Reisig’s Failure to Disclose Exculpatory Evidence

Part of the current controversy swirling around Michael Nifong and his prosecution of the Duke lacrosse players on what now appears to be trumped up charges of rape, was his failure to disclose exculpatory evidence. He basically failed to report DNA results that demonstrated that there was no evidence that the Duke lacrosse cross players had raped the victim. More damaging is the charge that he did so knowingly. What may be of concern to Yolo County residents is that the newly elected District Attorney of Yolo County has had previous rulings against him for the exact same charge–failure to disclose exculpatory evidence.

A recent article in the People’s Vanguard of Davis, scrutinized the Yolo County District Attorney’s Office what appears to be malicious and discriminatory prosecution of a Clarksburg Farmer. This case coupled with the Duke allegations remind us that it was a previous case where we discover the very serious misconduct on the part of Mr. Reisig.

In 1999, a jury found a Woodland man guilty of using a firearm in the commission of an a threat to commit great bodily harm. The man was sentenced to five years in prison but had that sentence suspended and was placed on probation under a variety of conditions including that he serve 250 days in the county jail.

However, the defendant challenged that sentence on the basis that the prosecution knowingly withheld material exculpatory evidence. Mr. Reisig’s defense was that this was inadvertent.

The basic problem was that in this case, the victim never saw a gun when the defendant threatened to shoot her and yet the prosecutors sought a firearm enhancement charge. The jury during the court proceedings twice sent notes to the court concerning the question as to whether the object was actually a firearm (a necessary conditions of this enhancement is that the object actually be a firearm).

One of the key questions that arose after the trial by the jury was whether or not a vehicle had been searched for the gun in question. This only surfaced after the trial in an inadvertent conversation between a juror and Mr Reisig. The juror asked him if the car had ever been searched and Mr. Reisig said that he believed so. The defense attorney came out about the same time and heard that the car had been searched and no gun had been found.

It turns out that the vehicle had indeed be searched and that no gun was found. This information never made it to the jury during the trial. Nor was it given to the defense.

Based on this new evidence, the defense requested a new trial on the grounds of newly discovered evidence and prosecutorial misconduct–the withholding of exculpatory evidence. The trial judge denied this motion arguing that there was no probability that the jury would have come to a different result “even if this additional information had been presented.”

This decision was appealed and the appellant judge overturned the ruling and the conviction.

According to the law, the prosecution must disclose evidence favorable to the accused regardless of whether or not the defendant specially requests the evidence.

Moreover, the evidence must specifically be material to case–in the sense that its suppression potentially changes the outcome of the trial. In this case, the victim never saw a gun but only an object and at least one of the jurors questioned whether even the current evidence was sufficient to prove to prove that the defendant actually possessed a gun (a necessary condition for the enhancement).

The judge ruled that “the duty to disclose this evidence was the exclusive responsibility of the prosecution…, whose failure to do so violated defendant’s right to due process of law.”

“In sum, the prosecutor violated defendant’s right to due process by failing to disclose to the defense the existence of material exculpatory evidence pertaining to the issue of whether defendant used a firearm while threatening to shoot the victim.”

The judge ordered that the firearm enhancement was to be reversed and a new trial. The prosecution then dropped the firearm charge at the subsequent trial and the defendant was given probation.

Unfortunately, this is just another example of how the Yolo County District Attorney’s office operates and unfortunately this was a case involving the newly elected District Attorney Jeff Reisig.

—Doug Paul Davis reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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36 thoughts on “Reisig’s Failure to Disclose Exculpatory Evidence”

  1. Anonymous

    Interesting! The same issue came up on one of Pat Lenzi’s cases involving sex abuse. As I recall the issue did not change the outcome of the case but the excuse for “forgetting” certainly cost her in the effort to win the election for the DA position.

    If an employee steals money from a business and as a defense claims he “forgot to put it back” nobody would believe the person. In both the Reisig and Lenzi cases mentioned here, the DDA’s stole fundamental rights from defendants and used the lame excuse “I forgot”.

    A Duke University Law Professor was asked to describe the actions of the Durham DA and he stated Nifong is “obviously indifferent to Justice”. The same indifference exists in Yolo County. It is all about winning and has nothing to do with Justice.SAH

  2. Anonymous

    Interesting! The same issue came up on one of Pat Lenzi’s cases involving sex abuse. As I recall the issue did not change the outcome of the case but the excuse for “forgetting” certainly cost her in the effort to win the election for the DA position.

