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"Having studied the memoranda supporting and opposing Defendant's 'Motion to Dismiss for Statute of Limitations,' the Court finds it necessary to require the parties to submit supplemental memoranda to clarify the facts before the Court for the following reasons:I'm not sure entirely what Judge Beacham wants of Allen, though perhaps someone could enlighten me. How is it that you deny an event with evidence that the accuser can only give a "range" of times as candidates for the date the offense took place?
1. Defendant's original memorandum contains fact statements in 23 paragraphs and subparagraphs, many of which contain multiple sentences. Many of those statements are made without reference to any evidentiary source."
2. "Plaintiff's opposing memorandum contains statements of fact in five paragraphs and Attachment A, for which some sources are cited but not provided to the Court. For example, Plaintiff refers repeatedly to a trial transcript as '9/19 Tr/.,' followed by numbers, but the transcript pages have not been provided to the Court. In addition, Attachment A contains references to unexplained 'facts,' such as 'the incident at the park' which is not otherwise explained."Frankly, I have seen a lot of what appears to be "classroom" cheating in these cases, such as getting to look at someone else's paper. It would seem to me that Elissa wants Allen to be specific, before she is. Understandably, if I were Allen, the accused, I'd want to see specific dates and times before I started trying to prove I wasn't in town every day of the week, except for Thursday, and then suddenly, Elissa has a "recollection" that the "crime" occurred on May 10th, 2001. She's the accuser, let her pony up with some specifics.
3. "Both parties have also referred to additional facts within their legal arguments, some of which are not supported by any evidentiary source before the Court."Both parties" really means "one party." That one party being Elissa Wall/the Prosecution (or "it"). Essentially Ms. Wall cannot remember exactly what happened, and not surprisingly, Mr. Steed cannot remember specifics to counter such a vague recollection on her part. If Elissa cannot remember with clarity, in essence, Judge Beacham has enough to rule already. Namely, enough to rule that the Statute has expired, otherwise he'd rule that her vague set of dates falls within the statute and that her vague recollections surrounding the rape represent a "preponderance of evidence," sufficient to bring charges, but not sufficient to determine guilt. At trial, the standard would be "beyond a reasonable doubt." Judge Beacham has stated clearly that as yet, Ms. Wall's accusation, is not believable.
Although the Court has attempted to analyze the statue of limitations issue on the basis of the facts as they have been presented, the Court's analysis has been hampered by insufficient clarity in the facts as presented. For example, the memoranda disagree as to when the alleged rape took place, a fact critical to the statute of limitations issue."
"Defendant asserts that 'Mr. Steed is accused of only one count of rape which is alleged to have been committed more than 4 years before the legislative extension took effect on May 2, 2005.' [Defendant's Memorandum, p. 10, emphasis in the original.] Plaintiff states that it intends to proceed on 'the first time Mr. Steed had sexual intercourse with Elissa Wall' and asserts that 'the first act of sexual intercourse occurred before May 12, 2001 but no earlier than May 4, 2001.'* [Plaintiff's memorandum, p.2.]I can't be sure what is being said here, other than one set of facts say the "crime" may have occurred in April 2001, as early as the 14th, and another range of dates says it may have occurred between May 2nd, 2001 and May 12th, 2001. The legislative extension on reporting, passed on May 2nd 2005. If I understand this right, a "rape" date of April 14th, 2001-May 1st, 2001 (remember there is only one count) puts the "crime" outside the reporting dates for the "extended" statute. Crimes occurring 4 years prior to the "extension" are taken in by the "extension." Crimes more than 4 years prior, are not.
* (The Information alleges that the crime was committed "between April 14, 2001 and September 30, 2004.)
"The court is required to determine by a preponderance of evidence whether this prosecution is barred. Utah Code Ann. § 76-1-306. Consequently, the Court must be able to weigh the evidence, and that requires greater clarity than what has been provided to this point in time.**And so the Judge begs off and says "I don't know your prior case and you haven't made one here, go back and make one." Elissa.
Ideally the parties would present a stipulated set of facts , set forth in chronological order. If that is not possible in this case, the Court will require that each party submit his/its comprehensive statement of facts, in chronological order and with citations to evidentiary sources."
** (I suspect that one reason for this is the parties' familiarity with the history of and the testimony given in State v. Jeffs, of which this Court has virtually no knowledge.)
