[7:33] Good morning, everyone.

[7:35] » Good morning. How are you doing?

[7:37] » How are you, Donna?

[7:39] » I'm thank you.

[7:39] » Amber.

[7:45] All right, hope everyone is well. We'll

[7:47] get on the record at this time in the

[7:49] state of Texas versus Jeffrey Vincent

[7:51] Nicholas.

[7:52] It's cause number DCM-21-02100.

[7:57] Um

[7:59] This is a case pending in Concho County,

[8:01] Texas, but it's been transferred to Tom

[8:03] Green County for trial.

[8:05] Um

[8:06] Can I hear announcements from those

[8:08] present, please?

[8:09] » Your honor, the state's present and

[8:11] ready. John Best for the state. Nelson

[8:13] Martinez is also here for the state.

[8:17] » And judge, we have Ashley Puchervinsky

[8:19] and Steven Gobel for the defense, but we

[8:21] are still presently waiting on Mr.

[8:23] Nicholas to be brought to the room with

[8:24] us.

[8:27] » Okay.

[8:28] Did you make arrangements for that?

[8:30] » Yes, the sheriff is aware of it and we

[8:32] do have a bailiff here. We're just

[8:34] waiting for his appearance.

[8:35] » Please break, give him a call, please.

[8:39] Okay?

[8:40] » Yes, judge.

[8:41] » We'll just stand by while he gets on.

[9:57] » Okay.

[9:58] I was thinking

[9:59] » And Judge, just so you know, he is en

[10:01] route is what we're being told.

[10:05] » Okay.

[10:06] Uh did they say how long?

[10:08] » No, Judge, we're not sure. But the jail

[10:10] isn't too far away. So it'll hopefully

[10:11] shouldn't be too much longer.

[10:13] » All right.

[10:15] Thank you.

[23:51] » Judge, Mr. Nicholas is present now.

[23:54] » All right.

[23:56] » He's not on camera, but he is sitting

[23:57] right next to a Mr. Golbol.

[24:00] » Very well. All right.

[24:03] We'll go ahead and uh get back on the

[24:04] record. We've already called a case and

[24:07] uh I think the state the state made uh

[24:10] their announcement of their presence and

[24:12] ready to present the state. Uh defense

[24:15] counsel

[24:16] uh I believe um just mentioned that Mr.

[24:20] uh Nicholas has not been yet appeared.

[24:22] Uh you want to complete the

[24:25] the announcements, please.

[24:29] » Thank you, Judge. Ashley Bukchin and

[24:30] Steven Steven Golbol with Mr. Nicholas.

[24:33] And we are ready to proceed.

[24:35] » All right. We're here today based on uh

[24:38] subpoenas for uh Vernon records.

[24:41] Um and so uh we have certain

[24:43] representatives here.

[24:45] Um

[24:48] The the [clears throat] court issued an

[24:49] order for show cause to it to ask why

[24:52] the records have not been produced in

[24:54] accordance with the subpoena.

[24:56] And so uh that's what we're here for

[24:58] this morning.

[25:01] Is that the way you see it, Mr. Best?

[25:03] Mr.

[25:04] Mr. Gobel?

[25:05] » Yes, Your Honor. Um

[25:07] um

[25:09] the defense filed the the motion for

[25:10] show cause, and so, um since it's our

[25:13] motion,

[25:14] I'm certainly willing to defer to them.

[25:16] What I wanted to let the court know, and

[25:17] what I let the court know, and defense

[25:20] counsel know via email yesterday,

[25:22] we've got uh

[25:25] uh Kathleen Kathleen Lozano, who's the

[25:27] custodian of records for Vernon, here

[25:29] today.

[25:30] Um and I see her on the screen. We have

[25:34] uh

[25:34] Michael Moore, who is an attorney with

[25:37] the Health and Human Services

[25:38] Commission, uh who has been helping Ms.

[25:41] Lozano with the numerous

[25:45] uh subpoenas duces tecum that have been

[25:48] uh issued by the defense in this case.

[25:51] And

[25:53] uh John Gray, who is an attorney with

[25:56] the Attorney General's Office, who I

[25:58] believe is the HHSC representative from

[26:01] the Attorney General's Office, um here

[26:04] to they're all here to answer any

[26:05] questions that Mr. Gobel or Ms. uh

[26:09] uh Pochobinsky have.

[26:12] Um

[26:14] there may be some other I see some other

[26:16] people on the on the on the Zoom meeting

[26:19] uh that may be here from Vernon or that

[26:22] received subpoenas and

[26:25] um I guess uh

[26:27] Mr. Moore can probably help us with

[26:28] that, or possibly Ms. Lozano with with

[26:31] who we have here.