    If an employee steals money from a business and as a defense claims he “forgot to put it back” nobody would believe the person. In both the Reisig and Lenzi cases mentioned here, the DDA’s stole fundamental rights from defendants and used the lame excuse “I forgot”.

    A Duke University Law Professor was asked to describe the actions of the Durham DA and he stated Nifong is “obviously indifferent to Justice”. The same indifference exists in Yolo County. It is all about winning and has nothing to do with Justice.SAH

  3. Anonymous

    Interesting! The same issue came up on one of Pat Lenzi’s cases involving sex abuse. As I recall the issue did not change the outcome of the case but the excuse for “forgetting” certainly cost her in the effort to win the election for the DA position.

    If an employee steals money from a business and as a defense claims he “forgot to put it back” nobody would believe the person. In both the Reisig and Lenzi cases mentioned here, the DDA’s stole fundamental rights from defendants and used the lame excuse “I forgot”.

    A Duke University Law Professor was asked to describe the actions of the Durham DA and he stated Nifong is “obviously indifferent to Justice”. The same indifference exists in Yolo County. It is all about winning and has nothing to do with Justice.SAH

  4. Anonymous

    Interesting! The same issue came up on one of Pat Lenzi’s cases involving sex abuse. As I recall the issue did not change the outcome of the case but the excuse for “forgetting” certainly cost her in the effort to win the election for the DA position.

    If an employee steals money from a business and as a defense claims he “forgot to put it back” nobody would believe the person. In both the Reisig and Lenzi cases mentioned here, the DDA’s stole fundamental rights from defendants and used the lame excuse “I forgot”.

    A Duke University Law Professor was asked to describe the actions of the Durham DA and he stated Nifong is “obviously indifferent to Justice”. The same indifference exists in Yolo County. It is all about winning and has nothing to do with Justice.SAH

  5. Doug Paul Davis

    Lenzi first of all failed to turn over the tapes at first but did as soon as they were brought to her attention. This had nothing to do with the memory loss issue.

    The memory loss issue had to do with her failure to recall a conversation between herself and a police detective assigned to the Hawes case.

    Judge Mchael Sweet declined a motion to remove Lenzi and found no wrongdoing on the part of Lenzi regarding the issue of the videotapes.

    This is all per the Davis Enterprise on May 31, 2006.

  6. Doug Paul Davis

    Lenzi first of all failed to turn over the tapes at first but did as soon as they were brought to her attention. This had nothing to do with the memory loss issue.

    The memory loss issue had to do with her failure to recall a conversation between herself and a police detective assigned to the Hawes case.

    Judge Mchael Sweet declined a motion to remove Lenzi and found no wrongdoing on the part of Lenzi regarding the issue of the videotapes.

    This is all per the Davis Enterprise on May 31, 2006.

  7. Doug Paul Davis

    Lenzi first of all failed to turn over the tapes at first but did as soon as they were brought to her attention. This had nothing to do with the memory loss issue.

    The memory loss issue had to do with her failure to recall a conversation between herself and a police detective assigned to the Hawes case.

    Judge Mchael Sweet declined a motion to remove Lenzi and found no wrongdoing on the part of Lenzi regarding the issue of the videotapes.

    This is all per the Davis Enterprise on May 31, 2006.

  8. Doug Paul Davis

    Lenzi first of all failed to turn over the tapes at first but did as soon as they were brought to her attention. This had nothing to do with the memory loss issue.

    The memory loss issue had to do with her failure to recall a conversation between herself and a police detective assigned to the Hawes case.

    Judge Mchael Sweet declined a motion to remove Lenzi and found no wrongdoing on the part of Lenzi regarding the issue of the videotapes.

    This is all per the Davis Enterprise on May 31, 2006.

  9. Anonymous

    The Yolo community needs to keep a close watch on this newly elected DA.

    I attended a forum and was unimpressed by his responses. Furthermore, I did not like the fact that there were “hit” pieces mailed out against his opposition. I have a feeling it’s a continuation of the “good ol’ boys club” at the Yolo DA’s Office.

  10. Anonymous

    The Yolo community needs to keep a close watch on this newly elected DA.

