IN THE FIFTIETH JUDICIAL DISTRICT, PARISH OF PEINE DE MORT
STATE OF LOUISIANA
No. _____

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STATE OF LOUISIANA, Plaintiff
v.
JOHN CLIENT, Defendant

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MOTION FOR DISCOVERY OF INFORMATION
CONCERNING THE DNA TESTING PERFORMED IN THIS CASE

COMES NOW, JOHN CLIENT, by counsel, and moves this Court pursuant to the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, as well as Louisiana law to order discovery regarding the DNA testing which has apparently been performed in this case. In support of his motion, Mr. CLIENT states as follows:
1. In the course of discovery, the prosecution has revealed that the F.B.I. did a species of DNA testing in this case. The F.B.I. purports to be able to say that blood found on a certain jacket matches the blood of the victim to a probability of 1-in-10,000.
2. In Ex Parte Perry, 586 So. 2d 242 (Ala. 1991), the Alabama Supreme Court considered the use of DNA evidence in criminal prosecutions. The Court found that the State had failed to prove the admissibility of DNA under the Frye test. See Perry, 586 So. 2d at 250-251 (citing Frye v. United States, 54 App. D.C. 46, 293 F.2d 1013 (App. D.C. 1923)). However, the Court did provide guidelines for future efforts which the prosecution might make to admit the evidence.
3. First, the State must make extensive disclosures to the defense, so that the defense may properly evaluate the evidence:
1. The proponent of the DNA evidence . . . should give discovery to the adversary, which should include, upon request: (1) Copies of autorads, with the opportunity to examine the originals. (2) Copies of laboratory books. (3) Copies of quality control tests run on material utilized. (4) Copies of reports by the testing laboratory issued to the proponent. (5) A written report by the testing laboratory setting forth the method used to declare a match or non-match, with actual size measurements, and mean or average size measurement, if applicable, together with standard deviation used. (6) A statement setting forth observed contaminants, the reasons therefore, and tests performed to determine the origin and the effects thereof. (7) If the sample is degraded, a statement setting forth the tests performed and the results thereof. (8) A statement setting forth any other observed defects or laboratory errors, the reasons therefore and the effects thereof. (9) Chain of custody documents. (10) A statement by the testing lab, setting forth the method used to calculate the allele frequency in the relevant population. (11) A copy of the data pool for each loci examined. (12) A certification by the testing lab that the same rule used to declare a match was used to determine the allele frequency in the population.

Ex Parte Perry, 586 So. 2d at 255. Mr. CLIENT hereby demands this information as soon as may be practicable. However, the Supreme Court held that disclosures must include these matters, not be limited to them. The specific nature of this case makes further disclosures necessary. Mr. CLIENT therefore specifically demands the following information in addition to that listed above:
4. DNA "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 procedures and the results. Mr. CLIENT will have no such absent witness "testify" in his case, and hereby demands a list of all personnel who were involved in the procedures in any manner at all.
5. Mr. CLIENT next demands data on how many cases the personnel involved in the DNA testing in this case have actually performed the testing, secured results, and testified about it. The defense specifically demands an evidentiary hearing on any claim that these requests are overburdensome, so that the request may be properly limited if necessary. This should include, but not necessarily be limited to, the following information with respect to each such case:
(a) Name of Defendant.
(b) Venue of case.
(c) Date of case.

(d) Name(s) of technician(s) at the F.B.I. who did the examination.
(e) Whether there was any disagreement between the F.B.I. and any other DNA organization or expert.
(f) What statistics were presented as the population frequency statistics.
(g) Provide certified copies of all available data surrounding each of these cases.
6. Mr. CLIENT specifically demands a resume from the technicians involve in the case, which should include, but not necessarily 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 seminars (or, if the technician does not have the materials, the best information he or she can provide 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 technician does not have the materials, the best information he or she can provide as to how counsel can secure the materials).
(d) The subject, date, location and results of all proficiency tests in which the technician or the FBI participated with respect to DNA 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.
7. As has recently been made clear by the court in Perry, there is no need for us to be detained by the State's anticipated argument that the District Attorney does not have this evidence in his possession. The District Attorney is presumed to have knowledge of the exculpatory information in the hands of all other persons involved in the investigation. The courts have previously made clear that the State must divulge more than simply such Brady material as the prosecutor may choose to slip into his or her file. In State v. Lee, 531 So. 2d 254 (La. 1988), the Court held:
[T]he code does not limit or deny discovery on the basis of whether an article is contained in the district attorney's file. Therefore, if the district attorney has the power to permit or authorize the discovery of an article within the possession, custody, or control of the state, that falls within the criteria of discoverability . . . the court should order discovery.

