Mary C. Geddes
Asst. Federal Defender
FEDERAL PUBLIC DEFENDER AGENCY
510 L Street, Suite 400
Anchorage, Alaska 99501
(907) 271-2277
Attorney for Defendant
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA, ) NO. A93-027 CR.
)
Plaintiff, )
)
vs. )
) MOTION TO DISMISS
xxxxxxxxxxxx, ) BASED ON BRADY
) AND JENCKS VIOLATIONS
Defendant. )
______________________________ )
COMES NOW THE DEFENDANT, xxxxxxxxxxx, by and through counsel, MARY C. GEDDES, Assistant Federal Public Defender, and moves for dismissal of the indictment and case against Mr. xxxxxl based on Brady and Jencks' violations during the first trial of this case. The first trial resulted in a mistrial over defendant's objection, after the jury deliberated for a week and indicated that they were unable to achieve unanimity. This case was limited by the government's theory to the critical question of identification of the robber inside the Key Bank.
The court will recall that, during that first trial, during teller Deann Halverson's testimony, that witness mentioned that she had used a Key Bank form to describe the robber; her description had been written down on the form immediately after the robbery.
The government had not provided Ms. Halverson's signed description as part of its Jencks and Brady compliance, nor was the defense aware of its existence. It was only through subsequent voir dire that the defendant learned this form was in fact in the possession of the FBI. The prosecutor represented that he was unaware of the existence of this single form prior to Ms. Halverson's testimony, even though the form admittedly had been in Mr. Marischen's possession. Mr Marischen is a law-trained FBI agent in charge of the case. The court ordered Mr. Marischen to provide the form to the defense prior to cross-examination. The court was informed that no other forms were in the possession of the FBI.
The defense then sought a dismissal of the case and a suppression of the evidence seized, based on this disclosure. The motion was premised on the newly discovered information that Mr. Marischen had misrepresented material information to a magistrate judge in support of warrants for arrest and for seizure of evidence, and that Marischen had omitted a physical description (provided by Halverson) which was exculpatory of xxxxxx. For example, Marischen testified that he had provided a composite description; yet, Marischen had described the race as "white" when Halverson had described the race as "black". The court declined to consider the motion, in effect denying it.
At the trial, in voir dire, Marischen testified that the FBI had obtained only one identification form from a Key Bank employee (Deann Halverson). However, our office has learned, as of yesterday and today, that worksheets were filled out by all Key Bank employees who were witnesses to the robbery immediately after the robbery. We also learned that all forms were turned over by Mary Wolfe, branch manager, to law enforcement. The branch manager believes she provided the forms to an FBI agent. A second set of copies of the forms were provided to the Key Bank security offices, and were obtained only by subpoenaing Key Bank internal security records. Our office has also confirmed today, through the service of a subpoena, that these forms were not instead or mistakenly provided to the Alaska State Troopers Troopers, instead of to the FBI.
Seven employees prepared forms: Millen, Wolfe, Halverson, Jill Christian, Jennifer Blossom, Linda Stetson, and Barbara Childs. The following summarizes the critical and exculpatory information provided through the six forms not provided to the defense prior to trial.
Jill Christian Black male
5'7"
150 lbs.
Black complexion
Black ski mask with red trim
Touched door handle
Jennifer Blossom 5'8"
Medium-slim build
Left-handed
Linda Stetson Black or Hispanic male
5' 8" to 6 ft.
Black ski mask
Black shoes
Barbara Childs Thin
Ski mask, grey with red trim
"no" accent or pecularity of speech
Mary Wolfe "very distinct" speech
Other documents in this case have established Mr. xxxxxx's height as 6'0" and David Duplechain's height as 5'10". Mr. xxxxxx is Caucasian.
The significance of the government's failure to provide the defense with eyewitnesses' own, near -contemporaneous statements of identification of the robber cannot be considered harmless in the context of the first trial.
Not only do some of these witnesses' descriptions contradict critical descriptors given by Wolfe, Millen, and Halverson, but some of the descriptions differ very significantly from the affidavit of Agent Marischen, who informed the court that:
The robber wore a dark blue ski mask and what is believed to be a nylon stocking underneath, and a pair of gloves to cover any exposed skin so an unequivocal determination of his race could not be established. Eyewitnesses present stated that they believe the robber to be Caucasian, based upon his speech, enunciation, and general demeanor.