    I attended a forum and was unimpressed by his responses. Furthermore, I did not like the fact that there were “hit” pieces mailed out against his opposition. I have a feeling it’s a continuation of the “good ol’ boys club” at the Yolo DA’s Office.

  11. Anonymous

    The Yolo community needs to keep a close watch on this newly elected DA.

    I attended a forum and was unimpressed by his responses. Furthermore, I did not like the fact that there were “hit” pieces mailed out against his opposition. I have a feeling it’s a continuation of the “good ol’ boys club” at the Yolo DA’s Office.

  12. Anonymous

    The Yolo community needs to keep a close watch on this newly elected DA.

    I attended a forum and was unimpressed by his responses. Furthermore, I did not like the fact that there were “hit” pieces mailed out against his opposition. I have a feeling it’s a continuation of the “good ol’ boys club” at the Yolo DA’s Office.

  13. Doug Paul Davis

    The May 31, 2006 Davis Enterprise Article does mention this issue in the second half of the article after discussing the late allegations against Lenzi:

    “Woodland attorney Larry Cobb described Lenzi as “up front and candid.” He said that was not his experience with Reisig several years ago, during a trial in which the defendant was accused of threatening a nightclub bouncer while holding a gun.

    According to Cobb, the jury began its deliberations believing police had not searched the defendant’s car for gun. The jury convicted the defendant, and while speaking with the jury afterward, Cobb said he overheard Reisig tell jurors there was a vehicle search during which no gun was found. Cobb says he believes Reisig knew that information, potentially favorable toward his client, before the jury received the case.

    The case went before the 3rd District Court of Appeal, which Cobb said ordered a new trial on the gun enhancement. The charge was never refiled.

    Reisig disputes Cobb’s version of events, calling it “outrageous.” He said the jury never received information about a vehicle search, though a police officer mentioned while the jury was deliberating the case that police had searched a car and the area around it, but found no weapon.

    The appellate court ruling, Reisig said, reflected the court’s opinion that the jury was entitled to hear information about the car search in case it would have affected the verdict. He added that there was no finding of intentional misconduct or hiding of evidence, and he declined to refile the gun charge because the defendant was performing well on probation.

    “It wasn’t the best use of resources to proceed with a new trial for the use of the gun,” he said.”

    I post this because Reisig did indeed respond to this in the press.

    While the judge did not rule on the issue of intentions, his judgment against Reisig was very pointed.

  14. Doug Paul Davis

    The May 31, 2006 Davis Enterprise Article does mention this issue in the second half of the article after discussing the late allegations against Lenzi:

    “Woodland attorney Larry Cobb described Lenzi as “up front and candid.” He said that was not his experience with Reisig several years ago, during a trial in which the defendant was accused of threatening a nightclub bouncer while holding a gun.

    According to Cobb, the jury began its deliberations believing police had not searched the defendant’s car for gun. The jury convicted the defendant, and while speaking with the jury afterward, Cobb said he overheard Reisig tell jurors there was a vehicle search during which no gun was found. Cobb says he believes Reisig knew that information, potentially favorable toward his client, before the jury received the case.

    The case went before the 3rd District Court of Appeal, which Cobb said ordered a new trial on the gun enhancement. The charge was never refiled.

    Reisig disputes Cobb’s version of events, calling it “outrageous.” He said the jury never received information about a vehicle search, though a police officer mentioned while the jury was deliberating the case that police had searched a car and the area around it, but found no weapon.

    The appellate court ruling, Reisig said, reflected the court’s opinion that the jury was entitled to hear information about the car search in case it would have affected the verdict. He added that there was no finding of intentional misconduct or hiding of evidence, and he declined to refile the gun charge because the defendant was performing well on probation.

    “It wasn’t the best use of resources to proceed with a new trial for the use of the gun,” he said.”

    I post this because Reisig did indeed respond to this in the press.

    While the judge did not rule on the issue of intentions, his judgment against Reisig was very pointed.

  15. Doug Paul Davis

    The May 31, 2006 Davis Enterprise Article does mention this issue in the second half of the article after discussing the late allegations against Lenzi:

    “Woodland attorney Larry Cobb described Lenzi as “up front and candid.” He said that was not his experience with Reisig several years ago, during a trial in which the defendant was accused of threatening a nightclub bouncer while holding a gun.

