January 11, 2005
Widespread obstruction by Metro, prosecutors alleged
Authorities routinely suppress evidence, critics say
By Molly Ball
Police and prosecutors in the Las Vegas Valley routinely try to keep essential information from defense lawyers, violating the constitutional rights of those accused of crimes, defense attorneys and the county public defender say.
Besides violating the U.S. and Nevada constitutions and potentially putting innocent people behind bars, the actions of the district attorney's office and Metro Police waste large amounts of time and money, as defenders must go to court over and over to obtain evidence to which they are legally entitled, the attorneys say.
"It's either buffoonery or malicious disregard for the U.S. Constitution on the part of the D.A.'s office," defense attorney Robert Langford said.
"I am convinced it is intentional and intended to slow down the litigation process or prevent the defense from getting the information they need," he added.
Langford and attorney Lisa Rasmussen are both board members of Nevada Attorneys for Criminal Justice, and they said the association is "fed up" with the problem and plans to file a major lawsuit on the issue in the next month or two.
The sharing of evidence among police, prosecutors and defense lawyers -- known as the discovery process -- is crucial to criminal cases. The right of people accused of crimes to know all the evidence against them is enshrined in the U.S. Constitution.
District Attorney David Roger said that Clark County prosecutors always provide all the information defense lawyers are entitled to and more. The problem, he said, is that defenders go on "fishing expeditions" for information to which they are not entitled.
"We have an open-file discovery policy," Roger said. "We've had it as long as I've been in this office, since 1987, and probably longer."
Turning over evidence is to prosecutors' advantage, he said. When defendants know the strength of the case against them, they are more likely to plead guilty, saving taxpayers the expense of a trial.
"We want the defense to be able to have full access to discovery so they can make an educated decision on whether their client should plead or not," the district attorney said.
But the defenders say the vaunted "open file" is often incomplete, nor is it truly open.
High courts have repeatedly ruled that prosecutors' bag of tricks does not include hiding evidence that might hurt their case and help the accused. But that, the defense lawyers contend, is what is going on in Clark County.
Clark County Public Defender Phil Kohn, whose office defends people who cannot afford lawyers, says he has seen the alleged obstructionism for years and is now trying to stop it.
"The U.S. Supreme Court and the Nevada Supreme Court have repeatedly ruled that discovery (of evidence) is a due-process constitutional imperative," Kohn said. "They're going to have to follow the Constitution. We have no intention of backing down."
When police investigate a crime, they document all kinds of false leads, preliminary suspects and tangential background, but when they hand the case to the D.A.'s office, they include only that evidence that supports the case, the attorneys allege.
Then, when defenders suspect police records contain further information, they subpoena Metro for it. But Metro unlawfully refuses the subpoenas, forcing the defense attorneys to initiate a court proceeding to get the information, the lawyers say.
The wrongdoing, the attorneys say, is on the part of both the police, who should not be editing evidence to make a case, and prosecutors, who are bound by the Sixth Amendment of the U.S. Constitution to find out everything related to the case and to pass it on to the defense.
But the district attorney said defense lawyers are not entitled to as much documentation as they think they are.
Roger pointed to Nevada law -- NRS 174.235 -- which states that defendants are not entitled to "an internal report, document or memorandum that is prepared by or on behalf of the prosecuting attorney in connection with the investigation or prosecution of the case."
That arguably includes police reports, Roger said, and it certainly includes police internal documents such as raw notes drafted in the field during the course of an investigation.
"They're under no obligation to turn those over," he said.
The police also say they turn over everything they are required to. "We're compliant with Nevada law and constitutional law," said Greg McCurdy, deputy chief of Metro's investigative services division.
When detectives investigate a crime, he said, "they turn their whole case file over to the D.A." -- evidence, analysis such as drug-lab or DNA studies, and investigators' reports. "Every bit of information we get is in that file," McCurdy said.
But the attorneys say Nevada is getting a reputation as a state that makes lawyers' lives difficult. Langford said he has tried cases in numerous jurisdictions in Arizona, Texas and Florida, and nowhere has he encountered the obstruction he alleges is common in Clark County.
"For one case in Phoenix, they sent me a scanned CD of all the documents, the audio, and the 911 call," he recalled.
There, he said, "They expect you to be ready to go to trial, but they don't present any impediments" to doing so.
Clark County, the lawyers say, is different.
In District Court recently, Kohn argued before a judge for access to the detention records of David Riker and Richard Walker, currently co-defendants on trial for murder in California.
