Game On — On Our Schedule

Defense Acting Alone Dictates Scheduling Order

After doing their best to delay the game, and realizing that the game day is on the books, the defense is now trying to dictate the upcoming schedule for the trial preparations.  And they are doing it unilaterally.

In a recently filed motion for scheduling order, the defendants have come to the court with their own scheduling order.  They note that they went to the government first with their proposed schedule, but shocking — they couldn’t come to an agreement. 

So our selfless defense team, buoyed by the rightness of their scheduling cause, didn’t let that dim their determination.  Now, they have gone directly to the court to seek their blessing for the proposed schedule.

Again, they note that because of the “complexities” and “novel issues” in the case, the government’s schedule is “far too close” to the trial date to allow the defendants to “adequately prepare”.  I guess we are going to have to hear about the complexities of the case as often as the defendants talked about “hearing the chime” the evening of the murder.

Their main contention with the government’s schedule is  that they will be too late in producing evidence related to “uncharged/other crimes” evidence.  The uncharged crimes include the drugging, sexually assaulting and torturing Robert Wone.

The government says it will produce the this evidence by March 26, 2010, which the defendants believe is “barely a month before trial.”  Now when did a full six weeks suddenly become “barely a month”? 

And they believe that a full six weeks won’t allow for the numerous motions they will be filing and hearings necessary to defend.  So, according to their schedule they would like all “other crimes” evidence produced by the end of December.

They finish up their argument for their schedule by noting that the government is playing footsie by delaying its deadlines for completing discovery and providing expert notifications.  This seems an odd argument since the government recently noted that all outstanding discovery issues have been resolved, and the only one remaining is the white fiber threads found on the knife.

Read the entire motion below.

— Posted by David

7 comments for “Game On — On Our Schedule

  1. Meto
    12/07/2009 at 6:50 PM


    Where to begin to unravel this new tangled web?

    The date stamp is not clear to me, but it appears that the document may have been filed on December 2 even though it claims to have been served by hand on December 1 and the date December 3 appears all over it (in footers). Assuming it was filed on December 2, then the Government’s Opposition is due Wednesday, December 16. Even if the Defendants then turn around and file any reply (like the last time) on Thursday, December 17, they are looking for the Court to rule instantly and require disclosure of expert reports and other crimes evidence in less than 2 weeks with the Christmas holiday intervening. I don’t mean to sound like a broken record, but this filing, like the last, is a terrific Four Corners Offense filing that is designed, I believe, to set up the “need” to postpone the trial from May 10.

    The other fingerprints are: (1) the deadlines for motions and replies are in the middle of the Blackwater case (presently set) that was used as the reason for not having the trial in December (as an aside, events in that case may suggest that that case could be next in line for a continuance strategy); the assertion that March 26 is “barely a month before trial” (yes 6 weeks are now as David points out barely a month) smacks of a future filing that says “we told you so, we need to move the trial date;” and the overall time table that requires intervening weeks, if not months for decisions.

    Also note the unilateral expert report provision. The rules clearly require, if asked, for the Defendants to similarly provide expert reports to the Government, but this “oh-so helpful to the Court” filing is one sided — not that there is anything wrong with that. It just belies the “helpful” nature of the filing and suggests that if the Government has the audacity to make a similar request, the schedule will just have to slide some more.

    Finally, I wonder whether this is also designed to “persuade” the Chief Judge that there really are complicated and numerous issues to be addressed best by Judge Weisberg? By the way, Hoya Loya, I agree with your analysis of whether that motion should get granted.

    Now I am not buying all this mind you, I am just pointing out what this a bit too seasoned litigation vet thinks is going on with the strategy.

    Remember Justice Delayed Justice Denied.



    • David
      12/07/2009 at 7:30 PM


      I agree, looks like a classic four corners offense designed to delay trial.

      So glad you left your lurker status behind and have jumped into the our little community — we need you!


  2. Clio
    12/07/2009 at 6:53 PM

    “Complexities” and “novel issues”: just keep reading this blog, Bernie, and you’ll be ready, if not happy, by March!

    “Extraordinary amount” of evidence — I had thought that the paucity of evidence — particularly useable blood evidence — gave the advantage to the defense. Quit while you are ahead, Spag!

    When are contractions (don’t for “do not” on page 2) ever appropriate for formal legal documents? I agree with Meto that the trouple is being overcharged. Counselor Connolly needs a new secretary, at the very least!

    • Meto
      12/07/2009 at 7:04 PM


      Overcharged and/or is Joe doing some (most?) of the underlying work? More than any other that I have reviewed, this filing has the look and thinking of a civil litigator strategy. I could easily see Joe trying to lower the legal bills by doing just that although that does not relieve the “real lawyers” of their ethical responsibilities.



  3. Bea
    12/07/2009 at 7:17 PM

    Joe is working full-time on this case, no doubt, and my guess is that he drives Bernie a little crazy.

    In ANY case, this type of gamesmanship is pretty standard – and it is a game.

    • AnnaZed
      12/07/2009 at 10:58 PM

      “– and it is a game.”

      To them it is a game. I’m not correcting you Bea, because I know that you feel as I do. This blog is here to remind you Joe, this is not a game.

      • Bea
        12/08/2009 at 3:53 AM

        Absolutely – thanks for recognizing that I never meant ‘a game’ in any way for Robert Wone’s family, or for that matter, me.

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