First time I've heard it. ..Where did you read that the B/G violations were the reasons for the experts being de-experted?
[snipped by me]
ORDER RE: [D-17] DEFENDANT’S RENEWED MOTION FOR DISCOVERY AND CONTEMPT SANCTIONS AND FORTHWITH HEARING; [D-17A] SUPPLEMENT; [D-17B] SUPPLEMENT; [D-17C] SUPPLEMENT; AND [D-17D] SUPPLEMENT
"Rule 16(I)(a)(2) requires the prosecuting attorney to disclose to the defense “any material or information within his or her possession or control which tends to negate the guilt of the accused as to the offense charged or would tend to reduce the punishment therefor.” See Brady v. Maryland, 373 U.S. 83, 88, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Specifically, the prosecution must disclose exculpatory evidence to the defense, meaning evidence that is material. “[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different... Exculpatory evidence includes evidence which bears on the credibility of a witness the prosecution intends to call at trial.
People v. Dist. Ct. of Colorado's Seventeenth Jud. Dist., 793 P.2d 163, 166 (Colo. 1990)(citing
Giglio v. United States, 405 U.S. 150, 154–55, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972)).
...
WHEREFORE, for the reasons stated above and in the Court’s discretion, the Court concludes as follows:
- The Court finds a continuing pattern by the People of an inability and failure to comply with its Rule 16 obligations as well as the Court’s case management orders;
- The Court finds the People’s actions amount to negligent, and arguably, reckless disregard for their Rule 16 obligations and duty to abide by court orders;....
... 5. The Court finds the following as it relates to a request for sanctions:
...
- Megan Duge, Andrew McDermott, Kevin Hoyland (excluded the witnesses as expert witnesses);
- James Stevens, Kenneth Hicks, Alex Walker, Andy Rohrich, Jonathan Grusing, Derek Graham, Ken Harris (not permitted to provide expert testimony; free to provide lay opinions); and
- Caitlin Rogers (may provide expert testimony, but restricted to the four corners of her current report);
on top of the previous exclusion of
... another proffered expert witness (Mr. Doug Spence) albeit based upon the stipulation of the People;
...[The] March 10 and 30, 2022, [exclusions], 11 out of 16 of the People’s endorsed expert witnesses.13 See [P-44] generally. Three additional experts were excluded on other grounds.14 The Court finds the exclusion of these witnesses amounts to a significant sanction, but one that was warranted based upon the record;
***
... The People argued, at one point, to this Court that the information withheld pertained to an ongoing investigation and it was not discoverable information. The Court wholeheartedly disagrees with this sentiment. Rule 16 is titled “Discovery and Procedure before Trial.” This title embraces the sentiment that discovery in a pending case includes ongoing investigations, testing, etc. If the ongoing investigation produces information, reports, etc. that “tends to negate the guilt of the accused,” it must be disclosed.
It is even more serious in situations, such as this case, where the Defendant was held on a no bond hold pending the PEPG and Preliminary Hearing. Defendant was held on a no bond hold from May through September 2021.7 In this case, information from the numerous meetings between law enforcement and the District Attorneys with CBI DNA analysts concerning the CODIS matches should have been reduced to writing and disclosed to the defense. The prosecution cannot circumvent an obligation to disclose exculpatory information by deliberately avoiding
6 Certainly, relevant and exculpatory information was not produced in a timely fashion, however, the People ultimately did disclose it and the defense is now in possession of it prior to trial.
7 Defendant currently is out on bond and has been now since September 2021.
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taking notes or reducing statements to writing.
People v. Anderson, 837 P.2d 293, 299 (Colo. App. 1992). Even law enforcement witnesses conceded this information may be material or have exculpatory value.
See e.g. Tr., at 103:25-105:10(Feb. 24, 2022)(Commander Alex Walker agreeing that an unknown male DNA profile linking to potential leads with unsolved sexual assault cases would be favorable to the defense).
The CODIS matches were discoverable materials. Also, any steps taken to rule out the possible source of the foreign male DNA (
i.e., who was swabbed, who has been ruled out as a source) is exculpatory information to the accused in a pending criminal prosecution and, therefore, must be turned over. The Court finds that the meetings regarding DNA discussed exculpatory information and information favorable to the accused during the pendency of a criminal prosecution. Therefore, it was incumbent upon law enforcement to reduce said information to writing and disclose it to the defense. The Court finds that the People’s failure to disclose the unknown foreign male DNA and investigative steps being taken in the summer of 2021 prior to, during, and after the PEPG and Preliminary Hearing, constitutes a violation of Rule 16 and the Court’s orders.
Lastly, it is unclear to the Court how much information the affiant had when he submitted the probable cause affidavit or whether CBI failed to disclose certain evidence to the affiant who then unwittingly omitted material information. The affidavit states it “was edited and reviewed by SA Kenneth Harris and CBI Agents Joseph Cahill and Derek Graham.”
Aff., at 2. While Mr. Cahill testified under oath at the preliminary hearing that he had only reviewed 19 pages of the affidavit, at another hearing, he was impeached by the defense with an e-mail he sent to the affiant where he stated he reviewed the affidavit in its “entirety” and noted the affidavit “lacks detail and specificity”, in particular, “regarding allegations, suspicions, evidence of other possible involved people, and the investigative steps and results.”
See Ex. 23, 2 (Feb. 8, 2022).
But even so, there is no requirement that an affiant include all information in discovery in support of an arrest warrant, and the defense is not challenging the validity of the warrant itself,
i.e., arguing it lacked probable cause. Rather, the defense contends that the foregoing omissions should have been disclosed through the discovery process shortly after Mr. Morphew’s arrest, and that the prosecution’s failure to do so constitutes a discovery violation. The Court agrees.