[26:32] But, that's kind of where we're at right

[26:33] now, Judge.

[26:35] » All right.

[26:36] Uh Mr. Moore, uh or uh Mr. Gray, if you

[26:40] want to fill in

[26:42] the others that are that are here today.

[26:45] » John Gray, Assistant Attorney General

[26:46] for Texas Human Health and Human

[26:48] Services Commission. Um I'll go ahead

[26:50] and let um Mr. Moore or Ms. Lozano and

[26:54] the court on who was here and available

[26:55] today.

[26:56] » Okay.

[26:58] » Uh, your honor, good morning. Uh, Katie

[27:00] Gallagher, uh, also an attorney with

[27:03] HHSC is present.

[27:06] But I believe that's that's the only

[27:08] other person that I can speak for.

[27:11] » All right.

[27:12] » Judge, if I may, I believe that Mr. Best

[27:14] is speaking about Ms. White and Mr.

[27:16] Rivera. They are part of Mr. Nicholas'

[27:18] defense team. They're just located in

[27:19] our lobby office, so they're appearing

[27:21] on the Zoom link.

[27:21] » Thank you. Okay. All right. Now we've

[27:23] identified anybody.

[27:25] Uh, Ms. Pukse Viskie, I guess you you

[27:28] filed a motion for show cause. Do you

[27:30] want to present the witnesses? You want

[27:32] to present witnesses. Do you want them

[27:34] placed under the rule? How do you wish

[27:36] to proceed?

[27:37] » Yes, I would ask that they be placed on

[27:39] the rule. I do believe that the Attorney

[27:42] General's office would be asking that

[27:43] this matter be continued. I don't know

[27:45] if the court would rather hear from them

[27:47] first at this point.

[27:51] » Okay. Uh, Mr. Gray?

[27:54] » Um, yes, your honor. Um,

[27:56] just uh, initially, I'd like to say that

[27:58] HHSC has received between approximately

[28:02] um, 50 subpoenas from the DA's office

[28:05] and between 50 and 70 from defense

[28:07] counsel. Um, over the course of the

[28:09] production, they produced around 12,000

[28:11] documents.

[28:13] Uh, between uh, last night and this

[28:14] morning, they've produced over 2,700

[28:16] more and I've been informed from HHSC

[28:19] that they have about 3,000 more to

[28:20] produce. Um, they would like to let the

[28:24] defense counsel and the DA's office

[28:26] allow them until September 14th, Monday

[28:29] to produce the remainder of the

[28:30] documents on a rolling basis throughout

[28:32] the next week from the 7th through the

[28:33] 14th. We believe can come into

[28:36] compliance if that is allowed and we

[28:38] don't expect any more issues and if

[28:40] there are, they defense counsel and the

[28:42] DA can raise them to us and we will

[28:43] definitely work side by side to get the

[28:46] production that they've requested.

[28:49] » Okay.

[28:51] Is Ms. Sobinsky are you amenable to that

[28:54] offer?

[28:55] » Judge, could I just ask a clarifying

[28:58] question? Um Mr. Gray, do you know how

[29:00] much has been produced to both the

[29:02] defense and the state if it should have

[29:04] been the same at this point in time cuz

[29:07] the documents I have currently don't

[29:09] total 12,000.

[29:11] » Um I believe that is in total. I know

[29:13] some of the subpoenas are overlapping,

[29:15] so some of the documents will be the

[29:17] same, but I would have to defer to Mr.

[29:19] Moore and Ms. Lozano regarding the exact

[29:22] production that has been done for both

[29:24] defense counsel and for the DA's office.

[29:27] » Sure, I I can answer that. The The

[29:28] numbers that I have from our records

[29:31] management group

[29:32] prior to

[29:34] prior to yesterday, September 3rd,

[29:38] we had produced in total 12,331

[29:42] pages of documents, and our breakdown of

[29:45] that number was

[29:47] 6,139

[29:50] to the DA's office and 6,192

[29:54] to the public defender's office.

[29:57] Um as Mr. Gray indicated, we produced an

[30:00] additional 2,718

[30:03] pages of documents late last night to

[30:07] the public defender's office, so that

[30:08] would be added to the 6192,

[30:11] bringing us to just shy of about 9,000

[30:15] to the public defender's office.

[30:21] » Comments about that?

[30:26] » No, Judge. I wouldn't have any comments

[30:28] for the court about that.

[30:29] » All right. What about the offer to

[30:31] September 14th?

[30:33] » That would be fine, Judge, if that's

[30:35] what the court wants to do.