From our review of all seven written descriptions, and from the three FBI interview forms (Form 302) summarizing the statements of Millen, Wolfe, and Halverson (the three witnesses who testified), none of the witnesses mentioned: a blue ski mask, the likes of which were displayed to the jury, nor a nylon stocking underneath the ski mask. Three of the seven employees expressed the belief that the robber was black, not Caucasian. Only two employees of the seven, including Wolfe, who was back in the manager's office, mentioned gloves.
Mr. Marischen's accuracy and credibility as the primary on-the-scene investigator and interviewer was at great issue during the first trial. Mr. Marischen was the only agent who summarized Mr. xxxxxx's statement, considered by the government to be incriminating, which he (Marischen) did not record. Mr. Marischen was the only agent who hypothesized in court documents and in trial about the getaway vehicle and its two occupants. Mr. Marischen was the only agent who took material and critical statements, again non-recorded, from the two witnesses at Peter's Creek, Roxanne Burdette and Jerry Beach.
The government's suppression or withholding of real evidence can serve as a basis for dismissal, reversal on appeal, or other appropriate relief, such as striking a witnesses' testimony or declaring a mistrial. United States v. Agurs, 427 U.S. 97 (1976); Brady v. Maryland, 373 U.S. 83 (1963). In Brady, the supreme court held that a prosecutor's suprpression of evidence favorable to a defendant who has requesrted it amounts to a violation of due process, where the evidence is material either to guilt or punishment. In Giglio v. United States, 405 U.S. 150 (1972), the court held that impeaching evidence which tended to show that a crucial govenrment witness was not credible was material, and was thus properly classified as Brady material; the government's failure to produce this evidence was held to constitute a violation of the due process clause. In United States v. Bagley. 473 U.S. 667 (1986), the court held that suppression of Brady and Giglio material amounts to a constitutional violation only if it deprives the defendant of a fair trial; a constitutional violation occurs only if the evidence is material in the sense that its supperssion undermines confidence in the outcome of the trial. The Court of Appeals for the Ninth Circuit has stated: "To determine whether the impaeachment evidence withheld here was sufficiently material to require reversal of Bagley's conviciton, we must evaluiate whether, "if disclosed and used effectively, (the impeachment evidence) may make a difference between conviction and acquittal." Bagley v. Lumpkin, 798 F.2d at 1300 (cite omitted). The court noted that its task was to consider any adverse effect that the prosecutor's failure to respond might have had on the preparation or presentation of the defendant's case and to assess that affect in light of the totalituy of the circumstances. Bagley v. Lumpkin, 798 F.2d at 1301 (cite ommited). Brady imposes an affirmative duty on the government to produce the specifically requested evidence that is material to the accused regardless of whether it constitutes direct or impeaching evidence. In Virgin Islands v. Testamark, 570 F.2d 1162, 1165 (3rd Cir. 1978), the court held that it is reversible error for the government to fail to take appropriate measures to preserve evidence. More to the point here is United States v. Bryan, 868 F.2d 1032 (9th Cir. 1989)(prosecutor will be deemed to have knowledge of and access to anything in the possession, custody, or control of any federal agency participating in the same investigation of the defendant).
It did appear that Mr. xxxxxx had an excellent chance of being acquitted, given the notes generated by the jury and the length of their deliberations. The failure of the gocvernment to provide the attached materials in compliance with Brady and Jencks is only meaningfully addressed in this context by the remedy of dismissal.
DATED this ______ day of July, 2000.
Respectfully Submitted,
FEDERAL PUBLIC DEFENDER AGENCY
_________________________________
Mary C. Geddes
Assistant Federal Public Defender
Mary C. Geddes
Asst. Federal Defender
FEDERAL PUBLIC DEFENDER AGENCY
510 L Street, Suite 400
Anchorage, Alaska 99501
(907) 271-2277
Attorney for Defendant
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA, ) NO. A93-027 CR
)
Plaintiff, )
)
vs. ) CERTIFICATE OF SERVICE
)
MICHAEL xxxxxx, )
)
Defendant. )
______________________________)
DEBBYE MINZENMAYER, being first duly sworn upon oath, deposes and states as follows:
1. I am an employee of the Federal Public Defender, counsel for defendant MICHAEL xxxxxx, in the above-captioned action. I am nineteen (19) years of age or older.
2. On the _____ day of July, 2000, I served a true and correct copy of ________ by hand delivery by the Anchorage Messenger Service, addressed to:
Crandon Randell
Asst. U.S. Attorney
U.S. ATTORNEY'S OFFICE
222 W. 7th Avenue,
#9, Rm. C253
Anchorage, AK 99513
__________________________________
DEBBYE MINZENMAYER