"Judge, I think at this point what we need is a motion date. Mr. Rockind has let me know much of what he just disclosed to the Court
I think what we just need is a motion date. I don't know if Mr. Rockind would rather address his motions that were filed in 2020 first, or the motions that he's referring to right now. I leave that up to Mr. Rockind, they're his motions to praecipe. So whatever schedule the Court would like to give us, that's fine with me, Judge.
Judge, I'm sorry. Mr Rockind maybe we can argue the motion on the motion date.
It's very complicated." Marc Keast
PRETRIAL BEFORE THE HONORABLE VICTORIA A. VALENTINE
THE CLERK: Your Honor, now calling the case People v Remington, 2019-272593-FC.
February 11, 2021, at 1:43 p.m proceedings convened
MR. KEAST: Thank you. Good afternoon. Marc Keast on behalf of the People. The People consent to this hearing via Zoom, Judge.
MR. ROCKIND: Neil Rockind, P48618. I'm co-counsel for Nicholas Remington and we consent to the matter being heard via Zoom, Your Honor.
MR. LEWIS: Good afternoon, Your Honor. My name is Randall Lewis and I'm co-counsel for Mr. Remington also, and we consent to this Zoom hearing also.
THE COURT: Thank you. Go ahead, Mr. Rockind.
MR. ROCKIND: So, there's a long history to this case. There were four motions, really five motions that were up before your predecessor. He heard one of them in December of 2020.
THE COURT: This is the Snapchat case.
MR. ROCKIND: This is the Snapchat case. There are four motions that are up. I'm going to share with the Court, I don't want to take up a lot of your docket time, I think at one point Mr. Keast and I -- well, Mr. Lewis, Mr. Keast and I, were actually proposing to actually chat with you to sort of give you an update on where the case is, but since that time we've sent Mr. Keast a Brady v Maryland letter. We believe that there were Brady violations that occurred in the district court before Mr. Keast and in the succeeding 16 months before Mr. Keast took over the case. We've made Mr. Keast aware of those. the prosecution in the middle of the exam before the closing arguments in the preliminary examination that completely undermine the basis, from our perspective, of the bind-over. Mr. Keast and I were talking last Friday about Brady issues and I shared with him that I wasn't comfortable discussing that issue on Friday because I hadn't fully kind of wrapped my brain around it. I have since then. We prepared some preliminary motions or writings, and we intend to provide those to the Court. I'll certainly have that discussion with Mr. Keast about what we have uncovered in the materials that he's provided to us. But this is a pretty serious allegation, pretty serious case. My client is a 21-year-old facing life imprisonment and I believe there were substantial Brady issues that have now infected the case. I'm not asking Mr. Keast or the Court to argue those at this point, but I think that they're significant enough that, one, they need to be brought to the Court's attention; I think, two, they should be the subject of additional motions and filings and I want the Court to be aware of that. The Snapchat issues are very complex, and I appreciate the Court identifying his case. I don't want. He has been, I'll say, diligent, in attempting to gather evidence and get it to us. The most recent disclosures that Mr. Keast made to us contained some police reports and some other documents that were never tendered to us in the 16 months since the bind-over of the case. And I believe one of those, a couple of those in particular, are critical. I think one of those actually is worthy of at least another motion to quash and probably a motion before the Court and an evidentiary hearing. I say that -- I don't take that position lightly. We have gone back and forth with the previous prosecutor who was assigned to the case. Mr. Keast was -- he and I have had a lot of discussions. Mr. Lewis and Mr. Keast have had a lot of conversations about it. Let me just say that there's a piece of evidence that was disclosed to us that was made -- that was turned over to to minimize the impact of this case on both the decedent's family and/or Mr. Remington, both young people who were impacted by the events of the incident. But this is a case that involves a highly technical area related to Snapchat evidence, and that is the evidence really against Mr. Remington. And we thought it was important to ask the Court to have this matter set for pretrial. We set it for a pretrial. Mr. Keast and I have talked about whether we should have a meeting with the Court to sort of give the Court a roadmap of where we are and where we think the case is likely to go. That was all before these Brady issues came up. Well, not before they all came up, I should say, before the most recent Brady issues appeared on our radar.
