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LOUISIANA PUBLIC DEFENDER BOARD

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IN THE FIFTIETH JUDICIAL DISTRICT
PARISH OF PEINE DE MORT
STATE OF LOUISIANA

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STATE OF LOUISIANA
v.
JOHN CLIENT
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MOTION FOR DISCOVERY OF INFORMATION
NECESSARY TO A FAIR TRIAL

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, and Article 1, Sections 2, 3, 5, 13, 14, 16 & 17 of the Louisiana Constitution to order discovery of information necessary to a fair trial. In support of his motion, JOHN CLIENT states as follows:
I. EFFECTIVE DISCOVERY MUST BE ORDERED IN THIS CASE.

1. Discovery certainly includes materials which are "favorable to the defendant and material and relevant to the issue of guilt or punishment." State v. Felde, 422 So. 2d 370, 383-84 (La. 1982), cert. denied, 461 U.S. 918, 103 S. Ct. 1903, 77 L. Ed. 2d 290 (1983) (citing La. C. Cr. Pro. arts. 718, 723).
A. The Right To Expanded Discovery In Capital Cases.

2. This being a death penalty case, the accused is entitled to procedural protections that might not be required were the stakes not so grave. As the Louisiana Supreme Court has held, "[d]eath, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the jury's determination that death is the appropriate punishment in a specific case." State v. Myles, 389 So. 2d 12, 30 (La. 1980) (citing cases).
3. The fact that the State seeks to execute Mr. CLIENT for this crime justifies discovery beyond that mandated in a non-capital prosecution. "We hold that capital cases are sufficiently different by their very nature [to justify open file discovery]." Ex Parte Monk, 557 So. 2d 832, 836-37 (Ala. 1989) (affirming trial court's order entitling capital defendant to open file discovery). "The hovering death penalty is the special circumstance justifying broader discovery in capital cases." 557 So. 2d at 836; see also Brown v. State, 515 So. 2d 211, 213 (Fla. 1987) (discovery violation not harmless in "a complex trial involving a human's life").
4. This Court has authority to order the production of evidence beyond those items specifically designated in the Code. Mr. CLIENT requests this Court to exercise its authority in this capital case by ordering the District Attorney to open its files and grant full discovery.
B. Effective Discovery Means Timely Production From All State Actors.

5. At the outset, it should be noted that the discovery articles are to be given "a fair construction, one that does not hide or conceal relevant evidence...." State v. Lingle, 461 So. 2d 1046, 1048 (La. 1985); State v. Mitchell, 412 So. 2d 1042, 1044 (La. 1982) ("The discovery rules in the Louisiana Code of Criminal Procedure are intended to eliminate unwarranted prejudice which could arise from surprise testimony") (citation omitted).
6. Since trial strategy is dictated in large part by discovery of the State's case, disclosure must be timely. Mitchell. This is the case whether the material is unfavorable, see State v. Meshell, 392 So. 2d 433, 435 (La. 1981) (had defense counsel been provided with timely disclosure of defendant's rap sheet "he would have undertaken a different defense strategy"), or helpful, see State v. Prudholm, 446 So. 2d 729, 738 (La. 1984) (disclosure should be made in time "to allow the defense to use the favorable material effectively in the presentation of its case"). In State v. Foret, 628 So. 2d 1116 (La. 1993), the Court condemned the eleventh hour disclosure of a prosecution expert's report, noting "the inherent prejudice of the last minute disclosure in precluding adequate time to prepare to rebut the expert's testimony either by effective cross-examination or by offering the testimony of a defense expert." 628 So. 2d 1120. A corollary to the principle of timely disclosure is that the prosecution's duty to disclose discoverable evidence is a continuing one. La. Code Crim. Proc. art. 729.3. Mr. CLIENT 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 cannot be expected to prepare for trial.
C. The Prosecuting Attorney is responsible to see that discovery is forthcoming from all state actors.

