Free Motion to Compel - District Court of Arizona - Arizona

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PATRICIA A. GITRE, P.L.C (#011864) 331 N. 1st Avenue, Suite 150 Phoenix, Arizona 85003 Telephone: (602) 452-2918 Fax: (602) 532-7950 [email protected] Attorney for Kevin J. Augustiniak IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA UNITED STATES OF AMERICA,

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CR03-1167-PHX-DGC MOTION TO COMPEL DISCLOSURE OF MATRIX ITEM #10 REGARDING ADDITIONAL SAMPLES AND SCIENTIFIC TESTS AND CLARIFICATION OF PRIOR COURT ORDERS RELATING TO MATRIX ITEM #10

Plaintiff, vs. KEVIN J. AUGUSTINIAK Defendant.

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Defendant Kevin Augustiniak through counsel moves for disclosure of DPS reports, MCSO chain of custody, scientific testing (Matrix Item #10) 1including but not limited to sample #906. Testing was concluded on this #906 in August, 2005. To date there has been no disclosure to the defense. The Defendant moves for clarification of its previous

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orders regarding Matrix Item #10 based on the following procedural history of discovery disputes and timing of disclosure. 1. On October 12, 2005 (#844), the Court ordered as to Matrix Item #10, "[t]he government will be permitted to redact names from these documents. Unredacted copies of the documents will be disclosed to the Defendants before trial on the schedule to be established by the Court." See page 7, ll.19-21.

Scientific Analysis requests and logs, methods, bench notes, test results for any evidence from search warrant or DNA testing of defendant and other individuals (MCSO DR 01-30095)
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2. On November 4, 2005 the government disclosed unredacted DPS reports (1194) but failed to disclose any of the reports relating to sample #906 or any other DPS testing.2 3. On November 4, 2005, the government filed a public "Notice of Fling Supplemental Exparte Application to Defer Certain Discovery. (#884). This application did not include Matrix Item #10.

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4. On December 22, 2005, the court granted the government's supplemental application and requested a table corresponding with the matrix. (See #1012, p.8) 5. On January 17, 2006 the court issued another order allowing the government to

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defer disclosure as to those items listed in #884 but also included Matrix Item #10. (See #1078). 6. On January 17, 2006, the government filed a "Notice of Fling Second supplemental Ex parte Application to Defer Certain Discovery" for newly discovered discovery which was not previously identified on the parties' matrix and therefore does not cover Matrix Item #10.(See #1056). 7. The government has not updated its two and six week material list since October

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20, 2005 (#852). This list does not include any information relating to Matrix Item #10.3

The government represented that only testing not disclosed so far relates to sample #906. If there is any other testing of any other samples, the defense requests immediate disclosure. 3 The defense again requests hat the government be ordered to file a public document that includes all documents bate stamped and with a sufficient description as to the revised "Two and Six Week" list and reference to "matrix and non-matrix items. " This will make sure a complete record is made as to all items and also allow the parties to keep track of items withheld and subsequently disclosed by the government.
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8. On February 10, 2006 the government stated it has a protective order for Matrix Item #10 and refused to disclose anything related to sample #906. Defendant moves for clarification or reconsideration of this Court's order allowing the government to withhold DPS scientific testing until February 24, 2006 or March 10, 2006 (the government has not decided which date it will use to disclose). Defendant understood the court's order as requiring the government to disclose redacted reports (as to the names only) and disclose all other information relating to these tests. The

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government provided partially redacted documents on November 4, 2005.4 Therefore, Defendant assumed that any additional testing would be disclosed upon receipt by the government. The court has already determined that the government is not entitled to a protective order as to all the requested materials, only the names of witnesses

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contained in those documents. (#884). It is unclear what evidence the government presented to this Court at a later date to justify withholding all the documents until right before trial or if the order inadvertently covered Matrix Item #10 (#1078). In any event, the government intends to use #905 at trial. The requested items are covered by FRCRP Rule 16(a)(1)(E),(F) and (G).5 Any delay in disclosure impedes upon the

The government substituted Michael Kramer's name in some places with "CI 376." In other places it did not and left his name in the document. 5 FRCRP (a)(1) (E) Documents and Objects. Upon a defendant's request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government's possession, custody, or control and: (i) the item is material to preparing the defense; (ii) the government intends to use the item in its case-in-chief at trial; or (iii) the item was obtained from or belongs to the defendant. (F) Reports of Examinations and Tests. Upon a defendant's request, the government must permit a defendant to inspect and to copy or photograph the results or reports of any physical or mental examination and of any scientific test or experiment if: (i) the item is within the government's possession, custody, or control; (ii) the attorney for the government knows--or through due diligence could know--that the item exists; and (iii) the item is material to preparing the defense or the government intends to use the item in its case-inchief at trial.

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defendant's ability to determine whether an expert should evaluate the material and findings and his ability to rebut this evidence at trial. Late disclosure will cause a delay in the trial and impede defendant's constitutional right to effective assistance of counsel

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and a fair trial. For the above reasons, Defendant requests immediate disclosure of all scientific tests and MSCO chain of custody (collection of evidence) relating to any evidence including but not limited to sample #906 or an order clarifying the court's previous

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orders relating to Matrix Item #10 and the basis for withholding this information. Excludable delay may occur as a result of this motion or an order thereon. RESPECTFULLY SUBMITTED on February 13, 2006. PATRICIA A. GITRE PLC /s/Patricia A. Gitre Attorney for Defendant Kevin Augustiniak
ORIGINAL filed electronically and copies of the foregoing Delivered via electronically and by email on 02/13/2006 Clerk of the Court Judge David G. Campbell Sandra Day O'Connor United States Courthouse 401 West Washington Street Phoenix, Arizona 85003 Tim Duax and Keith Vercauteran Government counsel All Defense Counsel

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/s/ Patricia A. Gitre
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(G) Expert witnesses.--At the defendant's request, the government must give to the defendant a written summary of any testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-in-chief at trial. If the government requests discovery under subdivision (b)(1)(C)(ii) and the defendant complies, the government must, at the defendant's request, give to the defendant a written summary of testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence as evidence at trial on the issue of the defendant's mental condition. The summary provided under this subparagraph must describe the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications.

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