The DeLaughter reply on the co-conspirator statements issue is pretty convincing to me. The original motion and my comments on it can be found here.
This motion is about making the Government prove pretrial the existence of a conspiracy in which Judge DeLaughter participated so that co-conspirator statements come in.
DeLaughter’s reply argues that there are two issues they identified that make this case distinct and demonstrate a need for a pretrial hearing, and that the Government ignores them in its response. They’re right. The Government’s response (which you can read about here) focuses solely on how admission of co-conspirator statements work in an ordinary case. Yes, in the ordinary case the judge has the discretion to carry these sorts of issues with the case. DeLaughter has identified two ways– one pretty significant for the conduct of a trial, the other implicating his Sixth Amendment rights (I’m thinking that the judge will give more weight to the former than the later because the former is a pretty clear demonstrable problem with the conduct of the trial, while the later has a “what if” component– what if this all goes wrong and there’s a mistrial?)– that this case is not the ordinary case. On balance, I think DeLaughter will likely get a hearing on admission of coconspirator statements, which means a preview of important parts of the trial proof. My earlier guess this was a toss-up is retracted.
DeLaughter has asked for more time on another reply Durkin is working on. NMC says:
Judge DeLaughter has asked to put off his reply on the motion about inspection of the grand jury minutes. The motion notes that the Government has agreed to this, and that counsel are all going to meet in late April and may resolve some part of this.
The motion states: “In light of certain positions taken by the government in its pleading with respect to production of grand jury minutes, counsel for Defendant require time to investigate certain matters and to confer with governmetn counsel as well as Defendant’s prior counsel.” I have a guess what DeLaughter’s lawyers have in mind here. There’s a series of assertions specific to this case (as opposed to stating general principles about grand jury secrecy) on pages 3-5 of the Government response that are interesting: First, that questions about whether the Government’s legal theory on the crime is best resolved through the DeLaughter motion to dismiss, not here; Second, that comments during the Scruggs 404b hearing are irrelevant because the standard there was different– Judge Biggers did not have to reach the question of guilt to admit the evidence; Third is an observation (noted in my prior post) that this grand jury was not impaneled until June of 2008, and thus was not involved in Jerry Mitchell’s January 2008 story.