7. Furthermore, Louisiana prosecutors are presumed to know of discoverable information in the hands of all other persons involved in the investigation. The Supreme Court has previously made clear that the State must divulge more than simply such discoverable 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 United States Supreme Court likewise held that the prosecution cannot bury its head in the sand, and thereby justify the failure to disclose discoverable 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. In short, the duty to disclose is not limited to prosecutors but embraces all members of the "prosecution team," which includes all law enforcement officers who have worked on the case and thereby contributed to the prosecutorial effort. See Schneider v. Estelle, 552 F.2d 593, 595 (5th Cir. 1977) ("The petitioner ... allege[s] that Nicholson was a state law enforcement officer. As such, he was a member of the prosecution team"); see also United States v. Buchanon, 891 F.2d 1436, 1442-43 (10th Cir. 1989) (citing cases); United States v. Endicott, 869 F.2d 452, 455 (9th Cir. 1989) (citing cases); United States ex rel. Smith v. Fairman, 769 F.2d 386, 391 (7th Cir. 1985).
D. The State's good or bad faith is immaterial to the right to discovery.

9. It is clear that error occurs in these cases where there is a colorable "allegation or flavor of bad faith on the state's behalf." State v. Bates, 495 So. 2d 1262 (La. 1986), cert. denied, 481 U.S. 1042, 107 S. Ct. 1986, 95 L. Ed. 2d 826. However, while bad faith may go to the remedy that will be applied, good faith is not a defense to a discovery violation:
In Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), the United States Supreme Court held suppression of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, regardless of the good faith or bad faith of the prosecution. Although there is no duty to provide defense counsel with unlimited discovery, if the subject matter of such a request is material or if a substantial basis for claiming materiality exists, it is reasonable to require the prosecution to respond by either furnishing the information or submitting the problem to the trial judge.

State v. Martin, 376 So. 2d 300, 306 (La. 1979), cert. denied, 449 U.S. 998, 101 S. Ct. 540, 66 L. Ed. 2d 297 (1980); see also State v. Nata, 452 So. 2d 785, 786 (La. App. 4th Cir. 1984) ("The State's good faith, however, would not justify denying an appropriate remedy under C.Cr.P. 729.5 A, in any case in which the state's noncompliance (even in good faith) resulted in basic unfairness to the defendant") (citation omitted).
E. Brady material includes any evidence that may be "favorable" to the defense.

10. The due process clause of the Fourteenth Amendment entitles Mr. CLIENT to the prompt production of all exculpatory evidence. "We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment...." Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). In State v. Perkins, 423 So. 2d 1103 (La. 1982), the Louisiana Supreme Court noted that there is an independent state constitutional basis for the Brady rule:
Furthermore, the Louisiana Constitution, Article 1, Section 16, provides: An accused is entitled to confront and cross-examine the witnesses against him, to compel the attendance of witnesses, to present a defense, and to testify in his own behalf.

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. See State v. Knapper, 579 So. 2d 956, 959 (La. 1991) (granting post conviction relief in Orleans Parish murder case due to suppressed evidence contained in police reports).
11. Exculpatory evidence encompasses evidence which may be used to impeach--such as evidence of some kind of bias or interest. As the Supreme Court held in State v. Bailey, 367 So. 2d 368 (La. 1979):
When the purpose is to show that in the special case on trial the witness is biased, has an interest, or has been corrupted, it is competent to question him as to any particular fact showing or tending to show such bias, interest or corruption, and unless he distinctly admits such fact, any other witness may be examined to establish the same.

Id. at 371 (citation omitted) (emphasis supplied).
12. Such evidence may come in several forms, including the witness' interest, a promise of leniency, or a prior inconsistent statement:
As a general rule, impeachment evidence will be regarded as more important and, therefore, material if . . . [it is] evidence of (1) bias or interest on the part of the witness; (2) a promise of leniency or threat of prosecution based on whether the witness testifies; and (3) a prior inconsistent statement as to important facts. . . . Because these types of evidence directly impeach the witness' credibility as to the particular facts in issue, they are generally regarded as important.

Comment, The Prosecutor's Duty of Disclosure: From Brady to Agurs and Beyond, 69 JOU. CRIM. L. & CRIMINOLOGY 197, 212-13 (1978).
13. Indeed, as to prior inconsistent statements of witnesses, the Court in State v. Ruff, 504 So. 2d 72 (La. App. 2d Cir. 1987), held explicitly that they were to be considered impeachment material:
We think the defense should have been able to ask [the witness] which version of the story was more accurate, and perhaps to show that the deposition given much closer in time to the incident was indeed correct.

