Fill and Sign the Motion for Discovery of Information Regarding State Experts Mississippi

IN THE CIRCUIT COURT OF       COUNTY, MISSISSIPPI STATE OF MISSISSIPPI VS. CAUSE NUMBER             DEFENDANT MOTION FOR DISCOVERY OF INFORMATION REGARDING STATE EXPERTS COMES NOW,       , by counsel, and moves this Court pursu ant to the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, Article 3, §§ 5, 12, 13, 14, 15, 16, 18, 21, 22, 23, 24, 25, 26, 27, 28, 29, 31 & 32 of the Mississippi Constitution, and Rule 4.06, Miss. Unif. Crim. R. , to order discovery regarding the expert testing and examinations which have apparently been performed in this case. In support of his/her motion,       states as follows: 1. In theory, Rule 4.06, Miss. Unif. Crim. R. Cir. Ct. , is an excellent concept. It would be pleasant to think that the Supreme Court's words rang true: "Without doubt, the days of trial by ambush should be put behind us once and for all." Barnes v. State , 471 So.2d 1218, 1222 (Miss. 1985). In an effort to bring Rule 4.06 to fruition, the Supreme Court has previ ous ly asked and an swered the question: Is the State attorney the only person who will make that determination [of the evidence of which the defense will receive notice]? We think not. The Court now declares that as a matter of good practice and sound judgment in the trial of criminal cases, prosecuting attorneys should make available to attorneys for defendants all such material in their files and let the defense attorneys determine whether or not it is useful in the defense of the case. We direct the attention of trial judges to this problem and suggest that they diligently implement this suggestion in order to dispense with costly errors. . . . Hentz v. State , 489 So.2d 1386, 1388 (Miss. 1986) (citing cases). Four years later, the Court still finds itself asking the same question. Welch v. State , 566 So.2d 680 (Miss. 1990). 2. Over and over, in between whiles, the Court has found it necessary to remand cases for second or third trials because the prosecution has failed to comply with the rules governing discovery. See , e.g. , Cousan v. State , 543 So.2d 177 (Miss. 1989); Moore v. State , 536 So.2d 909 (Miss. 1988); Inman v. State , 515 So.2d 1150 (Miss. 1987); Stewart v. State , 512 So.2d 889 (Miss. 1987); Robinson v. State , 508 So.2d 1067 (Miss. 1987); Cooley v. State , 495 So.2d 1362 (Miss. 1986); Thomas v. State , 488 So.2d 1343 (Miss. 1986); Foster v. State , 484 So.2d 1009 (Miss. 1986); Henry v. State , 484 So.2d 1012 (Miss. 1986); McKinney v. State , 482 So.2d 1129 (Miss. 1986); Barnes v. State , 460 So.2d 126 (Miss. 1984); Morris v. State , 436 So.2d 1381 (Miss. 1983); Jackson v. State , 426 So.2d 405 (Miss. 1983); Jones v. State , 330 So.2d 597 (Miss. 1976). 3.       therefore requests prompt discovery of all the items listed below, as well as such other discoverable materials not requested by specific designation. If the discovery is less than prompt, he/she cannot be expected to prepare for trial. His/Her requests are predicated on the United States Constitution, as well as upon Rule 4.06 . See , e.g. , Brady v. Mary land , 373 U.S. 83 (1963); Napue v. Illinois , 360 U.S. 264 (1959); Giles v. Mary land , 386 U.S. 66 (1967); Davis v. Alaska , 415 U.S. 308 (1974); United States v. Pitt , 717 F.2d 1334 (11th Cir. 1983). 4. The prosecution must actively seek out information which is in the hands of other governmental agencies, especially when there is a specific request. As the Fifth Circuit held in Freeman v. Georgia , 599 F.2d 65 (5th Cir. 1979), the actions or inactions of one governmental actor must be imputed to another: The duty of disclosure is that of the state, which ordinarily acts through the prosecuting attorney; but if he too is the victim of police suppression of the material information, the state's failure is not on that account excused. Id. at 70 (quoting Barbee v. Warden , 331 F.2d 842 (4th Cir. 1964)); accord Schneider v. Estelle , 552 F.2d 593 (5th Cir. 1971); Smith v. Florida , 410 F.2d 1349, 1351 (5th Cir. 1969); Royal v. Dutton , 392 U.S. 544 (5th Cir. 1968); Jackson v. Wain wright , 390 F.2d 288, 296 (5th Cir. 1968). 5. Definition of Terms: As used in the following demands for discovery,       intends the following terms to be construed in their normal, everyday use, and to include the definition included below: (a) Records : "Records" shall include, but not be limited to, all documents, memoranda and writing, and shall also include memorializations (which may have to be created for purposes of this discovery demand) of oral communications relating to the discovery requested. (b) State actor : "State actor" shall include, but not be limited to, any person who works for, or performed a task of any kind for, any Mississippi District Attor ney's Office; any prosecutor's officer (state or federal) with relevant information in the United States; any Sheriff's Department; any Police Department; any other law enforcement agency, state or federal; any Crime Laboratory; any State Hospital; any hospital; any physician; any laboratory technician; other state agency, including but not limited to the Board of Pardons & Parole, the Mississippi Department of Corrections, and the Mississippi Highway Pa trol. (c) Technician : "Technician" shall include any person employed in any way at the Mississippi State Crime Laborato ry, or employed at any other forensic facility which was consulted on this case, who was involved in any manner with the testing and preservation of the particular evidence being discussed in this motion. 