Gapen v. Bobby

Filing 131

DECISION AND ORDER - The Court finds that Petitioner has had adequate opportunity to examine Juror Nedostup on all of the material produced by him except the book. The Motion to Reopen is denied as to those materials but otherwise granted. Counsel shall consult with Judicial Assistant Kelly Kopf to arrange a time for the additional depositions. Signed by Magistrate Judge Michael R Merz on 4/6/2012. (kpf1)

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

This capital habeas corpus case is before the Court on Petitioner’s Motion to Reopen the
Juror Depositions (Doc. No. 125).
At the conclusion of the deposition of Juror David Nedostup on January 26, 2012, the
Magistrate Judge advised the parties that the Court would copy the book Mr. Nedostup had produced
pursuant to subpoena (RELATIVISM: FEET FIRMLY PLANTED IN MID-AIR), distribute copies to all
parties, and “Petitioner's counsel will let us know whether they wish to reconvene the deposition
based on their examination of the book.” (Deposition, Doc. No. 121, PageID 3036-3037.) The
instant Motion includes the advice that Petitioner’s counsel do wish to continue their questioning
of Juror Nedostup about the book, but that they also:
1.

Wish to question Juror Nedostup further about the other materials he produced pursuant to
subpoena,

2.

Wish to reopen the concluded depositions of Jurors Raymond Senter, Mattie Sue Flournoy,

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and Vickie Thompson on the issues presented by the Grounds for Relief on which Judge
Rice granted discovery after the January depositions, and
3.

Reserve the right to depose other jurors on the newly-added Grounds for Relief.
The Warden opposes reopening the Nedostup deposition, but concedes that the other

depositions sought are authorized by Judge Rice’s Order of March 6, 2012 (Doc. No. 122).
The Court finds that Petitioner has had adequate opportunity to examine Juror Nedostup on
all of the material produced by him except the book. The Motion to Reopen is denied as to those
materials but otherwise granted.
Counsel shall consult with Judicial Assistant Kelly Kopf to arrange a time for the additional
depositions.
April 6, 2012.
s/ Michael R. Merz
United States Magistrate Judge

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