Id. at 80.
14. So-called "deals" with witnesses are a classic form of Brady material. See, e.g, DuBose v. LeFevre, 619 F.2d 973 (2d Cir. 1980) (failure to admit promise that witness would be rewarded by favorable testimony); 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) (failure to disclose assurances of reward for favorable testimony); United States v. Sanfilippo, 564 F.2d 176, 179 (5th Cir. 1977) (witness testified untruthfully concerning scope of agreement with prosecution); State v. Curtis, 384 So. 2d 396 (La. 1980); State v. Baudean, 332 So.2d 460, 461 (La. 1976); State v. Felton, 522 So. 2d 626, 627 (La. App. 4th Cir. 1988).
15. This is true even--indeed especially--where there is no "formal" deal but the witness expects to receive some benefit from his or her testimony, for the misconduct may be even worse where there an "apparent effort [on the part] of the prosecution to conceal the true nature of the dealings with its key witness. . . ." United States v. Butler, 567 F.2d 885, 888 (9th Cir. 1978). This Court "will not tolerate prosecutorial participation in technically correct, yet seriously misleading, testimony which serves to conceal the existence of a deal with material witnesses." Blankenship v. Estelle, 545 F.2d 510, 513 (5th Cir. 1977). In State v. Lindsey, 621 So. 2d 618, 626 (La. App. 2d Cir. 1993), the defendant's armed robbery conviction was reversed where the State suppressed evidence that its witness, a codefendant, expected to receive some undetermined benefits from testifying:
In the instant case, the prosecutor failed to disclose to Lindsey that he promised [state witness and codefendant] Pate favorable consideration if she testified and if her testimony were deemed credible. This promise gave Pate a direct, personal stake in Lindsey's conviction. The fact that a specific reward was not guaranteed through a promise or a consummated plea agreement, but was expressly contingent on the state's good faith and satisfaction with Pate's testimony, served only to strengthen any incentive to testify falsely in order to secure Lindsey's conviction.

Id. at 626; accord, Porterfield v. State, 472 So. 2d 882, 884 (Fla. DCA 1, 1985); Campbell v. Reed, 594 F.2d 4, 8 (4th Cir. 1979); United States v. Bynum, 567 F.2d 1167, 1169 (1st Cir. 1978); United States ex rel. Washington v. Vincent, 525 F.2d 262, 265 (2d Cir. 1976); Marrow v. State, 463 So. 2d 17, 19-20 (Fla. DCA 2, 1985). The accused hereby moves for disclosure of any such deals, formal or informal, consummated or unconsummated, including any such arrangements where benefits are expected or could reasonably be anticipated by virtue of local custom or practice.
F. Brady applies to evidence in mitigation of sentence as well.

16. It bears repeating that the Brady doctrine contemplates disclosure of evidence favorable "either to guilt or to punishment. . . ." Brady, 373 U.S. at 87 (emphasis added). Indeed, Brady himself was awarded relief from his death sentence, not his murder conviction, the Supreme Court holding: "[I]t would be too dogmatic for us to say that the jury would not have attached any significance to this evidence in considering the punishment of the defendant Brady." Id. at 88 (emphasis supplied by Supreme Court, quoting opinion of Maryland Court of Appeals). "In a capital case the definition of 'favorable evidence' expands at the sentencing stage to far beyond what it is at any stage of any other type of criminal proceeding." Ex Parte Monk, 557 So. 2d at 837. In State v. Jackson, 608 So. 2d 949, 958 (La. 1992), the Court specifically held that Brady obligates the prosecution to disclose evidence supporting mitigating factors. Based on information that the prosecutor had suppressed favorable psychiatric evidence, the case was remanded with instructions to "order disclosure of any information favorable to the accused that is material to the plea of insanity in the guilt phase or to the mitigating circumstance of mental illness or defect in the sentencing hearing." Id. at 958 (emphasis added). Thus, the defendant is entitled to the production of any statutory or non-statutory mitigating evidence.
17. Of course, all exculpatory evidence must be disclosed, whether or not such evidence is contained in otherwise confidential records. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L. Ed. 2d 347 (1974). Indeed, all exculpatory information must be disclosed, regardless of whether it constitutes admissible evidence. State v. Marshall, 845 S.W.2d 228, 232 (Tenn. Cr. App. 1992) (prosecution's duty to disclose is not limited in scope to "competent evidence" or "admissible evidence"; duty extends to "favorable information" unknown to the accused).
II. THE REQUESTED DISCOVERY
18. John Client 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 cannot be expected to prepare for trial. His requests are predicated on the United States Constitution, as well as upon state law.