[30:38] » Well, in view of the the amount of

[30:39] voluminous records, I would think that

[30:41] would be a reasonable offer.

[30:43] Okay. There you I I would remind

[30:45] everyone this this case is set for for

[30:47] competency trial on

[30:49] October

[30:51] 23rd with jury selection starting

[30:53] October 26th.

[30:55] Which is is is going to be is going to

[30:57] happen that time regardless

[31:00] of uh

[31:03] what is produced or what not is

[31:04] produced. I'll take it up, but you know,

[31:07] what

[31:07] I'm not going to

[31:09] I'm not going to delay this anymore.

[31:11] It's been years.

[31:13] And so we're going to get this done.

[31:16] Uh

[31:16] so uh

[31:20] I'll I'll I'll approve

[31:22] the suggestion that we um

[31:24] allow an additional amount of time to

[31:27] September 14th to complete the

[31:29] discovery.

[31:32] And um

[31:35] right now is there anything else to take

[31:37] up? Do we do you need to take any

[31:38] testimony from anyone, Mr. Best, Mr.

[31:41] Bukowski?

[31:43] » Judge, I'll go ahead, Ashley.

[31:45] » Oh, you can go ahead, Mr. Best.

[31:46] » I was going to say um

[31:49] couple of thoughts, Judge. What um

[31:53] one of the reasons

[31:55] why

[31:57] HHSC is having to produce so many

[31:59] documents is that

[32:02] the state wanted to make sure that they

[32:04] were receiving the same records

[32:07] that the defense was

[32:10] um

[32:11] so that we were all on the same page as

[32:12] far as what we had and we could

[32:13] reference the same documents.

[32:16] Um so we we issued we mirrored the

[32:19] defense subpoenas to make sure we were

[32:20] getting everything.

[32:22] Um

[32:23] we did not do that with the last round

[32:25] of subpoenas that the defense

[32:28] issued simply

[32:31] uh to avoid more confusion about what

[32:34] records are being produced and what

[32:36] records are not being produced.

[32:38] Um

[32:40] So, yesterday we filed a motion

[32:44] to

[32:45] um ask the court to order that Vernon

[32:49] provide us with whatever records they're

[32:52] producing to the defense in response to

[32:55] these subpoenas duces tecum that are

[32:57] being that have been issued.

[32:59] Um

[33:01] so that we all have the same records and

[33:04] we don't just have to continue

[33:06] throwing out subpoenas and making

[33:07] everybody crazy.

[33:09] Um

[33:10] so we would ask the court to grant that.

[33:14] Um

[33:15] you know, we we thought about asking the

[33:16] defense

[33:18] and the defense has been

[33:20] uh

[33:21] forthcoming with records. I think Mr.

[33:22] Gobel sent me an email with 2010 pages

[33:25] of records they had received. Um we just

[33:28] want to make sure that and I didn't want

[33:30] to put any burden on defense counsel and

[33:32] since HHSC is producing these documents

[33:35] to them, we didn't think it would be a

[33:36] burden on them to produce them to us at

[33:38] the same time.

[33:40] Um

[33:41] so we would ask that the court grant

[33:42] that motion.

[33:44] Um

[33:46] so that

[33:47] so that we receive the same records and

[33:49] and we would

[33:50] I don't think we specified this in our

[33:53] motion, but we would ask that those be

[33:55] provided with a business record

[33:57] affidavit.

[33:58] Um

[33:59] I think that's what they've been doing

[34:02] with the documents produced to the

[34:04] defense.

[34:05] Um but that way if we find records or

[34:08] the defense finds records that

[34:10] they want to may want to offer at trial,

[34:14] um we can get those records filed with

[34:16] the court and

[34:18] and use them if that makes sense.

[34:21] » Okay, I did review your motion and uh

[34:24] was going to take it up this morning.

[34:26] Uh so unless I'm inclined to grant that

[34:29] unless there's reason stated I should

[34:31] not. And if there is reason I should

[34:33] not, then please uh so state, defense.

[34:37] » And Judge, we would have no objection to

[34:39] the court granting it. Our only request

[34:41] would it be that it would be reciprocal.

[34:42] So, if the state happened to file a new

[34:44] subpoena with HHSC, we would in kind get

[34:47] the same.

[34:50] » Okay. Well, that's what they're trying

[34:51] to avoid, having to send out subpoenas.

[34:54] » Correct. But, if they

[34:55] » Additional subpoenas. You're saying if

[34:56] they if they send out one.

[34:59] » Correct, Judge.

[35:00] » All right. Yeah. All right.

[35:02] Uh

[35:04] let's see. Mr. Moore, any any problem

[35:06] with that? Or Mr. Gray?

