The opinion of the court was delivered by: District Judge Thomas M. Rose
Chief Magistrate Judge Michael R. Merz
ENTRY AND ORDER OVERRULING DEFENDANT RICKEY A. BAXTER'S OBJECTIONS (Doc. #28) TO THE CHIEF MAGISTRATE JUDGE'S DECISION AND ORDER (Doc. #27) AND SETTING A BRIEFING SCHEDULE FOR OUTSTANDING MOTIONS
Now before the Court is Defendant Rickey A. Baxter's ("Baxter's") Objection To Magistrate's Proposed Discovery Restrictions. (Doc. #28.) Chief Magistrate Judge Merz issued a Decision and Order regarding requests filed by Baxter in his sealed "Notice Regarding Discovery." (Doc. #27.) Baxter's Objection is presumed to be to this Decision and Order.
The time has run and the United States has not objected to or appealed the Chief Magistrate Judge's Decision and Order. Baxter's Objection is, therefore, ripe for decision.
This matter was referred to the Chief Magistrate Judge on the specific issue of the requests filed by Baxter's Counsel in the sealed Notice Regarding Discovery. In the Notice, Baxter's Counsel assert that they cannot render effective assistance of counsel unless they are permitted to conduct sixteen investigative tasks. Further, they note that the list is non-exhaustive and request an order from this court that accomplishes certain results related to the non-exhaustive list.
The Chief Magistrate Judge reviewed an Opinion filed on May 23, 2006, by District Judge Claire Eagen that was brought to his attention by the United States. Judge Eagen's Opinion included a procedure offered by the United States, with one amendment by Judge Eagen, to address the defendant's concerns regarding discovery and to enable the defendant to conduct the investigation he claimed was necessary. Judge Eagen's amendment was a determination that it was not necessary to create additional images, virtual or real, depicting minors involved in sexually explicit activity. The Chief Magistrate Judge then ordered the parties to file any objections they had to the adoption of Judge Eagen's procedure by this Court. The United States did not object and Baxter's Counsel did. (Doc. #20.)
Baxter's Counsel first argued that all of the investigative tasks that they wish to perform would be in violation of the same statutes that their client is charged with violating. Because the United States had not seen the list of proposed investigative tasks, the Chief Magistrate Judge assumed that the investigative tasks would violate the law and the United States would not recognize an exception to the law in this case.
Baxter's Counsel then argued that all of the investigative tasks are necessary to provide a constitutionally sufficient defense. However, they provided no argument about why these investigative tasks are constitutionally necessary beyond the general proposition about the fundamental right to present a defense. They did, however, rely on authority which either was not provided to the Chief Magistrate Judge or was found to be unavailing.
Next, Baxter's Counsel argued that the mechanism suggested by the Chief Magistrate Judge bypasses an important ruling in this matter as to whether the tasks that were placed on the record before Judge Rose were necessary for a constitutionally sufficient defense of Mr. Baxter. In response, the Chief Magistrate Judge correctly pointed out that the usual point in time for evaluating the constitutional effectiveness of counsel is after trial. The Chief Magistrate Judge then declined to engage in an evaluation of the constitutional necessity of conducting the investigative tasks.
Finally, Baxter's Counsel argued that the mechanism proposed by the Chief Magistrate Judge does not permit them to complete the investigative tasks outlined in the Notice Regarding Discovery that they believe are necessary. Without determining if those tasks are constitutionally necessary, the Chief Magistrate Judge determined that the investigative tasks identified by Baxter's Counsel are reasonably calculated to lead to potentially admissible evidence. Further, using the mechanism set forth by Judge Eagen, the investigative tasks can be carried out in a way which protects the public interest in preventing child pornography and the confidentiality of Baxter's Counsel's trial preparation and strategy.
The Chief Magistrate Judge then adopted a large part of the mechanism approved by Judge Eagen and concluded that all of the investigative tasks listed in the Notice Regarding Discovery may be completed within the investigative mechanism that he set forth (hereinafter the "Investigative Mechanism").
The Investigative Mechanism is as follows:
1. A defense expert would be permitted to visit web sites chosen by the defense in the presence of a federal law ...