THOMPSON'S RESPONSE, Part 2
In Judge Glenn Thompson's response to the Court of Criminal Appeals, he notes the
basis for the allegation of abuse of discretion "is that the order of the Circuit Judge fails
to adequately identify any particular item of discovery and how the timing of the
disclosures specifically prejudiced the defendant." He goes on to identify particular
items of discovery, but never explains "how the timing of the disclosures specifically
prejudiced the defendant." Instead, what he says is that he seriously considered
dismissing the case with prejudice--letting dwm walk--while still never explaining under
the law how dwm did not receive a fair trial. The closest he came was one sentence:
"The Court has reviewed the (FBI) report submitted by the State and finds the report to
contain exculpatory information." I fail to see how any reasonable, unbiased person
could look at that report and consider it admissible, relevant, or exculpatory.
If the discovery at issue during the trial was so serious as to justify mistrial "on more
than one occasion," as the judge says, I would think he could find something relevant
and exculpatory about the contents of the fifth floppy disc, for example. He said in
court he was "dangerously close" to dismissing all charges at the time it was brought up,
before the jury had even been struck or any evidence presented! For that matter,
nothing on the first four floppy discs were ever shown to be relevant, much less
exculpatory, although he "found it relevant" and ruled it admissible, absent a legitimite
offer of proof. Otherwise, it would never have been admitted in evidence. Now, given
an extra opportunity to explain himself, he still can't do it; instead, he shows his scales of
justice have a hair trigger in favor of the defendant. He can't quote a fact or the law,
because there are none to justify his actions--on more than one occasion.
In brief, Judge Thompson was asked to justify a new trial with law and fact, and instead
he jumped right over that and said violations of discovery were so severe as to justify
dismissing all charges and setting dwm free.
Judge Glenn Thompson's first reference to a discovery violation is the fifth floppy disc.
The second goes like this:
The State made assurance to the Court on September 17, 2000 that they had
produced all of the information they intended to offer relating to the forensics
reports. The Court does not doubt that the Attorney General's office produced all
that they were given, but again on October 16, 2000 the State produced additional
and supplement reports related to the laboratory DNA analysis.
For starters, the dates are wrong by two years--not a small point when the entire ruling is
based on "timing." The only additional report produced October 16, 2002, to my
knowledge, was an updated control group data base (larger, more accurate) provided by
the DNA testing laboratories. The judge ruled it in evidence, despite defense complaints.
Next comes this:
On September 17, 2000 at the discovery hearing the State produced a one page list
of questions dated April 30, 1999 which were posed to Martin Scott Lane during a
polygraph test. It was not until October 4, 2002 that the State produced a twenty
page report of charts of Martin Scott Lane's polygraph test with one question omitted.
The date of the hearing was September 17, 2002. At that hearing, all on the record, the
defense lawyers already have the questions, the results, and the examiner's report.
It's my understanding they actually had it at least a year before, because the defense
requested this from the DA in June, 2001. On September 17, 2002 the defense
demanded the actual polygraph "graphs." This isn't a standard part of a polygraph
report, and the prosecution didn't have it. But the examiner was contacted and he
provided it to the defense lawyers two weeks later. The "one question omitted" refers
to a paperwork quirk of having one question on the list twice; there was no "question
omitted"--just one duplicated.
So the date is wrong, the "one page list of questions" is wrong, and it ends with
misrepresenting the 20 pages of graphs as being the original report, which the defense
had long before.
I hope the Court of Criminal Appeals looks very closely at this one.
(I got a copy
today)