1 1 REPORTER'S RECORD 2 TRIAL COURT CAUSE NO. 06-CR-2693-G 3 06-CR-2672-G 4 - - - - - - - - - - - - - x : 5 STATE OF TEXAS : IN THE DISTRICT COURT : 6 VS. : 404TH JUDICIAL DISTRICT : 7 ARTHUR DANIEL HAYES : CAMERON COUNTY, TEXAS : 8 - - - - - - - - - - - - - x 9 MOTIONS FOR DISCOVERY 10 11 12 13 14 15 On the 7th day of February, 2007, the following 16 proceedings came on to be heard in the above-entitled 17 and numbered cause before the Honorable Abel C. 18 Limas, Judge Presiding, held in Brownsville, Cameron 19 County, Texas. 20 Proceedings reported by computerized stenotype 21 machine. 22 23 24 25 2 1 A P P E A R A N C E S 2 APPEARING FOR THE STATE OF TEXAS: 3 HON. ARMANDO VILLALOBOS CAMERON COUNTY DISTRICT ATTORNEY 4 974 EAST HARRISON BROWNSVILLE, TEXAS 78520 5 (956) 544-0849 (956) 544-0869 Fax 6 7 HON. CYNTHIA MALDONADO HON. CHUCK MATTINGLY 8 CAMERON COUNTY ASSISTANT DISTRICT ATTORNEY 974 EAST HARRISON 9 BROWNSVILLE, TEXAS 78520 (956) 544-0849 10 (956) 544-0869 Fax 11 APPEARING FOR THE DEFENDANT: 12 HON. ROBERT S. BENNETT 13 THE BENNETT LAW FIRM, P.C. 515 LOUISIANA, SUITE 200 14 HOUSTON, TEXAS 77002 (713) 225-6000 15 (713) 225-6001 Fax 16 HON. MICHAEL L. YOUNG LAW OFFICE OF MICHAEL L. YOUNG 17 504 EAST LEVEE BROWNSVILLE, TEXAS 78520 18 (956) 541-4344 (956) 541-4340 Fax 19 20 21 22 23 24 25 3 1 P R O C E E D I N G S 2 THE BAILIFF: All rise. 3 THE COURT: Morning, guys. Morning, 4 gals. 5 All right. You may be seated. All 6 right. 06-2693 and 2672; State of Texas versus 7 Arthur Daniel Hayes. 8 MR. VILLALOBOS: Judge, state's 9 present and ready. 10 MR. BENNETT: Defense is ready, Your 11 Honor. Bob Bennett from Houston and Mr. Young. 12 THE COURT: All right. Let's see. 13 What do we have here first? I just got this right 14 now. 15 MR. BENNETT: Basically, Your Honor, 16 we are trying to get discovery. 17 THE COURT: Exculpatory and Brady 18 material? 19 MR. BENNETT: That's correct. Brady 20 material and exculpatory material and this is 21 somewhat unusual case because we learned about 22 certain witnesses who have actually been on TV and 23 have made statements and that type of thing, and it 24 all kind of shows that we believe that the state has 25 extensive exculpatory evidence. 4 1 THE COURT: Witnesses slash victims, 2 alleged victims? 3 MR. BENNETT: That's correct, Your 4 Honor. And in addition to that, we have discussed -- 5 we tried informally to meet with district attorney 6 office I believe January 18th. We had a meeting with 7 the district attorney's office and it was our 8 understanding out of that meeting certain material 9 would be provided to us. There's a large grouping of 10 medical records from the Family Medical Center which 11 I think forms the basis for the sexual impropriety 12 allegations and the Medicare Medicaid fraud 13 allegations. We are under the impression we were 14 getting some of those at some point. Apparently, 15 there was some breakdown. We then were informed they 16 were not going to open the file nor were they going 17 to provide these documents without a formal hearing. 18 Hence, that's the reason we're here. We provided the 19 district attorney with a copy of our motion and 20 provided a copy of our order and we're asking the 21 court to enter the order so we be allowed to have 22 discovery. It's my understanding that we have a 23 trial date of April the 30th and we literally have a 24 car load of documents, some we may even have to go 25 through, some we may not. 5 1 THE COURT: And that's what I was 2 going to ask you. What -- I believe it was 3 Dr. Rutledge. 4 MR. BENNETT: David Rutledge, that's 5 correct. 6 THE COURT: Is he a doctor? 7 MR. BENNETT: He was an MD. He 8 surrendered his license in 2006. 9 THE COURT: Okay. Well, part of 10 that -- you all got those 5,000 pages or I don't know 11 how many boxes, but in those have you reviewed those 12 documents? 13 MR. BENNETT: Your Honor, the day 14 before we had a hearing our client went over and 15 picked up a small bankers box of just certain 16 documents. On the great body of the documents were 17 taken by the district attorney's office so we do have 18 some documents that we picked up from Dr. Rutledge 19 but they are infantesible in comparison to the body 20 of documents that the district attorney has. 21 THE COURT: All right. Now, that body 22 of documents that the district attorney you say that 23 they have, you are saying that those documents some 24 of those documents were reviewed by the Grand Jury to 25 indict? 