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Menendez' Filings Re Subpoenas to Witnesses Who Previously Testified

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SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES

THE PEOPLE OF THE STATE No. BA068880
OF CALIFORNIA,
Plaintiff,

v.

ERIK GALEN MENENDEZ and FILED JAN 13, 1995
JOSEPH LYLE MENENDEZ,
Defendants.

DATE: January 23, 1995 TIME: 9:00 A.M. PLACE: Department NW N

DEFENDANTS' RESPONSE TO AND MOTION RE PEOPLE'S POINTS AND AUTHORITIES IN SUPPORT OF ISSUANCE OF SUBPOENAS DUCES TECUM DIRECTED TO WITNESSES WHO PREVIOUSLY TESTIFIED

TO GIL GARCETTI. DISTRICT ATTORNEY FOR THE COUNTY OF LOS ANGELES, AND/OR HIS REPRESENTATIVE, AND TO THE ABOVE-ENTITLED COURT:

PLEASE TAKE NOTICE that, in response to the People's Points and Authorities in Support of Issuance of Subpoenas Duces Tecum Directed to Expert Witnesses Who Previously Testified ("Motion to Compel Discovery"), on the 23rd day of January, 1995, at 9:00 a.m. or as soon thereafter as counsel can be heard in Department Northwest "N" of the above-entitled Court, defendants Joseph Lyle Menendez and Erik Galen Menendez ("defendants") will move the Court to quash the subpoenas duces tecum served on defendants by the prosecution. This response and motion to quash are based on the subpoenas duces tecum, the attached memorandum of points and authorities, the pleadings, records and files herein, and upon such further evidence and argument as may be presented by defendants at the hearing on the motion.

Dated this 13th day of January, 1995.

MICHAEL P. JUDGE, PUBLIC DEFENDER
Charles Gessler, Deputy Public Defender
Terri Towery, Deputy Public Defender
By: /s/ Terri Towery
Attorneys for Defendant Joseph Lyle Menendez

LESLIE H. ABRAMSON, Attorney at Law
MARCIA A. MORRISSEY, Attorney at Law
By: /s/ Marcia A. Morrissey
Attorney for Defendant Erik Galen Menendez

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

On December 20, 1994 the prosecution served on the defense subpoenas duces tecum directed to the following defense experts: (1) Ann Tyler; (2) Ann Burgess; (3) William Vicary; (4) Stuart Hart; (5) Jon Conte; and (6) John Briere.' Such subpoenas duces tecum are the subject of the prosecution's Motion to Compel Discovery. However, the ubpoenas served upon the defendants by the prosecution are legally and procedurally defective in that they fail to state either the materiality of the of the items sought to the issues in the case, or good cause for such production. Until the facial insufficiency of the subpoenas is cured, the prosecutions' request is a mere "fishing expedition" and the defense cannot respond more substantively to the issues of discoverability of the requested items. If the prosecution ultimately is able to present legally sufficient factual allegations in the supporting affidavits to justify findings of "good cause" and "materiality," the defense will be able to address any other issues raised by the requested discovery. In the interim, the defense respectfully requests that these legally deficient subpoenas duces tecum be quashed.

II. FACTUAL AND PROCEDURAL HISTORYOF PROSECUTION'S MOTION TO COMPEL DISCOVERY

In June of 1994 the prosecution in this case filed and served its People's Motion to Compel Defense Discovery ("Motion to Compel") seeking to compel defendants "to provide the People copies of all documents previously submitted to their experts, John Briere, Anne (sic) Burgess, Stuart Hart, Jon Conte, Kerry English, Ann Tyler, and Dr. Vicary, which said experts relied upon in forming their opinions. We also request the names of all other experts the defense intends to call at trial, as well as all reports, interviews, and any other documents or photographs provided to these experts to assist them in forming their opinions." (Motion to Compel, p. 1, ll. 21-27).