19. Definition of Terms: As used in the following demands for discovery, John Client 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 District Attorney'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 other state agency, including but not limited to the Board of Pardons & Parole, the Department of Corrections, and the Highway Patrol.
A. Prosecution Witnesses.
20. John Client demands discovery concerning prosecution witnesses in various categories:
(a) Unfavorable evidence of any sort concerning prosecution witnesses, including:

(i) all juvenile detention, jail, prison, parole, probation and presentence investigation records;

(ii) all arrest, conviction, and adult and juvenile criminal offense records, Martinez v. Wainwright, 621 F.2d 184 (5th Cir. 1980) (habeas relief granted due to suppression of victim's rap sheet); State v. Miles, 569 So. 2d 615 (La. 1990) (disclosure of rap sheets of "principal" witnesses); State v. Laird, 551 So. 2d 1310 (La. 1989) (ordering disclosure of rap sheets of all state witnesses); State v. Toledano, 391 So. 2d 817 (La. 1980); State v. Harvey, 358 So. 2d 1224 (La. 1978); State v. Henderson, 362 So. 2d 1358 (La. 1978) (victims).

(iii) all records of any law enforcement authority;

(iv) all records of any court authority;

(b) Evidence tending to prove that the police investigation was conducted in a sloppy or slanted manner. Lindsey v. King, 769 F.2d 1034, 1042-43 (5th Cir. 1985) (failure to disclose impeachment evidence might have had effect of the "discrediting, to some degree, of the police methods employed in assembling the case against him"); Bowen v. Maynard, 799 F.2d 593, 613 (10th Cir. 1986), cert. denied, 479 U.S. 962, 107 S.Ct. 458, 93 L. Ed. 2d 404 (1986) ("The withheld evidence also raises serious questions about the manner, quality, and thoroughness of the investigation that led to Bowen's arrest and trial. A common trial tactic of defense lawyers is to discredit the caliber of the investigation or the decision to charge the defendant, and we may consider such use in assessing a possible Brady violation").
(c) Any and all other information respecting any prosecution witness which is favorable to the defendant on the issue of guilt;
(d) Statements made by any persons which are exculpatory with respect to the defendant, including all statements made by prospective prosecution witnesses.
(e) Witness falsehoods or lies even though unconnected to the case. United States v. Bernal-Obeso, 989 F.2d 331 (9th Cir. 1993) (informant may have lied to government about prior homicide).
(f) Anything that would tend to impeach a prosecution witness's testimony including:
(i) Evidence that the witness failed a polygraph test. United States v. Lynn, 856 F.2d 430 (1st Cir. 1988); United States v. Lindell, 881 F.2d 1313, 1326 (5th Cir.1989) cert. denied, 496 U.S. 926, 110 S.Ct. 2621, 110 L. Ed. 2d 642 (1990) ("[i]mpeachment evidence includes the results of a polygraph test").

(ii) Evidence that any witnesses were drunk or drugged, or were otherwise disabled in their ability to observe the crime or relate relevant facts. Williams v. Whitley, 940 F.2d 132, 134 (5th Cir. 1991) ("Whether Mrs. King, the only eyewitness, had ingested drugs ... was of obvious relevance and ... should have been presented to the trier of fact....").

B. Statements By The Accused.

21. Pursuant to La. Code. Crim. Proc. art. 716(A), the accused moves for production of any "written or recorded confession or statement of any nature" which he is alleged to have made.
22. Pursuant to La. Code. Crim. Proc. art. 716(B), the accused moves for the disclosure of the existence of any oral confession or statement which he allegedly made which the prosecution intends to offer in evidence, with a statement concerning when, where and to whom such oral confession or statement was made. These statements must be disclosed, regardless of whether they are said to be res gestae. State v. Freeman, 447 So. 2d 1145, 1153 (La. App. 3d Cir. 1984) ("a defendant is entitled to discover the existence, if not the contents, of res gestae statements under LSA-C.Cr.P. art. 716(b)") (citation omitted); State v. Nogess, 490 So. 2d 488 (La. App. 4th Cir. 1986) ("Those cases which have addressed the applicability of Art. 716(B) to res gestae have held that they are discoverable") (citations omitted).
23. Pursuant to La. Code. Crim. Proc. art. 716(C), the accused moves for disclosure of the substance of any oral statement he is alleged to have made, either before or after arrest, in response to interrogation and which the state intends to offer in evidence.
24. Pursuant to his state and federal constitutional rights to due process and reliable capital sentencing, the accused moves for production of the particulars of any statement which he is alleged to have made in any form, to any witness, which has any bearing on this prosecution, regardless of whether the statement is or is not recorded, regardless of whether the statement was or was not the product of interrogation, regardless of whether the statement is exculpatory or inculpatory, regardless of whether or not the accused was under arrest, and regardless of whether or not the discovery articles mandate production of such statements. This request contemplates production of the name and address of the person[s] to whom the statement[s] was [were] made, including but not limited to those relevant to:
(a) the alleged crime;
(b) the investigation of that crime; and
(c) any condition of the defendant, including but not limited to his mental or physical state:

