The Government has begun responding to Judge DeLaughter’s motions. In no particular order, I’ll begin with the response on a motion for hearing about co-conspirator statements. “Co-conspirator statements” is one of (many) problems conspiracy prosecutions present a defendant and his lawyers. Essentially, once a defendant has joined a conspiracy, a jury can blame him for whatever a co-conspirator does or says. The prosecution has a burden to prove enough evidence to allow a conclusion there was a conspiracy before a court should allow this co-conspirator proof in evidence. “Enough” is not very much (A favorite remark of my father’s: Any time two ore more are gathered together, the Government thinks it’s a conspiracy).
Judge Delaughter filed a motion (that I have written about) arguing that this case called for a pretrial decision there was enough proof of the conspiracy to allow the coconspirator statements in evidence. He argued for:
(1) for a pretrial evidentiary hearing; or, in the alternative, (2) a formal written proffer by the government that permits the Court to determine preliminarily, and prior to the impaneling of the jury or the swearing of the first witness, the admissibility of co-conspirator statements against him so as to insure against the risk of a mistrial, and not so economically prejudice Defendant into having to defend a second case that he would be without funds to defend with private counsel of his choosing.
The Government’s response focuses on the request for a pretrial hearing, and argues that the defense here is just looking for a little extra discovery:
Despite attempts to construe the James decision as requiring a pretrial evidentiary hearing in conspiracy cases, a series of Fifth Circuit cases have made it plain that a “James hearing” is not mandatory. …Whitley held that “the trial court has discretion to determine the application of the James ruling and rationale in the specifics of the trial setting encountered.” Id. at 620. Trial courts have the ability and the discretion to “carry the issue” with the case, making the required evidentiary determinations by a preponderance of the evidence during the course of the trial.
The Government is telling Judge Davidson that there is no need to do this now, and this is no big deal.
I thought Judge DeLaughter made decent argument for this hearing, and that if Judge Davidson is holding hearings, it would not be a major cost to throw this one in, but I’m betting the judge will rule that he’ll carry this with the case, and decide it during the trial as he sees how the proof develops. It’s a tossup.