Defendants filed their responses to the Motion to Compel, relying in part on the following language in Hines v. Superior Court (1993) 20 Cal.App. 4th 1818 rejecting a similar attempt by prosecutors to obtain reports or statements of third parties upon which defense experts relied:
"Since discovery of defense material by the prosecution is indeed a new concept introduced by Proposition 115, and virtually no such discovery was available prior thereto, it is reasonable to conclude that only those items specifled by the statute are now subject to discovery. This is, of course, exactly what the Supreme Court has said: '[Alll court-ordered discovery is governed exclusively by--and is barred except as provided by--the discovery chapter newly enacted by Proposition115 (10054, subd.(e), 1054.5, subd. (a)).' (In re Liltlefield, supra, 5 Cal . 4th at p . 129.)

Section 1054.3, as it applies to expert reports, provides for the production of 'reports or statements of experts made in connection with the case...which the defendant intends to offer in evidence at the trial.' The report of a nontestifying expert which is in some way utilized by a testifying expert is not a document, at least in ordinary circumstances, which the defendant will intend to offer in evidence. It is not, therefore, literally embraced within the description of the statute. That such subsidiary report may be discoverable as an aspect of cross-examination of the testifying expert does not undermine this conclusion. The defense in criminal trials benefits from all manner of procedural advantages. Being able to protect pretrial divulgence of certain information upon which a defense expert intends to rely is one of them. While the new discovery provisions equalize to some extent prosecution and defense discovery, they clearly do not (as we explain infra) achieve complete reciprocity. (Footnote omitted). This is one area in which we believe the defense retains a procedural advantage. The court's order requiring pretrial discovery of subsidiary information upon which an expert relies, but does not intend to offer in evidence, was in our opinion overbroad." Id. at 1823-24 (Original emphasis).

The prosecution apparently recognized the legal impediment of the Hines decision to the Motion to Compel and withdrew it.

The prosecution then sought to issue subpoenas duces tecum seeking in essence the same information from the defense expert witnesses residing outside of this state. On or about October 17, 1994 the prosecution obtained from Judge James A. Bascue issuance of| the requested subpoenas duces tecum under the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings. (See Penal Code 1334 et seq.) On October 22, 1994, however, the defense learned of the existence of the subpoenas and notified Judge Bascue that the documents were sought from defense expert witnesses. Judge Bascue immediately quashed the subpoenas and referred the matter to this Court.

The prosecution now seeks issuance of similar subpoenas from this Court in their pending Motion to Compel Discovery.

III. DEFENDANTS MAY BRING A MOTION TO OUASH THE SUBPOENAS DUCES TECUM

The subpoenas duces tecum were served upon the defendants pursuant to Code of Civil Procedure 1985.3, which requires notice to the consumer when documents pertaining to such person are sought from, inter alia, a physician or psychotherapist. Section 1985.3(g) further provides in pertinent part that "Any consumer whose personal records are sought by subpoena duces tecum may, prior to the date for production, bring a motion under Section 1987.1 to quash or modify the subpoena duces tecum." Code of Civil Procedure 1987.1 provides in pertinent part that "When a subpoena requires the attendance of a witness or the production of books, documents or other things...the court, upon motion reasonably made by the party, the witness, or any consumer described in Section 1985.3...may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon such terms or conditions as the court shall declare...."

IV. THE SUBPOENAS DUCES TECUM ARE INVALID AS NOT SUPPORTED BY SUFFICIENT AFFIDAVITS

The application and declaration for each subpoena avers that "CUSTODIAN OF RECORDS has in his possession or under his control the following documents" which are further described in each subpoena as follows:
"ALL REPORTS, WITNESS STATEMENTS, INVESTIGATORS' REPORTS, INTERVIEWS, AND MEDICAL, PSYCHOLOGICAL AND PSYCHIATRIC RECORDS AND REPORTS AND REPORTS OF OTHER EXPERTS INCLUDING BUT NOT LIMITED TO SUBSIDIARY REPORTS OR STATEMENT OF OTHER PARTIES WHICH THE EXPERT RELIED UPON IN PREPARING HIS TESTIMONY."

The subpoenas further uniformly state that the requested documents are material to the issues involved in the case by reason of the following facts:
"THEY ARE NECESSARY FOR THE CRIMINAL PROSECUTION OF THE DEFENDANTS LYLE AND ERIK MENENDEZ."