    According to Cobb, the jury began its deliberations believing police had not searched the defendant’s car for gun. The jury convicted the defendant, and while speaking with the jury afterward, Cobb said he overheard Reisig tell jurors there was a vehicle search during which no gun was found. Cobb says he believes Reisig knew that information, potentially favorable toward his client, before the jury received the case.

    The case went before the 3rd District Court of Appeal, which Cobb said ordered a new trial on the gun enhancement. The charge was never refiled.

    Reisig disputes Cobb’s version of events, calling it “outrageous.” He said the jury never received information about a vehicle search, though a police officer mentioned while the jury was deliberating the case that police had searched a car and the area around it, but found no weapon.

    The appellate court ruling, Reisig said, reflected the court’s opinion that the jury was entitled to hear information about the car search in case it would have affected the verdict. He added that there was no finding of intentional misconduct or hiding of evidence, and he declined to refile the gun charge because the defendant was performing well on probation.

    “It wasn’t the best use of resources to proceed with a new trial for the use of the gun,” he said.”

    I post this because Reisig did indeed respond to this in the press.

    While the judge did not rule on the issue of intentions, his judgment against Reisig was very pointed.

  16. Doug Paul Davis

    The May 31, 2006 Davis Enterprise Article does mention this issue in the second half of the article after discussing the late allegations against Lenzi:

    “Woodland attorney Larry Cobb described Lenzi as “up front and candid.” He said that was not his experience with Reisig several years ago, during a trial in which the defendant was accused of threatening a nightclub bouncer while holding a gun.

    According to Cobb, the jury began its deliberations believing police had not searched the defendant’s car for gun. The jury convicted the defendant, and while speaking with the jury afterward, Cobb said he overheard Reisig tell jurors there was a vehicle search during which no gun was found. Cobb says he believes Reisig knew that information, potentially favorable toward his client, before the jury received the case.

    The case went before the 3rd District Court of Appeal, which Cobb said ordered a new trial on the gun enhancement. The charge was never refiled.

    Reisig disputes Cobb’s version of events, calling it “outrageous.” He said the jury never received information about a vehicle search, though a police officer mentioned while the jury was deliberating the case that police had searched a car and the area around it, but found no weapon.

    The appellate court ruling, Reisig said, reflected the court’s opinion that the jury was entitled to hear information about the car search in case it would have affected the verdict. He added that there was no finding of intentional misconduct or hiding of evidence, and he declined to refile the gun charge because the defendant was performing well on probation.

    “It wasn’t the best use of resources to proceed with a new trial for the use of the gun,” he said.”

    I post this because Reisig did indeed respond to this in the press.

    While the judge did not rule on the issue of intentions, his judgment against Reisig was very pointed.

  17. Richard

    Unless the 3rd District has changed, the decision to reverse the trial court and order a new trial because of a failure to disclose exculpatory evidence was remarkable, because it has historically been one of the most pro-prosecution appellate districts in California

    by the way, at the appellate level, they are “justices”, not “judges”, and they assign 3 justice panels to hear cases

    in any event, and not to excuse Reisig’s conduct, but, sadly, this type of behaviour is probably pretty commonplace throughout California

  18. Richard

    Unless the 3rd District has changed, the decision to reverse the trial court and order a new trial because of a failure to disclose exculpatory evidence was remarkable, because it has historically been one of the most pro-prosecution appellate districts in California

    by the way, at the appellate level, they are “justices”, not “judges”, and they assign 3 justice panels to hear cases

    in any event, and not to excuse Reisig’s conduct, but, sadly, this type of behaviour is probably pretty commonplace throughout California

  19. Richard

    Unless the 3rd District has changed, the decision to reverse the trial court and order a new trial because of a failure to disclose exculpatory evidence was remarkable, because it has historically been one of the most pro-prosecution appellate districts in California

    by the way, at the appellate level, they are “justices”, not “judges”, and they assign 3 justice panels to hear cases

    in any event, and not to excuse Reisig’s conduct, but, sadly, this type of behaviour is probably pretty commonplace throughout California

  20. Richard

    Unless the 3rd District has changed, the decision to reverse the trial court and order a new trial because of a failure to disclose exculpatory evidence was remarkable, because it has historically been one of the most pro-prosecution appellate districts in California

    by the way, at the appellate level, they are “justices”, not “judges”, and they assign 3 justice panels to hear cases

    in any event, and not to excuse Reisig’s conduct, but, sadly, this type of behaviour is probably pretty commonplace throughout California

  21. Anonymous

    If I prosecuted someone on a firearms charge, I would be interested in knowing if there actually was a firearm. Certainly there were months of time between the search and the beginning of the trial. They must have asked the police about the search of the car.

