THOMPSON'S RESPONSE
Moore contended in paragraph fifteen of his motion for new trial that the
prosecution produced a one page "AOL account profile" on September 23, 2002,
forty-one days before trial commenced. Moore further stated that after telling
defense counsel that they had no further information relative to Dr. Tipton's
computer that the police earlier had taken possession of, the prosecutors produced
four "floppy discs containing information retrieved from the Tipton computer and
an eight (8) page list describing information contained on the floppy discs." Moore
also stated that the eighth page of that list described "emails and buddy lists that
were not included on the four (4) floppy discs." Moore further noted that a week
before the trial the state produced a "fifth disc and the hard copies." Moore
additionally complained in his motion that because the hard drive had been
destroyed by Dr. Tipton after the police returned it, he was not able to "inspect and
review it prior to the trial." Moore concluded that all of the above denied him a fair
and impartial trial.
Any problems preceding the production of this evidence are not at issue now. What
was at issue when the trial court was considering the motion for new trial is
whether there was a discovery violation and, if so, whether it resulted in undue
prejudice to Moore. Moore did not establish any particular prejudice resulting from
the timing of the production of this discovery and the trial court did not identify any
particular prejudice resulting from the timing of this discovery.
This information did not materially affect the defense of Moore's case nor did the
delayed production undermine confidence in the outcome of the case. A review of
the trial transcript would reveal that defense counsel was able to utilize the
questioining of witnesses regarding the existence of the computer to explain to the
jury the nature of hte subject matter found to be on the computer screen as found
before the victim was murdered. Furthermore, defense counsel was able to make
numerous sordid inferences about the victim that the defense obviously felt
necessary to make. Thus, for whatever value the defense placed on inferring that
the victim may have viewed pornography on the computer before her death, they
were able to accomplish this through questioning of the witnesses during the trial.
Finally, in regard to this evidence, it is significant that no request for a continuance
or a recess to review the materials produced was made, the defense was obviously
not unduly hampered. Moreoever, further evidence of a lack of articulable
prejudice is the fact that the trial court did not suppress the evidence nor declare a
mistrial, instead he allowed the case to proceed to its ultimate conclusion and
allowed defense counsel complete freedom to delve into the material in spite of a
complete lack of relevance. Based on the above, the trial court's order lacked a
legal basis for the granting of a new trial and thereby, constitutes an abuse of
discretion.
prosecution produced a one page "AOL account profile" on September 23, 2002,
forty-one days before trial commenced. Moore further stated that after telling
defense counsel that they had no further information relative to Dr. Tipton's
computer that the police earlier had taken possession of, the prosecutors produced
four "floppy discs containing information retrieved from the Tipton computer and
an eight (8) page list describing information contained on the floppy discs." Moore
also stated that the eighth page of that list described "emails and buddy lists that
were not included on the four (4) floppy discs." Moore further noted that a week
before the trial the state produced a "fifth disc and the hard copies." Moore
additionally complained in his motion that because the hard drive had been
destroyed by Dr. Tipton after the police returned it, he was not able to "inspect and
review it prior to the trial." Moore concluded that all of the above denied him a fair
and impartial trial.
Any problems preceding the production of this evidence are not at issue now. What
was at issue when the trial court was considering the motion for new trial is
whether there was a discovery violation and, if so, whether it resulted in undue
prejudice to Moore. Moore did not establish any particular prejudice resulting from
the timing of the production of this discovery and the trial court did not identify any
particular prejudice resulting from the timing of this discovery.
This information did not materially affect the defense of Moore's case nor did the
delayed production undermine confidence in the outcome of the case. A review of
the trial transcript would reveal that defense counsel was able to utilize the
questioining of witnesses regarding the existence of the computer to explain to the
jury the nature of hte subject matter found to be on the computer screen as found
before the victim was murdered. Furthermore, defense counsel was able to make
numerous sordid inferences about the victim that the defense obviously felt
necessary to make. Thus, for whatever value the defense placed on inferring that
the victim may have viewed pornography on the computer before her death, they
were able to accomplish this through questioning of the witnesses during the trial.
Finally, in regard to this evidence, it is significant that no request for a continuance
or a recess to review the materials produced was made, the defense was obviously
not unduly hampered. Moreoever, further evidence of a lack of articulable
prejudice is the fact that the trial court did not suppress the evidence nor declare a
mistrial, instead he allowed the case to proceed to its ultimate conclusion and
allowed defense counsel complete freedom to delve into the material in spite of a
complete lack of relevance. Based on the above, the trial court's order lacked a
legal basis for the granting of a new trial and thereby, constitutes an abuse of
discretion.
The Hard Drive
Again, quoting from the State of Alabama's petition:
The bloody footprint...the piece of evidence I said he'd pseudo-endorsed in the ruling,
has now been more or less officially endorsed by the judge.
The hard drive...which boils down to the fifth floppy disc, the contents of which, to my
knowledge, were never even brought up once it was obtained (because it was nothing)...
and the FBI "information"... destined to be DWMII's Decatur Daily headlines...
practically all inadmissible under the rape shield law and utterly irrelevant in SOA v
dwm...the judge sees it as "exculpatory."
Surely the CCA will give these three issues primary consideration in making their
decision, since Judge Thompson culled them out from the rest. He's done his best.
Now we wait for the Court of Criminal Appeals. Again.
has now been more or less officially endorsed by the judge.
The hard drive...which boils down to the fifth floppy disc, the contents of which, to my
knowledge, were never even brought up once it was obtained (because it was nothing)...
and the FBI "information"... destined to be DWMII's Decatur Daily headlines...
practically all inadmissible under the rape shield law and utterly irrelevant in SOA v
dwm...the judge sees it as "exculpatory."
Surely the CCA will give these three issues primary consideration in making their
decision, since Judge Thompson culled them out from the rest. He's done his best.
Now we wait for the Court of Criminal Appeals. Again.