(i) at the time of the alleged crime;

(ii) at the time of any statements of the defendant as described in paragraphs (a) through (c) above;

(iii) at any other time prior to or subsequent to the alleged crime.

C. Prior Criminal Record of the Accused.

25. Pursuant to La. Code Crim. Proc. art. 717, the accused moves for production of a copy of any record of his criminal arrests and convictions. State v. Meshell; State v. DeMoss, 582 So. 2d 964 (La. App. 2d Cir. 1991). This request specifically contemplates disclosure of the defendant's rap sheet, including any and all juvenile charges and adjudications.
D. Documents And Tangible Objects.
26. Pursuant to La. Code Crim. Proc. art. 718, the accused moves for an order permitting him to inspect and copy all books, papers, documents, photographs, tangible objects, buildings, places, or copies or portions thereof, which are within the possession custody or control of any state actor and which are favorable to the defense, are intended for use by the State as evidence at trial, or were obtained from or belong to the accused.
E. Scientific Tests and Experiments.
27. While this may be addressed in greater detail in other motions, Mr. CLIENT specifically requests the production of scientific and forensic evidence, expert notes, records and expert reports.
F. Evidence Of Other Crimes.
28. Pursuant to La. Code Crim. Proc. art. 720, the accused moves for an order directing the prosecution to inform him of its intent to offer evidence of the commission of any other crime admissible under the authority of Louisiana Code of Evidence art. 404. The accused requests a full description of the nature of such crime and a statement of how the crime fits within any of the exceptions of art. 404. In State v. Jackson, 608 So. 2d 949 (La. 1992), the court noted that "[t]he defense moved for production of police reports and witness lists relating to evidence of other crimes on which the prosecutor intends to introduce evidence. Initial reports are public records and subject to discovery." Id. at 957.
G. Statements of Co-conspirators.
29. Pursuant to La. Code Crim. Proc. art. 721, the accused moves for an order directing the prosecution to inform him of the state's intent to use statements of any alleged co-conspirators pursuant to art. 801(d)(3)(b) of the Evidence Code. The accused requests production of these statements even if they are alleged to be res gestae.
H. Statements of Co-defendants.
30. Pursuant to La. Code Crim. Proc. art 722, the accused moves for production of any confessions or statements (inculpatory or exculpatory) made by the codefendant in this case. State v. Eaker, 380 So. 2d 19 (La. 1980).
I. Witness Statements And Police Reports.
31. The accused requests a copy of all statements--in whatever form--by any witnesses, whether such witnesses are expected to testify or not, which are in the files of any state actors and which relate to this prosecution. Clearly, the initial police report must be disclosed pursuant to La. R.S. Sec. 44:3(A)(4). In State v. Ward, 483 So. 2d 578 (La. 1986), the Court observed that "initial police reports are public records." Id. at 583 (citing State v. Shropshire, 471 So. 2d 707 (La. 1985)). See also State v. McEwen, 504 So. 2d 817 (La. 1987).
32. The accused also moves for production of all other witness statements, whether contained in supplemental police reports, grand jury transcripts, the prosecutor's file or in any other form. It may be that prevailing public records act law allows access to these documents only after the prosecution has been concluded. See generally, Trenticosta v. Mamoulides, 633 So. 2d 786 (La. App. 5th Cir. 1994). However, this is not controlling in the context of criminal discovery since it conflicts both with common sense and the accused's rights. The defendant's right to disclosure of this information is two-fold. First, as developed below, it is clear that his due process right to production of all exculpatory evidence simply cannot be protected by trusting the prosecutor to produce such evidence. Nor will an in camera review by the Court always protect the defendant's rights. The second reason is that the withholding of this material turns a capital trial into little more than ambush and gives the State a lopsided advantage that is antithetical to notions of due process.