    Also, I did not understand the reason for not going for a new trial. I assume the defendant had already served his jail time while waiting for the appeal – or did I miss something?SAH

  22. Anonymous

    If I prosecuted someone on a firearms charge, I would be interested in knowing if there actually was a firearm. Certainly there were months of time between the search and the beginning of the trial. They must have asked the police about the search of the car.

    Also, I did not understand the reason for not going for a new trial. I assume the defendant had already served his jail time while waiting for the appeal – or did I miss something?SAH

  23. Anonymous

    If I prosecuted someone on a firearms charge, I would be interested in knowing if there actually was a firearm. Certainly there were months of time between the search and the beginning of the trial. They must have asked the police about the search of the car.

    Also, I did not understand the reason for not going for a new trial. I assume the defendant had already served his jail time while waiting for the appeal – or did I miss something?SAH

  24. Anonymous

    If I prosecuted someone on a firearms charge, I would be interested in knowing if there actually was a firearm. Certainly there were months of time between the search and the beginning of the trial. They must have asked the police about the search of the car.

    Also, I did not understand the reason for not going for a new trial. I assume the defendant had already served his jail time while waiting for the appeal – or did I miss something?SAH

  25. davisite

    What did the police report say about a search of the vehicle? The DA’s responsibility is to go over the evidence that is presented to him by the police investigation. If there was no police report about the vehicle search, that should have been a red light to the DA’s office. What we are seeing here and in the Buzayan case, is the DA’s office too ready to accept and defend poor police work as well as a “win at any cost” mentality. The DA department , as a stepping stone to higher political office,is prone to abuse of discretion for political gain and the spotlight of public scrutiny can help hold it in check.

  26. davisite

    What did the police report say about a search of the vehicle? The DA’s responsibility is to go over the evidence that is presented to him by the police investigation. If there was no police report about the vehicle search, that should have been a red light to the DA’s office. What we are seeing here and in the Buzayan case, is the DA’s office too ready to accept and defend poor police work as well as a “win at any cost” mentality. The DA department , as a stepping stone to higher political office,is prone to abuse of discretion for political gain and the spotlight of public scrutiny can help hold it in check.

  27. davisite

    What did the police report say about a search of the vehicle? The DA’s responsibility is to go over the evidence that is presented to him by the police investigation. If there was no police report about the vehicle search, that should have been a red light to the DA’s office. What we are seeing here and in the Buzayan case, is the DA’s office too ready to accept and defend poor police work as well as a “win at any cost” mentality. The DA department , as a stepping stone to higher political office,is prone to abuse of discretion for political gain and the spotlight of public scrutiny can help hold it in check.

  28. davisite

    What did the police report say about a search of the vehicle? The DA’s responsibility is to go over the evidence that is presented to him by the police investigation. If there was no police report about the vehicle search, that should have been a red light to the DA’s office. What we are seeing here and in the Buzayan case, is the DA’s office too ready to accept and defend poor police work as well as a “win at any cost” mentality. The DA department , as a stepping stone to higher political office,is prone to abuse of discretion for political gain and the spotlight of public scrutiny can help hold it in check.

  29. Doug Paul Davis

    Reisig’s declaration says:

    “shortly after Officer Puffer’s direct testimony I had an informal conversation with him off the record. I asked [him] if it would be unusual for the car not to have been searched by some police officer that night based on the fact that a gun was involved and the car had been associated with… the Defendant’s friend. [Puffer] agreed that it would be unusual and that it was likely [the car] had been searched but that he did not have any personal knowledge that the car was or was not searched.”

    The Justice then writes, “Although ‘at that point, [Reisig] assumed the red car had probably been searched,’ he did not disclose this to defense counsel.”

    I would say you are correct, Davisite, the police report was likely sloppy if they did not include whether or not the car was searched.