"Accordingly it is hereby ORDERED:No doubt some will crow that Allen's motion has been "thrown out." What I see is that unless a trial date is now set, this is a big and infinite stall. Personally, if I were Allen, I wouldn't file my set of facts, until I knew Elissa had filed hers. I'd be afraid she'd look over my shoulder, and cheat off my paper.
A. Each party shall submit a supplemental memorandum containing only his/its comprehensive statement of facts related to the statute of limitations issue, in chronological order and with citations to evidentiary sources.
B. Each party shall also submit documentation of the evidentiary source cited for each statement of fact.
C. When each party has submitted the required statement of facts and documentation, one of them shall file a request to submit for decision.
D. Defendant's Motion will no longer be under advisement until the Court receives the supplemental memoranda, documentation and request to submit in compliance with this order.
DATED this 26 day of March, 2010.
JUDGE G. RAND BEACHAM"
The Mohave Daily News - "(Matt) Smith also said there are remaining interviews, including an interview next week with Lamont Barlow, the current husband of one of the two alleged victims in Jeffs’ Arizona criminal case."That would seem to mean the first or second week in April (this week includes part of April, by Thursday, April 8th, it will be the second week in April.) We may not learn anything about what transpires at the interview until about "tax day."
"We are excited about announcing the first Temple Christmas Classic Golf Tournament! For the golf tournament to be a success, we need YOU! If you would like to golf in it…this is YOUR invitation. If you cannot golf but would like to sponsor a golfer or give a donation to the Gideon 300 Scholarship Fund…this is YOUR opportunity.Apparently, they're putting a man with alleged difficulties when it comes to keeping his hand out of the till, in charge of collecting "sponsorships" for a Golf Tournament. For a school.
Last year 200 Christian schools closed their doors. TCS is the ONLY Christian high school in the Titusville area. Help us keep TCS on solid financial footing.
Golfers are asked to try and raise $900 each in sponsorship. We have letters that you can give to friends and family members to help you do this. Registration fee is just $35.00 and it includes golf, cart, lunch, beverages, and MORE! Even if you cannot golf, you can help someone at $50.00 for one hole or $5.00 for each hole or WHATEVER amount you can afford. We need your commitment now. Space is limited. Don’t miss this opportunity to be a part of a special Christmas blessing.
To get involved, call Temple Baptist Church at 269-1133 and ask for Marty Braemer. Information is also available in the school office."
"On Thursday, 32-year-old Daniel Ozuna was sentenced to life in prison by 391st District Court Judge Tom Gossett for indecency with a 7-year-old child by sexual contact. Ozuna already was serving a 5-year sentence for a similar crime.And what is this business about "consent?" While we have seen stories written over the last two years about "what the child wants" from the "ad litem" perspective and what children cannot consent to, suddenly, it seems we have two "consents" now. The consent that a child cannot give, on which the whole "sexual assault of a CHILD" is based, and then the fact that, "oh, yeah, they gave their consent," meaning they gave every indication in language and body that they granted consent, except, they weren't old enough for those words to mean anything.
Lesser sentences can come from situations when there is not a large age gap, such as between a 19-year-old and a 15-year-old person, Morris said.
Morris also said that if the parties consented, the sentence may be more lenient, even though consent is no defense for the guilt-innocence phase of the trial.
'It’s not a defense, but it’s certainly something (jurors) can consider in punishment,' (Gerry) Morris said."
"The penalty becomes a first-degree felony if the defendant is legally prohibited from marrying, purporting to marry or living with someone under the appearance of being married.Why then was Lauren Cosgrove not charged and sentenced as a 1st degree felon? Lauren was "legally prohibited from marrying" her 13 year old victim, not because Texas prevents 13 year olds from marrying 30 year olds but because she was married already." Her lawyer, in case you forget, argued that her 13 year old victim "wanted it" and got standing with his peers for bedding an older woman and in this age of equal rights, that "it's different for boys than it is for girls."
A first-degree felony is punishable with five to 99 years or life in prison and the fine of up to $10,000."
"The DA in (Wood) County, where the building is located, says nothing happened here at all."The proximity of the Newspaper office to that of the "Swingers" club is significant. They were right next door, which is what prompted writing the column that more or less set this controversy off.
Bingham retorted, "They can say Matt Bingham's a bald-headed ass, but when they challenge my integrity, that makes me mad."Methinks the DA protest too much.
