Cary W. Williams v. E. K. McDaniel, et al (DEATH PENALTY)
Filing
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ORDER Granting 291 Stipulation to Continue. Evidentiary Hearing set for 5/16/2022 at 09:00 AM in LV Courtroom 6C before Judge Andrew P. Gordon. Signed by Judge Andrew P. Gordon on 10/1/2021. (Copies have been distributed pursuant to the NEF - JQC)
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Rene L. Valladares
Federal Public Defender
Nevada Bar No. 11479
*Randolph M. Fiedler
Assistant Federal Public Defender
Nevada Bar No. 12577
Randolph_Fiedler@fd.org
Heather Fraley
Assistant Federal Public Defender
Texas Bar No. 24050621
Heather_Fraley@fd.org
Brad D. Levenson
Assistant Federal Public Defender
California Bar No. 166073
Brad_Levenson@fd.org
411 E. Bonneville Ave., Ste. 250
Las Vegas, NV 89101
(702) 388-6577
(702) 388-5819 (fax)
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*Attorney for Petitioner
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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
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Cary Williams,
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Petitioner,
v.
William Gittere, et al.,
Respondents.
Case No. 2:98-cv-00056-APG-VCF
Stipulation and Proposed
Scheduling Order to Continue
Proceedings 90 days
DEATH PENALTY CASE.
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In January of this year, the parties filed a Joint Notice Re Evidentiary
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Hearing Scheduling, pursuant to this Court’s Order instructing the parties to confer
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regarding a number of issues related to the evidentiary hearing in this case. 1 In
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light of that joint notice, this Court scheduled the hearing for January 24, 2022, and
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also scheduled deadlines to correspond with that hearing date. 2
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IT IS HEREBY STIPULATE AND AGREED that:
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1.
Last week, the parties conferred because counsel for Cary Williams
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needed to request an additional two weeks for the First Expert Disclosure. 3 During
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that conference, counsel for Mr. Williams also made the State aware of ongoing
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concerns related to witness safety and the pandemic. As the Court is undoubtedly
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aware, the COVID-19 pandemic continues to pose challenges, and this summer has
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presented a spike in new cases. 4 A number of Mr. Williams’s witnesses are older or
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have medical conditions.
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2.
At the time the parties conferred and asked for a late-2021 hearing
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date, the parties believed the pandemic would be mostly under control (as reported
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by news organizations) and, thus, travel, lodging, and participating in the hearing
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would be safe for all. However, the parties are concerned about the risk posed to
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witnesses (both lay and expert) as well as court staff and attorneys, in holding the
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hearing in January.
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See ECF Nos. 287, 286.
ECF No. 288.
3 See ECF No. 288 at 1 (parties to disclose experts on Oct. 5, 2021).
4 See Coronavirues in Nevada: Latest COVID-19 case counts, maps and
graphs, The Nev. Independent (last updated Sept. 29, 2021).
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3.
The parties wish to emphasize that, in the time since this Court issued
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the scheduling order in this case, the parties have been active in preparing for the
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hearing. However, the pandemic has posed challenges. For example, one of Mr.
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Williams’s experts had to delay a trip to see Mr. Williams because Ely State Prison
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had a COVID-related lockdown. Though meeting with witnesses has been possible,
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precautions related to the pandemic have made it more difficult to schedule these
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meetings and to conduct travel for them.
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4.
In addition to pandemic-related concerns, counsel for Respondents
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experienced increased workloads over the past year due to division changes,
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internal transfers, and related training responsibilities, as well as increased
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coverage responsibilities due to multiple colleagues’ planned and unplanned
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medical leave. Unfortunately, Respondents’ counsel were unable to anticipate these
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changes when the parties entered into the original agreement. Circumstances have
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since stabilized, but the impact on time has been significant, and Respondents’
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counsel support the 90-day continuance.
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Additionally, Ms. Fraley and Mr. Finlayson will have oral argument
before the Ninth Circuit in February of 2021.
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The parties hope that 90-days will be sufficient because the number of
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vaccinated individuals and mandates continue to rise, and hopefully will correlate
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with a downward trend in COVID-19 infections. The parties agree that 90-days will
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be sufficient to address any non-pandemic related concerns. Thus the parties agreed
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to request a continuance of the hearing—and the related deadlines—for ninety (90)
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days.