The records could show whether inmates who are to testify against Riker in his upcoming trial had previously shared a cell with Walker. If they did, Riker's lawyers can question the witnesses' credibility, painting them as jailhouse snitches.
In arguing that the records should be released, Kohn was acting on behalf of Riker's defense, the Riverside County public defender's office. Riker and Walker went to trial Jan. 3 for the robbery-murder they allegedly committed in Blythe, Calif., in 1992.
Days after that alleged crime, the two allegedly drove to Las Vegas and fatally stabbed another man. Both men were convicted of the Nevada crime 10 years ago.
On Thursday Kohn said the difficulty in getting the records exemplified a "systemic problem."
Whether or not these particular records were released, he told District Judge Kathy Hardcastle, he shouldn't have had to go through the lengthy process of scheduling a court appearance to get them.
The records should have been part of the evidence in the first place, and if they weren't, they should have been available by simple subpoena.
Instead, Kohn said, his subpoena for the files was answered by a form letter from Mitchell Cohen, a civil deputy D.A. who also serves as the attorney for Metro.
Over the years, Kohn told the judge, "I've received dozens of these letters from Mitch Cohen whenever we seek evidence from Metro, telling us to go through the deputy district attorney assigned to the case."
He urged the judge to rule on the larger issue, saying, "We need to have a system for getting these kinds of records so we don't have to be in court all the time."
Cohen did not object to the records' release, but said the court battle was necessary. As records of criminal history, detention files are privileged under Nevada law, he said.
Therefore, in each instance, attorneys must show that the records in question are necessary to their case and won't unduly hamper the detention center, for example by compromising security, Cohen said.
Hardcastle did not make a comprehensive ruling as to whether Metro should have a policy of compliance with defense subpoenas. She simply ordered the records be released.
Intending to make an example of this instance, Kohn had filed a motion to recuse Cohen, arguing that, as representative of the police as well as the D.A.'s office, he was essentially acting as both witness and party to the case.
But Kohn withdrew the motion; it would have prolonged the battle, and with Riker's case going to trial, getting the records was "a matter of life or death."
However, Kohn said he would not back down next time the problem cropped up.
Langford and Rasmussen, the private defense attorneys, said they have gotten the same form letter from Metro refusing to provide records. The letter says: "The Las Vegas Metropolitan Police Records Bureau is in receipt of your subpoena for production of records relative to the above case.
"This is an open case and documents should be provided through discovery which is conducted through the District Attorney's Office."
If police object to a subpoena, they should respond to it in court, with a legal motion challenging the subpoena, Rasmussen said. "That letter is not a legal response to the subpoena," she said.
"What they're supposed to do is file a motion to quash or a protective order," she said. "Instead, they put us in the position of having to file a motion to compel. ... You're looking at at least 30 days" before the court forces Metro to release the evidence.
The resulting delays drag out cases and, when such restrictions prevent defense attorneys from completing a thorough investigation, deprive defendants of a fair trial.
Rasmussen said her repeated attempts to obtain a written policy, or a description of an unwritten policy, from Metro have been in vain.
The district attorney said he was not familiar with the letter but denied there was a systemic problem.
"There may be specific cases where there are specific issues," Roger said. "But our policy is an open-file policy. And Metro's issue is, they don't want to engage in a fishing expedition."
He added, "We have courts, we have statutes that dictate what defendants are entitled to. But we're not going to spend thousands of man-hours getting this information. If they think they're entitled to it, they can go to court."
Langford said the Constitution doesn't say that civil rights expire after a certain number of man-hours.
"There is a shell game going on with discovery that is going to cost the state of Nevada a lot of money," Langford said.
"The U.S. Supreme Court has ruled over and over again that prosecutors have an ongoing duty to locate discoverable evidence held by agents of the state and present that to the defense in a timely manner, and they (Clark County prosecutors) are not doing it," he added.
Although many national and state Supreme Court decisions over the years support his claim, chief among them is Brady v. Maryland, a U.S. Supreme Court decision from 1963.
The court in that case wrote that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process."
That applies even if prosecutors don't know about evidence because the police withhold it. As fellow agents of the state, prosecutors are held to have "constructive knowledge" of police evidence.
Kohn said the fight for full disclosure wasn't about "getting criminals off on a technicality."
"This is about making sure that the trial is a search for truth, and that all the truth comes out," he said. "I'm tired of hearing about people being exonerated after years on death row. That's how you get innocent people convicted -- when you don't get all the facts."