IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF SPOKANE. No I. FACTS

Transcription

1 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF SPOKANE STATE OF WASHINGTON, Plaintiff, vs. GAIL H. GERLACH, Defendant. I. FACTS No SUPPORT OF STATE S MOTION TO On June 1, 1, Superior Court Judge Triplet issued an order directing the State to provide discovery no later than 0 working days from the date of the Order on the Defendant s Omnibus Application. The State was required, among other things, to provide: 1). For discovery of the names and addresses of State s witnesses and their statements, (emphasis added); ). To inspect all physical and documentary evidence in possession of the State; (emphasis added); ). To permit inspection and copying of any books, papers, documents, photographs or other tangible objects in its possession which were obtained from the defendant or which will be used at hearing or trial (emphasis added); and ) To supply the above no later than 0 working days from date of this order, (Exhibit A, copy of signed defense omnibus application.) On Thursday, August, 1, defense counsel and David Stevens conducted an interview with the State s witness Dr. Sally Aiken. Deputy Prosecutor Deric Martin was present at Page 1 of P.O. Box 0 Spokane, WA

2 1 1 1 the interview. Mr. Stevens and Mr. Lee specifically asked for Dr. Aiken s notes in her file concerning the autopsy of the deceased which includes photographs not provided and a forensic expert s report written by a person presently unknown to the defense. Dr. Aiken agreed to provide a copy to Deputy Prosecutor Deric Martin. Mr. Martin indicated that he would forward a copy to defense counsel. Defense counsel on September, 1 followed up with an request for a copy of the file. On Monday, August 1, 1, defense counsel interviewed Officer Tyler Cordis. Officer Cordis indicated that he often takes field notes which would include statements made by people interviewed. He was not sure if in this case the notes contained statements made by Gail Gerlach. He said that there was no [department] policy on the retention of field notes, and that he routinely saves his field notes by tossing them in a box in his garage. Officer Cordis agreed to look for his field notes and provide a copy to the deputy prosecutor who was present at the interview. He also agreed that he would notify the deputy prosecutor if he could not find any field notes. On Wednesday, August 1, 1, defense counsel interviewed Detective Ben Estes. Detective Estes during the course of the interview reviewed his extensive interview notes. Detective Estes indicated that the notes contained statements by Gail Gerlach and Sharon Gerlach. Besides Detective Estes memory, these notes are the only recording made during the interview. While Detective Estes can and does audio record interviews, he explained that he did not do so in this case because in his experience some defendants will not consent to an interview if it is audio recorded. He felt that Gail Gerlach may not have answered his questions if the interview was audio recorded. Defense counsel asked the detective if a copy had been provided to Deputy Prosecutor Deric Martin who was present at the interview. He indicated that he had not. Defense counsel requested a copy of the handwritten notes. Detective Estes asked if he could use the Prosecutor s Office s copier. Deputy Prosecutor Deric Martin told the detective not to make a copy. When the detective offered to place Page of P.O. Box 0 Spokane, WA

3 1 1 1 the notes on property for safe keeping, Deputy Prosecutor told him not to. When Deputy Prosecutor Deric Martin was asked if he would be providing a copy, he said that he would have to research the issue. On Wednesday, September, 1, defense counsel reaffirmed the request for the field notes of each police officer interviewed. Prosecutor Martin stated in response, I do not intend to disclose the field notes without an order directing me to do so by the court. If you want the notes, you will have to set and prevail upon a motion, (Exhibit B, messages between defense counsel and prosecutor). The State has not sought protective orders as required by CrR.(b)(1) or CrR.(h) but has instead ignored its mandatory discovery obligations as well as a court order. The trial is set for December, 1. II. ISSUE ISSUE: Does Gail Gerlach have a right to a fair trial? III. AUTHORITY The rules of criminal procedure were designed to: [P]rovide for the just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration, effective justice, and the elimination of unjustifiable expense and delay. CrR 1. (emphasis added). Regardless of an Omnibus Order, CrR.(b)(1) obligates the State to: Except as otherwise provided by protective orders or as to matters not subject to disclosure, the prosecuting attorney shall disclose to the defendant the following material and information within the prosecuting attorney s possession or control no later than the omnibus hearing: (i) the names and addresses of persons whom the prosecuting attorney intends to call as witnesses at the hearing or trial, together with any written or recorded statements..(emphasis added). If the State objects to discovery requested, it cannot ignore the request or demand a motion to compel but may pursuant to CrR. (h)() seek a protective order: Page of P.O. Box 0 Spokane, WA

4 Upon a showing of cause, the court may at any time order that specified disclosure be restricted or deferred, or make such other order as is appropriate, provided that all material and information to which a party is entitled must be disclosed in time to permit the party's counsel to make beneficial use thereof. (Emphasis added.) IV. ARGUMENT A. UNDER THE DISCOVERY RULES, THE STATE IS REQUIRED TO DISCLOSE INFORMATION IT INTENDS TO RELY ON. FAILURE TO DISCLOSE MEANS THE DEFENSE CANNOT PROPERLY PREPARE CROSS EXAMINATION OF ANY STATE S WITNESSES. CrR.(a) lists the State s obligations to provide discovery. State v. Blackwell, 1 Wn.d,, P.d (). Officers have indicated that they may have field notes of the incident that likely contain Gail Gerlach s statements. Deputy Prosecutor Deric Martin has unequivocally indicated without citation to authority that he will not turn over any officer s field notes as required by CrR.(a)(1)(ii) and CrR.(d) and will not request a protective order as provided by CrR.(a). Deputy Prosecutor Deric Martin has chosen to ignore both the court rules and the court order in the defense s omnibus application requiring disclosure. Instead, Mr. Martin has demanded that the defense file a motion to compel in order to have a copy of the autopsy file and officer s field notes. In Washington, full disclosure of evidence within control of the prosecutor has long been the rule. CrR.(a)(1)(v). This disclosure is a continuing obligation on the State. CrR.(h)(). The trial court may regulate discovery by issuing a protective order, so long as the State discloses the evidence to which the defense is entitled with sufficient time to make beneficial use of it. CrR.(h)().1. State v. Norris, No. --II. Page of P.O. Box 0 Spokane, WA