33. Turning first to the issue of protecting the defendant's Brady rights, experience teaches us that we cannot trust the fox to guard the hen house. Indeed, the jurisprudence reveals that, even in capital cases, prosecutors frequently suppress favorable evidence contained in police reports. See, e.g., Kirkpatrick v. Whitley, 992 F.2d 491, 496 (5th Cir. 1993) ("Although Kirkpatrick's trial counsel made a Brady request before trial, the [exculpatory] statements, indeed the very identity, of the first two officers on the murder scene were not discovered at trial because the then-controlling state law would not permit discovery of the initial police report"); Williams v. Whitley, 940 F.2d 132, 133-34 (5th Cir. 1991) ("The evidence in question, an official police report from the day of the murder, contained information that had obvious relevance to testing, i.e, impeaching, the credibility of...the state's only witness who connected Williams to the murder"); Lindsey v. King, 769 F.2d at 104 (failure to disclose police report containing eyewitness's prior statement impeaching trial testimony that he saw the offender's face "would be reprehensible in an ordinary case; where a man's life is at stake, it is beyond reprehension"); State v. Knapper, 579 So. 2d 956, 960 (La. 1991) ("The evidence [contained in police reports and not produced at trial] could have had significant value in creating a reasonable doubt that did not otherwise exist in a capital case which relied almost solely on the suspect testimony of an accomplice who turned state witness to avoid the electric chair"); State v. Smith, 600 So.2d 919, 922 (La. App. 4th Cir. 1992) ("In Smith's case, the State should have provided the report to the defendant in that evidence that the victim first gave another name as the perpetrator was exculpatory for the defendant").
34. Prevailing Louisiana law provides for at least an in camera inspection of these materials by the trial court. See, e.g., State v. Jackson, 614 So.2d 1246 (La. 1993) ("The trial judge is ordered to conduct an in camera inspection and review of 1) any evidence in the State's possession which would adversely affect the credibility of any of its witnesses; and 2) the statements of any person interviewed by an agent of the State which may be favorable to the defendant and/or material and relevant to the issue of guilt or punishment"); State v. Moore, 617 So.2d 483 (La. 1993) ("the case is remanded to the trial court to conduct an in camera inspection of the supplemental report, determine if it contains any statements falling under La. Code Crim. P. art. 716 and disclose the substance of these statements to relators"). This Court should exercise its constitutional obligation to go further. Such an approach has only limited utility "[b]ecause only the defense is adequately equipped to determine the effective use for the purpose of discrediting the Government's witness and thereby furthering the accused's defense." Jenks v. United States, 353 U.S. 657, 668-669, 77 S. Ct. 1007, 1013-1014, 1 L. Ed. 2d 1103 (1957) (defendant entitled to production of witness statements contained in FBI reports). Indeed, at this point neither the Court nor the prosecution are aware what the defense will be.
35. The better approach is to allow the defense to examine the files:
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 riles and let the defense attorneys determine whether or not it is useful in the defense of the case.

Hentz v. State, 489 So. 2d 1386, 1388 (Miss. 1986) (citing cases).

