- Kirstin
Lobato | Robert Miranda and
Howard Haupt | Tabish/Murphy
| Rafay/Burns
| California prosecutors
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- Las Vegas
Prosecutors report
- Widespread obstruction
by Metro, prosecutors alleged
- Authorities routinely
suppress evidence, critics say
By Molly Ball, LAS VEGAS
SUN, January 11, 2005
Police and prosecutors in the
Las Vegas Valley routinely try to keep essential information
from defense lawyers, violating the constitutional rights of
those accused of crimes, defense attorneys and the county public
defender say.
Besides violating the U.S.
and Nevada constitutions and potentially putting innocent people
behind bars, the actions of the district attorney's office and
Metro Police waste large amounts of time and money, as defenders
must go to court over and over to obtain evidence to which they
are legally entitled, the attorneys say.
"It's either buffoonery
or malicious disregard for the U.S. Constitution on the part
of the D.A.'s office," defense attorney Robert Langford
said.
"I am convinced it is
intentional and intended to slow down the litigation process
or prevent the defense from getting the information they need,"
he added.
Langford and attorney Lisa
Rasmussen are both board members of Nevada Attorneys for Criminal
Justice, and they said the association is "fed up"
with the problem and plans to file a major lawsuit on the issue
in the next month or two.
The sharing of evidence among
police, prosecutors and defense lawyers -- known as the discovery
process -- is crucial to criminal cases. The right of people
accused of crimes to know all the evidence against them is enshrined
in the U.S. Constitution.
District Attorney David Roger
said that Clark County prosecutors always provide all the information
defense lawyers are entitled to and more. The problem, he said,
is that defenders go on "fishing expeditions" for information
to which they are not entitled.
"We have an open-file
discovery policy," Roger said. "We've had it as long
as I've been in this office, since 1987, and probably longer."
Turning over evidence is to
prosecutors' advantage, he said. When defendants know the strength
of the case against them, they are more likely to plead guilty,
saving taxpayers the expense of a trial.
"We want the defense to
be able to have full access to discovery so they can make an
educated decision on whether their client should plead or not,"
the district attorney said.
But the defenders say the vaunted
"open file" is often incomplete, nor is it truly open.
High courts have repeatedly
ruled that prosecutors' bag of tricks does not include hiding
evidence that might hurt their case and help the accused. But
that, the defense lawyers contend, is what is going on in Clark
County.
Clark County Public Defender
Phil Kohn, whose office defends people who cannot afford lawyers,
says he has seen the alleged obstructionism for years and is
now trying to stop it.
"The U.S. Supreme Court
and the Nevada Supreme Court have repeatedly ruled that discovery
(of evidence) is a due-process constitutional imperative,"
Kohn said. "They're going to have to follow the Constitution.
We have no intention of backing down."
When police investigate a crime,
they document all kinds of false leads, preliminary suspects
and tangential background, but when they hand the case to the
D.A.'s office, they include only that evidence that supports
the case, the attorneys allege.
Then, when defenders suspect
police records contain further information, they subpoena Metro
for it. But Metro unlawfully refuses the subpoenas, forcing the
defense attorneys to initiate a court proceeding to get the information,
the lawyers say.
The wrongdoing, the attorneys
say, is on the part of both the police, who should not be editing
evidence to make a case, and prosecutors, who are bound by the
Sixth Amendment of the U.S. Constitution to find out everything
related to the case and to pass it on to the defense.
But the district attorney said
defense lawyers are not entitled to as much documentation as
they think they are.
Roger pointed to Nevada law
-- NRS 174.235 -- which states that defendants are not entitled
to "an internal report, document or memorandum that is prepared
by or on behalf of the prosecuting attorney in connection with
the investigation or prosecution of the case."
That arguably includes police
reports, Roger said, and it certainly includes police internal
documents such as raw notes drafted in the field during the course
of an investigation.
"They're under no obligation
to turn those over," he said.
The police also say they turn
over everything they are required to. "We're compliant with
Nevada law and constitutional law," said Greg McCurdy, deputy
chief of Metro's investigative services division.
When detectives investigate
a crime, he said, "they turn their whole case file over
to the D.A." -- evidence, analysis such as drug-lab or DNA
studies, and investigators' reports. "Every bit of information
we get is in that file," McCurdy said.
But the attorneys say Nevada
is getting a reputation as a state that makes lawyers' lives
difficult. Langford said he has tried cases in numerous jurisdictions
in Arizona, Texas and Florida, and nowhere has he encountered
the obstruction he alleges is common in Clark County.
"For one case in Phoenix,
they sent me a scanned CD of all the documents, the audio, and
the 911 call," he recalled.
There, he said, "They
expect you to be ready to go to trial, but they don't present
any impediments" to doing so.
Clark County, the lawyers say,
is different.
In District Court recently,
Kohn argued before a judge for access to the detention records
of David Riker and Richard Walker, currently co-defendants on
trial for murder in California.