6 1 MR. BENNETT: I have no idea, Your 2 Honor. I have no idea what the Grand Jury saw. 3 THE COURT: Because I thought I heard 4 you say that. 5 MR. BENNETT: They may have or may 6 not. Again, we have not been privy to what was 7 presented to the Grand Jury, testified in front of 8 Grand Jury. We assume that they had to have some 9 evidence but we don't know what that was. We have 10 included that in our request for discovery. 11 MR. YOUNG: As an aside, Your Honor, I 12 also want to put on the record that based on my 13 experience as a defense attorney here in Cameron 14 County and also as a prosecutor, that the office of 15 the district attorney normally maintains an open file 16 policy on all cases. However, I want to point out 17 for the court that we have not been allowed to review 18 any statement, nothing that was presented to the 19 Grand Jury, nothing that wasn't presented to the 20 Grand Jury. I made a request, been a couple of weeks 21 ago now. Mr. Bennett was coming down for the day 22 that one of the co-defendants was to be arraigned 23 that we be allowed to at least see the file, see what 24 statements they have on file, see what evidence they 25 have up to this point and we were denied that and 7 1 told that we won't see anything, not just 150 boxes, 2 but won't see anything unless it was ordered by the 3 court and this is outside the ordinary practice of 4 the district attorney's office. 5 We're curious as to why our client's 6 equal protection rights are being violated because 7 every other defendant in this county is afforded the 8 open file policy, but for some reason our particular 9 defendant -- 10 THE COURT: Well, the open file policy 11 is not a constitutional right. 12 MR. YOUNG: But the right to equal 13 protection of laws is and as the -- while it's true 14 the district attorney can close every file and 15 there's not a law that says it must be open file, 16 but -- 17 THE COURT: Well, equal protection 18 involves a class. 19 MR. YOUNG: We are trying to figure 20 out what class it's in. What class are they saying 21 he belongs to that he doesn't get open file policy. 22 Is it because he is African American, is it because 23 the district attorney's office doesn't like the style 24 of the defense attorney? We don't know why they have 25 closed the file, but this court is aware I don't 8 1 think you have ever been aware of a case where they 2 have closed the file and -- 3 THE COURT: When I was in private 4 practice, yes, the former district attorney closed 5 all files on me. 6 MR. YOUNG: That may go to the 7 personal relationship you had where your clients were 8 also deprived of their equal protection. 9 THE COURT: That could have been it. 10 MR. BENNETT: You are just being an 11 aggressive defense counsel, Your Honor. 12 THE COURT: Yes, sir, I was. 13 MR. BENNETT: Your Honor, the other 14 thing I want to point out, this is a little bit 15 unusual because the case is being driven by documents 16 and unless we have those documents we cannot prepare 17 a defense. The case also will require expert witness 18 testimony about certain medical procedures, certain 19 medical recordkeeping. We can't get documents to our 20 expert if we don't have documents. 21 THE COURT: All right. 22 MR. VILLALOBOS: May I respond, Judge? 23 THE COURT: Yes, sir. 24 MR. VILLALOBOS: Judge, first of all, 25 he is not the only defendant we have ever closed the 9 1 file to and it's not the defendant, it's the defense 2 attorneys that we close our office to; specifically, 3 Mr. Bennett. Now, we did have a meeting a couple 4 weeks ago to try to bring the tone down a bit so that 5 we could discuss things and I thought we were 6 successful on that. I have been communicating with 7 Mr. Young several times on this case, however, 8 Mr. Young's comments and Mr. Bennett's comments don't 9 match. I talked to Mr. Young, I get letters from 10 Mr. Bennett and it's -- I'm not sure what the tone is 11 or whether they are trying to work through it civilly 12 or they want it to be adversarial. We're not sure of 13 that, however, I don't recall our office ever telling 14 Mr. Young that he couldn't come in and see the file 15 post that meeting we had two weeks ago. I have had 16 several conversations with Mr. Young