Free Reply to Response - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Criminal Case No. 00-CR-481-D UNITED STATES OF AMERICA, Plaintiff, v. ROD SCHULTZ, Defendant.

R P YT G V R ME TSR S O S T R DS H L Z MOTION FOR EL O O E N N ' EP NE O O C U T ' NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE

COMES NOW R d cu zb cusl n r lso h gvrm n sepneo o Shl,y one ad e i t t oe et r os t t , pe e n ' s his motion for new trial, by stating as follows: INTROCUCTORY PARAGRAPHS T e i o t gvrm n sepne is found in the ARGUMENT portion of its h g t fh oe et r os s e n ' s pleading. Before addressing that argument Schultz believes a reply to statements in the introductory pages is warranted. T e oe m n bg str pne y ru g Schultz' h gvr et ei i e os b a i " n n s s gn argument is wholly dependent upon mischaracterizations of G ud'a i v ad fh gvrm n s rnys fd i n o t oe et fa t e n ' psi ata" oio tr l (p.1, parag.2) It does not offer any explanation a tG ud'a i v t n i. so rnys fd i fa t at that point, but later (p. 8-9), argues the affidavit does not stand for the proposition that the video tapes were destroyed by the BOP staff.

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The portion of the affidavit Schultz relies on is most clear. It is in black-and-white and states: "r a bi akd n ee l cai so b i cp s f i o ps ae n Ie l e g se o svr ocs n t otn oi o v et e m d o cl n a o a e d a April 5 and 6, 1996 concerning inmate Pedro Castillo. Review of the use of force documentation indicated that a videotape was part of the package that was created on both dates. By the time we were first asked to produce these tapes, I was advised by SIS staff that they were no longer in the file, having been destroyed in t od a cus o bs es ( rnys fdv ,a g7 ( paiadd h ri r or f ui s " G ud'a i i pr .)e hs de) e ny e n . fa t a m s Schultz submits it is hard to mischaracterize language that is a direct quote from the affidavit. FACTS We are more fortunate with the claim of mischaracterization concerning the gvrm n s oio ata I t F C Ssection of its response (p.2, parag. 2) the oe et psi tr l nh A T n ' t n i. e gvrm ndsr e i psi b s t g" h asu (f atl w s oe etec bst oio y ti :T e s l o C sl ) a wholly n i s tn an at io unjustified by any institutional need; instead, it was a premeditated use of excessive force done to retaliate against Castillo fr r r i odc"e paiadd o pi m s nut ( hs de)Schultz agrees o c . m s t ts n cua s t et o aa ige,fh gvrm n s oio. h ia acr e te n s f st oso t oe et psi a t am , r e n ' tn Not only does Schultz agree with the government statement, but he notes such statement removes any doubt that the April 5, 1996 videotape contained very critical evidence. The videotape would have depicted Castillo harming himself and otherwise acting out, thereby establishing a clear institutional need to remove the inmate from his cell. Such evidence would have eviscerated the predicate to the gvrm n s trial oe et n ' theory. The government goes on in the FACTS portion of its response to discuss how the defendants agreed and conspired to knock over the video camera as part of their plan to assault Pedro Castillo (p.2, parag.3). In making such argument the government wrote of

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K ne Mihls lgt n as if they were true. Or, at least, as if the jury believed his ent t e'aeaos h c l l i claims. Mitchell claimed a group of correctional officers, including Schultz, Michael LaVallee, and Ken Shatto, verbally agreed that as part of the conspiracy " plan" cu Shltz was to knock over the video camera during the forced-cell-move of Castillo. Schultz d pt Mihls lm ad os oar t vri f d g i giy fosi c i u s t e'c i ,n de ntge h e c i i h u t o cnp ay s e c l a e e d tn n m l r poe t j y eee Mihls lm o either a meeting among the officers to plan rvsh u blvd t e'c i f e r i c l a the assault on Castillo or of a plan to knock over the ca e . h gvrm n shoy m r T e oe et t r a n ' e was the alleged meeting was a distinct part of the conspiracy. Although both Kenneth Mitchell and Charlotte Gutierrez testified on behalf of the government that Ken Shatto was part of such meeting, the jury found Shatto not guilty of the conspiracy charge. The Shatto vri i i t t j y i nt eee t e'c i o a et g plan the e c n c e h u d o blv Mihls lm f m en to d t d as e r d i c l a i alleged assault and/or agreement to knock down the video camera. ARGUMENT T e oe fh gvrm n sepneson i t ARGUMENT portion of its h cro t oe et r os ifud n h e n ' s e pleading. 1. Shl' t n os o R sOn Faulty Premises cu z Mo o D e N t et t i The government first identifies Schultz lm w e i is t :The crux of Schultz c i hr n tte " a e as motion is that the government told the jury, through witnesses and argument, that the defendants destroyed the videotape of the Castillo beating, despite the fact that at least one member of the prosecution team knew the tape had, in fact, been destroyed by BOP it od a cus o bs es (.) n h ri r or f ui s "p8 e ny e n . It should be noted the knowledge learned by Jenifer Grundy, that the BOP staff told her the April 5 and 6, 1996 videotapes of Pedro Castillo incidents were destroyed in the

