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Menendez' Motion for Information Re: Witness Dietz

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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 Date: January 23, 1995
JOSEPH LYLE MENENDEZ,
Defendants.

NOTICE OF MOTION BY DEFENDANTS FOR DISCOVERY OF INFORMATION IN THE POSSESSION OF PROSECUTION RE THE CREDIBILITY OF PROSECUTION EXPERT WITNESS DIETZ

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

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 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 for an order directing you and/or your agents to make available for inspection, review and copying the following material:

Any and all material compiled by the Los Angeles County District Attorney's Office in the case of People v. Robert Bardo, Los Angeles county Superior Court Case Number BA001043, or any other case, regarding the credibility of Dr. Park Dietz, including but not limited to statements by Dr. Dietz skeptical of or criticizing the principles of psychiatry and/or psychiatric examinations, prior impeaching testimony of Dr. Dietz's credibility and clinical expertise.

The motion will be based on this notice, the attached memorandum of points and authorities and declaration of Charles Gessler, 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

By letter dated December 30, 1994, the prosecution in this case notified counsel for the defendants of its intention to call two expert witnesses at the retrial(s) of this matter. First, the prosecution indicated is intent to call Dr. Margaret Singer (described as a licensed psychologist) to conduct certain unidentified psychological tests on the defendants. Second, the prosecution indicated that Dr. Park Dietz (described as a licensed psychiatrist) would use such tests and his own psychiatric examinations of defendants for the purpose of "confirming, contradicting or raising questions concerning [the defendants'] state of mind at the time of the crime." (December 30, 1994 letter from prosecution to defense counsel).

As in the previous trial, the issue of whether the defendants in this case killed their parents out of fear after years of abuse will be the central inquiry in the upcoming retrial. Dr. Dietz is the only prosecution witness named thus far who will seek to testify to this subject matter. By this motion, defendants seek discovery of any believability of Dr. Dietz and his opinions.

II. THE PROSECUTION MUST DISCLOSE THE MATERIAL REQUESTED BY THE DEFENDANT

This duty imposed on the prosecution by both the United States and California Constitutions to disclose evidence such as that requested by the defendants in this matter is well established. "It is well settled that the prosecution has a duty to disclose all substantial material evidence favorable to an accused." People v. Morris (1988) 46 Cal. 3d 1, 29. "[T]he suppression by the prosecution of evidence favorable to an accused upon request violated due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland (1963) 373 U.S. 83,87 [10 L.Ed.2d 215, 83 S.Ct. 1194].

It is equally well established that this duty to disclose "extends to evidence which may reflect on the credibility of a material witness." People v. Morris, supra, 46 Cal. 3d 1, 30. "Suppression of substantial material evidence bearing on the credibility of a key prosecution witness is a denial of due process..." People v. Rutheford (1975) 14 Cal. 3d 399, 408; see also, Giglio v. United States (1972) 405 U.S. 150, 154 [31 L.Ed.2d 104, 92 S. Ct. 763].

Although prosecutorial disclosure of evidence, other than felony convictions and inconsistent statements, which reflects on the credibility of its witnesses is not included in the "Proposition 115" discovery law (Penal Code 1054.1), the due process requirements of both the United States and California Constitutions are "wholly independent" of the statutory criminal discovery provisions and continue to exist despite those provisions. People v. Hayes (1992) 3 Cal.App.4th 1238, 1244-45. It is clear that this duty to disclose material which may reflect on the credibility of prosecution witnesses extends to prosecution expert witnesses. People v. Garcia (1993) 17 Cal.App. 4th 1169.

As stated in the supporting declaration of Mr. Gessler, Dr. Dietz is a well-known expert "witness for the prosecution" who has testified for prosecutors in many high profile cases across the country. He also testified once for the defense in 1991 in the case of People v. Robert Bardo, Los Angeles County Superior Court case number BA001043. That case, like many of the others in which Dr. Dietz has testified, was a "high profile" case because the deceased victim was a well known television actress. He was cross-examined in that case by Deputy District Attorney Marcia Clark, currently the lead prosecutor in the case of People v. Orenthal James Simpson, Los Angeles County Superior Case Number BA097211. It is inconceivable that the prosecution failed to investigate Dr. Dietz's background in preparation for his cross- examination in the Bardo trial. Presumably the results of such investigation are known to Ms. Clark, and, by affiliation, the prosecutors here. If that investigation yielded any evidence which calls Dr. Dietz's opinions or methodology into question, the prosecution has a due process obligation to disclose that material to the defense. See People v. Garcia, supra, 17 Cal. App. 4th 1169, 1174-80.

III. CONCLUSION

For all the reasons set forth above, defendants respectfully request that this motion be granted.

Respectfully submitted,

MICHAEL P. JUDGE, 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. Morrisey
Attorney for Defendant
Erik Galen Menendez

DECLARATION OF CHARLES GESSLER

I, Charles Gessler, declare:

1. I am an attorney licensed to practice law in the State of California and a deputy public defender with the Los Angeles County Public Defender's Office, counsel of record for defendant Joseph Lyle Menendez ("Lyle Menendez") in the above-entitled matter. I have personal knowledge of the facts set forth in this declaration and if called as a witness could testify competently thereto.

