Gallegos, et al v. Stewart, et al

Filing 220

ORDER granting in part 209 Motion. See Order for further details. Signed by Senior Judge Neil V Wake on 10/19/20. (DXD)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Michael Gallegos,

10

Petitioner,

11

v.

12

No. CV-01-01909-PHX-NVW
ORDER

David Shinn, et al.,

13

DEATH PENALTY ORDER

Respondents.

14
15
16

Before the Court is Petitioner Michael Gallegos’s Motion to Present Testimony of

17

Expert Witnesses Via Video-Teleconferencing, filed October 1, 2020. (Doc. 209.) Citing

18

the COVID-19 pandemic, Gallegos asks the Court to permit his expert witnesses to testify

19

by video at the evidentiary hearing set for November 9, 2020. (Id.)

20

Gallegos asserts that Dr. Fassler, Dr. Reschly, and attorney Garrett Simpson “are

21

unable to travel or testify in-person at the evidentiary hearing due to health risks posed

22

by the ongoing pandemic.” (Id. at 6–7.) Gallegos indicates that Dr. Fassler “lives and

23

works with people in high risk categories” and that Dr. Reschly and Simpson are at risk

24

because of their age and Simpson’s high blood pressure. (Id.) Gallegos states that his

25

remaining expert witness, Dr. Heilbronner, is willing to travel to Arizona to testify in

26

person but would prefer to testify by video “if the current COVID-19 situation worsens.”

27

(Id. at 6.) Drs. Heilbronner, Fassler, and Reshly are located out of state; Heilbronner in

28

1

Illinois, Fassler in Vermont, and Reschly in Tennessee. (Id. at 6–7.) Respondents do not

2

oppose Gallegos’s request for video testimony. (Id. at 7.)

3

On October 15, 2020, the parties filed their Joint Proposed Prehearing Order. (Doc.

4

217.) The order contains the parties’ witness lists. (Id. at 29–38.) Gallegos’s list does

5

not include attorney Simpson. (Id.) Given Simpson’s absence from the witness list, the

6

Court assumes he will no longer be testifying at the evidentiary hearing.

7

Because of the stated risks from the COVID-19 pandemic, the Court will permit

8

Drs. Fassler and Reschly to testify via video-teleconference. Dr. Heilbronner, however,

9

will be required to testify in person. He is able and willing to travel. In addition, it is

10

now apparent that his testimony will be contested by Respondents’ expert, Dr. Boake,

11

who will testify in person. (See Doc. 212-1, Ex. 1 at 5, 7–10.) As the Court previously

12

indicated, “if the case turns on hotly disputed expert testimony, probing cross-

13

examination may be critical, which can be much more effective in live testimony.” (Doc.

14

199 at 7.)

15

Accordingly,

16

IT IS HEREBY ORDERED that Gallegos’s motion (Doc. 209) is granted in part

17
18

as follows:
1.

Drs. Fassler and Reschly will be permitted to testify via video-

19

teleconference. Gallegos’s counsel are directed to make the arrangements

20

for that testimony.

21

2.

Dr. Heilbronner will be required to testify in person.

22

3.

The motion is denied as moot with respect to attorney Simpson.

23

Dated this 19th day of October, 2020.

24
25
26
27
28

-2-