[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.