"Justice Hedges also focused on the fact that five children were called to testify in the original trial, when the original two who made the outcries would have sufficed".Again, the similarity to this case and YFZ is the mystifying failure to go with what would have worked better, and instead running up the number of supposed victims. The Judge seems to think that if the prosecution had just stuck to the first two "outcries," things would have gone better for the prosecution. This makes me wonder about the pathology of Law Enforcement that is involved.
"The briefs allege that the Smith County District Attorney’s office concealed vital information pointing to the actual innocence of the six adults involved in the case, and that Judge Skeen has applied different rules in this trial than Texas allows," he said.The original source of the accusation, is questionable:
"The owners of the club, Russ and Sherry Adams, told the Tyler prosecutors that no children ever set foot in their club," Volberding said.
"The prosecutors believed them and let them go, then kept that information to themselves without telling the defense lawyers," he said.
"Smith County prosecutors also concealed the fact that one of the foster parents of the two children who made the original outcries, John Cantrell, was being investigated in California for molesting other children who had been in his care.Thad Davidson, who was the original attorney of record for the defense said he would be: "surprised if the case was not flipped."
Volberding also alleges that prosecutors held onto recorded statements in which the children say that nothing ever happened to them, and no molestation ever occurred."
"Jim Huggler, who served as both the original trial attorney, and is now the appellate attorney for Jamie Pittman, another defendant in the case, filed his appeal based on the introduction of other offenses not related to the indictment of his client in the original trial.There was no mention of the unprecedented "Amicus Brief" filed by the Wood County DA, contradicting the Smith County DA, in the Tyler Morning Telegraph story.
Huggler also said, like Volberding, that the state concealed the tapes of the children who said nothing ever happened to them."
KYTX TV (CBS 19) - "The Mineola Swinger's Club convictions could be overturned. Jamie Pittman, Shauntel Mayo and Patrick Kelly were convicted of sexually exploiting children for profit. All three are serving life sentences for their role in the Mineola Swinger's Club."The original story is doubtless somewhere else, but I thought I would treat you to a "treatment" similar to that of our FLDS friends, from the website People you'll see in Hell:
"Investigators discovered some pretty upsetting things that had happened, things that the children were able to reveal once their contact with the adults involved was eliminated and the kids realized that they wouldn’t have to suffer any longer. During the trial of 36-year-old Jamie Pittman, the first of the gang to be brought to trial, the full scope of what went on at the Mineola Swingers’ Club was revealed.But something is happening in Texas, that is nearly or completely unprecedented. One District Attorney has turned, on another.
Jurors were treated to a two and a half hour videotaped interview with Texas Ranger Sergeant Phillip Kemp, the oldest victim and her then-7-year-old brother. Their new foster mother was also there to help the kids feel a bit more comfortable.
During the videotaped interview, the girl was very cooperative, drawing a diagram and describing the inside of the club that the Mineola Swingers’ Club occupied. She described how there were two guards standing inside the front door. She mentioned how 45-year-old 'Dennis' – who turned out to be Jamie Pittman’s older brother, Dennis Boyd Pittman – would sit at the front desk and collect money from people who came into the club to watch the movies of the children performing sexual acts."
"(The) Wood County District Attorney (has) faxed (70 pages of paperwork) directly to the appellate court. It's called an Amicus Brief. It essentially contradicts what the Smith County District Attorney's office is telling the court of appeals. 'I've never heard of an instance where one elected District Attorney directly contradicts what another elected district attorney is telling a court of appeals. I've never heard that happen,' concluded (Patrick Kelly's attorney Wes) Volberding."Have you noticed something though, in one of the quotes above?
"The Houston Chronicle - The investigation began when (Ms. Bramlett) was pulled over on a minor traffic stop about 1:40 a.m. Saturday (April 26th, 2008), Brady said.This could be the proverbial case of "please stop me before I screw a kid again." After all, she did just up and say it. One wonders if she clapped her hand over her mouth and said "whoopsies" afterward.
When the deputy began talking to Bramlett, she said, 'we are having an affair and I am taking him home,' (Fort Bend County Sheriff's Chief Deputy Craig) Brady said."
The Denton Record-Chronicle - "Lauren Cosgrove, 30 (now 31), of Sanger, also was sentenced to two years in prison on a charge of tampering with a witness. Though she had been court-ordered not to contact the boy, he testified that she picked him up outside his house in December 2008 and convinced him to write a letter saying he lied about what happened between them.Five years. Yup, divide 5 into 75 for a predator that tampers with a witness. Hmmm, if you are a man that means you will serve 15 times as long.
