Indicted attorney Gary Peel and his lawyers want to hold an ex-parte review of a witness, but the government prosecuting him doesn't want that to happen.
On Feb. 5, U.S. District Judge William Stiehl held a brief Daubert hearing on the relevance of Peel's expert witness. Peel's federal public defender, Philip J. Kavanaugh, informed Stiehl that the hearing posed a dilemma for the defense.
Assistant U.S. Attorney Kevin Burke asked Stiehl to hold the hearing to determine whether the testimony of Thomas L. Hoops, a certified public accountant and certified valuation analyst, is both relevant and reliable.
Peel was indicted last year on charges of bankruptcy fraud, obstruction of justice and possession of child pornography.
He wants Hoops to offer his opinion, as an expert, as to the value of his estate and his ex-wife, as well as the value of certain assets, had those assets been distributed in accordance with several settlement proposals between he and his ex-wife.
Burke asked for a Daubert hearing claiming the proposed testimony appears to have no relevance to any issue at trial, and because the disclosure does not allow for an adequate assessment of the reliability of Peel's proffered testimony.
Burke also said that even if Hoops' testimony is qualified and accurate, his testimony cannot be admitted unless it is relevant. He also claims that nothing Hoops has to say bears on any of the issues in the case.
Peel's four-count indictment alleges that in 1974 he took sexually explicit photographs of his then-wife's 16-year-old sister, and retained those photographs.
In November 2003, Peel and his wife divorced and entered into a settlement under which he had to meet certain financial obligations.
In July 2005, Peel filed for bankruptcy, and sought discharge of financial obligations to his ex-wife who was listed as a creditor. His ex-wife opposed the discharge and Peel is alleged, on Jan. 20, 2006, to have telephoned his ex-wife and revealed that he had a sexual relationship with her sister during their marriage and had taken pictures of her.
He is alleged to have told his ex-wife that copies of the pictures were in her mailbox and that if she did not agree to the discharge he would mail the pictures to his ex-wife's parents.
"The relevancy of our expert's testimony turns almost exclusively on whether or not Mr. Peel elects to testify in his own defense," Kavanaugh said at the Feb. 5 hearing.
Kavanaugh said if Peel decides not to testify, there will be no need for them to even call Hoops and they are still not sure if Peel will.
"Frankly, it appears the defense has a choice to make at this point," Burke countered. "They can either withdraw their expert and keep their defense secret, or if they want to use a powerful weapon, such as defense expert, they must disclose the relevancy and risk tipping their hand."
Burke told Stiehl that expert witnesses are not allowed to be used as "stealth weapons."
Burke said that there was a reason that experts are subject to greater scrutiny.
"Rightly or wrongly, jurors attribute a great deal of weight to expert opinions, therefore experts are scrutinized to make sure jurors are considering their opinion rightly," Burke said.
Burke also told Steihl that he is not sure what kind of rebuttal witnesses he will need, but more importantly he thinks Hoops' testimony would damage Peel's ex-wife.
"Frankly, the report of Mr. Hoops appears calculated to serve a purpose of tarnishing the ex-wife," Burke said.
He said it appears Peel is attempting to get the jury to perceive his ex-wife as less appealing rather than a victim.
"We are all adult enough to understand that as a trial strategy," Burke said.
"Frankly judge, I believe the defense cannot demonstrate the relevance of Mr. Hoops' testimony, but if they believe it is relevant they should fairly and openly make their case in an adversarial process," Burke said.
Kavanaugh told Stiehl that he was not prepared to face Burke and asked for a week to prepare a brief on why he should have an ex-parte hearing. Stiehl allowed the request.
Peel's trial will begin on March 11.