6.       demands a full recitation of who had anything to do with the testing. 7. Additionally, "experts" routinely seek to sandbag defense counsel by stating that someone else at the lab looked over their shoulder during the testing of the sample, and checked the proce dures and the results.       will have no such absent witness "testify" in his/her case, and hereby demands a list of all personnel who were involved in the procedures any lab in any manner at all.       therefore demands the following information as soon as may be practicable: (a) Copies of all laboratory notes taken in the course of this testing, with the opportunity to examine the originals. (b) Copies of all other document, photographs, diagrams or records of any kind which were created in the course of this testing, or which arose out of this testing in any manner, with the opportunity to examine the originals. (c) Copies of the relevant portions of all laboratory books utilized by any Lab which relate in any manner to serological testing, with the opportunity to examine the originals. (d) Copies of quality control tests run on material utilized. (e) A description of all replicate testing performed by any Laboratory in this case. (f) A description of the replicate testing practices utilized in serological work by any Laboratory in forensic cases. (g) Copies of reports by the testing laboratory issued to the proponent. (h) A written report by the testing laboratory setting forth the method used to declare a match or non-match among enzymes. (i) A statement setting forth observed contaminants, the reasons therefore, and tests performed to determine the origin and the effects thereof. (j) A statement setting forth the tests performed to determine the effects of degradation on the sample, and the results thereof. (k) A statement setting forth any other observed defects or laboratory errors, the reasons therefor and the effects thereof. (l) Chain of custody documents. A copy of the data pool for each enzyme examined. (m) Proof from the testing technician that the same rule used to declare a match was used to determine the enzyme frequency in the population. (n) All available information in the possession of, or known to, any Laboratory which relates in any manner to any blind testing procedures performed by the Law Enforcement Assistance Administration (L.E.A.A.), the Federal Bureau of Investigation (F.B.I.) or any other body which has conducted proficiency testing in which the Laboratory has taken part. (o) The code number or name utilized by the Laboratory in any blind testing procedures performed by the Law Enforcement Assistance Administration (L.E.A.A.), the Federal Bureau of Investigation (F.B.I.) or any other body which has conducted proficiency testing in which the Laboratory has taken part. (p) A description of the Laboratory's standard operating procedures regarding the preservation of serological evidence in the year of the testing, as well as a copy of any laboratory manual which related to these standards. (q) A description of the Laboratory's standard operating procedures regarding the preservation of serological evidence in 1993, as well as a copy of any laboratory manual which relates to these standards. (r) A description of the manner in which the serological evidence has been preserved in this case since the crime alleged herein. 27.       specifically demands a résumé from the technicians involved in the case, which should include, but not be limited to, reference to the following: (a) All the technician's educational background, including high school to the present. (b) The subject, date and location of all courses or seminars attended by the technician since his or her first employment as a forensic technician or agent, including all written, taped or videotaped materials which were given out or made available at these courses or semi nars (or, if the technician does not have the materials, the best informa tion he or she can pro vide as to how counsel can secure the materials). (c) The subject, date and location of all presentations given by the technician since his or her first employment as a forensic technician or agent, including all written, taped or videotaped materials which were created, given out or made available at these presentations (or, if the Agent does not have the materials, the best information he or she can pro vide as to how counsel can secure the materials). (d) The subject, date, location and results of all proficiency tests in which the technician has partici pat ed with respect to work. This should include any testing with respect to eyesight, color-blindness, etc., which has been performed on the technician. (e) The technician's personnel file, to the extent it reflects any comments, criticism and evaluation of the technician's performance on the job. 29. Any other information which may be helpful to the defense regarding any other Crime Lab technician who has been, or will be, involved in this case. Respectfully submitted, ______________________________       Attorney for Defendant       CERTIFICATE I,       , do hereby certify that I have on this day delivered, by hand, a true and correct copy of the foregoing Motion to This       day of       20       . _______________________________