She also gave him a handwritten note professing undying love for him.
The sentences will be served at the same time, and Cosgrove will be eligible for parole in 2 1/2 years.
The jury also found her not guilty on a charge of indecency with a child."
"Prosecutors Rick Daniel and Cary Piel were satisfied with the sentence, Piel said.We can now answer that question. There are apparently several differences between YFZ and Ms. Cosgrove's case. One of them wasn't her marital state.
'I asked the jurors in voire dire about the double standard,' Piel said. 'Who’s to say if this had been a man and a 13-year-old girl he would have gotten more time? But we are absolutely satisfied.' "
"(Defense Attorney Donna)Winfield told jurors that if given probation, Cosgrove would not be a risk, and that the boy enjoyed the attentions of an older woman and was not traumatized.Translation - "Oh come on people, we're putting a woman in jail for giving a 13 year old boy bragging rights around the neighbor hood, he's now a certified STUD. She ROCKED HIS WORLD. He's totally DIGGING on her."
'It’s different with boys and girls,' she said. 'I don’t believe he’s going to be scarred for life.'
The Salt Lake Tribune - "The sentence for Merril Leroy Jessop, 35, is the stiffest yet handed out in the criminal trials of members of the Fundamentalist Church of Jesus Christ of Latter Day Saints. Under Texas law, Jessop has to serve half of his sentence before he is eligible for parole."FLDS men "marry" (albeit not legally) the girls they "assault," love them and their children and take care of them for life. Merril is going to die in prison unless appeals succeed while the manifestly perverse Janet Parker walks among us. Her joke of a sentence didn't even make the news. Sandra Borrego pled guilty to 22 counts of aggravated sexual assault of a child, a child for whom there was a complaint, and got 6 months (that she has already served) with a chance to clear her record.
The Houston Chronicle - "(Harris County Assistant District Attorney & Crimes Against Children Division Chief Denise) Oncken said Mosbeck allegedly had a sexual relationship with a 14-year-old student between fall 2006 and March 2007. They had intercourse at least three times, prosecutors said."The "alleged" crime originally occurred in late 2006, after the crime committed on or about August 20th 2006 that Merril Leroy Jessop is being sentenced for. Merril's "victim" is now and adult and had to be considered a "hostile" witness for the prosecution, so much so that they had to collect DNA against the will of all involved to come up with the charge and successful prosecution of Mr. Jessop. I emphasize that Ms. Mosbeck's alleged victim is still a minor.
"If convicted, Mosbeck, a mother of two children, faces a possible sentence ranging from two years to 20 years for each case, Oncken said. She also is eligible for probation, Oncken added."It looked like, at the time, that Harris County Assistant District Attorney Denise Oncken was open to the idea of probation.
The San Angelo Standard-Times - "Today at 9 a.m. the jurors will hear closing arguments and deliberate on Jessop’s sentence."I suspect they will be sending another "message."
The Daily Sentinel - "Twenty-six-year-old Janet Parker surrendered to sheriff's officials at 11 a.m. Wednesday. According to a press release from Shelby County District Attorney Lynda K. Russell, her office and the sheriff's office were first alerted to an inappropriate teacher/student relationship in December. 'The matter was investigated, and although authorities felt inappropriate behavior existed, no proof could be established,' the release said.Repeated searches of the web yeilded no information on the trial result. Probably because there was no trial. When contacted, District Attorney Linda Kay Russell's office stated that Ms. Parker received "10 years of deferred probation." I'm not sure what that means, but if it's anything like deferred sentencing, Ms. Parker pled guilty and then got a "deferred" arrangement meaning she's not even being supervised. "Just stay out of trouble" would be the operative phrase, and in ten years she can apply to have her record cleaned.
'Two weeks ago, suspicions of this relationship again surfaced when a student's cell phone was taken up during school. Because the screen saver picture on the phone depicted behavior unacceptable at school (a student with a tobacco product), authorities at school searched the phone further. The phone was turned over to the district attorney's office. A search warrant was executed on the phone, allowing a forensic expert to search the phone. An inappropriate picture of Janet Parker was found on the cell phone. This phone belonged to the same student with whom Parker was suspected of having an inappropriate relationship last December,' the release said.