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ordinary course of business, is imputed to the members of the prosecution trial team. See United States v. Perdomo, 929 F.2d 967, 970-01 (3rd Cir. 1991) and United v. Duetsch, 475 F.2d 55 (5th Cir. 1971). Also see Giglio the United States, 450 US 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) which held ignorance by the trial prosecutor does not excuse a Brady violation if the material is known by other members of the prosecutor's office. Id. 92 S.Ct. 766 The government then argues Schultz is not entitled to a new trial because he relies on two faulty premises:1 G ud'a i v de nt rv t v etape was actually () rnys fd i os o poeh i o fa t e d destroyed, and (2) the government never introduced evidence that the defendants destroyed the videotapes. Schultz'lmde ntetn h pooio t t rnys fdv poe the c i os o r o t rpsi h G ud'a i i rvs a s e tn a fa t videotapes were actually destroyed, or that the prosecution team actually knew that they had been destroyed, or that the government presented evidence suggesting the defendant's destroyed the videotapes. He contends the government denied him due process by not disclosing, in the face of repeated requests, that BOP employees, custodians of the April 5 and 6, 1996 videotapes, had told the prosecution team those tapes had been destroyed. It should be noted the government produced absolutely no other evidence or explanation as to the disappearance of the videotapes. It should further be noted Grundy did not indicate she disbelieved the statements that the tapes had been destroyed. Instead of disclosing to the defense that the BOP employees had told Grundy the tapes had been destroyed, a review of the record shows the prosecution team totally, and continually, misrepresented to the court, the jury, and the defense what had happened to the videotapes. Schultz contends such conduct by

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the prosecution clearly violated the constitutional requirement that the prosecution must disclose favorable evidence to the defense as laid out in Brady v. Maryland, 373 US 83, 83 S.Ct.1194, 10 L.Ed.2d 215 (1963); United States v. Agurs, 427 US 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); United States v. Bagley, 473 US 667, 105 S.Ct. 3375, 87 L.Ed.2d 491 (1985); and Kyles v. Whitley, 514 US 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). On July 11, 2001 the court ordered the prosecution to preserve all videotapes of such incidents that had occurred in the Special Housing Unit during the period from 90 days before the start of the alleged conspiracy (January 1995) to 90 days after the alleged conspiracy ended (July 1997)( July 11, 2001 Tr. 129-135)(Exhibit 1-Motion) The defense moved for production of the April 5th videotape during the May 21, 2002 pretrial hearing (May 21, 2002 Tr., 125-126). At that time the lead prosecutor claimed the videotape did not exist. He did not disclose the April 5th videotape had been created, or that the government had already destroyed it in the normal course of business. On September 20, 2002 Schultz filed a motion entitled Motion for Preservation and Production of Pedro Castillo Videotape (Doc. 659, 9/20/02). On December 17, 2002 Schultz' counsel moved for sanctions because the April 5, 1996 videotape had not trial been produced, and a ud ...t ton [atlcount] at a minimum should be r e " h cutC sl g a io d m s d n n ei ne hu b ao e t b i rdcd ocri cuti . i i e ad o v ec sol e l w d o en oue cne n onf e s s d d l t ng v" (December 17, 2002 Tr., 1194-96). The lead prosecutor responded by claiming the defendants had destryd hti o p. e rud cu zr usw s c vr oe t v et e H a e Shl'e et a "l e a d a g t q e ...Mu ch like the person who kills their parents and claims t y ut em r bcuehyr a h m sgt e y eas t ' n e c e e orphan. The evidence has been provided to counsel is that the defendants destroyed the tape or ensured that there would be no tape running." D cm e1,02 1196-97). ( ee br 720 Tr.,

