United States District Court, W.D. Washington, Tacoma
ORDER DENYING MOTION TO EXCLUDE DEPOSTION TESTIMONY OF D.P.
ROBERT J. BRYAN, District Judge.
This matter comes before the court on the above-referenced motion (Dkt. 142). The court has considered the records and files herein and all documents filed in support of and in opposition to the motion, the deposition testimony of D.P., and heard oral argument of counsel on February 7, 2014. For the reasons stated below, the motion should be denied.
The defendant urges that the court exercise its discretion to exclude the deposition testimony of D.P., the alleged victim in this case, because of "a confluence of factors" that defendant alleges have denied his right to fundamental fairness in this prosecution. (Dkt. 142 at 2.)
The factors alleged include the following:
1. The fact that D.P. died before the second portion of her deposition could be conducted.
2. The fact that the government failed to disclose Brady material regarding D.P.'s mental condition.
3. The inability to have a psychological evaluation of D.P. conducted.
4. The government's actions in discouraging delay of the defense's post deposition motion.
The court will discuss each of these factors below.
The fact that D.P. died before the second portion of the deposition, as ordered by Judge Settle, could be conducted. D.P.'s deposition was taken pursuant to court order September 22, 2010. At that time, defense counsel had full opportunity to cross examine D.P. D.P. died on February 13, 2011.
Following that deposition, a superseding indictment was issued (Dkt. 28). Defense counsel moved for an additional deposition (Dkt. 36). The reason provided by the defense for an additional deposition was because the First Superseding Indictment extended the time periods during which the defendant is said to have sexually assaulted D.P. Judge Settle granted the motion for an additional deposition on those grounds (Dkt. 86). The re-deposition was not asked for or granted on the basis of a perceived necessity to inquire further into D.P.'s impaired mental capacity and use of medications, or the effect that those things had on her memory.
Subsequently, the Superseding Indictment was dismissed, and the case is now proceeding on the original indictment, which was the subject of the full deposition of D.P. on September 22, 2010. The fact that D.P. died before a second deposition was taken is not a basis to strike her first deposition, under these circumstances.
The fact that the government failed to disclose Brady material regarding D.P.'s mental condition. On August 26, 2010, the government filed an emergency motion for video deposition, along with the declaration AUSA Bruce F. Miyake (Dkts 20 & 20-1). These documents disclosed D.P.'s physical condition and medications to the defense. Before the deposition was taken, FBI Special Agent Scott Saxon visited with D.P. about two weeks before and about one week before the deposition. ...