Because of the nature of this picture D.A. Russell and Sheriff Johnson requested a warrant for the search of Parker's home. Assisting in executing the search warrant were Shelby County Sheriff's Deputy Desmond McDaniel, Texas Ranger Tom Davis, and D.A. Investigator Danny Green. Evidence gathered at the scene confirmed that the picture of Parker on the child's cell phone was taken in her home. In cases like this, computers are commonly used to store images of inappropriate behavior and communications between parties which sometimes reveal the type of relationship between the parties. As a result, two computers were gathered as possible evidence. A forensic search was conducted of the computers, and as a result of the searches on the computers and the investigation into this matter, 23 warrants have been issued for the arrest of Janet Parker - (9 warrants for sexual performance by a child , three warrants for sexual assault of a child and 11 warrants for possession of child pornography third-degree felony)."
The Corpus Christi Caller-Times - "A former dance teacher accused of sexually assaulting a 13-year-old student pleaded guilty Tuesday in exchange for probation, six months in jail and the opportunity to avoid a conviction.What hypocrites Texans are. Michael Emack got 33 years, a virtual life sentence. I shudder to think what Merril is going to get. The age difference between Sandra and her young victim is greater than that of Merril and his bride. Sandra is 41, the boy she "assaulted," barely a teen.
Sandra Borrego’s guilty plea came shortly before jury selection was to start Tuesday morning. She pleaded guilty to 22 counts of aggravated sexual assault of a child."
The San Angelo Standard-Times - "(Merril Leroy Jessop) kept a pleasant face while 51st District Judge Barbara Walther read the jury statement and pronounced the word 'guilty.'It was never one of my favorite songs, but it does keep going through my head:
Jurors heard closing arguments this morning and left at 11:30 a.m. to deliberate.
Attorneys were summoned back to the courtroom at 12:30 p.m. upon hearing that the jury had reached their verdict."
"And the judge said, 'Guilty,' in a make-believe trial, slapped the Sheriff on the back with a smile (and said) 'Supper's waitin' at home and I gotta get to it.' "Bobby Russell - "The Night the Lights Went Out in Georgia."
The Abilene Reporter-News - "The jury will return at 9:30 a.m. today to hear closing arguments from the defense and prosecution, and then jurors will deliberate on the verdict.Apparently, more that in the other cases, the location of Merril is in doubt. Most of the silence coming out of San Angelo yesterday has to do with the Judge, Prosecution and Defense looking at documents.
Attorneys and 51st District Judge Barbara Walther had spent the day looking at documents to establish Jessop was at the YFZ Ranch at the time of the alleged offense."
"The prosecution and defense rested their cases Tuesday in the trial of Merril Leroy Jessop. The jury (returned this) morning to hear closing arguments from the defense and prosecution, and then jurors will deliberate on the verdict."Judge Walther did not allow a CPS worker to testify in front of the jury regarding the level of fear that had been created among the FLDS. A CPS worker testified away from the jury about how children were taken from their mothers.
The San Angelo Standard-Times - " 'Would you say the men and women were distrustful?' (Defense Attorney Brandon) Hudson said.Back to the Standard-Times, April 10th, 2008:
Williams said they were.
Williams said the locksmith took hours to open the vault door.
Hudson pointed out the damage done to the framing around the side of the vault.
'Were there attempts to enter without having to break the locks?' Wes Mau, one of the prosecuting attorneys, asked.
'Yes sir,' Williams said, and he said the residents were not cooperative with opening the safe. 'I thought it was very possible someone might be in that vault.' "
"In one exchange, (Judge Barbara) Walther questioned (Gerry) Goldstein on why he claimed Lyle Jeffs had standing to challenge the search warrant based on the removal of his two children.I'd say at this point they didn't know. Later, when sorting out details in the aftermath, it seems clear that Rangers retroactively threw a hat into the narrative, based on what it was they'd need, to cover their actions. In the case of the Vault, they're not in a residence looking for anyone, they're in the temple. These records are obtained looking for "Sarah," who we now know to be Rozita Swinton. Not that Texas dares ever ask that question, of Rozita.
'The removal of the children had nothing to do with the search warrant,' Walther said. 'That's a civil matter.'
'I'm not sure they knew what hat they were wearing' when officials removed the children, Goldstein replied."
