide to the defense had the witnesses respondent has named here been called to testify at trial. Petitioner divides this discovery into five categories, discussed below.
1. All Evidence from Law Enforcement Agencies that Participated in the Investigation or Preparation of the Case that Could be Used to Support a Defense or a Sentence Less Than Death
The court finds good cause for discovery of this information. The parties appear to disagree over whether or not respondent should be required to produce documents in the possession of the Kitsap County Sheriff's Office. The court finds good cause for discovery of any documents in the possession of the Kitsap County Sheriff's Office that "could be used to support a defense or a sentence less than death" in this case. However, the court does not assume that respondent in this case has possession, custody or control of those documents. Petitioner may need to seek that discovery directly from the Kitsap County Sheriff's Office and is authorized to do so.
Respondent does not object to producing impeachment materials. The court finds good cause for petitioner to discover all evidence in the possession, custody, or control of the respondent and that is both material and favorable to the accused.
3. Recently Recorded Witness Statements or Reports of Statements
Petitioner argues that because respondent's witnesses could have been introduced at the penalty phase, petitioner is entitled to have the same discovery that the defense would have had at trial if those witnesses had testified, including the substance of statements recently recorded by respondent's counsel. Petitioner's request for discovery of the recorded statements and reports of statements relies on California Penal Code section 1054.1(f). It also is based, in part, on the "tight schedule" that was in place at the time petitioner's motion was filed, and the impossibility of conducting discovery depositions of the witnesses ...