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In Larry Ray Case Hearing Jane Doe Gets Info Of Psychiatrist Sequestered Nixon Test Raised

By Matthew Russell Lee, Thread, Patreon
BBC - Decrypt - LightRead - Honduras - Source

SDNY COURTHOUSE, Nov 20 – When Larry Ray was arraigned on charges of sexual exploitation, prostitution, forced labor and money laundering on February 12, he was wearing prison blues and still had a Federal Defender, but no financial affidavit to have FD appointed. Twitter theadette; More on Patreon here. 

 On May 29 SDNY Judge Lewis J. Liman held a telephone conference, which Inner City Press live tweeted (below) and at which it was said, no legal visits in the MCC until June 30 at earliest.

 Now on November 20, Judge Liman held another proceeding in the case. Inner City Press live tweeted it, here:

Judge Liman begins with the Due Process Protections Act script - not including what seems to be for some judges a new paragraph about the government's right to ask for an exception for national security, etc. The 5(f) script is in evolution - District by District?

Judge Liman to his credit says he thinks he made a mistake with the phrasing of the subpoenas - but his preliminary view is that he will not cure it in the way the US Attorney as asking

Judge Liman says he is considering quashing some subpoenas he has issued for the defense and re-issue them. He says as to Jane Doe 1, only New York Presbyterian has records.   Note: At issue are medical and mental health records of Ray's victims.

AUSA Danielle Sassoon: There are several bases to quash these subpoenas. They don't comply with Rule 17; they are transparent attempts to get impeachment material, not permissible at this point at of the case. We don't even know if these victims would be witnesses

AUSA Sassoon: We have evidence that Mr. Ray took advantage of victims' weaknesses, that several attempted suicide and he then interfered in their mental care.... Our grand jury subpoenas are not subject to the "Nixon" test

AUSA Sassoon: In some cases, victims cut their parents out of their medical care and let Mr. Ray to speak with their doctors. Judge Liman: But then doesn't the defense have a right to information about whether the medical care was interfered with?

Judge Liman: Make me a proffer as to how the government would prove up interference with medical care without using the medical records. AUSA Sassoon: We distinguish what the victims said to their treatment providers.

Judge Liman: Is the victim going to say Mr. Ray told them to cut the parents out? AUSA: Yes, I anticipate testimony about guidance Mr. Ray gave... Meanwhile, the defense's subpoenas are too broad, including time periods after the victim's relationship with Mr. Ray FD Lenox: I think Mr. LaVerne [for Jane Doe] covered the argument, but I'm happy to take questions.

Judge Liman: Why shouldn't subpoena returns come to me for in camera review. I'm the one who's going to try the case and there's a value to seeing them in advance

FD Lenox: I want to be careful here, but one of the Jane Does told the treatment provider she was not there due to actions of Mr. Ray -- Jane Doe's lawyer objects. Judge Liman: Let's go hypothetical. [He has another criminal proceeding at noon]

Larry Ray himself speaks up: "I have a question." FD Lenox: I think it's better you speak to me... I don't know if there's time... Could we address your question privately? Ray: OK.

AUSA Sassoon: If your Honor finds that the Nixon standard has not been satisfied, the records should not be produced to anyone. Doe's lawyer LaVerne wants already produced records to be sequestered - by both sides. It is so ordered.

Afterward Ray stayed on the call, saying, Hello? Hello? Inner City Press hung up.

   On September 4 the US Attorney's Office said in person legal visits in the MCC would re-start on September 21. This came in a proceeding that Inner City Press live tweeted, with notes on the (lack of) press and public access, the troubling creation of a "no-dissemination" category on which the press and public is not heard. See below.

On November 13, a Jane Doe filed this: "Re: United States v. Lawrence Ray, 20-CR-110 (LJL) Dear Judge Liman: I represent Jane Doe, a non-party granted leave to intervene in this matter. (See ECF Dkt. No. 70). On November 5, 2020, we received from the government copies of records it has obtained by grand jury subpoena from certain of Jane Doe’s medical providers. We had not previously been provided with these documents. Having reviewed them, it is apparent that they contain information that is privileged pursuant to the psychotherapist-patient privilege, a privilege that Jane Doe has not waived (see October 20, 2020 Reply Ltr. at 7-8) and which she continues to assert. Accordingly, we have asked the government and the defense (which apparently received these records in discovery) to sequester the records until the Court has heard argument on the pending motions to quash and had an opportunity to address this issue. We are also working to provide to the parties by early next week a version of the records indicating which portions we believe should be redacted as privileged. We would be happy to provide the same to the Court should it wish to receive them."  We'll have more on this.

 On October 22, the trial was pushed back, and the domain names will be sold by the US Marshals: "Reschedule Briefing as to Lawrence Ray.  The Court grants parties request for an adjournment of motion deadlines as follows: Defense motions due 12/7/2020; Government response due 1/8/2021; and Defense reply due 1/22/2021. The Jury Trial previously set for May 10, 2021 is RESCHEDULED to July 12, 2021 at 10:00AM. The Court excludes time under the Speedy Trial Act, 18 USC 3161(h)(7)(A) from October 22, 2020 to July 12, 2021 upon the findings that the ends of justice outweigh the interests of the defendant and the public in a speedy trial in that the time between now and July 12, 2021 is necessary for the parties to produce and review discovery and for the preparation of motions and for the preparation for trial (Signed by Judge Lewis J. Liman on 10/22/20) (jw)" and "MEMO ENDORSEMENT as to Lawrence Ray on re: [49] MOTION for an Order for the Interlocutory Sale of Property filed by USA. NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED THAT The United States Marshals Service (the "USMS") or its designee, is authorized to conduct an interlocutory sale of the Domain Names. In furtherance of the interlocutory sale of the Domain Names, the Domain Names may be seized by the USMS pending the interlocutory sale, by service of this order on GoDaddy. RAY and any others, including, but not limited to, GoDaddy, shall fully cooperate with the USMS or its designee in relation to the seizure and interlocutory sale of the Domain Names."