5 1 1 1 B. BECAUSE THE STATE HAS FAILED TO FULLY DISCLOSE ITS EVIDENCE TO THE DEFENSE FOR EXAMINATION, DEFENDANT COUNSEL CANNOT ADEQUATELY PREPARE FOR TRIAL IN TIME FOR THE DECEMBER TH, 1 TRIAL DATE. A prosecutor's doubts about disclosure should be resolved in favor of sharing information with the defense. State v. Dunivin, Wn. App., P.d (). CrR.(a)(1) requires disclosure of material within the prosecuting attorney s possession or control. The omnibus order was signed back on June 1, 1, and filed on June, 1. By ignoring the omnibus order and failing to provide to the defendant known written notes, especially after Gail Gerlach s counsel has requested them both in person and by follow up communication by , the State is ignoring the Rules of Criminal Procedure and a Court Order and denying Gail Gerlach a right to fair trial. C. THE STATE S COMPLETE FAILURE TO COMPLY MEANS THAT THE DEFENDANT CANNOT KNOW IF STEPS NEED TO BE TAKEN TO FOLLOW UP WITH THE WITNESSES WHO WROTE THOSE FIELD NOTES WITH POSSIBLE INCONSISTENCIES WITH THE WITNESSES FINAL TYPED REPORTS. The purpose of the discovery rules is to prevent last minute surprises, trial disruption and continuances. State v. Wilson, Wn.App., P.d (1), review denied, Wn.d (1). As stated in State v. Boehme, 1 Wn.d, -, 0 P.d (), cert. denied, 0 U.S. 1 (): [T]he rules of discovery are designed to enhance the search for truth in both civil and criminal litigation. And, except where the exchange of information is not otherwise clearly impeded by constitutional limitations or statutory inhibitions, the route of discovery should ordinarily be considered somewhat in the nature of a -way street, with the trial court regulating traffic over the rough areas in a manner which will insure a fair trial to all concerned, neither according to one party an unfair advantage nor placing the other at a disadvantage. (Citations omitted. Emphasis added.) The State must be compelled to meet its obligation or Gail Gerlach will be at a serious disadvantage in that he will not be able to properly prepare by knowing if there are inconsistencies Page of P.O. Box 0 Spokane, WA

6 between the field notes and the actual typed reports that came later. Additionally, the defense expert witnesses must have an opportunity to challenge possible inconsistencies between the field notes and the final typed reports. D. THE STATE S FAILURE TO MEET DISCOVERY OBLIGATIONS UNDERMINES THE INTEGRITY OF THE JUDICIAL SYSTEM AND IGNORES THE RULES OF CRIMINAL PROCEDURE AND IGNORES JUDGE TRIPLET S COURT S OMNIBUS ORDER CrR.(a)() further provides that The prosecuting attorney s obligation under this section is limited to material and information within the knowledge, possession or control of members of the prosecuting attorney s staff. CrR.(h)(1) further states that Investigations (are) not to be impeded. It is very clear that such notes exist, and that Mr. Martin is capable of delivering the officers field notes and Dr. Sally Aiken s autopsy file which includes photographs and a forensic expert s report. Deputy Prosecutor s directions that Det. Estes should not provide copies of his notes show that they are within the control of the prosecutor. It is also very clear that Mr. Martin will refuse to provide necessary discovery regardless of the court rules and an Omnibus Order without the intervention of the Court. Page of P.O. Box 0 Spokane, WA

7 1 V. CONCLUSION If the State feels that disclosure of field notes, the autopsy notes, or delaying the interview of witnesses, the State s remedy is to bring a motion for a protective order pursuant to CrR.(h)(). The remedy is not to ignore the rules of discovery and court orders. Requiring Defense Counsel to bring a motion in order to receive discovery wastes time and resources not only of the court but also of all the parties. 1 Without knowing what witnesses may testify at trial, and without knowing whether witnesses need to be subpoenaed for chain of custody, Defense Counsel cannot know whether further witnesses need to be interviewed or further investigation is necessary. Gail Gerlach requests this Court enter an order requiring the State to immediately comply. Respectfully submitted this th day of September, Richard F. Lee, WSBA # Attorneys for Gail H. Gerlach ATTORNEY S CERTIFICATE OF SERVICE Pursuant to CrR. and CR ()(A), I certify that I caused a copy of this document and a copy of the Motion to Compel and Proposed Order on Motion to Compel to be: personally served on the Spokane County on this day of September, 1. (GR 1) Signed by: in Spokane County. Richard F. Lee, WSBA # 1 The failure to follow discovery obligations and provide discovery is so central to our adversarial system that it is listed as an unfair practice under the Rules of Professional Conduct and can warrant disciplinary procedures. RPC.(d). Page of P.O. Box 0 Spokane, WA