[35:09] Did you understand what the state is

[35:10] trying to do here?

[35:12] » Uh yes, Your Honor. I understand what

[35:13] they're trying to do. I'll defer to Mr.

[35:15] Moore. That is typical in a lot of the

[35:17] cases that I work that we do share

[35:18] documents that have already been

[35:20] produced.

[35:21] » Okay, Mr. Moore.

[35:22] » Mr. Moore speak to it.

[35:23] » Okay.

[35:24] » Yeah yes, Your Honor. Conceptually, we

[35:26] we have no problem sharing

[35:29] everything with everybody. I would I

[35:31] would maybe just ask for the parties'

[35:33] grace, given that we've had overlapping

[35:35] subpoenas. Some documents have gone out

[35:38] to both parties. Other documents have

[35:40] just gone to one. We're happy to work

[35:42] with the parties to get get it sorted

[35:43] out, so that everybody

[35:45] gets what every other party has

[35:47] received.

[35:48] » Okay.

[35:49] All right. Then, I will grant the

[35:50] motion. I'll I'll allow the amendment to

[35:53] the motion that uh the business record

[35:56] affidavit be be a the company uh the

[35:59] records produced. Uh that would that

[36:02] would make things a lot easier during

[36:03] the during the trial.

[36:05] Um but, anyway, I'll get it signed up

[36:07] and sent uh and filed with Amber.

[36:11] » Uh Your Honor, can I can I ask one

[36:13] clarifying question, please? Are are the

[36:15] parties Are the parties okay with an

[36:17] unsworn declaration to serve as the

[36:20] business records affidavit?

[36:24] » I'm not necessarily. Um we we need

[36:27] something that would that would qualify

[36:30] as a business record affidavit under the

[36:34] uh

[36:35] rules of evidence so that

[36:37] and the code of criminal procedure so

[36:38] that we can get those records filed and

[36:41] use them without calling

[36:43] uh

[36:44] you know, we may have to call witness

[36:45] anyway to support those records, but we

[36:47] don't want them to be

[36:48] self-authenticating.

[36:51] If that makes sense.

[36:52] » Yeah.

[36:53] And then that's what I was going to say.

[36:56] Uh for efficiency wise, I mean, I don't

[36:59] want to hear a bunch of objections

[37:01] during the trial that's not

[37:02] authenticated properly, this that and

[37:03] the other. So, it's got to comply with

[37:06] the Texas rules of evidence as far as

[37:08] admissibility of records like that. So,

[37:11] uh

[37:12] I'm not sure that

[37:14] the unsworn one would qualify for that.

[37:16] I'm not I'm not here I don't have my

[37:18] rules of evidence book right now before

[37:20] me nor the particular rule, but uh

[37:22] uh if anyone who can speak to that, let

[37:24] me know whether that would qualify as an

[37:26] admissibility.

[37:28] Uh not that I would accept it, but I'd

[37:30] use do my own research and make my own

[37:32] ruling, but

[37:33] um

[37:34] I'm not sure an unsworn one would work.

[37:41] » And I I tend to agree with that, Judge.

[37:42] I

[37:43] uh

[37:45] And and we can talk about that with Mr.

[37:47] Moore a little bit if we you know,

[37:48] later.

[37:49] » And Mr. Moore, what what would be the

[37:51] the problem with getting it

[37:52] sworn to the affidavit?

[37:55] » Well, I I think the issue, Your Honor,

[37:56] is that we've we've [clears throat]

[37:58] already produced a significant number of

[38:00] documents in this case, some of which

[38:02] were accompanied by unsworn

[38:05] declarations and so um

[38:08] we can we can get sworn statements, but

[38:11] we may have to go back and

[38:13] um

[38:14] account for some of the documents that

[38:16] have already been produced.

[38:20] » Okay.

[38:21] Well, here here to fore we'll get

[38:23] probably need them sworn to so that they

[38:25] comply with the rules of evidence.

[38:28] » Okay. Thank you, Your Honor.

[38:30] » Okay.

[38:32] » And Judge

[38:33] » So, anyway, okay.

[38:34] » I'm sorry. One One thing that we One

[38:37] thing that I suggested in an email to

[38:39] the court and to counsel yesterday was

[38:42] that for the purposes of this show cause

[38:44] hearing, since uh the 75-plus witnesses

[38:48] that the defense had had a

[38:51] uh

[38:52] issued subpoenas for for this hearing,

[38:55] um my suggestion was that maybe with

[38:58] regard to the show cause hearing um as

[39:01] opposed to adjourning, we just recess so

[39:04] that

[39:05] so that all the subpoenas are still in

[39:08] effect

[39:09] um for whatever time you choose to

[39:13] um reconvene the show cause hearing in

[39:16] the event that

[39:18] the defense

[39:20] um or the state

[39:23] goes through these thousands of pages of

[39:25] records and

[39:27] determines that they do need to

[39:29] call a witness to inquire about records

[39:32] that might still be missing. Does that

[39:34] make sense?

