F. Richard Curtner
1107 West Seventh Avenue
Anchorage, AK 99501
(907) 279-1002
Attorney for Defendant
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA, ) CASE NO. A92-073 CR (JKS)
)
Plaintiff, )
) DEFENDANT xxxxxxxxxxxxxxxx
vs. ) MOTION TO COMPEL DISCOVERY
) OF POLYGRAPH RESULTS OF
xxxxxxxxxxxx., ) GOVERNMENT WITNESSES
xxxxxxxxxxxxxxxxxx, )
)
Defendants. )
____________________________________)
COMES NOW THE DEFENDANT, xxxxxxxxxxx., by and through counsel, Rich Curtner, and moves this honorable court to order that the government disclose to the defendant the results of all polygraph examinations conducted on all witnesses and persons questioned in the investigation and prosecution of this case.
This motion is based on the attached Memorandum of Points and Authorities, the record in this case, and oral argument made by counsel.
/ / / / /
DATED in Anchorage, Alaska this ____ day of October, 1994.
_________________________________
Rich Curtner
Attorney for Defendant
xxxxxxxxxxxx
F. Richard Curtner
1107 West Seventh Avenue
Anchorage, AK 99501
(907) 279-1002
Attorney for Defendant
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA, ) CASE NO. A92-073 CR (JKS)
)
Plaintiff, )
)
vs. ) MEMORANDUM OF POINTS
) AND AUTHORITIES
xxxxxxxxxxxxxx, )
xxxxxxxxxxxxxx, )
)
Defendants. )
____________________________________)
Defendant . has made a request for all discovery that he is entitled to under Rule 16 of the Federal Rules of Criminal Procedure and under the holding of Brady v. Maryland, 373 U.S. 83 (1963). United States District Court Judge James K. Singleton has previously issued an order that all discovery that the defendant is entitled to under Brady v. Maryland be produced by the government seven days prior to trial. (Attached as Exhibit A.)
/ / / / /
Defendant submits that the government has made extensive use of polygraph examinations in the course of this investigation and has conducted polygraph examinations of numerous potential witnesses.
The United States Supreme Court in Brady v. Maryland held that the suppression of evidence by the prosecution which is favorable to an accused, and material to guilt or punishment, is a violation of due process. In United States v. Brumel-Alverez, 991 F.2d 1452, 1461 (9th Cir. 1993), the Ninth Circuit Court of Appeals held that "Brady information includes `material . . . that bears on the credibility of a significant witness in the case'" (quoting United States v. Strifer, 851 F.2d 1197, 1201 (9th Cir. 1988), cert. denied, 489 U.S. 1032 (1989).
In the recent decision of Bartholomew v. Wood, (_____ F.3d _____, 9th Cir. No. 93-35549, September 6, 1994) the Ninth Circuit specifically held failure by the prosecution to disclose in advance of trial that a witness had previously taken and failed a polygraph test violated Brady. The court stated that even if the polygraph results were not admissible, they were material in that they could lead to impeachment evidence and would assist defense counsel in the preparation for trial.
To date, defendant has requested the results of polygraph examinations conducted during the course of this investigation, and has not received any of the requested results. Defendant submits that those results are material to the issue of guilt and necessary to the adequate preparation for trial. Defendant therefore respectfully requests an order from this court that all polygraph results be disclosed to defendant at least sixty days prior to trial in order to allow adequate investigation based on these polygraph results.
DATED in Anchorage, Alaska this ____ day of October, 1994.
_________________________________
Rich Curtner
Attorney for Defendant
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA, ) CASE NO. A92-073 CR (JKS)
)
Plaintiff, )
) ORDER
vs. )
)
xxxxxxxxx., )
and xxxxxxxxxxx, )
)
Defendants. )
____________________________________)
Upon due consideration of defendant xxxxxxxxxxxx Motion to Compel Discovery of Polygraph Results of Government Witnesses and the attached Memorandum of Points and Authorities, said motion is hereby GRANTED.
IT IS HEREBY ORDERED that the government will provide the results of all polygraph examinations conducted in this case by ____________________, 1994.
DATED this _____ day of October, 1994.
_________________________________________
UNITED STATES DISTRICT COURT JUDGE
F. Richard Curtner
1107 West Seventh Avenue
Anchorage, AK 99501
(907) 279-1002
Attorney for Defendant
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA, ) CASE NO. A92-073 CR (JKS)
)
Plaintiff, )
)
vs. ) CERTIFICATE OF SERVICE
)
xxxxxxxxxxx, )
xxxxxxxxxxxxxxx, )
)
Defendants. )
____________________________________)
RICH CURTNER, being first duly sworn upon oath, deposes and states as follows:
1. I am the attorney assigned under the Criminal Justice Act to represent defendant, xxxxxxxxxxxx in the above-captioned action. I am nineteen (19) years of age or older.
2. On the ____ day of October, 1994, I served a true and correct copy of DEFENDANT xxxxxxxxxxx MOTION TO COMPEL DISCOVERY OF POLYGRAPH RESULTS OF GOVERNMENT WITNESSES; MEMORANDUM OF POINTS AND AUTHORITIES; and proposed ORDER; by depositing same with sufficient postage in the United States Mail, addressed to:
William F. Dewey
Ashton & Dewey
1101 W. 7th Avenue
Anchorage, AK 99501
Marc Bonner
U.S. Department of Justice
Terrorism & Violent Crimes
222 W. 7th Avenue, #9, Room 253
Anchorage, AK 99513-7567
Joseph Bottini
Assistant U.S. Attorney
U.S. ATTORNEY'S OFFICE
222 W. 7th Avenue, #9, Room 253
Anchorage, AK 99513-7567
_____________________________________
RICH CURTNER
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