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T e rsct w no t c i t m s n t e a pro t df dn s p n, h poeu r etn o lm h i i a w s a fh e nat "l "i o a e sg p t e e ' a t was their intent that the tape would not be available, they intentionally knocked the cm roe ad t y ae uet i 'ei. a e vr n " e m d srid ntx t a , h d s"On that date he did not disclose the April 5th videotape had been created, or that the government had already destroyed it in the normal course of business. The prosecution continued with its two-pronged theory, that the forced-cell-move was a setup, and that the defendants had destroyed the videotape, throughout the proceedings, including the trial. At the start of the trial, the court paraphrased the Superseding Indictment in advising t j y aet th df dn 'p n o ar a aeaos n ue foc aa s h u pnlh t e nat "l t f i t lgt n ad s o fr gi t e r a e e s a bc e l i e n Pdo atl w s eesr bcue er C sl w s a i h sl"A r 8 er C sl a ncs y eas Pdo atl a hr n i e .( pi , io a io m g m f l 2003 Tr., 25). During trial government witness Kenneth Mitchell testified about the "l " n t tt a R d cu z role to take out the camera (April 18, 2003 Tr., p n ad h iw s o Shl' a a t 1877). Somewhat later in the case lead prosecutor Blumberg called Laura Potter, a records clerk, to testify there was no mark in a box on the reports of the April 5, 1996 Castillo incident which would indicate a videotape that been produced, notwithstanding a handwritten note on another report describing the videotape (April 29, 2003 Tr., 3350-58 and December 6, 2004 Tr., Exhi t ,8. h proe f o e set oys ot b E 1) T e ups o P tr t i n im s i t ' sm obvious, it was to suggest to the jury that the April 5, 1996 videotape never existed. It

appears Laura Potter was called as a witness for the purpose of misleading the jury. Her testimony was contrary to that possessed b t poeu o t m Se rnys affidavit yh rsct n e . e G ud' e i a which stated the documentation indicated a videotape was "r t o bt April 5 and c ad n o " ee h

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6, 1996, and that the government had destroyed those videotapes. Again the prosecution did not disclose either videotape had been created, or that the government had already destroyed them it in the normal course of business. Based on information learned a year and a half after the jury rendered its verdicts it seems clear the best evidence the prosecution had at time of trial was that the April 5, 1996 videotape had existed but had been destroyed by government employees in the normal course of business. The trial strategy of the prosecution team to deliberately not disclose such information is shocking and disgusting, a clear denial of due process, and mandates a new trial for Rod Schultz. In closing argument a prosecutor argued that Schultz'm m iaaethe injury to " e os f , k Fr m n a f et r oao t v e w sae e e w sa , ee vlfh i o a f ..." A d" e e r cso e k h m e d k n,t r e ne t h fe Casl ctn ie w r aue.( l920 T. 9164) tl u i t l e rs. J y ,03 r 64,97.Once again the io t g s f e . u " , prosecution did not mention the April 5th videotape had been created, or that the government had destroyed it in the normal course of business. The April 5, 1996 vido p w u hv t ay i ee t gvrm n sr l et e ol aeo l d pldh oe et ta a d tl s l e n ' i message that there was no justifiable reason to remove Castillo from his cell, and/or that the defendants made sure the videotape did not exist. The government desperately argues Schultz' motion must fail because he did not present proof that tape was actually destroyed. That is, he did not identify a single person who admitted destroying the tape, nor anyone who observed it being destroyed. Schultz agrees. Nor did he identify the precise time or place it was destroyed, how was destroyed, or whether there was hazardous material produced during the distraction. Such it r u o t gvrm n saueo e ot o i aoth dsut n fh sh e l fh oe et f l tb fr cm n bu t et co o t e st e n ' ir h g e r i e

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videotapes. Schultz is satisfied the best evidence, in fact the only evidence, about why the videotapes are missing ifudn rnys fdv , evidence the prosecution had son i G ud'a i i fa t knowledge of early in this case. If the government had disclosed the truth it would have been most beneficial to the defense. The defendants could have pursued several different trial strategies or tactics, including the following: (1) a full, complete, and truthful response would have totally changed the posture of the parties at trial by putting into question the government' s claim that there was no legitimate reason to remove Pedro Castillo from his cell, and that the removal was simply fabricated to provide the defendant an opportunity to beat the inmate, (2) it would have allowed the defendants to move for dismissal of the Castillo count because of destruction of evidence by the government, and (3) it would have provided the defendants with very persuasive evidence that the government had destroyed a most credible, and critical, piece of evidence concerning the alleged beating. It would also have provided the defendants with the opportunity to intensify its search for the videotape and/or the details of how and why it was destroyed. The government next argues Schultz i te t gvrm n s trial theory. That is, m s a d h oe et st e n ' the government did not present evidence that the defendants actually destroyed the tape, only that they simply knocked over the video camera to ensure the beating would not be captured on the tape. The obvious problem with this argument is t gvrm n s h oe et e n ' evidence alleged the beating took place in a holding cell, a substantial distance from C sl 'cell, and far out of range of the video camera. If the video camera had not been atl s io knocked over it would have captured the removal of the inmate from his cell, but would not have depicted the beating Kenneth Mitchell claimed he observed.