[39:35] » Yeah.

[39:36] Uh well, why don't we just uh we just

[39:39] set a another another hearing date

[39:42] uh so that uh one of those subpoenas be

[39:44] effective for that date as well. That

[39:47] date if everything's been complied with,

[39:49] then there's no need to have to We don't

[39:51] have to meet if all parties uh notify

[39:54] the court that uh

[39:55] the subpoenas have been complied with or

[39:57] substantially materially and

[39:59] substantially been complied with

[40:01] uh and everybody's satisfied, then we

[40:03] don't have to have the hearing, but uh I

[40:06] will

[40:07] set a hearing a date and time

[40:09] um

[40:10] and

[40:11] you you've asked for September 14th to

[40:12] comply

[40:14] Mr. Gray, and and everybody's agreed to

[40:16] that and the court has approved it. Uh

[40:20] we can set that date

[40:22] as the date for

[40:24] to reschedule, reset and we recess this

[40:27] one and and

[40:28] uh

[40:29] re-

[40:30] uh reconvene it on September 4th

[40:34] at this same time by Zoom if everybody's

[40:37] in agreement to that date time and date.

[40:39] » Uh your your honor, I'd like to say that

[40:41] that might not be enough time for

[40:42] defense counsel and DA to go through all

[40:44] of the production if the last compliance

[40:47] date is September 14th. So, I would

[40:49] think we might want to push out a little

[40:51] bit to give them time to review.

[40:53] » All right.

[40:54] Mr. Spokuminsky, Mr. Best, what would be

[40:57] a reasonable time?

[41:01] » Judge, I can tell you my concern is I

[41:04] spent

[41:06] seven These These aren't like

[41:09] CPS records is the We're DFPS records,

[41:12] which is the closest analogy I can think

[41:14] of. These are

[41:16] uh a lot of the records are detailed

[41:19] treatment notes and documentation of

[41:22] things that are happening on a daily

[41:24] basis for months while

[41:26] » Well, I Well, I know that, but

[41:28] I mean, you know what you asked for.

[41:31] » Sure. Sure, Judge.

[41:32] » Can identify them as as what you asked

[41:34] for, then

[41:37] that you don't have to go through them

[41:39] in detail.

[41:41] » Sure. And and my the thought in my head

[41:45] um when Mr. Gray mentioned that is that

[41:47] we we've got a hard set jury trial

[41:49] coming up.

[41:50] » That's right.

[41:51] » And I went through It took me

[41:55] Really, I'm going to say 7 days. 7 days,

[41:58] not full days, but working on weekends

[42:00] and nights when I could to go through

[42:02] 2,000 pages of these records. Um that

[42:05] was the first submission. It was

[42:07] actually 3,000 pages, I think. Um

[42:11] and that was just kind of skimming

[42:12] through them. That wasn't a hard deep

[42:14] dive. So,

[42:15] if we're talking about another 4,000

[42:18] pages,

[42:19] um

[42:21] my concern is not so much my ability to

[42:23] go through them all and see what we got.

[42:25] It's that if we wait any longer, it

[42:27] starts to get really difficult to

[42:30] do the kind of deep dive you need to do

[42:32] to get ready for the trial on

[42:34] October 23rd.

[42:36] So,

[42:37] uh

[42:38] » Yeah. Yeah, I hear you, but uh

[42:41] maybe

[42:47] » I don't necessarily have the answer.

[42:49] » The the uh

[42:52] September

[42:55] uh 28th.

[43:01] Now, let me see.

[43:03] You said Well, no.

[43:12] The 25th, September 25th

[43:16] at 9:00 a.m.

[43:18] » And Judge, at 10:00 a.m.

[43:20] » 10:00 a.m. Central.

[43:22] » If I can um just interject on that, I've

[43:25] got a murder trial scheduled for

[43:27] September 21st.

[43:30] Um State versus Jermaine Levy, and we're

[43:32] anticipating that's going to last

[43:36] a full week and into the next week for

[43:39] » Well, that's that's going to be

[43:40] September 25th at 10:00 a.m.

[43:42] » Okay.

[43:43] » Okay.

[43:48] » And this is going to be the continuation

[43:50] of the show cause hearing, Judge?

[43:52] » That's correct.

[43:53] » Okay.

