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Case Newman v. Gaetz

December 3, 2010

CASE NEWMAN
v.
GAETZ



Name of Assigned Judge Sitting Judge if Other or Magistrate Judge Robert M. Dow, Jr. than Assigned Judge

DATE

TITLE

DOCKET ENTRY TEXT

Before the Court are the portions of Petitioner's motion [38] that remain in dispute, namely Petitioner's requests (a) to take the depositions of Dr. Schwartz, Dr. Gutmann, and Dr. Smith, (b) to issue subpoenas duces tecum to those three individuals and to attorney Johnson, and (c) to add five individuals to Petitioner's witness list. Petitioner's remaining requests ((a), (b), and (c) above) are denied without prejudice. However, the Court grants Petitioner leave to reopen the deposition of and to issue a subpoena duces tecum to Michael Johnson, for the purposes discussed below. For further details, please see below.

O[ For further details see text below.] Notices mailed by Judicial staff.

STATEMENT

Before the Court are the portions of Petitioner's motion for additional discovery [38] that remain in dispute. Respondent has filed a memorandum in response to Petitioner's motion and on November 29, 2010 the Court held a hearing on the motion. In previous minute orders, the Court granted the agreed portions of the motion [40], denied Petitioner's request that his examination by Respondent's expert be videotaped [48], and granted Respondent's unopposed request to subpoena Petitioner's full medical records from Petitioner's stays at Hartgrove Hospital [48].

Remaining at issue are Petitioner's requests (a) to take the depositions of Dr. Schwartz, Dr. Gutmann, and Dr. Smith, (b) to issue subpoenas duces tecum to those three individuals and to attorney Johnson, and (c) to add five individuals to Petitioner's witness list. Upon careful consideration of Petitioner's motion [38], Respondent's response [45] and the materials attached to each, and the arguments of counsel at the November 29, 2010 hearing, the Court respectfully denies Petitioner's four remaining requests without prejudice.

Petitioner contends that during his deposition, attorney Michael Johnson "claimed for the first time that he had contacted certain individuals prior to Melvin's trial and asked them whether Melvin's psychological diagnoses and extremely low standardized test scores indicated a lack of fitness to stand trial." (Motion at 2). According to Petitioner, Johnson identified a Dr. Smith, a Dr. L Schwartz, and a Dr. Miriam Gutmann as the individuals with whom Johnson spoke. (Id.). Petitioner requests to issue a subpoena for documents and to depose each doctor.

As an initial matter, although the transcript of Johnson's deposition was not available to Petitioner when he filed the instant motion, Respondent had the benefit of the transcript when he filed his response and attached the transcript to that submission. At the November 29 hearing, it became clear that the parties do not share an identical interpretation of Johnson's statements about his consultations with individuals about Petitioner's competence. Accordingly it may be useful to summarize Johnson's actual testimony as to these matters.

STATEMENT

During the deposition, counsel for Petitioner asked Johnson about the school records and similar documents that Petitioner's mother gave Johnson. (Johnson Dep. at 99:1 -- 104:9). Johnson testified that he was concerned with a discrepancy between the grades that Petitioner was receiving in the Chicago Public Schools and Petitioner's low test scores, so Johnson "reviewed with a few people I know to see what the relationship is with that." (Id. at 102:9-17). Petitioner's counsel asked Johnson with whom he had discussed Petitioner's performance, and Johnson said:

"[I]t could have been whoever was heading up special education at Central School in Glencoe who I was dealing with. There was three or four people in 2000 or '01 that I reviewed a lot of IEPs with * * * There is also a friend of mine who is now the head of special education for Chicago Public Schools, Dr. Smith, who I saw quite often. I would ask people about these, people that knew more than I did about educational scores."

When asked whether Johnson had a "specific recollection of talking to a specific person about" Petitioner's documents, Johnson replied "[i]t could have been any of four or five people that I dealt with back then." (105:9-14). Johnson testified that these conversations would have been over the phone or over a cup of coffee and that he would not have taken notes. (Id. at 15:22). Later in the deposition, Johnson confirmed that he did in fact "talk[] to a variety of different people" about the documents Petitioner's mother gave him. (141:10). When asked for names of who Johnson spoke with, Johnson replied that he "would have discussed with Miriam Gutman." (141:13-14). Johnson said that when he discussed competence and school-performance issues with the individuals he "wouldn't specifically give names or anything, but I would discuss issues and say if a person has these ...


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