"Hudson noted that the person they were searching for was never found, and the call that led to the April 2008 raid on the ranch was determined to be a hoax call from a woman who claimed to have been abused and living on the ranch."The "hoax" call remark seems to have gone unchallenged by the defense. I'm sure the prosecution had to let that stand, since if they did not, the issue of it being a hoax could have spilled out into open court. So it's official. Texas regards the call as a hoax.
"Another Texas Ranger, Jesse Valdez, testified about having entered a vault in another building called the temple annex.What did this "Drama Queen" expect to find in a vault? Why didn't he wait? Was there a sense of "urgency" that perhaps at any moment the search might be called off and they didn't have all their "loot" yet? What does he expect to find in the dark that he needs a pistol for? I don't know about you, but if I was planning to used deadly force against a Ranger entering a vault with no clothes, a flashlight leading the way and a pistol, the pistol isn't going to do him any good.
A picture showed the jury an open vault door with a small hole less than three feet wide breaching a concrete wall several inches thick.
'I removed all my outer clothing and entered with a flash light and a pistol, unsure of what I would encounter,' Valdez said.
Inside the vault, law enforcement personnel found many cabinets full of boxes of personal and church records."
The San Angelo Standard-Times - "(Prosecutors) presented evidence that Merril Leroy Jessop resided at the Yearning For Zion Ranch outside Eldorado, where the charge against him — the sexual assault of a child in connection with an alleged underage marriage — was alleged to have occurred.Well dang. I thought that wasn't important according to some of the "legal experts" trumpeting how irrelevant location was on the other side of the fence, but apparently, it is important.
Pictures showed photo albums and poster-sized pictures that depicted Jessop surrounded by a crowd of children and three young women law enforcement personnel identified as his wives."
The San Angelo Standard-Times - "The jury is made up of seven women and seven men to fill in the 12 juror and two alternate positions. Among the jurors, three have Hispanic surnames."The defense cited widespread publicity and resulting prejudice. They asked for more "peremptory strikes." What do you think happened? Don't be stupid, it's Babs.
"(D)efense attorneys this morning moved to be granted more than the standard 10 peremptory strikes against prospective jurors, citing widespread prejudice against their client, but 51st District Judge Barbara Walther denied the motion."Arguments are underway.
The San Angelo Standard-Times - "Willie Jessop, the sole representative of Merril Leroy Jessop’s family and church, was denied entry to a crowded courtroom (yesterday).No it won't work now, but this continues to be the sort of foundation you build for an appeal. It sounds as if the FLDS was ready for this prosecution piece of theater that is purely designed to make various FLDS men "boogie men" and therefore increase chances of conviction.
Willie Jessop said the motion, although prepared and signed Monday, was submitted (today)."
"(Eric) Nichols, arguing against the motion, put Willie Jessop on the witness stand and made the case that Willie Jessop hadn’t made an attempt to enter after the general questioning of potential jurors.Raymond Jessop (as is being reported elsewhere) has already filed for appeal, but your Modern Pharisee told you it was done, when it was done (January 28th, 2010).
'At what point would it have been appropriate to enter again?' Willie Jessop shot at Nichols.
Walther intervened, telling Willie Jessop — who she said may not be fully aware of the court’s procedures — that the witness is not allowed to ask questions."
The defendant, Warren Jeffs, by and through counsel undersigned, hereby replies to the State's response and Lamont Barlow's opposition to his motion of the deposition of Lamont Barlow.*In the PDF found at Mohave County, there is no name appearing here. It is almost certainly that of Ms. Wall.
The request for Lamont Barlow's deposition stems from the fact that Ms. Shannon Price contacted County Attorney Brock Belnap of Washington County, Utah, "and she told him that (Elissa Wall*) had lied during her testimony at the Warren Jeffs Trial" in the state of Utah. [See report of Washington County Sheriff Chief Deputy Jake Schultz, attached to Defendant's Motion for Deposition of Witness Lamont Barlow]. Mr. Belnap then instructed Washington County Sheriff Chief Deputy Jake Schultz to interview Ms. Price and she provided further information about this alleged false testimony. Specifically, Ms. Price stated that "Lamont told her that (Elissa Wall's*) medical records had all been created in one day, to make it look like she had seen caretaker on several different occasions." [Id.].
This matter will obviously be admissible at trial as it relates directly to (Elissa Wall's*) Credibility, or lack thereof.