MR. KEAST: Judge, I think at this point what we need is a motion date. Mr. Rockind has let me know much of what he just disclosed to the Court --
THE COURT: Okay, now with regard to the motion -- say it again, sir. now?
MR. KEAST: I'm sorry, Judge.
THE COURT: Say it again. MR. KEAST: I'm sorry, Judge, can you hear me
THE COURT: Yeah, I can hear you. Go ahead.
MR. KEAST: I think what we just need is a motion date. I don't know if Mr. Rockind would rather address his motions that were filed in 2020 first, or the motions that he's referring to right now. I leave that up to Mr. Rockind, they're his motions to praecipe.
So whatever schedule the Court would like to give us, that's fine with me, Judge.
THE COURT: So, Mr. Rockind, with regard to the motions, you indicated you don't want some heard yet but you --
MR. ROCKIND: I think the Brady motion should be heard. I think that the Brady motion, we're going to file a Brady motion along with a request for a hearing and request for an evidentiary hearing on the subject. I think it's that important. We'll lay out our reasons why in the motion and I'll certainly -- I'll certainly share with Mr. Keast in a conversation our -- he's been, I think -- I'll just say we've apprised him of the concerns that we have and he's been, I don't want to say receptive, but he's been diligent and he's been, I think, at least interested in hearing what our concerns are. So I'm not going to sandbag him, we'll let him know what they are, but I think it's important enough that we're going to motion it up for the Court. I'd like that motion, which will probably include a motion to quash and a motion for the Brady v Maryland violation and its impact on the bind-over and on the present, the status of the case, we should hear those first. I can have those probably filed, I would say, within three weeks.
THE COURT: How much time would you need to respond, sir?
MR. KEAST: I would appreciate if Mr. Rockind would praecipe it two weeks after receipt of the prosecutor's office, so I'd have adequate time to research whatever issue he's referring to. Perhaps the best way to address it right now, Judge, is a pretrial five weeks from today's date, that way we could have all motions praeciped prior to that pretrial date and we know where we're going.
MR. ROCKIND: The Brady motion is, I think -- the other motions are important and they're involved. We had been holding out hope that we would be able to have a live hearing before Judge Alexander at various points because we have some materials that we wanted to show the court as to how we believe the Snapchat evidence doesn't meet the standards of admissibility and we have some, I don't want to say props, but we have some demonstrative exhibits that we thought would help. Which is, I know, unusual in an oral motion, but because this area is highly technical, we wanted to have those, particularly for Judge Alexander --
THE COURT: The argument with regard to a business record of Snapchat, since they don't maintain it, what's the argument?
MR. ROCKIND: Well, it's involved. So there's one related to the certification. The certification of the business records under 901 doesn't meet the standards. Michigan's 901 authentication rule is different than the federal rule. The certification that was provided by the quote/unquote recordkeeper from Snapchat was made by an employee of Snapchat that cannot be contacted, that no one's had any direct contact with. It was made in a writing. It wasn't signed. It wasn't made under oath. And I don't even believe she's an employee of Snapchat, I thinks she works for another company called Accenture, which does --
MR. KEAST: Judge, I'm sorry. Mr Rockind maybe we can argue the motion on the motion date.
MR. ROCKIND: Well, the Judge just asked me what the basis was, so --
MR. KEAST: It's very complicated. (Pg 9)
MR. ROCKIND: I was just trying to give the Court some insight. And the other is that they're not kept by, the records, they're not kept by Snapchat. The content of the records, there are pieces missing. Snapchat has a policy of erasure and non-preservation. We have records that we attached, our motion filing has probably seven to nine exhibits that are attached about Snapchat's policy, that they don't preserve records, that their policy is deletion and not salvation. Those were just some of the issues related to the Snapchats.
THE COURT: So with regard to your motions, you want three weeks to file them, two weeks for Mr. Keast to respond to them. And then Mr. Keast, you're requesting a pretrial prior to the motions being heard, is that my understanding?