[43:54] » And all the subpoenas uh will remain in

[43:56] effect for that date, September 25th at

[43:59] 10:00 a.m.

[44:01] Um

[44:03] we'll meet by Zoom as well.

[44:11] » Do you need anything else, Ronnie?

[44:13] » I've got a few other issues that I need

[44:16] to address with the court.

[44:17] Um

[44:18] » Do they involve the

[44:20] the departments there Vernon?

[44:22] » Um they do not, Your Honor.

[44:25] » Okay.

[44:26] All right, Mr. Moore, Mr. Gray,

[44:29] anyone else here from Vernon State

[44:31] Hospital

[44:32] or Attorney General's office,

[44:35] you are excused.

[44:37] » Judge, just to be clear, are they going

[44:38] to provide the records to us by the 14th

[44:41] and then we're going to have our hearing

[44:43] on the 25th? Is that the arrangement?

[44:47] » Yes.

[44:47] » Okay.

[44:48] » Unless you Unless you notify the court

[44:50] before then you've received all that you

[44:52] asked for.

[44:53] » Yes, sir.

[44:55] » To the best I mean, materially.

[45:02] » Yes, sir.

[45:06] » I mean, these records are important and

[45:08] and they're material and they're

[45:09] [clears throat] relevant.

[45:11] But at some point

[45:13] you know, we're talking about voluminous

[45:14] records.

[45:17] They may may or may not be relevant to

[45:19] the issues in the case.

[45:22] Every single one of them you know, that

[45:24] many

[45:26] on a week-long trial.

[45:29] Think about it.

[45:33] All right, well,

[45:35] let's

[45:36] You all are excused.

[45:37] » Thank you, Your

[45:39] Thank you, Your Honor.

[45:41] » Thank you.

[45:52] » Okay, what other issues do we need to

[45:54] discuss?

[45:55] » Judge, couple of things. Um

[45:58] we have some

[46:00] We We a motion

[46:02] we're going to be filing. I would have

[46:05] filed it yesterday but I didn't want to

[46:06] file it at the last second before this

[46:08] hearing.

[46:10] We're going to be filing a motion to

[46:13] authorize

[46:15] the state to provide a copy of Dr.

[46:18] Dunham's

[46:20] um

[46:23] competency evaluation to

[46:26] the experts who will be testifying at

[46:28] the jury trial.

[46:30] And

[46:31] I I I

[46:34] am not advocating that we take that up

[46:35] now because I have not talked to the

[46:37] defense counsel about this yet. But in

[46:41] reviewing the

[46:42] code of criminal procedure it it appears

[46:45] to authorize that.

[46:47] I know before we

[46:50] have discussed the fact that Dr. Dunham

[46:52] had not completed his CEs

[46:56] for that evaluation to come in.

[46:58] However, the the code specifically

[47:01] authorizes

[47:04] experts who are considering competency

[47:08] to consider

[47:13] previous mental health evaluations and

[47:15] treatment records associated with

[47:18] competency. So I just want you to I want

[47:20] to let I guess I'm letting the defense

[47:22] know I want to let you know that that's

[47:24] coming.

[47:26] I also want to let the court know just

[47:29] so you're not surprised. The defense is

[47:31] aware of this. In fact, they brought it

[47:33] to my attention.

[47:34] There's a

[47:36] I'm going to I'm going to call it an

[47:37] ongoing investigation

[47:39] because that's I think that's what it

[47:41] is.

[47:43] into allegations that

[47:45] an employee of Vernon

[47:50] may have had an inappropriate

[47:52] relationship with the defendant

[47:54] while either while he was at Vernon

[47:58] or after he was discharged. I'm a little

[48:01] unclear on that, but I'm going to

[48:04] um

[48:05] again grain of salt. Um I'm going to go

[48:08] with there was some kind of

[48:10] communications happening while he was at

[48:12] Vernon. That's my understanding.

[48:14] Um

[48:16] so

[48:17] there is a ranger that is investigating

[48:21] that.

[48:22] » Hold on. Hold on just a minute.

[48:24] Um

[48:26] is this a matter that we need to

[48:29] that we could take up to the extent in

[48:32] ex parte rather than

[48:34] do we need to take it up uh

[48:36] where we're being live streamed uh

[48:39] uh or is this something that uh both

[48:42] counsel and the state uh

[48:44] » We can take

[48:46] From the state's perspective, we can

[48:48] certainly do that in an office

[48:49] conference. I just want to make the

[48:50] court aware of it. I know the defense is

[48:52] aware of it. Um

[48:55] I just didn't want you to be uh

[48:57] surprised by that.

[48:58] Um coming up at our next potentially at

[49:01] our next pre-trial information about

[49:02] that.