  30. Doug Paul Davis

    Reisig’s declaration says:

    “shortly after Officer Puffer’s direct testimony I had an informal conversation with him off the record. I asked [him] if it would be unusual for the car not to have been searched by some police officer that night based on the fact that a gun was involved and the car had been associated with… the Defendant’s friend. [Puffer] agreed that it would be unusual and that it was likely [the car] had been searched but that he did not have any personal knowledge that the car was or was not searched.”

    The Justice then writes, “Although ‘at that point, [Reisig] assumed the red car had probably been searched,’ he did not disclose this to defense counsel.”

    I would say you are correct, Davisite, the police report was likely sloppy if they did not include whether or not the car was searched.

  31. Doug Paul Davis

    Reisig’s declaration says:

    “shortly after Officer Puffer’s direct testimony I had an informal conversation with him off the record. I asked [him] if it would be unusual for the car not to have been searched by some police officer that night based on the fact that a gun was involved and the car had been associated with… the Defendant’s friend. [Puffer] agreed that it would be unusual and that it was likely [the car] had been searched but that he did not have any personal knowledge that the car was or was not searched.”

    The Justice then writes, “Although ‘at that point, [Reisig] assumed the red car had probably been searched,’ he did not disclose this to defense counsel.”

    I would say you are correct, Davisite, the police report was likely sloppy if they did not include whether or not the car was searched.

  32. Doug Paul Davis

    Reisig’s declaration says:

    “shortly after Officer Puffer’s direct testimony I had an informal conversation with him off the record. I asked [him] if it would be unusual for the car not to have been searched by some police officer that night based on the fact that a gun was involved and the car had been associated with… the Defendant’s friend. [Puffer] agreed that it would be unusual and that it was likely [the car] had been searched but that he did not have any personal knowledge that the car was or was not searched.”

    The Justice then writes, “Although ‘at that point, [Reisig] assumed the red car had probably been searched,’ he did not disclose this to defense counsel.”

    I would say you are correct, Davisite, the police report was likely sloppy if they did not include whether or not the car was searched.

  33. Anonymous

    In response to SAH:

    The pre-trial hearing was actually aan attempt by the second defense attorney (1) to have me removed as the prosecutor (“recused”) because he wanted to call me as a witness to impeach a detective and (2) to have an instruction read to the jury that I provided discovery to the defense after the legal deadline to provide it, and therefore have an unstruction on “late discovery” read to the jury. Note: it was not about withholding anything – it was about what I PROVIDED.

    The “issue” regarding recusal of me and discovery of evidence in the case I prosecuted was twofold: (1) whether I could impeach the testimony of the detective in the case by recounting a 2002 extremely brief conversation in a way that differed materially from the detective’s testimony about the conversation, and that occurred almost 3 years prior to my 2005 testimony about that very conversation; and a separate motion (2) whether the defense had been given discovery in the form of a video tape of two particular witness interviews in the case.

    The defense wanted me off the case – that is what a recusal motion is about. They hoped to accomplish that by using me as a witness. The defense hoped I could impeach the detective – a hope that rested upon two premises: (1) I would have to recall the entire conversation verbatim as would the detective, and (2) my recall would have to differ from the recall of the detective to an extent and in a way that would impeach his credibility as a witness in the trial such that I would then become a defense witness in the case.

    The conversation with the detective took place in the spring of 2002, outside of the courtroom just before the detective testified at the preliminary hearing in the matter. The conversation was specifically about the fact that at that moment and for the first time, the detective informed me that he had inadvertenlty taped over a small part of the named victim’s telephone interview. This was clearly exculpatory evidence. I immediately complied with my duty to disclose all exculpatory evidence to defense: I walked into the courtroom and told the defense attorney RIGHT THEN what the detective had just said about the victim’s audio taped interview.

    The defense attorney even questioned the detective about the tape in that very hearing (for which a transcript exists). There was a police report that summarized that particular interview that was given to defense. The detective never wrote a report about the taped-over tape. This could be in part because the defense attorney already knew about it and the transcript of the preliminary hearing makes that clear.

    I testified about all of that in the 2005 hearing. I testified that I might not recall verbatim the entire spring 2002 conversation in part because of an injury I suffered in late 1999. In the spring of 2002, I had some lingering effects. I felt I had a duty to disclose that to the judge.

