Lakin's discovery request denied by Gilbert

Steve Gonzalez Aug. 29, 2007, 5:28am

United States District Judge J. Phil Gilbert on Tuesday denied Tom Lakin's motion for additional discovery.

In Gilbert's first of three orders entered Aug. 28, he denied Lakin's motion that would have required the government to file a bill of particulars identifying the specific dates Lakin's residences were allegedly used to distribute cocaine, the identity of the Jane and John Does and the specific dates of the alleged cocaine distributions and the locations of those distributions.

Lakin, who was indicted in April on drug and sex crime charges, argued that he cannot find the information among 6,700 pages of discovery documents the government had handed over to him.

Assistant U.S. Attorney Stephen Clark, lead prosecutor in the case, argued the use and maintenance of Lakin's residences were not discrete occurrences but were continuing offenses that spanned the entire time periods charged in the superseding indictment and involved the weekly or monthly receipt or use of cocaine.

Clark also argued that the months alleged in the indictment is sufficiently specific and that the government will disclose to Lakin on or before Sept. 10, the names of the individuals alleged to have received cocaine from Lakin in all counts of the indictment.

"The Court finds that the superseding indictment, as supplemented by the information contained in the government's response, is sufficient and that a bill of particulars is not required," Gilbert wrote.

Gilbert added that a bill of particulars is required only when the indictment does not "sufficiently apprise the defendant of the charges to enable him to prepare for trial."

"In the Court's opinion, the superseding indictment in this case, along with the information contained in the government's response and its promise to disclose certain other information on or before September 10, 2007, is adequate to apprise the defendant of the charges against him to enable him to prepare for trial," Gilbert wrote.

"Although the specific dates of the charged offenses have not been identified, when taken together, the identification of the month and the location and the promised revelation of the identity of the individuals who allegedly received cocaine from Lakin are sufficient to apprise Lakin of the charges against him," Gilbert added.

Gilbert "strongly encourage(d)" Clark to voluntarily provide Lakin with more specific dates to avoid any unnecessary delays that may be required if that information is not disclosed until the trial.

In his second order, Gilbert denied Lakin's motion for the disclosure of written or recorded statements he made.

Lakin had asked Gilbert to order Clark to hand over his written or recorded statements as well as statements of others that recount statements made by him.

Clark responded that he will provide government witness statements to Lakin in advance of his trial and also that he already has disclosed and will continue to disclose documents written by Lakin or recordings where Lakin is the speaker.

However, Clark argued he is not required to produce the remainder of the information Lakin seeks in the pending motion.

Lakin had asked Gilbert to order the government to hand over the names and addresses of people who have knowledge pertaining to the case, any and all arrest and conviction records of the witnesses that the government plans to call as witness and the written statements of all the people who the government does not plan to call as witness.

Lakin also wanted the names and whereabouts of any informer who gave information that led to his arrest.

Lakin had also asked for the transcript of testimony given by any person before the grand jury, including the precise nature of any statements attributable to him.

He also wanted any and all written or recorded statements made by or purported to have been made by him, along with the substance of any oral statement that the government intends to offer in evidence at the trial.

Lakin had requested books, papers, documents and/or other tangible objects that the government relied in returning the indictment.

He also wanted all written reports of any chemical analysis of the substance seized along with the test results, dates and determinations as to the nature or weight of the substance.

Lakin further asked for any material that may serve to mitigate punishment including any evidence impeaching or contradicting testimony of government witnesses or instructions to witnesses not to speak or discuss the case with the defense counsel.

In another order issued Tuesday, Gilbert ruled in favor of the Belleville News Democrat and St. Louis Post Dispatch in their requests to intervene for the purpose of objecting to Clark's motion to close the courtroom during portions of Lakin's trial.

In an effort to protect the identity and privacy of juvenile witnesses and victims Clark wants the courtroom to be closed to the public when the juveniles testify.

In a motion filed July 6, Clark argues that Title 42, United States Code, Section 10606(b)(1) provides that a victim of a crime has "[t]he right to be treated with fairness and with respect for the victim's dignity and privacy."

"When the victim is a juvenile, Title 18, United States Code, Section 3509 adds additional protections," Clark wrote.

The newspapers have argued that closure of the courtroom would infringe on their First Amendment and common law rights to cover judicial proceedings. Now that Gilbert has allowed them to intervene the newspapers plan to file documents in favor of their motion.

Clark argues that closing the courtroom while the juveniles testify will prevent disclosure of their identity in order to spare the juveniles and their families further trauma since the case involves the sexual exploitation of a juvenile.

Clark acknowledges that the press and the general public have a constitutional right of access to criminal trials, but argues that right is not absolute citing Globe Newspaper Co. v. Superior Court.

"The circumstances in which the press and general public may be barred from a criminal trial are limited; the justification for denying them access must be a weighty one," Clark writes.

According to Clark, the factors Gilbert must consider are the minor victim's age, psychological maturity and understanding, the nature of the crime, the desires of the victim, and the interests of parents and relatives.

Clark argues that the victim, who suffers from Tourette's Syndrome, was 15 years old at the time of the incident referenced in the indictment and is now 17 years old, while other possible juvenile witnesses are 15-18 years old.

"Accordingly, to protect the privacy of, and prevent embarrassment or detriment to, the juvenile victims, the government respectfully requests that the courtroom be closed during their testimony," Clark wrote. "The courtroom should be closed to the members of the press, as well as to all persons not having a direct interest in this case."

The government did not object to the intervention and Lakin did not respond.

While Gilbert's orders wrapped up most of the pending motions currently in the case, he had yet to decide on Lakin's motion for two separate trials.

Lakin wants Gilbert to sever the sex count from the drug count arguing that the jury might use evidence of one crime to infer guilt on the other or that the jury might cumulate evidence to find guilt on all crimes when it would not have found guilt if the crimes were considered separately.

More News