The records could show whether
inmates who are to testify against Riker in his upcoming trial
had previously shared a cell with Walker. If they did, Riker's
lawyers can question the witnesses' credibility, painting them
as jailhouse snitches.
In arguing that the records
should be released, Kohn was acting on behalf of Riker's defense,
the Riverside County public defender's office. Riker and Walker
went to trial Jan. 3 for the robbery-murder they allegedly committed
in Blythe, Calif., in 1992.
Days after that alleged crime,
the two allegedly drove to Las Vegas and fatally stabbed another
man. Both men were convicted of the Nevada crime 10 years ago.
On Thursday Kohn said the difficulty
in getting the records exemplified a "systemic problem."
Whether or not these particular
records were released, he told District Judge Kathy Hardcastle,
he shouldn't have had to go through the lengthy process of scheduling
a court appearance to get them.
The records should have been
part of the evidence in the first place, and if they weren't,
they should have been available by simple subpoena.
Instead, Kohn said, his subpoena
for the files was answered by a form letter from Mitchell Cohen,
a civil deputy D.A. who also serves as the attorney for Metro.
Over the years, Kohn told the
judge, "I've received dozens of these letters from Mitch
Cohen whenever we seek evidence from Metro, telling us to go
through the deputy district attorney assigned to the case."
He urged the judge to rule
on the larger issue, saying, "We need to have a system for
getting these kinds of records so we don't have to be in court
all the time."
Cohen did not object to the
records' release, but said the court battle was necessary. As
records of criminal history, detention files are privileged under
Nevada law, he said.
Therefore, in each instance,
attorneys must show that the records in question are necessary
to their case and won't unduly hamper the detention center, for
example by compromising security, Cohen said.
Hardcastle did not make a comprehensive
ruling as to whether Metro should have a policy of compliance
with defense subpoenas. She simply ordered the records be released.
Intending to make an example
of this instance, Kohn had filed a motion to recuse Cohen, arguing
that, as representative of the police as well as the D.A.'s office,
he was essentially acting as both witness and party to the case.
But Kohn withdrew the motion;
it would have prolonged the battle, and with Riker's case going
to trial, getting the records was "a matter of life or death."
However, Kohn said he would
not back down next time the problem cropped up.
Langford and Rasmussen, the
private defense attorneys, said they have gotten the same form
letter from Metro refusing to provide records. The letter says:
"The Las Vegas Metropolitan Police Records Bureau is in
receipt of your subpoena for production of records relative to
the above case.
"This is an open case
and documents should be provided through discovery which is conducted
through the District Attorney's Office."
If police object to a subpoena,
they should respond to it in court, with a legal motion challenging
the subpoena, Rasmussen said. "That letter is not a legal
response to the subpoena," she said.
"What they're supposed
to do is file a motion to quash or a protective order,"
she said. "Instead, they put us in the position of having
to file a motion to compel. ... You're looking at at least 30
days" before the court forces Metro to release the evidence.
The resulting delays drag out
cases and, when such restrictions prevent defense attorneys from
completing a thorough investigation, deprive defendants of a
fair trial.
Rasmussen said her repeated
attempts to obtain a written policy, or a description of an unwritten
policy, from Metro have been in vain.
The district attorney said
he was not familiar with the letter but denied there was a systemic
problem.
"There may be specific
cases where there are specific issues," Roger said. "But
our policy is an open-file policy. And Metro's issue is, they
don't want to engage in a fishing expedition."
He added, "We have courts,
we have statutes that dictate what defendants are entitled to.
But we're not going to spend thousands of man-hours getting this
information. If they think they're entitled to it, they can go
to court."
Langford said the Constitution
doesn't say that civil rights expire after a certain number of
man-hours.
"There is a shell game
going on with discovery that is going to cost the state of Nevada
a lot of money," Langford said.
"The U.S. Supreme Court
has ruled over and over again that prosecutors have an ongoing
duty to locate discoverable evidence held by agents of the state
and present that to the defense in a timely manner, and they
(Clark County prosecutors) are not doing it," he added.
Although many national and
state Supreme Court decisions over the years support his claim,
chief among them is Brady v. Maryland, a U.S. Supreme Court decision
from 1963.
The court in that case wrote
that "the suppression by the prosecution of evidence favorable
to an accused upon request violates due process."
That applies even if prosecutors
don't know about evidence because the police withhold it. As
fellow agents of the state, prosecutors are held to have "constructive
knowledge" of police evidence.
Kohn said the fight for full
disclosure wasn't about "getting criminals off on a technicality."
"This is about making
sure that the trial is a search for truth, and that all the truth
comes out," he said. "I'm tired of hearing about people
being exonerated after years on death row. That's how you get
innocent people convicted -- when you don't get all the facts."
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Truth can never be
told so as to be understood, and not be believ'd. William Blake, The Proverbs of Hell