36. These considerations aside, the defense should be able to access these statements so that he may avoid the predictable surprises that will befall him when the prosecution witnesses testify. This is the very reason a majority of jurisdictions, including the federal government, provide that all statements of the prosecutions witnesses must be produced to a criminal defendant no later than the conclusion of their direct examinations. See generally, C.P. Jhong, Annotation, Right of Defendant in Criminal Case to Inspection of Statement of Prosecutions' Witness For Purposes of Cross-Examination or Impeachment, 7 A.L.R.3d 181, 190-198. Where, particularly in a capital case, defense counsel is under an obligation to prepare well prior to trial, the statements should be disclosed at once.
37. This Court has clear authority to order production of witness statements in this capital case to insure that Mr. CLIENT's due process rights are protected. The Supreme Court has held that a defendant's right to present a defense may trump the state's interest in technical compliance with the discovery articles. State v. Walters, 408 So. 2d 1337 (La. 1982), upheld a trial court's order directing the prosecution to provide the defense with names and addresses of witnesses. "[T]here is authority in the trial judge under the due process clauses of the federal and state constitutions to order pre-trial discovery where he considers that fundamental fairness requires it...." Id. at 1338. (emphasis added). The court refused to adopt a strict interpretation of Article 723 of the Code of Criminal Procedure, observing that while the article does not authorize the discovery of statements made by witnesses, "[it] does not prohibit the discovery of the names and/or addresses of state witnesses, or even for that matter the discovery of statements made by state witnesses." Id. at 1339. (first emphasis in original, second emphasis added).
38. All witness statements must be produced, including transcripts of grand jury proceedings. At a minimum, this Court must review the grand jury transcripts to determine whether exculpatory evidence is being suppressed. State v. Peters, 406 So. 2d 189, 191 (La. 1981) (Lemmon, J., concurring).
39. In sum, the following classes of witness statements must be produced for defense inspection:
(a) All state-conducted interviews comprise prior statements which should be disclosed during discovery. Mr. CLIENT demands copies of any statement made by any witness, and demands that the State turn over notes or records of any interview with any witness and reconstruct the contents of any interview for which there are no physical records.
(b) These statements include, but are not limited to, prior testimony, either under oath or not under oath, such as statements to law enforcement agents, testimony before the Grand Jury, and testimony in court in this case or any other case.
(c) Since the witness' predilection for assisting the prosecution is obviously a source of bias, this should include any testimony given in any other case on behalf of the state, or on behalf of any other party from whom the witness may reasonably have expected some form of compensation (monetary or otherwise).
(d) Copies of all written and/or oral statements referred to in the paragraphs above in this section, including memoranda, summaries or recordings of such statements, as well as grand jury testimony.
(e) All memoranda, documents and reports to, from and between law enforcement officers connected with the subject matter of this case.
(f) All memoranda, documents and reports to, from and between the investigative staff of the prosecution, excluding those portions if any, which contain the opinions, theories, or conclusions of the prosecuting attorney or members of his legal staff.
J. Information Affecting Credibility of Prosecution Snitch Witnesses.

40. Supplementing the specific requests regarding all witnesses made above, the accused demands production of the following information regarding accomplices or snitches:
(a) All psychiatric evaluations of any witness. This should include, but not be limited to, the tape recording and transcript of any interview with them; the raw test data of any test, including the Minnesota Multiphasic Personality Inventory and the WAIS or other intelligent quotient.
(b) Any report indicating that the witnesses have been medicated for anxiety, or for any mental illness, at any time since the initiation of this investigation. Mr. CLIENT respectfully demands production of all records of this medication, as well as any other evidence that the witnesses are being (a) favorably treated in the jail, or (b) treated for nervousness concerning their predicament.
(c) As to any witnesses who have been held either in a jail or with the State Penitentiary system, Mr. CLIENT demands a complete listing of all the facilities at which the witnesses have been housed or detained.
(d) Mr. CLIENT demands a copy of the witnesses' Department of Corrections records, detailing all the infractions into which the witnesses got themselves; detailing all the favorable treatment of any sort; detailing any medical and/or psychiatric treatment which they may have undergone; and including their entire incarceration history since arrest on these charges.
(e) Mr. CLIENT demands a copy of any and all incident reports or records involving any witness in any manner during his or her incarceration.
(f) To the extent that there has been any incident relating to any witness which was not reduced to an incident report, Mr. Client demands that the recollection of any state actor, and of the witness himself or herself, be reduced to writing and that all such records be delivered to the defense.
(g) The jail logs of each institution in which any witness has been detained in such a manner that the accused may ascertain the names of everyone who has visited the snitch in those facilities.
(h) Copies of any and all records or communications (and, if they were oral, a summary of what was said) between any state actor and any person with any influence over the commutation, reduction, or parole of any witness' sentence.
(i) Psychiatric records and personnel records of all police officers involved in interrogating the accused. People v. Memro, 700 P.2d 446 (Cal. 1985)
K. Jury Information.
41. The accused requests production of all the information in the prosecutor's file regarding prospective jurors including but not limited to jurors' criminal histories and voting records. People v. Aldridge, 209 N.W.2d 796 (Mich. 1973); Losavio v. Mayber, 496 P.2d 1032 (Colo. 1972); see generally State v. Harvey, 358 So. 2d at 1231-32.
L. Witness List.
42. The State should be required to produce a list of the witnesses it will present in its effort to see the accused executed. Under prevailing jurisprudence, this Court has clear authority to order such a list. Walters, 408 So. 2d 1339 (affirming pretrial ruling directing production of prosecution witness list). See, Sandra Louise Edwards, Discovery of the State's Witnesses: State v. Walters, 43 La. L. Rev. 1549 (1983). Absent disclosure of a witness list, the accused will be unable to identify, let alone interview, potential witnesses against him:
Pretrial interviews of witnesses are advantageous for several reasons. In general, they allow the defense to prepare its case. A pretrial interview may alleviate surprise if the witness's testimony is unfavorable. The most obvious advantage to interviewing a witness is finding that he has exculpatory information.