    The defendant’s then wife (now ex-wife) and mother of the victim chose to be interviewed by the detective on video tape some time after the preliminary hearing and while the first attorney was still on the case, as did another child of hers. A police report about the interviews was generated. The report stated that the interviews were taped. Another part of the report itemized the tapes as pieces of evidence booked in the case. (There were hundreds of items of evidence booked in this case that also involved computer use to obtain sexually explicit material that was showed to the victim prior to molesting the child.) That attorney and I discussed the interviews and the taping of them.

    In the spring of 2003, the defendant and that first attorney had a legal conflict of interest develop and the first attorney was relieved. A new attorney was appointed.

    By the time the case went to trial two years after that, it was the new attorney who tried it. The new attorney was given all of the files from the previous attorney that included the reports talking about the video taped interviews, and the transcript that identified the fact that the audio taped had been taped over, and any physical evidence (like tapes) that the previous attorney had. During the two years he had the case, the new defense attorney never asked for a copy of the video taped interviews that were described in the reports and file he had in his possession until just weeks before the trial. He asked for the video tapes and I immediately gave him copies. He and I discussed the fact that we could not tell whether the tapes had or had not been given to him or to the prior attorney and whether defense had lost their copies or not. He could not locate them and so immediately upon his request I provided copies. During the two years he had the case, the new attorney never asked me to write a statement out, nor did he seek a hearing about the conversation I had with the detective in 2002. It was not brought up until that hearing just before the trial in an effort to remove me from the case.

    If it had been untimely, the judge could have ordered that the jury be told I provided the discovery late. The judge did not do so. The judge in the case determined that I had not delayed discovery of the video tapes from defense.

    The judge also determined that I testified truthfully about the extent to which I could recall the details of the conversation with the detective about the audio tape being taped over.

    Whether “forgetting” the details of the conversation “certainly cost [me] the election” is conjecture at best. A convicted child molester and my opponent and his supporters chose to make something of it is all one can say.

    My testifying about my prior injury in a 100 mph car crash caused by a driver who had been drinking was an effort to be MORE open and to FULLY disclose to the court an issue that he should consider when determining my credibility as a witness in the case. The ability of a witness to see, hear, perceive and recall facts about which the witness is testifying are just some of the factors a judge must weigh in a hearing when determining witness credibility. My testimony was certainly not a “Chappaquiddickesque explanation.”

    I did not withold exculpatory evidence. I beg to differ, SAH, I never “stole fundamental rights from defendants and used the lame excuse’I forgot’.” In my career, I have done quite the opposite and ensured that defendants’ fundamental rights were always protected. I have never had any case reversed for misconduct on my part. I have never had any case reversed for failing to disclose exculpatory evidence. Please check your facts and read transcripts before you make such a statement about me in the future.

    P. Lenzi

  34. Anonymous

    In response to SAH:

    The pre-trial hearing was actually aan attempt by the second defense attorney (1) to have me removed as the prosecutor (“recused”) because he wanted to call me as a witness to impeach a detective and (2) to have an instruction read to the jury that I provided discovery to the defense after the legal deadline to provide it, and therefore have an unstruction on “late discovery” read to the jury. Note: it was not about withholding anything – it was about what I PROVIDED.

    The “issue” regarding recusal of me and discovery of evidence in the case I prosecuted was twofold: (1) whether I could impeach the testimony of the detective in the case by recounting a 2002 extremely brief conversation in a way that differed materially from the detective’s testimony about the conversation, and that occurred almost 3 years prior to my 2005 testimony about that very conversation; and a separate motion (2) whether the defense had been given discovery in the form of a video tape of two particular witness interviews in the case.

    The defense wanted me off the case – that is what a recusal motion is about. They hoped to accomplish that by using me as a witness. The defense hoped I could impeach the detective – a hope that rested upon two premises: (1) I would have to recall the entire conversation verbatim as would the detective, and (2) my recall would have to differ from the recall of the detective to an extent and in a way that would impeach his credibility as a witness in the trial such that I would then become a defense witness in the case.

    The conversation with the detective took place in the spring of 2002, outside of the courtroom just before the detective testified at the preliminary hearing in the matter. The conversation was specifically about the fact that at that moment and for the first time, the detective informed me that he had inadvertenlty taped over a small part of the named victim’s telephone interview. This was clearly exculpatory evidence. I immediately complied with my duty to disclose all exculpatory evidence to defense: I walked into the courtroom and told the defense attorney RIGHT THEN what the detective had just said about the victim’s audio taped interview.