Indeed, Arizona's rules of discovery are quite broad and allow the parties to pursue any matters that might lead to admissible evidence. "It is not a basis for objection 'that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead the the discovery of admissible evidence. American Family Medical Insurance Company v. Grant, 222 Ariz. 507,__, pp 12,217 P.3d 1212, 1217 PP 12 (App. 2009) [quoting Ariz. R. Civ. P.26(b)(1)(A)]. Moreover, the Arizona Supreme Court has made it quite clear that, in criminal cases:"We believe that a trial court should exercise its discretion in favor of seeing that the accused is furnished with every fact necessary to prepare the best possible defense. The modern trend (in**) discovery proceedings is to have the winner determined by the facts, rather than by which side is the most ingenious in 'playing the game.' "State v. Ford, 108 Ariz.404,409,499P.2d699,704(1972).
The state correctly notes that it "suggested to defense counsel" that defense counsel move for Mr. Barlow's deposition.
[State's Response, p. 3]. The State suggested this due to the fact that defense counsel had been unable to schedule Mr.
Barlow's interview, despite repeated attempts. [see attached email correspondence]. Accordingly, the defendant has filed the present motion.
The defendant concedes that Mr. Barlow was, in fact, interviewed as to all matters known at that time. The new interview or deposition of Mr. Lamont Barlow will center on the recent report by Ms. Shannon Price to law enforcement about (Elissa Wall's*) false testimony. These matters will obviously be admissible at trial and the rules of discovery clearly contemplate that these matters will be explored through pretrial discovery and interviews.
In his opposition to the motion to depose Lamont Barlow, Mr. Hoole now attempts to re-write history and presents a new version of facts that directly contradicts Ms. Price's statements. However, the defendant is not obliged ot accept teh new version of events that Mr. Barlow, after consultation with Mr. Hoole, now presents. Nor is the defendant obliged to accept the numerous "conditions" that Mr. Hoole is attempting to place on the interview or deposition of Lamont Barlow. It must be remembered that the Mr. Hoole represents not only complaining witness (Elissa Wall*), but also her husband Lamont Barlow, and also claims to have some type of privileged attorney-client relationship with Ms. Shannon Price's employer, the diversity foundation, whom Mr. Hoole claims is some sort of "client representative."1 Mr. Hoole now has a statement from an employee of a "client representative," Ms. Shannon Price, that indicates that the client he represents, complaining witness (Elissa Wall) committed perjury, and Ms. Shannon Price's comments now also directly contradict the statements of Mr. Lamont Barlow, yet another client of Mr. Hoole's. Given all of these obvious conflicts, Mr. Hoole's desire to limit the inquiry is understandable, but not acceptable.
Indeed, it is obvious that there are issues of fact that will have to be explored and will have to be resolved, ultimately, by the jury concerning the problems with (Elissa Wall's*) credibility. Moreover, the defendant is not willing to accept the assertions by the state and counsel for Mr. Barlow that the allegations of (Elissa Wall's*) perjury are limited to simply medical matters. Ms. Shannon Price's report to Washington County Attorney Brock Belnap was not limited. As noted above, "she told him that (Elissa Wall*) had lied during her testimony at the Warren Jeffs Trial." Mr. Belnap then instructed Chief Deputy Schultz to interview Ms. Price, and this is where some of the statements were made about fabricated medical records. The defendant is entitled to fully explore all of these matters, and to further explore the issues of whether there have been any attempts to influence the testimony of any witness, including but not limited to, conversations with third parties.
In addition, the somewhat far-fetched versions of events that Lamont Barlow now presents with Mr. Hoole's help will, itself, be a factual matter for the jury to resolve. Mr. Barlow now claims that it was Mr. Jeffs' attorney in the Utah case, Mr. Walter Bugden, and not (Elissa Wall*) that provided false information in the Utah trial about (Elissa Wall's*) medical condition, and Ms. Price "simply misunderstood" what Lamont barlow had told her. [Barlow's Opposition, p. 2]. The problem with Lamont Barlow's new story is that Ms. Price never said anything bout who may or may not have provided false information about (Elissa Wall's*) medical condition at trial, she stated initially to Washington County Attorney Brock Belnap that (Elissa Wall*) lied during her testimony. She later told the deputy that"Lamont told her that (Elissa Wall's) medical records had all been created in one day, to make it look like she had seen a caretaker on several different occasions." [Schultz Report]. This is obviously a quite separate, and also quite serious, matter. Again, while Mr. Hoole's desire to wish this matter away is understandable, the defendant is not required to accept this new version of events, and is not required to accept any limitations on his ability to fully explore this new matter.