Id., at 1555, citing Hagan, Interviewing Witnesses in Criminal Cases, 28 BROOKLYN L. REV. 207, 209 (1962) (footnotes omitted).
43. The State is also obligated to provide the accused with a list of witnesses it intends to present at the penalty phase, if the case proceeds to that stage. State v. Langlois, 573 So. 2d 1110 (La. 1991) ("As to defendant's 1965 conviction in California and his 1968 conviction in Florida, however, the state is directed to provide defense counsel with the names and addresses of the witnesses it intends to call").
44. Surprise testimony is unthinkable in a capital trial. Doubtless, this is why Congress has provided that the government must provide witness lists to those accused of capital crimes in the federal courts, while refusing to extend such a right to non-capital federal defendants. See 18 U.S.C. Sec. 3432. Since Walters recognizes that the federal discovery provisions are the "source provisions for the Louisiana discovery articles," id., 408 So. 2d 1339, the accused should be provided with a list of the witnesses the State intends to call in this capital case.
45. The prosecution must also disclose the identities of all informants, even though they may not be called to testify. State v. Crawford, 613 So. 2d 984 (La. 1993) ("Defendant's motion for disclosure of the identity of the confidential informant is granted"); State v. Wilson, 626 So. 2d 356 (La. App. 1st Cir. 1993).
M. Information Concerning Other Suspects.
46. Mr. CLIENT demands various information concerning other suspects.
47. This should include any reasons that may have led law enforcement officers to suspect others of the crimes charged in this case, as well as information that could lead any person to suspect that Mr. CLIENT played a lesser role, or that someone else played a greater role, than the state will intimate at trial. Mr. CLIENT specifically requests all information tending to suggest that his co-defendant, Weldon KILLER, is more culpable than he is.
N. Information Concerning Stops and Arrests.
48. Mr. CLIENT demands various information concerning the manner in which he or any other suspect of any kind may have been stopped or taken into custody, as well as information concerning other persons who were suspects, and were not eventually arrested.
49. This should also include, but not be limited to, any evidence that might support any kind of suppression motion, including one predicated on:
(a) the putative involuntariness of any statement made by any potental witness.
(b) the fact that a statement may have been made by any witness without the benefit of his or her constitutional rights.
(c) the fact that a statement may have been made by any witness while under the influence of any intoxicant, any drug, or any other matter that might have affected his or her ability to relate facts correctly.
(d) the fact that any purported consent to search may have been made without full knowledge of the individual's rights.
(e) the fact that any fact stated by an officer in support of any warrant may have been made in knowing or reckless disregard for the truth, or that an officer who sought the warrant in this case has done this in the past.
(f) the fact that there may be any reason to suspect the neutrality of any magistrate issuing any warrant in this case.
(g) the fact that any person making a statement or giving a putative consent to search was not advised as to the possible applicability of any other possible privilege, including but not limited to the physician-patient privilege, the preacher-penitent privilege, the marital privilege, and the parent-child privilege, and so on.
O. Records and Other Documents Pertaining to the Accused.

50. The accused requests production of all records and reports relating to the defendant, including:
(a) all juvenile detention, jail, prison, parole, probation and presentence investigation records;
(b) all arrest, conviction, and adult and juvenile criminal offense records;
(c) all records of any law enforcement authority;
(d) all records of any detention or court authority;
(e) the prosecution or any law enforcement official has submitted to any professional personnel for examination or analysis in connection with this case.
WHEREFORE, the defendant respectfully prays this Court to set his motion down for an evidentiary hearing, and to order the production of the foregoing materials.
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