Free Motion for Disclosure - District Court of Arizona - Arizona

Carmen L. Fischer Attorney at Law 2 SBN #009975 Phillip E. Hantel 3 Attorney at Law
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C a rm e n L . F is ch e r P h illip E . H a n te l L u h rs To w e r, S u ite 4 0 3 45 W . Jefferson Street Phoenix, Arizona 85003 (602) 252-1282

Luhrs Tow er - Suite 403 45 W est Jefferson Street Phoenix, A Z 85003-2314 (602) 252-1282 A ttorneys for H enry W atkins

UNITED STATES OF AMERICA DISTRICT OF ARIZONA UNITED STATES OF AMERICA, Plaintiff, v. HENRY E. WATKINS, Defendant. ) ) ) ) ) ) ) ) ) ) CR03-1167-PHX-DGC MOTION FOR DISCLOSURE OF PERSONNEL FILES

Robert Johnston, Donald C. Smith, Andrew W. Murphy, Dennis Denbensten, Kevin Augustiniak, Craig T. Kelly, Henry E. Watkins, Theodore J. Toth, and Robert S. McKay move this court, pursuant to the Fifth, Sixth and Eighth Amendments to the United States Constitution, Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), United States v. Bagley, 473 U.S. 667 (1985), Kyles v. Whitley, 514 U.S. 419 (1995), Strickler v. Greene, 527 U.S. 263 (1999) and United States v. Howell, 231 F.3d 615 (9th Cir. 2000), to order the prosecutor to provide the defense with full and complete discovery of the personnel files of law enforcement officers. MEMORANDUM OF POINTS AND AUTHORITIES Facts: The government's case against these defendants will be based primarily upon the testimony of law enforcement agents who were acting in an undercover capacity. The defendants are entitled to have access to their personnel files to the extent they contain Brady material. See United States v. Henthorn, 931 F.2d 29, 30 (9th Cir. 1991)(If requested by a

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Document 990 1 Filed 12/14/2005

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C a rm e n L . F is ch e r P h illip E . H a n te l L u h rs To w e r, S u ite 4 0 3 45 W . Jefferson Street Phoenix, Arizona 85003 (602) 252-1282

defendant, the government has a duty to examine the personnel files of testifying officers and to disclose information favorable to the defense). Under Brady v. Maryland, 373 U.S. 83 (1963), the Government must disclose all exculpatory evidence in its possession. Brady and its progeny require that the government disclose material impeachment evidence. See United States v. Bagley, 473 U.S. 667, 675-77 (1985); Giglio v. United States, 405 U.S. 150, 154-55 (1972). Additionally, when the scope of the required disclosure becomes questionable, any errors should be made in favor of disclosure. United States v. Agurs, 427 U.S. 97, 108 (1976) ("[T]he prudent prosecutor will resolve doubtful questions in favor of disclosure."). The personnel file with the various law enforcement agencies involved in this litigation may contain voluminous, relevant and exculpatory evidence in this case. Specifically, these personnel files may be relevant to impeach the testimony and credibility of law enforcement witnesses in this case, to prove character traits, and to establish any potential biases. Thus, material evidence found in these personnel file affecting credibility must be turned over to defense counsel under Brady and its progeny. Although some of these personnel files may not be in the possession of the prosecutor, the prosecutor nonetheless has a duty to disclose any exculpatory evidence that may be contained in those files. In Kyles v. Whitley, 514 U.S. 419, 437 (1995), the Supreme Court held that the prosecutor "has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police." Thus, a duty is created for the prosecutor to become aware of any material evidence contained within the files of testifying officers that may be used as impeachment evidence against those officers. See United States v. Hankins, 872 F. Supp. 170, 172-73 (D.N.J. 1995) (finding that prosecutors have an affirmative duty to search files maintained by different branches of government closely aligned with the prosecutor in order to fulfill its Brady obligation). The government has an ongoing duty to examine the personnel files of testifying law enforcement officers for Brady material. See Henthorn, 931 F.2d at 30; United States v. Cadet, 727 F.2d 1453, 1467-68 (9th Cir. 1991); United States v. Kiszewski, 877 F.2d 210 216 (2nd Cir. 1989). The obligation of the government to examine these records arises when the defense makes a

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demand for their production. Henthorn, 931 F.2d at 31. All material evidence found as a result of this examination must be turned over to the defendant or the court. Id. In light of the foregoing, the defendants request the prosecutor to review the personnel files of any law enforcement officer who will be testifying and to disclose information favorable to the defense including, but not limited to: citizen complaints; disciplinary actions; internal affairs reports; performance evaluations; and all other materials evidencing matters or conduct that bear in a fashion favorable to the defense on the testifying officer's character, truthfulness, honesty, competence, and propensity for unlawful activity. Conclusion: For the foregoing reasons, the defendants request this court to order that the above-requested material be provided to the defense in a timely enough fashion to investigate any disclosed information favorable to the defense or, in the alternative, to conduct an in camera review of the requested materials and disclose materials relevant and exculpatory to the defendants in this case. Respectfully submitted this 14th day of December, 2005.

_/s/_____________________ CARMEN L. FISCHER PHILLIP E. HANTEL Attorney for Henry Watkins

A courtesy copy of the foregoing delivered this 15th day of 21 December 2005 to:
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C a rm e n L . F is ch e r P h illip E . H a n te l L u h rs To w e r, S u ite 4 0 3 45 W . Jefferson Street Phoenix, Arizona 85003 (602) 252-1282

Judge David G. Campbell United States District Court Judge

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