The opinion of the court was delivered by: Judge: Honorable Oliver W. Wanger
ORDER BASED UPON DISCOVERY HEARING HELD ON NOVEMBER 2, 2010
DEATH PENALTY CASE Order Based Upon Discovery US v. Sablan, No. 1:08-cr-00259-0WW Hearing Held on November 2, 2010 1 THIS MATTER, coming on to be heard upon the discovery motions (Doc. No. 197, 198, 218, 253, 280) filed by the Defendants, Joseph Cabrera Sablan and James Leon Guerrero, and the responses (Doc. No. 204) filed by the government, and the Court having reviewed all of the above-stated documents and having heard argument by the parties on all issues raised by said documents FINDS as follows:
1. That for purpose of a clear record all parties and the Court need a way to notify all other parties in this case of the general name of all documents filed under seal and the corresponding document number.
2. That the parties met and agreed to modify certain requests for documents that have been made by the defendants. That the attorneys for the Bureau of Prisons (BOP) have diligently searched for documents responsive to each such request. As detailed extensively at the hearing, some documents were located by the BOP and turned over to the Office of the United States Attorney for production to the defendants. Other attempts failed to find any new documents responsive to a particular request.
The details as to each specific request were stated by the parties and the Court on the record, and the Court adopts as findings as to each particular request the statements made by the Court in the transcript of the hearing. These findings made by the Court with regard to discovery and as stated in the transcript may be relied upon by the parties as matters progress in this case.
The Court also determined that, from the date of this hearing going forward, January 1, 2005 to January 31, 2009 constitute the relevant discovery dates. (Transcript from Discovery Motions Hearing on November 2, 2010 hereinafter "Transcript", p. 70, line 4-7)
3. That with regard to particular requests that remained in dispute as the hearing progressed, the Court FINDS as follows:
a. All notes, emails, recordings, or documents concerning conversations between BOP Director Harley Lappin and Regional Director McFadden concerning the October 2007 hostage incident at USP Atwater, and the Rivera Homicide of June 2008. (Doc. No. 280 Items 2(H) & (I)).
Order Based Upon Discovery US v. Sablan, No. 1:08-cr-00259-0WW Hearing Held on November 2, 2010 2 The BOP represents that every "document" reflecting this incident has been provided. However, with regard to emails that may have been generated as requested in the specific discovery requests, the BOP attorney has represented that he is unsure of the retention policy for the BOP and therefore is unsure of whether the e-mails, as requested, still exist and can therefore be produced.
b. Records of allegations of misconduct by institution executive staff at Atwater from January 1, 2005 through November 4, 2009, and Office of Internal Affairs documents from January 1, 2005 through March 3, 2009 concerning sustained staff misconduct or violations of security practices or procedures, or any other documents that concern allegations of misconduct by any and all staff. (Doc. No. 280, Items 2(M) & (Y)).
Counsel for Mr. Sablan agreed to provide to BOP attorneys a list focused on misconduct that has conceivable relation to the events of the case, from a list previously provided to counsel by BOP attorneys. Counsel is to provide this to BOP attorneys within 7 days from the date of this hearing.
c. Correctional Services Program Reviews from USP Atwater (Doc. No. 204, para 19).
Documents responsive to this request were provided to the AUSA to be delivered to the defendants. However, Mr. Ayotte stated that he would continue looking for further responsive information and would supplement this response in the future if it is discovered.
d. Disciplinary hearing concerning BOP employees in connection with the incident in Unit 5A on June 20, 2008 (Doc. No. 204, para 26).
The Court finds that all documents that require an in-camera review under Henthorn must be delivered to the Court for review, with notice to the defendants, at least 30 days prior to trial.
e. Institutional Duty Officers Reports at USP Atwater from January 1, 2005 through June 20, ...