telling him that 17 what we have done is we have the bulk of the records 18 that we obtained from Dr. Rutledge at the last 19 hearing that are in the warehouse and we have been 20 going through them as investigatory process for 21 additional charges. Those records are not for the 22 charges we have pending now. Those documents were 23 pulled out by OIG, made copies of, those documents 24 are with our investigators in McAllen. And I told 25 Mr. Young that we will show them because we have an 10 1 obligation to show them what we are claiming and that 2 we are going to show them that. We have the 3 statements that the three patients that were seen by 4 the defendant claiming they were given invasive 5 procedures by the defendant who is not a doctor so 6 that's the basis of our sexual assault claims and our 7 claims of unauthorized practice of medicine. So in 8 actuality we see the cases rather simple and rather 9 small. They are claiming that we have exculpatory 10 evidence and what they are wanting is for us to 11 produce I presume the statements that they already 12 took of the two victims themselves claiming -- trying 13 to negate our elements. They went out and 14 interviewed two of the three victims and two of the 15 three victims in their statement somewhat negates one 16 of the elements on our offense. We have since 17 reinterviewed those victims. Those victims have now 18 recanted what they told Mr. Bennett so we don't feel 19 like we have exculpatory evidence to give 20 Mr. Bennett. 21 As far as all the documents in the 22 warehouse, at this point they really don't fall into 23 play in this case. However, if they want to bear the 24 expense of making copies of anything, Your Honor, we 25 have no problem with getting Kinkos or somebody who 11 1 can copy all those. It's a bunch of documents that 2 have no relevance in this particular case. We are 3 reviewing those documents to see if there is 4 additional charges that we can file on, that's the 5 status of that. 6 Now, as far as the open file, my 7 understanding was that Mr. Young and I were working 8 towards that. We just hadn't set up a convenient 9 time. They were wanting to do it when Mr. Bennett 10 was flying down a week ago, I believe, and we weren't 11 prepared to do it at that time, so that was the only 12 thing we told them that we weren't ready on that 13 date. I have since called Mr. Young several times on 14 this matter to try to see if, as late as last night 15 to see what it is that we are disputing, what it is 16 we are arguing about. The tone of the last meeting 17 that we had at the last hearing was basically they 18 wanted to know what you have, show us so that we can 19 tell our client to see if we can come up with a plea 20 bargain. We agreed to do that. I needed time to get 21 all that information and we can set an appointment to 22 do that. From my perspective, it's a pretty simple 23 case, Judge. 24 THE COURT: Well, you know, the last 25 time we were here, and tell me where the breakdown 12 1 was, the last time we were here my perception was 2 that everybody here was going to be cordial, 3 cooperative and that everyone walked out here really 4 happy. One of the reasons that we postponed the 5 trial was because the court was informed, you know, 6 that there would be a full cooperation between the 7 parties to lead up to maybe a very favorable outcome 8 for the case for your client, Mr. Bennett, that was 9 my impression. If I'm incorrect, well, correct me. 10 MR. BENNETT: Judge, I'll address it 11 this way. There were two letters written to the 12 district attorney's office. One letter talked about 13 the fact that we had a witness intimidated, we wanted 14 to make sure that stopped, just put them on notice in 15 case it happens again. There is no question that 16 they would not do that. The second letter laid out 17 what we saw is their duty to provide exculpatory 18 information. Now, my duty as an attorney is to make 19 sure they are on notice about that. Well, they 20 didn't like me reminding them of what their duty is 21 so they got mad, shut the file and to this day we 22 have not gotten one single document, not one single 23 document. 