From the possibility that Jordan Graham blindfolded Cody Johnson before pushing him off a cliff in Glacier National Park to an attempt to requisition an FBI agent’s personnel file and training manuals, Friday’s flurry of filings shed light on the cases being built by both sides.
The most unusual claim among the filings is that of the potential blindfold, attributed to the prosecution in a filing by the defense.
“On Oct. 25, 2013 in a telephone conference with defense counsel government counsel told the defense for the first time that premeditation may be proved because the government now believes Jordan placed a blindfold on Cody before pushing him off the ledge,” defense attorney Michael Donohoe wrote.
He goes on to report the prosecution is awaiting the results of DNA testing being completed on “a piece of cloth found on a shoal in the river in the same general vicinity as where Cody’s body was recovered.” The piece of cloth, he said, was sent to the DNA lab in Quantico, Va. on or after Oct. 2, about 10 weeks after it was pulled from the river.
“The defense has yet to be furnished with any type of DNA report and the government has not included a DNA witness on its witness list that the court ordered,” Donohoe wrote.
The prosecution filed few motions, of which the one with the greatest potential impact seeks to continue the trial date from Dec. 9 until some time in February of next year, specifically to allow ample time for the DNA testing on the piece of cloth to be completed. The results are expected to come in within 30 or 40 days.
In fact, much of the new information about what the prosecution may or may not be presenting came from documents filed by the defense.
According to a motion to compel the prosecution to specifically identify all the evidence it intends to introduce at trial, Assistant Federal Defender Andrew Nelson wrote that the defense has received from the prosecution nearly 9,000 pages of discovery, roughly 20 hours of video and 4,146 images, as well as identification of nearly 90 witnesses the prosecution may or may not call.
Nelson writes that prosecutors have indicated to him that they may attempt to continue to disclose new scientific evidence and potential expert testimony despite the discovery deadline of Oct. 31 imposed by the court.
The defense also hinted at other pieces of information and evidence that the prosecution may or may not seek to use. One motion seeks to block the prosecution from introducing any evidence at trial concerning after-the-fact opinions of non-experts regarding Graham’s behavior or demeanor.
“A sizable portion of the approximately 87 individuals listed as trial witnesses by the government are likely to offer some sort of opinion regarding Ms. Graham’s behavior and demeanor,” Nelson wrote. “For example, a particular lay witness may opine that Ms. Graham’s lack of emotion on a particular occasion is odd, abnormal, or inappropriate under the circumstances.”
Nelson argued that all such evidence is irrelevent as it requires specialized knowledge such as psychiatric training.
That filing also seeks to block the prosecution from introducing nude images found on Graham’s and Johnson’s cellphones, certain autopsy photographs or the opinion of any expert regarding Graham’s mental state or condition, as well as any text messages, due to inconsistencies between screenshots of texts on Graham’s phone and text message records subpoenaed from Verizon.
In another filing, the defense is also seeking to prevent the prosecution from presenting any information about the blindfold or use it in any argument during a trial unless it was presented to the grand jury before its indictment was handed down.
Not least among the defense’s filings is a motion asking the court to order the prosecution to produce the personnel file, training manuals, experience and qualifications of Federal Bureau of Investigation Agent Stacey Smiedala, whose interview of Graham in which she admitted pushing Johnson off a cliff is central to arguments being made by both sides.
The motion argues that “effective and complete cross-examination of one of the government’s chief witnesses requires production of these materials and implicates her Fifth and Sixth Amendment rights to due process and confrontation.”
Each side has 12 days left within which to respond to the motions filed by the other, which will then have seven days to file their own response. Among the hearings and deadlines as they are currently scheduled are an 11 a.m. evidentiary hearing on Nov. 15 and a deadline of Nov. 27 for submitting a plea agreement.
Source: JESSE DAVIS/The Daily Inter Lake