NO. 89-CR-0000 STATE OF TEXAS ) IN THE DISTRICT COURT VS. ) 187TH JUDICIAL DISTRICT JOE SMITH ) BEXAR COUNTY, TEXAS MOTION FOR DISCOVERY OF MITIGATING EVIDENCE CONCERNING INTERNAL INVESTIGATIONS ABOUT JOHN JONES TO THE HONORABLE JUDGE OF SAID COURT: Now comes defendant, by and through his undersigned attorneys, and respectfully moves for discovery prior to the sentencing hearing of all internal investigations conducted by the Bexar County District Attorney's Office, the San Antonio Police Department, and other law enforcement agencies or agencies of the State concerning mitigating evidence about John Jones's drug usage, his personality and behavior, and for good cause shows the following: I. Upon release of the toxicological report which showed that Officer John Jones had cocaine and heroin in his bloodstream at the time of his death, Chief of Police William Gibson announced that the San Antonio Police Department had conducted an investigation into Mr. Jones' drug usage. [See Exhibit A attached] [San Antonio Express News, July 14, 1989]. The same article described this as "an intense, thorough investigation into whether other police officers are using drugs." [See Exhibit A] It is reasonable to assume that the investigation of Officer Jones drug usage was just as "intense" and "thorough" as was the investigation into drug usage by all San Antonio Police Officers.
Among other things, the investigation discovered that "Jones' behavior changed noticeably several months before his death, after he separated from his wife and moved in with another woman. `There was a recognizable change. His conduct with his brother officers changed. He wouldn't, while on duty, go to coffee or lunch breaks with other officers,' Gibson said." II. Undersigned counsel has been provided with toxicological evidence concerning the type and quantity of drugs in Mr. Jones' system at the time of his death. One expert advised counsel that it is impossible to precisely predict Mr. Jones' behavior just from the type and quantity of drugs ingested; it is also crucial to know as much as possible about Mr. Jones' psychological profile and his behavior at or near the time of his death. Another expert consulted by counsel agrees such information would be a useful supplement to the quantitative analysis of the drugs now known by counsel. Other than the account in the newspaper, counsel has no information about the personality changes induced by Mr. Jones' drug abuse. The article persuasively indicates, however, that such information does exist, and that it is in possession of the State of Texas. III. Defendant has pleaded no contest pursuant to a plea bargain which allows the Court to assess a sentence of 55 years imprisonment or less. Defendant asserts that behavioral evidence contained in the above mentioned internal investigation is mitigating because, when combined with the quantitative evidence, it will support defendant's theory that, at the very 2
least, officer Jones provoked the encounter between him and defendant. Evidence of provocation or initial aggression by the complainant in a homicide case is mitigating both as a matter of law in Texas, and as a matter of common sense. [See remarks of then District Attorney Fred Rodriguez in Exhibit A] This sort of evidence might well cause the Court to assess punishment at less than 55 years imprisonment. IV. Absent an order from this court, defendant has no access to the internal investigation conducted by the State of Texas through the San Antonio Police Department and any other state entity in this case. That is, the items requested are in the exclusive possession, custody and control of the State of Texas and the defendant has no other means of ascertaining the disclosure requested. V. The items requested, are not privileged, or, to the extent they are privileged, the privilege must give way to the greater right of defendant to discover this information because it is mitigating and exculpatory. VI. The items and information are material to this cause and the issues of punishment to be determined in this cause. 3
VII. Absent the discovery requested, defendant will be deprived of his rights to effective assistance of counsel, guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and Article I, 10 of the Texas Constitution; Due Process and due course of law, guaranteed by Article I, 10 of the Texas Constitution; and his statutory right to discovery, guaranteed by article 39.14 of the Texas Code of Criminal Procedure. VIII. In the alternative, defendant requests that this Court order disclosure of the requested information in camera for review by this Court. Such review will allow this Court to determine whether or not the requested information is material and mitigating, and therefore must be disclosed to defendant. WHEREFORE, PREMISES CONSIDERED, the defendant prays that this Court set this motion for an evidentiary hearing a reasonable time before sentencing, hold an evidentiary hearing after appropriate process has been issued, executed, and returned, and grant Motion For Discovery Of Mitigating Evidence Concerning Internal Investigations About John Jones. 4
Respectfully submitted: MARK STEVENS 310 S. St. Mary's Street, Suite 1505 San Antonio, TX 78205 (210) 226-1433 State Bar No. 19184200 ROBERT WILLMANN 2200 Alamo National Building San Antonio, TX 78205 (210) 224-8866 State Bar No. 21655960 Attorneys for Defendant CERTIFICATE OF SERVICE I hereby certify that a copy of the above and foregoing Defendant's Motion For Discovery Of Mitigating Evidence Concerning Internal Investigations About John Jones has been delivered to District Attorney's office; Justice Center; 300 Dolorosa; San Antonio, Texas, on this the 17th day of November, 1993. MARK STEVENS ORDER 5
On this the day of, 1993, came to be considered Motion For Discovery Of Mitigating Evidence Concerning Internal Investigations About John Jones, and said motion is hereby (GRANTED) (DENIED) JUDGE PRESIDING 6