Again, this matter will be brought out at trial as neither Mr. Barlow nor Mr. Hoole can prevent the defendant from question all of the witnesses involved about these matters during the trial. Obviously, this matter can be dealt with more efficiently at trial if, as the rules of criminal discovery clearly contemplate, the issues are narrowed and the factual matters are fully explored during the pretrial discovery. Accordingly, the defendant categorically rejects the proposed limitations Mr. Hoole is suggesting for Mr. Barlow's interview. In addition, the defendant specifically objects to Mr. Barlow's interview being conducted in St. George, Utah, at Mr. Belnap's offices. Indeed, the defendant's request to depose Mr. Barlow in Salt Lake City was specifically designed to accommodate him and his attorney. Ms. Shannon Price will interviewed in Salt Lake City where she lives and works, the prosecutor and defense counsel will be present in Salt Lake City for this interview, Mr. Hoole's offices are in Salt Lake city, and it was thought that Lamont Barlow did reside or currently resides in Salt Lake city although counsel is not certain. Mr. Hoole will presumably be present for Mr. Barlow's interview and he is certainly free to bring to the interview whatever transcripts he wishes.
This is av very serious matter when the executive director of Diversity, an entity that has worked diligently to harm Mr. Jeffs and other FLDS members, feels compelled to advise the previous prosecutor of Mr. Jeffs, Washington County Attorney Brock Belnap, that (Elissa Wall*), the same accuser in this case, had lied during the Warren Jeffs trial. She later provided additional information regarding statements from Lamont Barlow and creation of a false document relating to (Elissa Wall's*) medical records. Lamont Barlow, after consultation with his and (Elissa wall's*) counsel, provides an affidavit claiming she is mistaken. Defense counsel is entitled to explore this very serious matter and also to explore what, if any, communications any of these parties had with third parties discussion these issues. The witnesses' positions can be clarified during the interview process so that the matters can be presented properly at trial. It would not be fair or appropriate to deny the defendant the right to investigate such serious allegations made against the key witness and accuser of Mr. Jeffs and certainly should not be limited by artificial restrictions proposed by their lawyer who is highly motivated to limit the disclosure of information.
For the foregoing reasons, the defendant, Warren Jeffs, by and through his counsel undersigned, hereby respectfully requests this court to order the deposition of Lamont Barlow to take place on March 16, 2010, at Parsons, Behle & Latimer, One Utah Center, 201 South Main Street, Suite 1800, Salt Lake City, Utah 84111, following the interview of Shannon Price. See proposed order attached to Motion for Deposition of Witness Lamont Barlow.
RESPECTFULLY SUBMITTED this 1st day of March, 2010.
(1. Arizona, of course, does not recognize through rule, statute, or decisional law, any such privilege for a "client representative," outside the context of some sort of organization or entity. As noted in the defendant's pleadings concerning depositions Diversity Foundation's founder Dan Fischer and Mr. Sam Brower.)
"Counsel for the Defendant has filed a Motion for Deposition of Witness Lamont Barlow in CR-2007-0743and requested oral argument as soon as possible. The State has filed a Response seeming to indicate that Mr. Barlow does not have any objection to granting another personal interview, presumably limited to the issue identified in defense counsel's motion. If he is willing to grant a personal interview, then he is not subject to being deposed pursuant to Rule 15.3 However, the Court can understand that counsel would like this issue resolved before arriving in Salt Lake City on March 16th, 2010. The Court will probably be inclined to order Mr. Barlow to submit to a deposition on or about the above date but only if he refuses to grant a personal interview and only to cover the issue identified in the defense motion.The claim of "four layer hearsay" is not impressive to Judge Conn, apparently he thinks something smells wrong and that the defense is entitled to delve a bit.
IT IS ORDERED setting this matter for hearing on the above motion on Friday, March 5, 2010. at 830 a.m.
The Court will not provide for the presence of the Defendant at the above hearing unless specifically requested by defense counsel at least 24 hours in advance.
Counsel for the Defendant having filed a Request for Omnibus Hearing in each case,
IT IS ORDERED setting these matters for Omnibus Hearing on Friday, March 26, 2010, at 8:30 a.m."