Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona Timothy T. Duax Assistant U.S. Attorney Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Arizona State Bar No. 012694 Telephone (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT
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DISTRICT OF ARIZONA
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United States of America, CR-03-1167-PHX-DGC Plaintiff, v. Henry E. Watkins, Defendant. GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION FOR DISCLOSURE OF PERSONNEL FILES

The defense argues that the government should be required to review personnel files of prospective law enforcement witnesses to determine if any Brady/Giglio information exists. Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405 U.S. 150 (1972). The United States ("government") acknowledges its obligations of disclosure pursuant to Brady/Giglio and intends to comply. The government's response is set forth more completely in the attached Memorandum of Points and Authorities. Respectfully submitted this 13th day of January, 2006.

PAUL K. CHARLTON United States Attorney District of Arizona s/ Timothy Duax TIMOTHY T. DUAX Assistant U.S. Attorney

Case 2:03-cr-01167-DGC

Document 1050

Filed 01/13/2006

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MEMORANDUM OF POINTS AND AUTHORITIES I. LAW AND ARGUMENT The defense is requesting discovery relating to adverse information about law enforcement officers. Specifically, the defense is requesting the court order the prosecutor to review personnel files of testifying law enforcement officials and to provide any adverse information to the defense in a timely manner. In response, the government understands its obligations to provide any impeachment material of a testifying witness and will comply in an appropriate manner. The government's understanding of its Brady/Giglio obligations as they apply to prospective law enforcement witnesses is set forth below. On December 9, 1996, the Attorney General approved a Department of Justice Policy Regarding the Disclosure to Prosecutors of Potential Impeachment Information Concerning Law Enforcement Agency Witnesses ("Giglio Policy"), that can be found in the United States Attorney's Manual ("USAM") 9-5.100. The Policy permits prosecuting offices to maintain records of potential impeachment information in a system of records that can be accessed by the identity of the employee, separate from the usual criminal matter/case filing system. A written Henthorn request is made routinely by federal prosecutors for every prospective federal law enforcement witness to the agent's federal law enforcement agency prior to trial. United States v. Henthorn, 931 F.2d 29, 30 (9th Cir. 1991). If the federal agency provides the assigned AUSA with information the prosecutor deems impeachment material, it will either be immediately disclosed to the defense or be provided to the court in camera for a determination of the government's discovery obligation. See generally, Wiehl, Keeping Files on the File Keepers: When Prosecutors are Forced to Turn Over the Personnel Files of Federal Agents to Defense Lawyers, 72 Wash. L. Rev. 73 (1997) (Westlaw cite: 72 WALR 73); United States v. Herring, 83 F.3d 1120 (9th Cir. 1996) (holding that the Supreme Court's decision in Kyles v. Whitley, 115 S.Ct. 1555 (1995), did not undermine circuit precedent to the effect that district court lacked authority to order AUSA to personally review personnel files of law enforcement officers who were prospective government witnesses); United States v. Dominguez-Villa, 954 F.2d 562 (9th Cir. 1992) (reversing district court order requiring both review of personnel files of state law

Case 2:03-cr-01167-DGC

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enforcement officers and requiring agency lawyers and agency heads to be involved in review of personnel files); United States v. Williams, 1997 WL 335794 (D.D.C. 1997) (granting a new trial after finding that the prosecution violated Brady by failing to disclose to the defense potential impeachment material in the personnel file of a federal law enforcement officer who testified as a government witness; the potential impeachment material included information that the law enforcement officer had -- fifteen years earlier -- falsely denied signing an informant's name to receipts); United States v. Gonzalez, 938 F.Supp.1199 (D.Del. 1996) (analyzing defendant's claim that the prosecution violated Brady by failing to disclose certain adverse information about a chemist who, while employed by a federal law enforcement agency, testified for the prosecution). II. CONCLUSION In the final analysis, the government understands its discovery obligations with respect to impeachment material of law enforcement witnesses. Here, the government will make the requests to the appropriate federal agencies. If such impeachment material exists, it will be disclosed to the defense or provided to the court in camera once it is in the possession of the AUSA's prosecuting the case.. Respectfully submitted this 13th day of January, 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/ Timothy Duax TIMOTHY T. DUAX Assistant U.S. Attorney

Case 2:03-cr-01167-DGC

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I hereby certify that on January 13, 2006, I electronically transmitted the attached 2 document to the Clerk's Office using the CM/ECF system for filing and 3 transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:
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Joseph E. Abodeely, [email protected], [email protected] David Zeltner Chesnoff, [email protected] Carmen Lynne Fischer, [email protected], [email protected] Patricia Ann Gitre, [email protected], [email protected] Alan Richard Hock, [email protected] Thomas M Hoidal, [email protected], [email protected] Barbara Lynn Hull, [email protected] David M Ochoa, [email protected] Jose S Padilla, [email protected], [email protected] Mark A Paige, [email protected] James Sun Park, [email protected], [email protected],[email protected] C Kenneth Ray, II, [email protected] Brian Fredrick Russo, [email protected], [email protected] Michael Shay Ryan, [email protected], [email protected] Philip A Seplow, [email protected], [email protected] Robert Storrs, [email protected], [email protected] s/ Timothy Duax TIMOTHY T. DUAX

Case 2:03-cr-01167-DGC

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