Id. at 254. The prosecution is therefore under an affirmative obligation to assure that all branches of government disclose evidence favorable to the defense. In Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972), the Supreme Court held that the prosecution cannot act the Ostrich, and thereby justify the failure to disclose exculpatory evidence:
The prosecutor's office is an entity and as such it is a spokesman for the Government. . . . To the extent this places a burden on the large prosecution offices, procedures and regulations can be established to carry that burden and to insure communication of all relevant information on each case to every lawyer who deals with it.

Id. at 153.
8. 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 F.2d 544 (5th Cir. 1968); Jackson v. Wainwright, 390 F.2d 288, 296 (5th Cir. 1968); Calley v. Callaway, 519 F.2d 184, 223 (5th Cir. 1975) (en banc) ("evidence actually or constructively in [the prosecution's] possession or accessible to it") (emphasis supplied), cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976); United States v. Deutsch, 475 F.2d 55, 57 (5th Cir. 1973) (United States Post Office and Justice Department one entity for purposes of Brady), overruled on other grounds, United States v. Henry, 799 F.2d 203 (5th Cir. 1984); United States v. Hendricks, 661 F.2d 38, 42 n.4 (5th Cir. 1981).
9. Similarly, the prosecution in this case has a duty to disclose evidence in the possession of the laboratory, especially when there has been a specific request for it. In State v. Falkins, 356 So. 2d 415 (La. 1978), the Court reversed a conviction because the state prosecutor had not revealed a witness' initial misidentification to an FBI agent. See also State v. Ireland, 500 P.2d 155, 162 (Kan. 1975) (FBI rap sheets available to state prosecutors and therefore "virtually always within the constructive knowledge of a state prosecutor"); United States v. Auten, 632 F.2d 478, 481 (5th Cir. 1980) (FBI & NCIC records which had not been obtained by prosecutor); United States v. Gaston, 608 F.2d 607, 613-14 (5th Cir. 1979) (FBI 302's not disclosed); Walker v. Lockhart, 763 F.2d 942, 948 (8th Cir. 1985), cert. denied, 478 U.S. 1020, 106 S. Ct. 3332, 92 L. Ed. 2d 738 (1986); United States v. Bryant, 439 F.2d 642, 142 U.S. App. D.C. 132 (D.C. Cir. 1971) (Bureau of Narcotics).
10. It is clear that the information demanded by Mr. CLIENT is important for the development of his defense in this case. In order to present an adequate defense, the accused must be allowed access to the tools necessary for that defense. In State v. Perkins, 423 So. 2d 1103 (La. 1982), the Court noted that:
The defendant cannot be expected to present a proper defense, and is denied a fair trial, when the prosecution withholds evidence which has been requested and which is favorable to the defendant.

Id. at 1107 (emphasis in original). This rule is based in common sense, as well as in the law. The Mississippi Supreme Court recently held that "[w]ithout 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).
11. There is another matter of particular significance which generally comes into play only when a state agent is involved in a case. Indeed, an agent of the prosecution must talk to defense counsel, if this will result in the development of exculpatory, or impeaching, evidence. While the general rule is that a prospective witness cannot be forced to talk to counsel, this rule is overridden by the obligation to disclose evidence and materials favorable to the defense. See, e.g., Brown v. Wainwright, 785 F.2d 1457, 1464 (11th Cir. 1986); United States v. Librach, 520 F.2d 550, 553 (8th Cir. 1975); DuBose v. LeFevre, 619 F.2d 973 (2d Cir. 1980); Skipper v. Wainwright, 598 F.2d 425, 427 (5th Cir.), cert. denied, 444 U.S. 974, 100 S. Ct. 469, 62 L. Ed. 2d 389 (1979); United States v. Butler, 567 F.2d 885 (9th Cir. 1978); United States v. Sanfilippo, 564 F.2d 176, 179 (5th Cir. 1977). Therefore, Mr. CLIENT requests an order directing lab personnel to meet with defense counsel, at a mutually convenient time and date, at a convenient location. Alternatively, this Court should order the technicians involved to submit to a deposition. See, e.g., People of the Territory of Guam v. Ngirangas, 806 F.2d 895 (9th Cir. 1986).
WHEREFORE, Mr. CLIENT moves that his motion be granted.
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