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Richard M. Gilman, et al v. Arnold Schwarzenegger

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


April 8, 2011

RICHARD M. GILMAN, ET AL.,
PLAINTIFFS,
v.
ARNOLD SCHWARZENEGGER, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Judge: Hon. Lawrence K. Karlton

DANIEL J. BRODERICK, CSB #89424 Federal Defender MONICA KNOX, CSB #84555 DAVID M. PORTER, CSB #127024 Assistant Federal Defenders 801 I Street, 3rd Floor Sacramento, CA 95814 Telephone: (916) 498-5700 monica_knox@fd.org david_porter@fd.org CARTER C. WHITE, CSB # 164149 U.C. Davis Civil Rights Clinic One Shields Avenue, Building TB-30 Davis, CA 95616-8821 Telephone: (530) 752-5440 ccwhite@ucdavis.edu Attorneys for Plaintiffs RICHARD M. GILMAN, et al.

PLAINTIFFS' MOTION TO ADMIT EXHIBITS, ORDER

The following exhibits were referenced during the April 6, 2011 evidentiary hearing in this case, but were not moved into evidence: Exhibits 43-48 and 59. In addition, Exhibits 63-64, although admitted, have been expanded as outlined below and need to be readmitted. Defendants' counsel has been contacted and stated they have no objections to this motion. All of these exhibits, as well as the other exhibits introduced during the hearing, have been copied onto discs and provided to the court and to counsel.

Exhibits 43-48

These exhibits concern the following examples of prisoner requests to advance: James Alexander, Na Her, Joel Kyne, Daniel Rees, Frank Salas, and Edward Sanders. At the evidentiary hearing, the only marked exhibits were one page summaries of information about various aspects of each prisoner's parole suitability history. Witness Monica Knox testified about all the relevant portions of these summaries; therefore, plaintiffs are not seeking to move these one page summaries into evidence. Instead, plaintiffs have copied packets of the materials referenced by Ms. Knox as to each prisoner and move this court to permit these packets to be introduced as evidence. These packets contain information derived either from discovery, the Rutherford database, public records, or parole suitability hearing transcripts. The packets have been disclosed to counsel. The exhibit numbers assigned to each packet would be the same number assigned to the one page summaries: James Alexander (#43), Na Her (#44), Joel Kyne (#45), Daniel Rees (#46), Frank Salas (# 47), and Edward Sanders (#48).

Each of these packets contains the prisoner's request to advance a hearing, along with any supporting documentation. This information is identified as confidential and subject to the protective order in this case. However, the packets would be incomplete if part of them was removed and separately sealed. In addition, the pages marked confidential in these packets have already been ordered sealed by this court; these are mere copies of those pages containing information already referenced during the hearing and that are being disclosed solely to the court and counsel. An additional sealing order is not required.

Exhibit 59

This exhibit is the "Road to Release" summary chart that was also blown up onto a static chart. At the time it was first referenced in court, it was used for demonstrative purposes, as Ms. Knox's explanatory testimony had not occurred. After Ms. Knox completed her testimony as to the information summarized on this chart, Plaintiff's counsel neglected to move this exhibit into evidence under Federal Rule of Evidence 1006 (Summary Evidence). In order to have a complete record of all the evidence reviewed at the hearing, plaintiffs move for the admission of Exhibit 59. See United States v. Gardner, 611 F. 2d 770, 776 (9th Cir. 1980)(within discretion of court to admit chart initially employed as testimonial aid by witness subject to cross examination as to information on chart).

Exhibits 63, 64

These exhibits concern the parole suitability histories of Henry Bratton and Billy Counts. The summaries of these histories have been admitted into evidence. As indicated at the hearing, however, plaintiffs have now copied the packet of materials from which these summaries were drawn and move to admit these packets as part of each exhibit. The packet involving Henry Bratton would be added to exhibit 63 and the packet involving Billy Counts would be added to exhibit 64.

Each of these packets contains the prisoner's request to advance a hearing, along with any supporting documentation. This information is identified as confidential and subject to the protective order in this case. However, the packets would be incomplete if part of them was removed and separately sealed. In addition, the pages marked confidential in these packets have already been ordered sealed by this court; these are mere copies of that information that contain information already referenced during the hearing and that are being disclosed solely to the court and counsel. An additional sealing order is not required.

Dated: April 8, 2011

Respectfully submitted,

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

RICHARD M. GILMAN, et al., Plaintiffs, v. ARNOLD SCHWARZENEGGER, et ) al., Defendants.

No. Civ. S 05-830 LKK GGH

ORDER

The evidentiary hearing concerning Plaintiffs' ex post facto claim was conducted on April 6, 2011. After conclusion of this hearing, plaintiffs moved to admit or amend exhibits referenced during this hearing. This motion is hereby granted as to the following exhibits:

1. The summaries previously identified as exhibits 43-48 shall not be admitted. The packets of parole suitability information are admitted and assigned the following exhibit numbers: James Alexander (#43), Na Her (#44), Joel Kyne (#45), Daniel Rees (#46), Frank Salas (# 47), and Edward Sanders (#48);

2. Plaintiffs' summary chart identified as exhibit #59 is admitted; 3. The parole suitability packet involving Henry Bratton shall be added to exhibit 63 and the packet involving Billy Counts shall be added to exhibit 64.

IT IS SO ORDERED.

20110408

© 1992-2011 VersusLaw Inc.



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