3.Defendant Medication Access and Post-Testimony Matters
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(Jury not present)
JUDGE KAPLAN: Be seated, folks.
Not that I'm going to hold you to it, Mr. Cohen, because you have a lot of work to do, I guess, but what do you think in terms of how long we're going to be with the witness tomorrow?
MR. COHEN: Again, somewhat depends on the answers, your Honor, but I think——
JUDGE KAPLAN: Oh, yes, of course. I'm sorry.
MR. COHEN: Yeah. I think somewhere between four to five hours, max. I'm hoping it will be shorter than Ms. Ellison.
MR. COHEN: No. I——we've had a conversation with the government, but we can wait till your Honor's ready to hear it, hear about it, or I can tell you now.
JUDGE KAPLAN: Well, no. I'll come back to you in a minute.
Mr. Roos, what will follow this witness?
MS. SASSOON: Richard Busick.
JUDGE KAPLAN: Sorry. Give me the name again.
JUDGE KAPLAN: And after that?
MR. ROOS: We have a Chanel Medrano.
And just to give your Honor a sense, I mean, we have to see what the cross is like, but I think we're moving at like a fairly quick clip such that I think most, with the exception of maybe like one or two short witnesses, would be done this week for the government's case. And the witnesses I'm flagging are actually witnesses who are out of town and were unable right now to get here, but otherwise we're planning to put it all in this week, with those exceptions.
JUDGE KAPLAN: Okay. All right. Mr. Cohen?
MR. COHEN: Yes, your Honor. Just circling back to the letter we sent to the Court about our client's access to Adderall, which we spoke about this morning as well at the sidebar, I'll let Mr. Roos speak for the government for himself, but I think we have an agreement on how to proceed, subject, of course, to the Court's approval. In order to see if we can get this straightened out so that my client can in fact receive the dose during the middle of the day and not have to continue, for all the reasons I said in our letter, we're proposing that we sit a half-day tomorrow, from——I think it was 9:30 to 1:00, and see if we can use the rest of the time productively to sort out the medical issues so that we can resolve them.
JUDGE KAPLAN: I'm told, within the last 40 minutes, that the extended-release medication is not going to be available till Thursday.
MR. COHEN: Oh, okay.
JUDGE KAPLAN: And with all due respect to everybody's good faith, I have not observed a problem with the defendant in this period of time. Not that I'm medically competent, but I just make that note. And I'm inclined to push ahead.
MR. COHEN: Well, then we have to return to our position in our letter, your Honor. I don't think——we had asked for a one-day adjournment——if it's going to be Thursday, we ask for an adjournment until then——in order to allow our client to meaningfully participate as we go to the defense case.
JUDGE KAPLAN: Look, the bottom line here is that I have no competent medical evidence that is short of months old. I don't remember the date, but I had it earlier this morning. And what I have is lawyers who I'm sure in good faith believe what they're saying, but the last I heard from a physician was dated August 12th, and not only is that true, but I don't even have a medical opinion that he needs it now, or what the effect of not taking it is, and we're going to proceed.
MS. SASSOON: Just for the record, your Honor——
JUDGE KAPLAN: And it's not like there's been a shortage of time to put that together.
MR. COHEN: Obviously, for record purposes, we object.
JUDGE KAPLAN: I understand.
MS. SASSOON: And for record purposes, the government would also note that subsequent to receipt of that physician's letter, BOP conducted their own evaluation and determined that a lower dose was medically appropriate.
JUDGE KAPLAN: Well, I'd like to see some evidence of that too.
MS. SASSOON: Yes, your Honor. And if your Honor's interested, we also noted in a prior letter to the Court that the physician who wrote this letter has engaged in some suspect practices that we've learned about in the course of our investigations.
JUDGE KAPLAN: What does that mean?
MS. SASSOON: For example, witnesses testify——witnesses have informed the government that he was liberally prescribing Adderall to people who told us that they did not need Adderall at all or at that level.
JUDGE KAPLAN: Okay.
MR. COHEN: That——well, I hope the Court does not consider that latest proffer one way or another in reaching the Court's decision.
JUDGE KAPLAN: Look it, understand my point of view, all right? I've explained a good deal of it, maybe all of it, but just to be sure everybody understands, I am not professionally competent to make a decision as to what's appropriate for the defendant, if anything, with respect to the administration of this drug. He is in the custody of the United States Bureau of Prisons. Whatever people may think of it, they have physicians. Physicians are entrusted with his care. I can't write the prescription, I can't authorize the Marshals to give him pills brought in here by counsel, whom I trust entirely, but it's not up to me. I can't have lawyers coming in and giving drugs to people on trial because somebody says they need it. I just can't do it.
Okay. Anything else?
MR. COHEN: Not from us, your Honor.
JUDGE KAPLAN: Okay. Have a good evening. o0o
(Pages 1479-1484 SEALED by order of the Court)
(Adjourned to October 17, 2023, at 9:30 a.m.)