Gapen v. Bobby

Filing 103

DECISION AND ORDER granting in part and denying in part 100 Warden's Motion for Appropriate Relief. Signed by Magistrate Judge Michael R Merz on 11/16/2011. (kje1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
LARRY GAPEN,
Petitioner,

:

- vs -

Case No. 3:08-cv-280
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

DAVID BOBBY, Warden,
Respondent.

:

DECISION AND ORDER GRANTING IN PART AND DENYING IN PART THE
WARDEN’S MOTION FOR APPROPRIATE RELIEF

This capital habeas corpus case is before the Court on the Warden’s Motion for Appropriate
Relief which requests that the depositions of the jurors and alternates permitted by Judge Rice’s
Order of October 31, 2011, be conducted in the presence and under the supervision of the Magistrate
Judge (Doc. No. 100). The Warden is concerned to have the boundary between inquiry about
outside research and the deliberative process enforced. He also notes that this will enable immediate
rulings on objections. Finally, he requests that the Court order that Juror Nedostup be deposed first.
Petitioner objects that there is no authority for the Court to order this relief (Memo in Opp.,
Doc. No. 102, PageID 1775). He insists that because he has been “granted authorization to conduct
certain discovery, Gapen may conduct the discovery he requested, in a manner limited by the
Federal Rules of Civil Procedure and the Court’s order granting the discovery.” Id. at PageID 1776.
In fact, he asserts, “Nothing in the Civil Rules allows one party to control the other party’s discovery
strategy through the Court, and to do so would be highly inappropriate.” Id. He claims all
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objections can be handled in the usual way of handling deposition objections, i.e., taking the answer
subject to the objection (except in the case of privilege objections).
The Warden’s request that the Court require that Juror Nedostup be deposed first is denied.
As Petitioner notes, there may be testimony from other jurors which would be relevant, regardless
of Juror Nedostup’s testimony. However, the Warden’s request that the depositions be conducted
in the presence of the Magistrate Judge is granted.
Judge Rice granted Petitioner “leave ... to depose the jurors and alternate jurors concerning
Nedostup’s outside research into the death penalty and his discussion of that research with his fellow
jurors.” Gapen v. Bobby, 2011 U.S. Dist. LEXIS 125778 *12 (S.D. Ohio Oct. 31, 2011). He was
careful, however, to preserve the shield around the jury’s deliberative process and specifically
overruled Petitioner’s Objections with respect to requested discovery related to subclaims (C) and
(D) of the Fourteenth Ground for Relief. Id. at *16.
In the Magistrate Judge’s opinion, preserving the line between external influences and the
deliberative process is important, delicate, and difficult. For that reason, it is well worth the
investment of judicial time in supervising the depositions so that immediate rulings can be made on
any potential invasion of the deliberative process. Given that several jurors were reportedly
reluctant to give affidavits, conducting the depositions in open court should also convey the
importance of giving the testimony as well as the neutrality of the setting in which it is to be given.
Fed. R. Civ. P. 30(b)(5) provides ample authority for the Court to designate the officer before
whom depositions will be taken. For these depositions, that will be the Magistrate Judge.
Counsel for both parties will consult with one another one available dates for depositions,
then consult with the Magistrate Judge’s Judicial Assistant, Kelly Kopf, to choose dates. Petitioner

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will be responsible for issuance and service of subpoenas for the jurors and alternate jurors.
November 16, 2011.
s/ Michael R. Merz
United States Magistrate Judge

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