Latest Defense Discovery Request Hints At Defense Strategy
At the last status hearing on September 11, much of the first half focused on whether radio communications between emergency personnel and MPD was evidence that was covered under the Jencks Act.
For the non-lawyers among us, which includes the four editors here at WMRW.com,we needed to get smart on the issue.
Jencks material is evidence used in the course of a federal criminal prosecution, and usually consists of documents relied upon by government witnesses who testify at trial. The act covers a variety of materials including statements made by a government witness, police notes, memoranda, reports, summaries, letters or verbatim transcripts.
The Jencks Act provides that no material shall be subject to subpoena, discovery or inspection until the said witness has testified on direct examination in the trial of the case. In other words, emergency personnel’s statements do not have to be turned over until they testify at the criminal trial.
And with no criminal trial scheduled until May 2010, prosecution believes there is no need for them to turn this information over.
But that isn’t stopping the dogged defense.
On October 28, they sent a discovery request asking for all the radio runs that evening because they are “material to preparation to the defense.”
Their argument seems to rest on the Brady v. Maryland case, which states the suppression of evidence favorable to the defense violates due process.
It is the defense’s belief that if they do not know what is in these communications, they can not adequately prepare a defense, but further more, that the government may be violating the Brady ruling by not turning over potentially exculpatory evidence.
To this very untrained legal eye, it seems as if the Jencks Act and the Brady ruling can run in conflict with each other, and provide ample opportunity for a case to be overturned on appeal. So a cautious Judge, such as Judge Weisberg, might err conservatively on the matter.
Odds are high that this will be a topic of discussion at the upcoming status hearing at the end of the week , and the defense was getting out in front of the issue by sending the request before Friday’s hearing .
While the matter remains unresolved, it does seem to hint as to how they plan on challenging some of the prosecutions arguments.
Six specific areas they are looking at include seeking the conversations about efforts to revive Robert Wone. This hearkens back to the reason for the puncture wounds. If the defense can claim that they are due to life saving efforts, then the needle marks were not the result of a paralytic agent being injected.
Second, they are seeking communications about Robert’s condition. In the original affidavit, prosecution argues that Robert appeared to be dead for sometime. If they can put this into play by claiming that EMTs thought he was alive and tried to revive him, then it would bat back the prosecution’s argument that he appeared dead for sometime.
Third, in what appears to be a developing strategy for anti-gay bias in the investigation, the defense is seeking communications about the behavior of the defendants, as well as any of the actions of law enforcement.
This fishing expedition seems to be laying the groundwork for turning the focus of the trial away from the defendants, and towards the allegedly biased behavior of law enforcement. Johnny Cochran paging Mark Fuhrman, anyone?
On Wednesday, we look at the transcript from the September 11 hearing and what it may suggest about this Friday’s upcoming status hearing.
-posted by David