24 MR. YOUNG: If I could just respond to 25 Mr. Villalobos. I agree he and I have had cordial 13 1 conversations and we're all working towards producing 2 things. He had always represented to me we will 3 provide with you whatever. I just want to be clear 4 that my conversation with Ms. Maldonado, and I called 5 her the day before Mr. Bennett was coming down, I 6 think it was last Wednesday or Thursday or a couple 7 weeks ago, and basically said can we look at the file 8 and that's when she informed me no. And I asked her 9 what happened, I thought we had a peace treaty kind 10 of as a joke and she said well that peace treaty has 11 been broken. You obviously haven't seen the letters 12 Mr. Bennett sent. We don't have an agreement. 13 THE COURT: You all throw the smoking 14 pipe out? 15 MR. MALDONADO: Well, Judge, I'd like 16 to respond to that. Last week and what Mr. Young 17 just left out is that he served us with this motion 18 for discovery, this motion for exculpatory and the 19 motion to dismiss he served us the day before and he 20 tried to set up for the very next day. My 21 conversation with Mr. Young was that we had to object 22 because we needed proper notice. The court was 23 informed, he finally submitted an order setting 24 hearing and then here we are today, Judge. It wasn't 25 that he was never going to be able to see the files, 14 1 it wasn't that we were not going to allow him to see 2 anything. None of that was said, Judge. 3 MR. YOUNG: No -- 4 MR. MALDONADO: What was said was we 5 have to object to the fact that you barely told us 6 the day before. 7 MR. YOUNG: Because the only way you 8 get discovery is if you do properly set the motion, 9 if you do properly give us notice and if the Judge 10 orders it. Of course I told -- I mean, these are -- 11 MR. MALDONADO: I never said that, 12 Judge. 13 MR. YOUNG: -- standard motions. A 14 standard discovery motion, a standard Brady motion. 15 It shouldn't be something this court has to order 16 especially in light of this conciliatory tone that 17 we've had. That's the reason I assumed oh, I'm just 18 letting you know it is a standard discovery motion, 19 I'm going to file it, can we come in and see the 20 file. No, not without an order. My only reaction to 21 that is I guess that we no longer have the peace 22 treaty is what she told me. 23 Basically, our meeting was, Your 24 Honor, and we have honored it today. It was that we 25 are going to stay out of the media, we are not going 15 1 to be making a bunch of inflammatory statements to 2 the media and we've honored that. We certainly 3 didn't ask the media to come here and even after 4 being told by Ms. Maldonado that our peace treaty is 5 off, we are still honoring it. We sent some letters 6 in private to the district attorney that were not 7 made public, we haven't talked to anybody about our 8 meeting or our negotiations. We want to keep this 9 out of the media to see if we can resolve it. I 10 mean, I think Mr. Villalobos is willing to allow us 11 to see the file but I think his subordinates need to 12 know that because I certainly got the reaction was -- 13 THE COURT: Well, you know, the open 14 file policy, the open file policy is -- I mean, the 15 district attorney, the court, I've had lawyers from 16 this court ever to come into this court because of 17 certain issues that I have with those lawyers and 18 rightly so and that's just policy. If the district 19 attorney's office wants you to have cake and ice 20 cream, he'll let you have it. If for some reason he 21 doesn't feel that way, he will just gave you cake and 22 he is entitled to do that. 23 Now, I think what the district 24 attorney is saying is you are going to follow rules 25 if you are going to be -- if you are going to be 16 1 acting like this or whatever it is, I don't know what 2 you guys have said or done, well then he can rightly 3 say that. But I think and I will order that whatever 4 exculpatory matter they have, Brady material I'm sure 5 they will turn it over. 6 MR. YOUNG: Well, given again the fact 7 that the court has to order it, can you give us a 8 date certain when they are going to at least let us 9 see the file and the statements in the file. 10 THE COURT: All right. Well, 11 whatever -- I don't know if they are going to allow 12 you to do that but I will tell you this; whatever 13 exculpatory material they have, they'll turn it over 14 to you. Obviously, if during the trial something 15 comes up that wasn't presented to you guys, wasn't 16 given to you guys, well then, you know, I will make a 17 ruling at that point. 