[49:03] » Defense, what's your position on that?

[49:07] » Judge, that's fine if you want to do it

[49:09] in an office conference.

[49:13] » I think we should do that.

[49:15] » That's fine, Judge.

[49:17] Um

[49:19] the other thing that um [clears throat]

[49:22] I think that we need to address, Judge,

[49:25] and again, we can do this in an office

[49:26] conference if you want to, but um

[49:30] the defense filed a motion, defense

[49:32] motion 55, uh requesting that the court

[49:36] order the state not to communicate with

[49:39] um witnesses.

[49:41] And uh as part of our trial preparation,

[49:44] we we're obligated to talk to witnesses

[49:47] um about

[49:49] uh trial preparation.

[49:51] Um

[49:53] and their testimony. So,

[49:55] I wanted

[49:56] uh I know the court hadn't ruled on

[49:58] that,

[49:59] uh but I wanted to

[50:01] uh have an opportunity to discuss it um

[50:04] because I'm

[50:04] » What was that filed?

[50:06] I haven't seen it.

[50:08] » I'm sorry, Judge.

[50:09] » I have not seen it.

[50:11] » Um

[50:12] » Recent or

[50:13] » It was

[50:14] It's been filed for a while, Judge, I

[50:16] believe.

[50:20] » Okay.

[50:20] » I don't have a date.

[50:22] » There's no ruling made on it?

[50:24] » No, sir.

[50:26] » All right.

[50:30] Uh do you want to describe that motion,

[50:33] Ms. Buksbinski or Mr. Gobel?

[50:36] » One moment, Judge. I'm pulling it up.

[51:02] And Mr. Best, you said it was 55?

[51:05] » 55. Yes, yes.

[51:52] » Do you have the title of it?

[51:54] What chance?

[51:59] » 25578426

[52:06] » It's really hard to hear.

[52:08] » Sorry.

[52:09] February 4th of 26.

[52:20] » Can hardly hear you.

[52:21] And Amber?

[52:24] » It's called a motion to prohibit further

[52:27] witness tampering.

[52:35] » Well,

[52:36] I guess it's the instant law to tamper

[52:39] with witnesses, but uh for the state to

[52:43] be able to order the defense for that

[52:44] matter to

[52:46] interview witnesses in preparation of

[52:48] trial and speak

[52:49] common place.

[52:52] Does anybody disagree with that?

[52:55] » And judge, if I may, that was in

[52:58] relation to a grander issue regarding

[53:01] the court of inquiry and Mr. Best

[53:04] speaking with Miss or Dr. Lambert at

[53:07] Vernon was the issue concerning that and

[53:10] why we wanted no communication to occur

[53:13] on that end.

[53:15] » Yeah, well.

[53:16] » And judge, that was motion defense

[53:19] motion 54.

[53:22] And

[53:23] um I guess that's a

[53:27] an issue that we just need to

[53:29] uh lay to rest, remove forward on,

[53:31] whatever the court decides.

[53:33] Um

[53:35] I know there were some uh

[53:37] communication between the court and

[53:40] Judge Woodward and there hasn't been any

[53:43] resolution to that.

[53:44] It's kind of outstanding.

[53:47] And

[53:48] » It doesn't It doesn't It doesn't require

[53:50] anything uh by any court my me or Judge

[53:55] Woodward until some event happens.

[53:59] That hasn't happened.

[54:03] You read it read the law regarding court

[54:06] of inquiry.

[54:08] An event has to happen initiated by

[54:10] counsel.

[54:14] That hasn't happened.

[54:17] » Okay.

[54:18] » Therefore, there's no authority to go

[54:19] forward any type of court of inquiry.

[54:23] » Okay.

[54:25] All right. Well, that's

[54:25] » No, I'm not I'm not going to even

[54:28] That's going to be a separate situation

[54:32] uh

[54:32] uh you know, if you want to set a

[54:35] hearing on that, but my inclination on

[54:37] any any

[54:39] uh motion and that that's not what I

[54:41] read Ms. Poksinski's motion. She's

[54:44] specified what she's was trying to reach

[54:47] and that is any any undue uh tampering

[54:50] that would be contrary to the law, but

[54:53] uh simple preparation for trial when

[54:55] talking to witnesses and preparation of

[54:57] trial is commonplace and that is

[55:00] authorized uh by you know, the parties.

[55:05] And it's simple as that. I haven't

[55:06] entered an order in any in any respect

[55:09] in that regard.

[55:11] So, there's nothing to prohibit you, Mr.

[55:13] Bess, from talking to witnesses in

[55:15] preparation for trial.