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Such finessing of the prosecution trial theory is simply an attempt to piecemeal the evidence to avoid the overall strategy or theory of the government. A more important part of the government's trial theory is found on the second page of the government's response wherein it stated the removal of Pedro Castillo from his cell and alleged assault w s wholly unjustified by any institutional need; instead, it was a premeditated use of a" excessive force done to retaliate agi t atlfr r r i odc" Assuming, a sC sl o pi m s nut n io o c . simply for the sake of argument, that the defendants intentionally knocked over the video camera so it would not record what occurred after the officers entered C sl 'cell, it atl s io does not meet the claim raised by Rod Schultz in his motion for new trial. Again, he contends: (1) the videotape had recorded the actions of Castillo for several minutes up to time the camera was knocked over, (2) that such behavior clearly depicted an institutional need to remove the inmate from his cell, (3) that the prosecution had been advised the BOP employees had destroyed the videotape, (4) but the prosecution team refused provide that information to the defense, and (5) misrepresented that they did know what happened to the videotapes, but indicating they did not exist because of actions by the defendants. T e oe m n s ru etht o Shl ipoed g n al pe i ss h gvr et a m n t R d cu zs rcei o f t r s i n ' g a t n uy m e faulty. 2. Grundy's Affidavit Is Most Material The government next argues Grundy's affidavit is not material because: (1) it is not inconsistent with the government's position at trial, and (2) the only issue before the jury on this matter was whether Schultz knocked the camera over accidentally, or deliberately a pro t "l " s a fh p n. t e a

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This argument is without merit. Grundy's affidavit states the videotapes had been destroyed by the government. The government's position at trial was that the tapes did not exist, and the defendants were responsible for the missing tapes. The April 5, 1996 videotape depicting a clear institutional need to remove Pedro Castillo from his cell was clearly relevant, and material. Especially to the question of whether Schultz knocked the camera over accidentally or deliberately. 3. Schultz Does Not Rely On Perjury In His Motion 4. The Government Presented False Argument And Evidence To The Jury S bet n 3 n 4 fh A G ME Tpro o t gvrm n s pleading are so uscos ad o t R U N ot n fh oe et i e i e n ' closely intertwined they will be considered together. Schultz' claim is not that he can demonstrate any witness testified falsely, it is that the prosecution misrepresented the truth of what happened to the videotapes throughout the case. The misrepresentation was that the government could not explain the absence of the videotapes, and pointed the finger at the defendants as being responsible for the missing tapes. The truth was the prosecution had attempted to find the videotapes early on and the BOP staff explained that they had destroyed those videotapes. The government seizes on the word perjury, a word not used by Schultz in his motion. One element of perjury requires that the witness be under oath. Because the prosecuting attorneys were not under oath the word perjury is not applicable to their statements. Laura Potter was under oath, but she testified only as a records custodian about the April 5, 1996 videotape, and did not commit perjury. Although her testimony implied that videotape had not been produced it was the action of the prosecution team in eliciting her testimony that presented to the jury evidence the April 5, 1996 videotape had not been