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The parties ask this Court to modify its previous order and adopt the
following schedule for this evidentiary hearing. 5
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(a) The evidentiary hearing will take place in May 2022. 6
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(b) The first disclosure of experts will occur on January 3, 2022.
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(c) The second disclosure of experts will occur on January 17, 2022.
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(d) Mr. Williams’s pre-hearing brief will be due on February 14, 2022.
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The State’s responsive pre-hearing brief will be due on February 28,
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2022. Mr. Williams’s reply will be due on March 7, 2022.
(e) The witness lists and exhibits list will be due on March 10, 2022.
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(f) Pre-hearing motions will be due on March 17, 2022. Any
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oppositions or replies will be governed by LR 7-2(b).
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(g) No later than five days before the hearing begins, the parties will
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mark and submit exhibits.
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If this Court declines to adopt this stipulated schedule, counsel for Mr.
Williams requests a 2-week extension for the First Disclosure of Experts, and the
adjustments necessary to the scheduling order to accommodate that 2-week
extension. The State does not oppose this request. If this Court denies the request
for a 90-day continuance, the parties can confer and propose a new scheduling order
to accommodate the 2-week extension for the First Disclosure of Experts, while
maintaining the January 25, 2022 hearing date.
6 Ninety days from January 25, 2022 is April 25, 2022. However, counsel for
Mr. Williams has determined that there are too many scheduling conflicts with
witnesses for that week.
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(h) The parties will continue to file status reports at three-month
intervals, consistent with the January 14, 2021 order.
Dated this 30th day of September, 2021.
Rene L. Valladares
Federal Public Defender
Aaron Ford
Attorney General of Nevada
/s/ Randolph M. Fiedler
/s/ Jessica Perlick
/s/ Heather Fraley
/s/ Charles L. Finlayson
Randolph M. Fiedler
Assistant Federal Public Defender
Jessica Perlick
Senior Deputy Attorney General
Heather Fraley
Assistant Federal Public Defender
Charles L. Finlayson
Senior Deputy Attorney General
/s/ Brad Levenson
Brad Levenson
Assistant Federal Public Defender
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ORDER
The parties have submitted a stipulation requesting this Court extend by 90
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days all deadlines in this case and re-scheduling the hearing to May 2022. Based on
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this stipulation and for good cause shown, it is hereby ordered that the following
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schedule will govern the evidentiary hearing.
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The Evidentiary Hearing
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The evidentiary hearing will commence on May 16, 2022, at 9:00 a.m., in
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Las Vegas courtroom 6C.
First Disclosure of Experts
By January 3, 2022, the parties will disclose to each other the names of any
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experts who will testify, accompanied by a written report for each expert in
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compliance with Fed. R. Civ. P. 26(a)(2)(B). Such disclosure will be made by email
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or other informal means. The parties need not file formal notices.
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Second Disclosure of Experts
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By January 17, 2022, the parties will disclose to each other the names of
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any rebuttal experts, accompanied by a written report for each expert in compliance
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with Fed. R. Civ. P. 26(a)(2)(B). Such disclosure will be made by email or other
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informal means. The parties need not file formal notices.
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Pre-Hearing Briefs
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Williams will submit a pre-hearing brief by February 14, 2022. The
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respondents will file a responsive pre-hearing brief by February 28, 2022.
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Williams may file a reply to the respondents’ brief by Mar. 7, 2022.
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Witness List and Exhibit List
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The parties will file witness lists and exhibit lists no later than March 10,
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2022. The parties will file a joint exhibit list, identifying the exhibits they agree are
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admissible. The parties will file separate lists of exhibits that the parties do not
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agree are admissible.
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Pre-Hearing Motions
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The parties will file any pre-hearing motions by March 17, 2022. The
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schedule for the briefing of such motions will be as set forth in Local Rule 7-2(b).
Marking and Submission of Exhibits
The parties are to contact Melissa Johansen, at 702-464-5415, no less than
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five calendar days before the evidentiary hearing to arrange to mark and submit
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exhibits.
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Status Reports
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The parties will continue to file, at three-month intervals and continuing
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until the hearing, joint status reports regarding the feasibility of adhering to this
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scheduling order in light of the COVID-19 pandemic, consistent with this Court’s
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January 14, 2022 order. See ECF No. 288 at 2.
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1st
October
Dated this ______ day of __________________, 2021.
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ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE
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