18 MR. YOUNG: Well, I still kind of feel 19 we are not going to have access to the file. 20 THE COURT: I don't know. I can't -- 21 MR. YOUNG: You can order it, Your 22 Honor. I mean, he's been indicted. They have 23 evidence to support that. 24 THE COURT: No, I can't order that he 25 open the file to you. 17 1 MR. YOUNG: That's the reason we -- 2 THE COURT: That he produce Brady 3 material, sure, I can order that. 4 MR. YOUNG: But we have a very 5 detailed discovery order. We'd ask the court to 6 review, which says we want witness statements that 7 were taken. 8 THE COURT: Right. 9 MR. BENNETT: Any statements by the 10 defendant, that type of standard material, Your Honor 11 and it just -- just a minute. It says that that 12 would be produced within 30 days of the court 13 entering this order, 30 days to do that. I think 14 that's more than adequate time. And if they during 15 that time want to make other things available, all 16 more to the positive. 17 THE COURT: All right. 18 Mr. Villalobos, you were going to say? 19 MR. VILLALOBOS: Judge, if he wants to 20 go down the list. I mean, for instance, just saying 21 witness' statements; he is not entitled to witness' 22 statements. He is entitled to get those when they 23 take the stand. You know -- 24 THE COURT: Is that still the grade 25 rule, use before the jury rule? 18 1 MR. VILLALOBOS: Yes, Your Honor. 2 Now if he wants to, if he wants to do 3 that then, Judge, you know we are going to have to 4 lodge our objection. In other words, he is trying to 5 get us to play nice but he wants to come in and, you 6 know, do it by the book so I don't understand the 7 tone. I mean, we get from one side we get, you know, 8 we get blasted. He says he is reminding us but for 9 us we read it as getting blasted as basically he is 10 calling us idiots, you know, on paper. We get 11 Mr. Young saying no, no, no, we are going to work it 12 out, we can play nice, so we are just kind of curious 13 as to what -- 14 THE COURT: Good guy, bad guy? 15 MR. VILLALOBOS: Exactly. I mean, and 16 that's what this hearing is to too, Judge. They are 17 saying I'm sure Mr. Young is saying I'm sure he is 18 going to let us see the file, we can work this out. 19 Mr. Bennett is saying we want go piece by piece so I 20 mean, they can't have it both ways, Judge. If they 21 want to go piece by piece, that's good, we have all 22 morning and we'll object to the ones that they want 23 that we feel that they are not entitled to. 24 As far as the exculpatory, we agree to 25 give them anything that's exculpatory. I feel we do 19 1 not have anything exculpatory for them. 2 THE COURT: What specifically are 3 you -- 4 MR. BENNETT: Well, Judge, we heard 5 this morning they had statements of Elizabeth Quiroz 6 and Amanda Alonzo, those statements have been taken. 7 Later, those two witnesses went on television said 8 Pastor Hayes the greatest guy under the sun. Then 9 they went back and said well, let's reinterview them 10 and get some other statements. Somewhere in there I 11 think is some exculpatory material certainly 12 impeachable material dealing with their witnesses, 13 and I think that given the status of these people 14 making these public statements, they have exculpatory 15 material. It doesn't have to say -- it's either 16 exculpatory to the extent that he didn't do it or to 17 the sense that now they changed their minds and they 18 are coming back and that's exculpatory because they 19 have made two statements now and we should be 20 entitled to that. 21 MR. VILLALOBOS: Judge, they are 22 entitled to impeachable items, only when the witness 23 takes the stand. Exculpatory, they provided us those 24 statements. They have had those statements that they 25 took that they're claiming are exculpatory. 20 1 THE COURT: When they deny, negates 2 one of the elements. 3 MR. VILLALOBOS: They are the ones 4 that gave it to us and if they want us to turn around 5 and give it back to them, we can do that. We can 6 make copies of same things they gave us. They 7 subpoenaed all of the TV stations' notes and videos 8 and everything. They have everything that they are 9 saying that we have. I'm not sure -- 10 THE COURT: Let me ask you this. Why 11 did you guys make me change the trial date? Why did 12 you all -- 13 MR. BENNETT: I think at that time, 14 Your Honor, to tell you the truth I don't remember. 