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created At that time the prosecutors had evidence the tape had existed but that it had been destroyed by the government. h gvrm n ie am t(. )htAlegations T e oe ett l d i p 2 t " l n sf s 1 a that the prosecutors lied to the Court outside the presence of the jury or that a BOP attorney knowingly allowed such false arguments to be made would, if proven, be serious aeaos f i odc"T e e ne ot d sc aeaos rpoe by the lgt n o m s nut h df s cn ns uh lgt n a rvn l i c . e e l i e exhibits attached to the motion for new trial. FN1 T e oe m n ed t s ot n ftr pni p ai wta t w r m gt h gvr etnsh pro o i e os e l d g i " e ol i n i i s s v e n h h d h b f ta u et ti t towt t d g rny a i v icn ne thv el" r m n s t gh nt i s ni G ud' fd i tot uso ae a g , an a ha n s fa t i "o e a ko l g o w abcm o t v et e. n cr i nwe e f ht ea e fh i o p" Nor does it have any evidence tn d e d a rebutting the information that the BOP staff destroyed those videotapes. And, it knows that information is consistent with BOP practice. The government goes on to contend that because three of the four prosecutorial statements mentioned in the motion were made outside the presence of the jury, the r i c o t s s t eti"pc u. A a , ehut f ea e n h e te n s sai s gi t t so Schultz' o o it tf ln o am s o " nh r m t n sh i i a the prosecution had truthfully disclosed the information it possessed about the destruction of the Castillo videotapes the charge against Schultz would have lost substantial strength and might not have been pursued. Such disclosure would have allowed the defense to present evidence and argument to the jury that the government had destroyed the very evidence that would have visually established the need to remove Castillo from his cell, _____________________ FN1 Daniel C. Maguire, a professor of ethics at Marquette University, in a letter very timely t t s l d g N wY r Tm sModyJna 3,06 w o "u o h p ai ( e ok i e, na,aur 020) rt or i e n y e government and the citizenry are failing Ethics 101 as they show no awareness of the df io o ai ,n w n o tdf e l a fl w :Alrs o en w o ei e n i f l"ad et no e n ai so o s" i ism oe h dn s itn e i e l a e the trutho o en w o a ai to t tsm oe h hs r ht i" g .

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which destruction was in violation of the prison's own policies. The government ends its claim that the prosecution did not present false evidence or argument by splitting hairs and arguing their statements that the videotapes do not exist, were taken out of context, and they only meant the videotapes did not exist at the times of the statements. Schultz agrees the prosecution statements are less than precise and consistent; December 17, 2002 hearing (t df dn destroyed the tape or ensured "h e nat's e e t thrb n t eun g " e m d srid n ei" h t e e oa rni " t y ae uet i ' x t a e p n h d t s )But what is so important, and the gravamen of the motion for new trial, is the prosecutor really believed at that time that the BOP staff had destroyed the videotapes, and did not disclose that information. 5. The Averments Contained In The Affidavit Would Probably Produce An Aquittal In A New Trial Whether Rod Schultz would be acquitted in a new trial depends not only on the averments in his motion, but also on many other factors. His first trial was most complex, he had six co-defendants, he was acquitted of two other counts charging assaults against individual inmates and, because the jury acquitted five of the seven defendants of the overall conspiracy charged, it appears the guilty verdict of conspiracy was limited to the fact that Schultz and another correctional officer were both convicted of assaulting Castillo. In that trial the government also alleged Schultz committed some 17 overt acts as part of the conspiracy, and presented evidence on virtually all, if not all, of those acts as well as the individual charges. In short, the government threw a lot of mud at the wall, and it appears the jury reached a compromise, perhaps because it was evident the government had spent an enormous amount of resources on the case, and found one piece of mud stuck to the wall. In a new trial the defense believes the evidence would be pretty much limited to the alleged assault of Pedro Castillo. As is well known,

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Pedro Castillo was interviewed by a private investigator retained by Schultz family after the trial, and it was learned that Castillo expressly and repeatedly stated, notwithstanding multiple attempts by the prosecution to change his statement, that Rod Schultz had never assaulted him, had never struck him, and had always treated him well. Castillo traveled from Miami, Florida to Denver, Colorado and testified during a hearing on Schultz' first motion for new trial, and repeated what he had told the investigator. Although the trial court denied the motion for new trial, that ruling was appealed and is now before the 10th Circuit Court of Appeals awaiting decision. If Rod Schultz is granted a new trial Pedro Castillo will be subpoenaed as a witness, and will testify that Schultz never struck or assaulted him, as charged, or at any time. Because of the testimony of Castillo, and the fact the government destroyed the videotape, the government cs wlb m rel w ae ia e ta t df s cs ' ae i e a d ekrn nw r l h e ne ae s l k y i, e e markedly stronger, and Schultz is most confident he will be acquitted if granted a new trial. CONCLUSION Rod Schultz requests the court to find the actions of the prosecution in suppressing favorable evidence denied him the due process of law and grant him a new trial. Respectfully submitted,

s/ Neil MacFarlane__________ Neil MacFarlane 9975 Wadsworth Parkway, K2-433 Westminster, CO 80021 Attorney for Defendant (303) 893-2544 Fax (303) 420-0831 neil_macfarlane_law@yahoo

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Certificate of Service I hereby certify that I electronically filed the foregoing pleading with the Clerk of Court using the CM/ECF system, on February 6, 2006, which will send notification of such filing to the following e-mail address: Robert Mydans [email protected]

s/ Neil MacFarlane_______________

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