2. By letter dated December 30, 1994, the prosecutors in this matter notified defense counsel that they would be calling Dr. Margaret Singer, described as a licensed psychologist and Dr. Park Dietz, described as a licensed psychiatrist, as witnesses in the retrial of this matter. A true and correct copy of such letter is attached hereto as Exhibit "A" and incorporated herein by this reference.

3. According to Dr. Dietz's Curriculum Vitae and other information respecting him in the public sector, I have learned that Dr. Dietz has testified for or consulted with the prosecution in a number of high profile cases across the country, including but not limited to the well publicized prosecutions of John W. Hinckley, Jr., William George Bonin, Elizabeth Broderick, and Jeffrey L. Dahmer.

4. Dr. Dietz also testified for the defense in a prosecution by the Los Angeles County District Attorney's Office in the Los Angeles County Superior Court. That case was entitled People v. Robert Bardo, Case number BA001043. The deputy district attorney who cross-examined Dr. Dietz in that case was Marcia Clark, currently the lead prosecutor for the Los Angeles County District Attorney in the pending case of People v. Orenthal James Simpson, Case number BA097211.

5. From my over twenty-nine years of experience as a criminal defense attorney in the Los Angeles County Public Defender's Office, I have learned that the Los Angeles County District Attorney's Office conducts extensive investigations into the backgrounds of defense experts and prepares what is colloquially known as a "book" on defense experts.

6. From this same experience, I have learned that the Los Angeles District Attorney's Office has access to law enforcement and other materials which are not available to the defense.

7. From my review of the file in this case, and from my own investigations, I believe that the most significant issue in the retrial of this case will be the state of mind of the defendants Joseph Lyle and Erik Galen Menendez at the time of the killing of their parents. Because of this, in my opinion Dr. Dietz will be a key prosecution witness in the upcoming trial.

8. Any evidence of information which calls Dr. Dietz's qualifications, opinions, or methodology into question, or otherwise relates to the credibility and/or believability of Dr. Dietz, would unquestionably aid in the preparation and presentation of the defense in this case.

I declare under penalty of perjury under the laws of the State of California that the facts set forth in the foregoing are true and correct.

Executed this 13th day of January, 1995, at Los Angeles, California.

/s Charles Gessler, Declarant

EXHIBIT "A"

LOS ANGELES COUNTY DISTRICT ATTORNEY'S OFFICE
BUREAU OF CENTRAL OPERATIONS SPECIAL TRIALS

GIL GARCETTI District Attorney
SANDRA L. BUTTITTA Chief Deputy District Attorney
FRANK E. SUNSTEDT Assistant District Attorney
WILLIAM HODGMAN Director

18-115 Criminal Courts Building
210 West Temple Street
Los Angeles, CA 90012
(213) 974-3706

December 30, 1994

Charles Gessler
Terri Towery
Office of the Public Defender
210 W. Temple Street, 19th Floor

Leslie Abramson
Marcia Morrisey
4929 Wilshire Boulevard, Suite 940
Los Angeles, California 90010

Dear Counsels for Lyle and Erik Menendez:

At our prior court appearances the defense has requested the names of the mental health professionals which the people intend to call as expert witnesses in the next trial, as well as the scope of their proposed examinations of the defendants. The court ordered the people to provide this information by today, and pursuant to that order we are providing this information in the hope that it will assist the defense in determining whether or not it will oppose the people's motion entitled "People's Motion To Compel Defendants To Submit To Psychiatric Examination And Psychological Testing".

The people intend to use Dr. Margaret Singer, a licensed psychologist and Dr. Park Dietz, a licensed psychiatrist.

Dr. Singer will conduct tests traditionally used in the assessment of cognitive and emotional status of individuals. Specifically she will administer psychological tests covering the following area: 1) the standard measures of intellectual functioning; 2) the standard measures of cognitive functioning including memory, spatial processing, and language, tests of concept formation and reasoning, and motor abilities; 3) measures of personality, mood, and affect; 4) tests to detect a learning disability; and 5) tests to detect malingering.

Dr. Singer's testing would be utilized by Dr. Dietz in the psychiatric evaluation of the information that the defendants give him, and specifically her results will aid him in confirming, contradicting or raising questions concerning their state of mind at the time of the crime.

Dr. Dietz will separately conduct an extensive psychiatric examination of each defendant, lasting approximately 20 hours each. The psychiatric examination will consist of an interview covering general information as well as observation of each defendant's affect and emotion, ability to think and reason, and a gross assessment of each defendant's cognitive function.

Enclosed is a copy of each experts Curriculum Vitae. We expect to here from the defense by January 13, 1995 as to whether or not there will be an objection to the motion, to allow the court adequate time to calendar and review it.

Sincerely,
/s David P. Conn
/s Carol J. Najera

cc: The Honorable Stanley Weisberg

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