15 I assume it was to try and get production. We hadn't 16 gotten production at all so we had a co-defendant 17 that was in Oregon. I think it was a combination of 18 those things. 19 MR. VILLALOBOS: Judge, plus there was 20 no trial date when we came. 21 THE COURT: There wasn't a trial date? 22 MR. MALDONADO: The defendant was 23 getting arraigned, Judge, and this is the first trial 24 date which is April 30th, 2007. It's the first 25 setting, Judge. 21 1 MR. BENNETT: I think that's correct, 2 Your Honor. I don't know of the date prior to the 3 30th. 4 THE COURT: When was he arraigned, the 5 19th? 6 MR. BENNETT: The 19th. The meeting 7 with the DA was the 18th, Your Honor, then we had the 8 arraignment on the 19th. And then after that you 9 arraigned the co-defendant and I think you set both 10 those trials for April the 30th. 11 THE COURT: Let me check something 12 real quick. 13 MR. BENNETT: I'm not too sure whether 14 given where we are today whether we are going to be 15 able to be prepared for that. 16 THE COURT: Okay. Well -- all right. 17 MR. VILLALOBOS: The first issue, 18 Judge, is to make it simple is all those documents in 19 the warehouse, we don't have a problem giving them to 20 him if they pay to copy all of them. If they'll make 21 that agreement then we'll, you know, they can go and 22 or we can send them to them to go get copied within 23 the next seven days. You know, we can have that done 24 and we will send them a bill for it. They can have 25 copies of all those documents because as far as we 22 1 are concerned, they are irrelevant to this case. 2 They might be relevant if we indict him on other 3 charges, but as far as this case is concerned they 4 have nothing to do with it. The only thing is that 5 we would prefer a court order because of the HIPPA 6 regulations, Judge. They are documents dealing with 7 patients, with patients being treated. Mr. Hayes is 8 not a doctor, he is a defendant on this so we as the 9 state don't want to be in violation of any HIPPA 10 requirements. We're asking that -- and Mr. Young and 11 I had talked about this and he has copies of them 12 that he needs to give us but when they pulled out 13 that bankers box of all those documents they were 14 going to give us the copies of that and we'll pay for 15 those copies. We will make it fair if we can have 16 those within seven days. 17 MR. YOUNG: We have no problem with 18 that, Your Honor. 19 MR. BENNETT: Except for this; we'd 20 like to have the opportunity to inspect. We don't 21 want to have to pay for a whole warehouse of 22 documents. We would like to have the opportunity to 23 go there and look at those documents and make a 24 decision. 25 THE COURT: Say these are the copies, 23 1 we want copies of this. 2 MR. BENNETT: That's correct. 3 THE COURT: That makes sense. Yeah. 4 MR. BENNETT: Absolutely. 5 MR. VILLALOBOS: I'm agreeable to 6 that. 7 THE COURT: All right. Well then 8 that -- 9 MR. BENNETT: We will prepare an order 10 for that to take care of any medical regulations. 11 THE COURT: Okay. 12 MR. VILLALOBOS: So they -- 13 THE COURT: And -- 14 MR. VILLALOBOS: Seven days from the 15 date they see them? 16 THE COURT: Let them see the order. 17 MR. BENNETT: Certainly. 18 MR. VILLALOBOS: Okay. That makes it 19 simple. 20 As far as all these items on here, I'm 21 sure I can meet with Mr. Young in five, ten minutes 22 right now, agree on most of them. 23 THE COURT: All right. 24 MR. VILLALOBOS: Agree on a deadline 25 for most of them because they are entitled to certain 24 1 items and then the ones we don't agree on we can then 2 indulge the court on those and the court can say yes 3 or no on those. 4 THE COURT: Okay. Now, both of these 5 guys the one to your right, Mr. Bennett, and the one 6 to your left both of these guys have worked in this 7 court before as prosecutors and defense and they know 8 how I feel about being equal on the war zone, in the 9 war zone, all right? So whatever matters that you 10 feel that you are entitled to, the court will make a 11 ruling on those and, but I think you guys should make 12 it smooth. I mean, sometimes it's hard to do that 13 because in defense of your client I've been there 14 many times. Well, that's all I did. I never was a 15 prosecutor. I don't think I could ever be a 16 prosecutor. 