[55:18] » Yes, sir.

[55:19] » Ms. Poksinski, same thing for you guys.

[55:23] » Okay. So, so my thought, Judge, um

[55:29] my thought would be that when we have

[55:31] our our hearing on the 25th

[55:35] that

[55:36] uh if we could make that not just a show

[55:38] cause hearing but a pre-trial hearing as

[55:40] well, that's kind of what this is

[55:42] morphed into.

[55:43] Um,

[55:44] so that we can

[55:46] uh

[55:47] um, so that we can talk about that

[55:48] motion that we're going to be filing to

[55:51] allow

[55:53] our experts to review Dr. Dunham's

[55:56] um

[55:57] report.

[55:58] » All right.

[56:00] Yeah, we can have a a pre-trial, make

[56:02] that a pre-trial uh

[56:04] the the the the extension of show cause

[56:07] or or re-re-reconvening of the show

[56:09] cause and uh also a pre-trial to take up

[56:12] any any pending motions

[56:14] uh that are filed between now and then,

[56:17] but uh be sure you file it at least

[56:20] uh your any any motion be heard on that

[56:23] date at least uh

[56:25] say 3 days before so that I'm able to

[56:29] get a heads-up on it and and read it and

[56:32] review it.

[56:34] » Judge, if I may, I think it would be

[56:36] pertinent to set another hearing date.

[56:38] We will likewise be filing motions and

[56:40] to potentially have an order to show

[56:42] cause where

[56:45] at least 30 witnesses at this point in

[56:46] time, depending on the records that come

[56:48] through, will be asked questions, plus

[56:50] to address additional motions is going

[56:52] to be a significant amount of time for

[56:54] one day.

[56:55] » What witnesses are you talking about?

[56:57] » For the order to show cause hearing,

[56:59] Judge.

[56:59] » Yeah, the subpoenas.

[57:01] » Correct, yes.

[57:02] » Well, didn't we discuss that already?

[57:06] With with everyone

[57:08] and the rules and the attorneys?

[57:11] » Correct, but if there's still records

[57:12] outstanding, we'll need to be making a

[57:14] record of that and request and question

[57:16] witnesses on those specific subpoenas

[57:19] and why those records haven't been

[57:20] provided, if they have not.

[57:22] » We'll do it all on 25th, believe me.

[57:25] Y'all be ready.

[57:26] Uh we're not going to we're not going to

[57:29] extend this out. We're going to get it

[57:30] all done.

[57:31] So, I'll work with it, Vernon, with the

[57:33] Attorney General's office. You get the

[57:35] records.

[57:37] You've got You got thousands already.

[57:40] I don't see how another

[57:42] 10,000 is going to affect the jury's

[57:45] determination on the issue of

[57:47] competence.

[57:49] In other words, you have

[57:51] everything that that's going to be uh

[57:55] relevant to a jury in answering the

[57:57] questions

[57:58] they're going to have.

[58:01] Another 10, 20,000 records is not going

[58:03] to make a difference.

[58:05] Unless there's a silver bullet in there

[58:06] somewhere.

[58:07] And there's in this in these type of

[58:09] issues, there's no silver bullets.

[58:14] So.

[58:20] All right. So, we're going to do it on

[58:21] the 25th.

[58:22] So, be prepared.

[58:25] » Yes, sir.

[58:26] » If you want to

[58:27] subpoena 30 witnesses, we're going to

[58:29] take the time, and you can listen to

[58:32] whatever testimony you want on it, but

[58:33] we're going to do it on the 25th.

[58:37] But I I I'm

[58:40] you know, it just that's what it's going

[58:41] to be.

[58:43] So, you be able to communicate with

[58:44] Vernon and tell him who you're going to

[58:46] need it specifically. So, there's no

[58:48] delay, no anything like that. We'll line

[58:51] them up, question them,

[58:53] get it done.

[58:58] All right.

[58:59] What other What other issues do we need

[59:00] to discuss?

[59:03] » Um Jensen, am I forgetting anything? I

[59:06] think we covered all the issues I wanted

[59:07] to cover.

[59:09] » I believe everything's been covered.

[59:11] » Okay.

[59:13] Yes, sir. Well, thanks for uh

[59:16] hearing me out on those additional

[59:17] issues that I

[59:19] just want to make sure we have uh an

[59:21] opportunity to cover everything we need

[59:22] to cover before we get too close to your

[59:24] jury trial.

[59:25] » Yes. All right. Okay, you'll have a good

[59:28] day.

[59:29] » Thank you, Judge.

[59:30] » You're adjourned.

[59:40] » Thank you.

119th District Court - Concho's Zoom Meeting

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