The application further avers that good cause exists for the production of the above described matters and things by reason of the following facts:
"THE DOCUMENTS ARE IN THE POSSESSION OF [NAME OF WITNESS]"

Code of Civil Procedure 1985 provides, in relevant part, that: "A copy of an affidavit shall be served with a subpoena duces tecum issued before trial, showing good cause for the production of the matters and things described in the subpoena, specifying the exact matters or things desired to be produced, setting forth in full detail the materialitv thereof to the issues involved in the case, and stating that the witness has the desired matters or things in his or her possession or under his or her control." (Emphasis added).

Code of Civil Procedure 1987.5 provides, in relevant part, that "The service of a subpoena duces tecum is invalid unless at the time of such service a copy of the affidavit upon which the subpoena is based is served on the person served with the subpoena."

The affidavits in support of the applications submitted for the subpoenas duces tecum here are all legally deficient in that they fail to allege any facts stating either materiality or good cause for the production of the documents. In order for a subpoena duces tecum to be valid, the affidavit must do more than merely allege that the documents sought are relevant and material. The affidavit must prove specific facts demonstrating that the documents will aid the litigant in presenting his case. Pacific Auto. Ins. Co. v. Superior Court (1969) 273 Cal.App. 2d 61, 66-68. Strict rules must be complied with before subpoenas duces tecum are legally valid and enforceable:
"The clear import of all the cases dealing with the subject is that the subpoena duces tecum has no force or effect if the affidavit required by section 1985 of the Code of Civil Procedure does not comply with the provisions of that section. The requirement of that section that the affidavit must contain a showing of good cause for the production of the matters and things described in the subpoena and 'shall set forth in full detail the materiality thereof to the issues involved in the case' is not met by an affidavit which is totally devoid of any statement of facts. 'The affiant cannot rely merely upon the legal conclusion, stated in general terms, that the desired documentary evidence is relevant and material.' (Citations omitted); the party seeking the issuance of a subpoena for the production of documents 'must first show the materiality of the desired evidence and cannot obtain permission to search through all [his adversary's] papers and records merely in the hope or expectation that the investigation will disclose favorable information.' (Citation omitted). 'A mere allegation that the records are material, in the absence of any facts supporting such allegation, constitutes a conclusion of law which does not meet the requirements' of section 1985.(Citation omitted.) Similarly, 'an affidavit wherein the material facts necessary for the issuance of a subpoena duces tecum are alleged only on information and belief without setting forth supporting facts is insufficient.' (Citation omitted.)" Johnson v. Superior Court (1968) 258 Cal. App. 2d 829, 835.

Deficiencies in the affidavit cannot be cured by allegations of fact made in court. Pacific Auto. Ins. Co. v. Superior Court, supra, (1969) 273 Cal.App. 2d at p. 68. "An order made without the showing required by the statutes is beyond the jurisdiction of the court (citation), and the subpoena duces tecum must be quashed." Id. at p. 70. Virtually all of the above rules were violated by the prosecution in the subpoenas duces tecum before this Court. Only if "good cause" and "materiality" are legally and sufficiently alleged may the Court then turn to the determination of other issues raised by the requested subpoenas. Until then, the requested subpoenas are merely an improper attempt by the prosecution to "obtain permission to search through all [his adversary's] papers and records merely in the hope or expectation that the investigation will disclose favorable information."

V. CONCLUSION

The subpoenas duces tecum requested by the prosecution are legally insufficient and must be quashed. If the prosecution is in the future able to articulate both good cause and materiality for production of the requested documents, the defense will be in a position of being able to respond to the application. At present, however, the applications in support of such subpoenas are insufficient as a matter of law. Defendants therefore respectfully request that their motion to quash such subpoenas be granted.

Respectfully submitted,

By: /s/ Terri Towery
Attorney for Defendant Joseph Lyle Menendez

By: /s/ Marcia A. Morrissey
Attorney for Defendant Erik Galen Menendez

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