17 MR. VILLALOBOS: You were an intern 18 once. 19 THE COURT: What? 20 MR. VILLALOBOS: An intern once. 21 THE COURT: But I was not a 22 prosecutor. Anyway, I was the messenger. But 23 anyway, get together and go down the list and I'll be 24 here whatever you all can't decide, then I'll go 25 ahead and make ruling on them. Is that fair, 25 1 Mr. Bennett, Mr. Young? 2 MR. BENNETT: Your Honor, yes. Your 3 Honor, that's more than fair. We appreciate the 4 court's time. 5 THE COURT: Sure. 6 MR. BENNETT: Judge, we had filed 7 what's been styled as the motion to dismiss the 8 indictment. There has been no response filed by the 9 prosecutor. There may have been some issue about 10 having -- we thought it was set for today and 11 apparently it's not so we will need I think time for 12 that to be set and maybe some other motions. For 13 instance, I anticipate giving the unique nature of 14 the witnesses in this case that we are going to file 15 a motion to take depositions in this case and I just 16 wanted to give the court and the district attorney 17 fair warning because of this situation with these 18 witnesses that keep apparently saying one thing, 19 going on television saying another, giving us 20 statements, giving them statements. 21 THE COURT: What's the rule on 22 depositions? I have never had -- I know there is a 23 rule on depositions on criminal cases. 24 MR. BENNETT: It's a discretionary 25 matter. It's the court discretion. I think it 26 1 actually says if there is suspicion basis for that. 2 In this case -- 3 THE COURT: I thought it was death or 4 risk of flight. 5 MR. BENNETT: No. That's maybe how 6 it's sometimes used but also and I have taken 7 depositions in criminal case when there is an unusual 8 circumstances concerning witnesses. 9 MR. MATTINGLY: Witness availability, 10 Your Honor. 11 MR. BENNETT: In this situation, 12 again, going back to two of these witnesses that have 13 given statements to them, we got statements, went on 14 television, now giving a third statement. And the 15 uniqueness about this, Your Honor, is that our 16 medical records that we have are billing records. We 17 don't have the medical records, we have billing 18 records and there seems to be differences in the 19 dates of the indictment as to which things occurred, 20 there's also these witnesses that allege some type of 21 sexual situation or improper treatment, some of these 22 witnesses came ten times to the clinic and none of 23 those times contemporaneous with those medical visits 24 did they ever raise any questions. So some four, 25 five years later they are now saying well hold it 27 1 now, something happened. So all that, and we will 2 put this in our motion, I think serves as sufficient 3 basis for the court under its discretion to allow us 4 depositions. And I think that would maybe even move 5 this case toward dismissal because I anticipate those 6 witnesses are going to say that there is issues of 7 identification, issue of treatment, issue people 8 there, all that goes to the heart of the state's 9 case. 10 MR. YOUNG: It might help both sides 11 to resolve it, Your Honor. And I mean, for instance, 12 this court's is aware Dr. Dewitt whose moved on to 13 Maine, the courts are ordering her deposition not 14 because she's dead or unavailable, just for the 15 convenience of the parties. So I think it's any time 16 the court feels that it can benefit one or both sides 17 it can order it. And I think it might help the 18 district attorney's office to know what these 19 witnesses are going to say at trial, it also helps us 20 to know what are these witnesses going to say at 21 trial. 22 THE COURT: Well, see this is not the 23 purpose of taking a deposition on these witnesses, 24 they are witness slash victims and these witnesses 25 have to come in and testify and take the stand so 28 1 what -- what's going to be the difference on the 2 deposition versus the statements they have already 3 given that contradict? 4 MR. YOUNG: If the district attorney's 5 office is operating under the proposition they are 6 going to say one thing and then they come into trial 7 and say something totally different -- 8 THE COURT: But they've already done 9 that though. 