Gilman v. Fisher, et al

Filing 336

ORDER signed by Senior Judge Lawrence K. Karlton on 4/8/11 ORDERING 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: Ja mes Alexander (#43), Na Her (#44), Joel Kyne (#45), Daniel Rees (#46), Frank Salas (# 47), and Edward Sanders (#48); pltfs summary chart identified as exhibit #59 is admitted; 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. (Carlos, K)

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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: [phone]
[e-mail]
[e-mail]
CARTER C. WHITE, CSB # 164149
U.C. Davis Civil Rights Clinic
One Shields Avenue, Building TB-30
Davis, CA 95616-8821
Telephone: [phone]
[e-mail]
Attorneys for Plaintiffs
RICHARD M. GILMAN, et al.

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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

No. Civ. S 05-830 LKK GGH
PLAINTIFFS’ MOTION TO ADMIT
EXHIBITS, ORDER

Judge: Hon. Lawrence K. Karlton

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The following exhibits were referenced during the April 6, 2011 evidentiary hearing

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in this case, but were not moved into evidence: Exhibits 43-48 and 59. In addition, Exhibits

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63-64, although admitted, have been expanded as outlined below and need to be readmitted.

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Defendants’ counsel has been contacted and stated they have no objections to this motion.

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All of these exhibits, as well as the other exhibits introduced during the hearing, have been

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copied onto discs and provided to the court and to counsel.

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/ /

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Exhibits 43-48

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These exhibits concern the following examples of prisoner requests to advance: James

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Alexander, Na Her, Joel Kyne, Daniel Rees, Frank Salas, and Edward Sanders. At the

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evidentiary hearing, the only marked exhibits were one page summaries of information about

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various aspects of each prisoner’s parole suitability history. Witness Monica Knox testified

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about all the relevant portions of these summaries; therefore, plaintiffs are not seeking to

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move these one page summaries into evidence. Instead, plaintiffs have copied packets of the

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materials referenced by Ms. Knox as to each prisoner and move this court to permit these

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packets to be introduced as evidence. These packets contain information derived either from

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discovery, the Rutherford database, public records, or parole suitability hearing transcripts.

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The packets have been disclosed to counsel. The exhibit numbers assigned to each packet

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would be the same number assigned to the one page summaries: James Alexander (#43), Na

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Her (#44), Joel Kyne (#45), Daniel Rees (#46), Frank Salas (# 47), and Edward Sanders (#48).

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Each of these packets contains the prisoner’s request to advance a hearing, along with

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any supporting documentation. This information is identified as confidential and subject to

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the protective order in this case. However, the packets would be incomplete if part of them

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was removed and separately sealed. In addition, the pages marked confidential in these

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packets have already been ordered sealed by this court; these are mere copies of those pages

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containing information already referenced during the hearing and that are being disclosed

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solely to the court and counsel. An additional sealing order is not required.

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Exhibit 59

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This exhibit is the “Road to Release” summary chart that was also blown up onto a

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static chart. At the time it was first referenced in court, it was used for demonstrative

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purposes, as Ms. Knox’s explanatory testimony had not occurred. After Ms. Knox completed

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her testimony as to the information summarized on this chart, Plaintiff’s counsel neglected

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to move this exhibit into evidence under Federal Rule of Evidence 1006 (Summary Evidence).

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In order to have a complete record of all the evidence reviewed at the hearing, plaintiffs move

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for the admission of Exhibit 59. See United States v. Gardner, 611 F. 2d 770, 776 (9th Cir.
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1980)(within discretion of court to admit chart initially employed as testimonial aid by

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witness subject to cross examination as to information on chart).

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Exhibits 63, 64

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These exhibits concern the parole suitability histories of Henry Bratton and Billy

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Counts. The summaries of these histories have been admitted into evidence. As indicated at

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the hearing, however, plaintiffs have now copied the packet of materials from which these

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summaries were drawn and move to admit these packets as part of each exhibit. The packet

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involving Henry Bratton would be added to exhibit 63 and the packet involving Billy Counts

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would be added to exhibit 64.

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Each of these packets contains the prisoner’s request to advance a hearing, along with

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any supporting documentation. This information is identified as confidential and subject to

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the protective order in this case. However, the packets would be incomplete if part of them

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was removed and separately sealed. In addition, the pages marked confidential in these

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packets have already been ordered sealed by this court; these are mere copies of that

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information that contain information already referenced during the hearing and that are being

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disclosed solely to the court and counsel. An additional sealing order is not required.

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Dated: April 8, 2011

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Respectfully submitted,

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/s/ Daniel J. Broderick
DANIEL J. BRODERICK
Federal Defender
MONICA KNOX
DAVID PORTER
Assistant Federal Defenders
CARTER WHITE
U.C. Davis Civil Rights Clinic
Attorneys for Plaintiffs
RICHARD M. GILMAN, et al.

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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)
) No. Civ. S 05-830 LKK GGH
Plaintiffs,
)
) ORDER
v.
)
)
ARNOLD SCHWARZENEGGER, et )
al.,
)
)
)
Defendants. )
)
_______________________________ )
RICHARD M. GILMAN, et al.,

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The evidentiary hearing concerning Plaintiffs’ ex post facto claim was conducted on

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April 6, 2011. After conclusion of this hearing, plaintiffs moved to admit or amend exhibits

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referenced during this hearing. This motion is hereby granted as to the following exhibits:

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1. The summaries previously identified as exhibits 43-48 shall not be admitted. The

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packets of parole suitability information are admitted and assigned the following exhibit

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numbers: James Alexander (#43), Na Her (#44), Joel Kyne (#45), Daniel Rees (#46), Frank

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Salas (# 47), and Edward Sanders (#48);

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2. Plaintiffs’ summary chart identified as exhibit #59 is admitted;

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3. The parole suitability packet involving Henry Bratton shall be added to exhibit 63

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and the packet involving Billy Counts shall be added to exhibit 64.
IT IS SO ORDERED.

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April 8, 2011

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