MR. KEAST: Either we could have a pretrial date on the date of our motions, or if the Court would like to set a control date, you know, five or six weeks out, just to make sure we have everything addressed.
THE COURT: With regard to a pretrial date, that the pretrial date, if the intention is that the parties might reach a resolution, I guess I'd want to know that before the Court (indiscernible) the time to go through everything. I want you to understand that I do take all the motions very seriously, as well as the case law, or any other law that's submitted.
MR. ROCKIND: I would suggest that we schedule a pretrial. I'd like to get the Brady motion filed. It's going to be involved. And we'll file a request for a hearing because it involves a constitutional -- an allegation of a constitutional violation and may impact the proceedings. I'd like to have that motion heard and ruled on. We can have a pretrial after that. And then if the Court -- the Court may have a ruling that impacts how the case proceeds forward at that point. So I don't have a problem with a pretrial in six weeks, but that'll give us time to get the motion filed, get Mr. Keast's response. We'll praecipe the motion up for an argument before the Court. The Court will decide if it's going to give us what its ruling is on the Brady issue and whether we get a remand or whether it's a dismissal. All, I think, are -- whether there's going to be an evidentiary hearing where the parties involved in the Brady violation may have to testify, all of that is, I think, on the table.
THE COURT: So Mr. Rockind, all I'm trying to do is determine timing right now. You said you need three weeks to file it. Mr. Keast wants two weeks' notice before he has to appear, I guess, at the motion hearing, so we're working, hearing it five weeks or six weeks?
MR. ROCKIND: Six weeks for pretrial?
MR. KEAST: That would be great, thank you.
THE COURT: So my question, again, is not when is the pretrial. My question is, when are you going to have your motion hearing?
MR. ROCKIND: I want to give Marc whatever time he needs. I can have it to him within three weeks. He needs two weeks to review it. I guess we can -- he wants to get his answer filed. That gives us probably -- how much time do you need to write an answer, Marc?
MR. KEAST: How is March 24th ? It's Wednesday morning
THE COURT: Does that work?
MR. ROCKIND: Let me look, Your Honor. Thank Yes, Your Honor, March 24th works for us.
THE COURT: Okay, so March 24th will be your motion hearing date. With regard to the time, you need to go to my protocol, click on the link with regard to the Zoom calendar, it'll give you the exact time of your hearing. You should check that a couple days before, not too far in advance, because those are subject to change as far as time. Mr. Bush, I want you to allot out an hour for the hearing. You think that's enough time, an hour, or do you guys need more than that?
MR. ROCKIND: I think an hour for the Brady motion is fine, yes.
THE COURT: With regard to the pretrial, we'll do the pretrial on the Thursday after, which would be April 1st. Your client is in custody. It would be a one o'clock pretrial. Anything else?
MR. ROCKIND: No, Your Honor.
MR. KEAST: Not from the People. Thank you, Judge.
MR. ROCKIND: Judge, I know the Court is new to the criminal docket, or relatively new; new to me. We intend to make a bond motion. Our client's bond is a million dollars cash surety. Does the Court accept those orally or do you require a filed motion to address bond?
THE COURT: With regard to the bond motion, because it is a significant bond, and I believe that it's already had a bond motion at the district court level, if I'm --
MR. ROCKIND: Multiple, yes.
THE COURT: Okay. So then I want Mr. Keast to have the opportunity to know what your argument is and how it's different and to respond to it. So with regard to this matter, I am going to require it to be in writing. You need to give Mr. Keast the proper notice. So you can schedule that for a hearing as well.
MR. ROCKIND: All right. Thank you very much, Your Honor.
MR. KEAST: Thank you, Judge.
MR. LEWIS: Thank you, Your Honor.
MR. ROCKIND: I'll give you a call, Marc, all right.
MR. KEAST: Sounds good.
THE COURT: Thank you.
MR. ROCKIND: All right. Thank you.
(February 11, 2021 1:56 p.m proceedings concluded.)
February 11 2021 PRE-TRIAL Court Transcripts click here.
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