10 MR. YOUNG: Well, when they talk to 11 them they say one thing and when they talk to us they 12 say another, and maybe just subjecting them to both 13 sides having a fair opportunity to cross examine 14 them, we'll know what they really are going to say 15 and they are not just saying to please whoever is 16 talking to them at the time. I mean, it might or 17 might not resolve the case and I just think it might 18 help us to say if they are going to take the stand 19 under cross examination be damaging to us, we may 20 want to resolve it. Same thing for the district 21 attorney's office. If they are going to under cross 22 examination say well, it really didn't happen -- 23 THE COURT: Well, but the purpose of 24 a deposition really and truly is to present them for 25 the jury when a witness for some reason becomes 29 1 unavailable, that's really the purpose of -- or can't 2 subpoena the witness, you have to go over there and 3 take the deposition, you know that's really the 4 purpose of them not when you are going to have 5 somebody here in trial. More particularly, on a 6 criminal case where the defendant has a right, you 7 know, to confront his accusers. 8 MR. YOUNG: If the DA's office doesn't 9 think it's going to help us to resolve it, I mean 10 that's fine. 11 THE COURT: Well, it's what I think. 12 It doesn't matter what the DA's office thinks. 13 MR. BENNETT: Well, Judge, the other 14 thing that may help get it resolved is if they are 15 saying certain statements -- right now I can't go to 16 my client and say they can prove anything because I 17 haven't seen anything and the witnesses we've talked 18 to say he never -- this is a quote -- "never 19 disrespected me. He was always the kindest man, 20 never did anything." And in order to take the 21 depositions and of course both the district attorney 22 and the defense would be there so it would be on 23 equal ground to ask questions, that might result in 24 either dismissal or a plea because then you know what 25 they are going to say. Right now we don't know what 30 1 they are going to say so that might be a benefit to 2 the court and save the court's time if we can get it 3 resolved that way. 4 THE COURT: Well, you know, but I 5 disagree with you, Mr. Bennett, on this issue as far 6 as the deposition. I mean, it's good for the jury of 7 course to observe demeanor and, you know, of a 8 witness, expert or whoever it is but you have 9 witnesses here that have to come in here and face the 10 jury anyway and whatever -- it doesn't guarantee that 11 they are going to change their mind on the stand 12 again one more time or say anything different from 13 the deposition, so I disagree under this situation 14 that I'm not going to allow the victims to be 15 deposed, Mr. Bennett. There's some urgency maybe 16 down the road I might, but I don't feel that it will 17 be appropriate at this time or even under the rules. 18 I'm going to deny that. So get together on the other 19 things. 20 MR. YOUNG: We'll visit. 21 THE COURT: You all can have some 22 coffee. You all want to grab some coffee or water, 23 guys. Use my jury room, whatever you all need to do. 24 MR. MALDONADO: Thank you, Judge. 25 31 1 (Proceedings concluded) 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 32 1 THE STATE OF TEXAS: 2 COUNTY OF CAMERON: 3 CERTIFICATE OF COURT REPORTER 4 I, MICHELLE CARDENAS, Official Court Reporter in 5 and for the 404th Judicial District Court of Cameron 6 County, State of Texas, do hereby certify that the 7 above and foregoing contains a true and correct 8 transcription of all portions of evidence and other 9 proceedings requested in writing by counsel for the 10 parties to be included in this volume of the 11 Reporter's Record, in the above-entitled and numbered 12 cause, all of which occurred in open court or in 13 chambers and were reported by me. 14 I further certify that this Reporter's Record of 15 the proceedings truly and correctly reflects the 16 exhibits, if any, admitted by the respective parties. 17 I further certify that the total cost for the 18 preparation of this Reporter's Record is $185.00 and 19 was paid/will be paid by MR. ARTHUR DANIEL HAYES. 20 21 22 23 24 25 33 1 WITNESS MY OFFICIAL HAND on this the 28TH day of 2 FEBRUARY, 2007. 3 4 ____________________________________ 5 MICHELLE CARDENAS, CSR, RPR Official Court Reporter 6 404th District Court 974 East Harrison Street 7 Brownsville, Texas 78520 (956) 544-0837 8 Certificate No. 5873 Expiration Date: 12/31/07 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25