On October 5, the US Attorney's office asked to quash Ray's Federal Defenders' subpoenas for victims' medical records, including therapy records, claiming "a potential violation of FRCP 17 and FRE 501."

 Federal Defenders disagreed, writing to Judge Liman that he has approved these subpoenas.

 On October 13, Judge Liman ruled: "in order to preserve the status quo pending receipt of the defense's papers in opposition, the Court ORDERS that compliance with the subpoenas identified at Dkt. No. 78-1 as well as all other subpoenas authorized for issuance by the Court's orders of September 18, 2020, be stayed. See United States v. Crutchfield, 2014 WL 2569058 (N.D. Cal. June 6, 2014). Defense counsel is ORDERED to inform the recipients of such orders that compliance with the Court's orders has been stayed. Because trial is not scheduled until May 10, 2021, the defense also will suffer no prejudice by a brief stay so the Court can consider the competing arguments. The Court denies without prejudice the Government's application to the extent that it seeks orders requiring the defense to inform it of the subpoena responses it has already received and to advise the Government of any other subpoenas it has served. The application is also denied insofar as it requires the defense to turn over any records it has received from any subpoenas of medical records. The Court will consider those applications after it has received a response from defense counsel. The Court does ORDER, however, that the subpoenaed materials be treated as sensitive under the protective order in this case pending a determination by the Court whether they were properly subpoenaed. SO ORDERED. (Signed by Judge Lewis J. Liman on 10/13/2020)."

  On September 11 the US Attorney's Office argued again that discovery is private, not for public review or transparency: "the defense has not proffered any basis to disregard the presumption that “discovery is a private process between the parties to an action,” and is “not presumptively accessible” to others. Smith, 985 F. Supp. 2d at 519." Inner City Press will continue to report on this case, and not just what the US Attorney's Office, which held a press conference announcing the indictment, wants the public to know about it.

 On September 14, Judge Liman ruled, including "Neither the Government proposal nor the defense proposal sufficiently captures the Court’s intention. The Government proposal would limit the protection of the protective order to information that could subject a person to intimidation or obstruction or risk of harm without protecting from broad disclosure information that substantially affects the privacy of an individual. It also provides no criteria for the Court to determine whether Disclosure Material is Sensitive or Confidential. The defense proposal addresses the flaws of the Government proposal but has two flaws of its own: the definition of Confidential Disclosure Material accords protection without the need for the Government to show a threat of intimidation or obstruction or risk of harm, but it limits the definition to information “that substantially affects witnesses’ privacy”. It does not address information that substantially affects the privacy of an individual who may not be a witness. The definition of Sensitive Disclosure Material would leave it entirely to the Government to determine whether disclosure would create a risk of intimidation or obstruction or harm without any requirement that the Government’s belief be well founded. It thus could defeat the objective of subjecting the designations to challenge and judicial review. In other respects the definition of Sensitive Disclosure Material provided by both sides is too narrow. Accordingly, the Court will adopt the defense proposal with the following edits: (1) the definition of “Sensitive Disclosure Material” should be amended to reach “information that affects the privacy of individuals, and identifies, or could lead to the identification of, witnesses who the Government has a well-founded belief may be subject to intimidation or obstruction, or whose lives, persons, and property, as well as the lives, persons and property of loved ones, the Government has a well-founded belief will be subject to risk of harm absent the protective considerations set forth herein.” and (3) the language “contains information that exposes personal information that substantially affects witnesses’ privacy” should be replaced with the language “contains information that exposes personal information that substantially affects the privacy of an individual.” 1 The Government proposal is also explicit in stating that the Government has the burden of establishing good cause for its designation of disclosure material as sensitive, but it is implicit always that the party who designates disclosure or discovery material under a protective order has the burden of establishing that the material was properly designated if the designation is challenged. Dkt. No. 55-2 ¶ 8.

The differences between paragraph 8 of the Government proposal and paragraph 9 of the defense proposal are minor: the Court always has the power to set a deadline for a response. The Court finds it easier to have a default date of seven days for a Government response absent a Court order for both types of challenges but will accord the Government more than seven days for a response upon application by the Government. 3. Finally, paragraph 6 of the Government’s proposed protective order should be revised to replace the language “Disclosure material” at the beginning of the first sentence with “Sensitive or confidential disclosure material.” The Government is ordered to submit a proposed amended protective order consistent with this Order by no later than September 18, 2020."

The September 4 thread:

Judge Liman says due to COVID pandemic and difficulties of Federal Defenders meeting with Ray, he's prepared to postpone trial past January 19. Also today: A request to release Ray on bail, to help prepare his defense.

 Judge Liman: The defense has raised serious concerns about Mr. Ray having access to discovery. For that reason, I'm going to defer ruling on release request until I hear and perhaps rule on issues of early disclosure of Brady and witness list and the like.

 Federal Defender Lenox: Our request as to the sensitive materials, we're not asking the court to rule piece by piece. There's only a small percentage in dispute. We are proposing a mechanism to rule on those so Mr Ray can see it if he stays in custody

FD: We agree that nude videos are sensitive. But we would ask the court to review handwritten confessions. These things are exculpatory.

 [Note: FD wants to use sealing of evidence as way to get Ray out of jail. Press has asked to UNseal the evidence - which would also take this "Free Larry Ray" argument off the table.]

The case is US v. Ray, 20-cr-110 (Liman).


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