    The defense attorney even questioned the detective about the tape in that very hearing (for which a transcript exists). There was a police report that summarized that particular interview that was given to defense. The detective never wrote a report about the taped-over tape. This could be in part because the defense attorney already knew about it and the transcript of the preliminary hearing makes that clear.

    I testified about all of that in the 2005 hearing. I testified that I might not recall verbatim the entire spring 2002 conversation in part because of an injury I suffered in late 1999. In the spring of 2002, I had some lingering effects. I felt I had a duty to disclose that to the judge.

    The defendant’s then wife (now ex-wife) and mother of the victim chose to be interviewed by the detective on video tape some time after the preliminary hearing and while the first attorney was still on the case, as did another child of hers. A police report about the interviews was generated. The report stated that the interviews were taped. Another part of the report itemized the tapes as pieces of evidence booked in the case. (There were hundreds of items of evidence booked in this case that also involved computer use to obtain sexually explicit material that was showed to the victim prior to molesting the child.) That attorney and I discussed the interviews and the taping of them.

    In the spring of 2003, the defendant and that first attorney had a legal conflict of interest develop and the first attorney was relieved. A new attorney was appointed.

    By the time the case went to trial two years after that, it was the new attorney who tried it. The new attorney was given all of the files from the previous attorney that included the reports talking about the video taped interviews, and the transcript that identified the fact that the audio taped had been taped over, and any physical evidence (like tapes) that the previous attorney had. During the two years he had the case, the new defense attorney never asked for a copy of the video taped interviews that were described in the reports and file he had in his possession until just weeks before the trial. He asked for the video tapes and I immediately gave him copies. He and I discussed the fact that we could not tell whether the tapes had or had not been given to him or to the prior attorney and whether defense had lost their copies or not. He could not locate them and so immediately upon his request I provided copies. During the two years he had the case, the new attorney never asked me to write a statement out, nor did he seek a hearing about the conversation I had with the detective in 2002. It was not brought up until that hearing just before the trial in an effort to remove me from the case.

    If it had been untimely, the judge could have ordered that the jury be told I provided the discovery late. The judge did not do so. The judge in the case determined that I had not delayed discovery of the video tapes from defense.

    The judge also determined that I testified truthfully about the extent to which I could recall the details of the conversation with the detective about the audio tape being taped over.

    Whether “forgetting” the details of the conversation “certainly cost [me] the election” is conjecture at best. A convicted child molester and my opponent and his supporters chose to make something of it is all one can say.

    My testifying about my prior injury in a 100 mph car crash caused by a driver who had been drinking was an effort to be MORE open and to FULLY disclose to the court an issue that he should consider when determining my credibility as a witness in the case. The ability of a witness to see, hear, perceive and recall facts about which the witness is testifying are just some of the factors a judge must weigh in a hearing when determining witness credibility. My testimony was certainly not a “Chappaquiddickesque explanation.”

    I did not withold exculpatory evidence. I beg to differ, SAH, I never “stole fundamental rights from defendants and used the lame excuse’I forgot’.” In my career, I have done quite the opposite and ensured that defendants’ fundamental rights were always protected. I have never had any case reversed for misconduct on my part. I have never had any case reversed for failing to disclose exculpatory evidence. Please check your facts and read transcripts before you make such a statement about me in the future.

    P. Lenzi

  35. Anonymous

    In response to SAH:

    The pre-trial hearing was actually aan attempt by the second defense attorney (1) to have me removed as the prosecutor (“recused”) because he wanted to call me as a witness to impeach a detective and (2) to have an instruction read to the jury that I provided discovery to the defense after the legal deadline to provide it, and therefore have an unstruction on “late discovery” read to the jury. Note: it was not about withholding anything – it was about what I PROVIDED.

    The “issue” regarding recusal of me and discovery of evidence in the case I prosecuted was twofold: (1) whether I could impeach the testimony of the detective in the case by recounting a 2002 extremely brief conversation in a way that differed materially from the detective’s testimony about the conversation, and that occurred almost 3 years prior to my 2005 testimony about that very conversation; and a separate motion (2) whether the defense had been given discovery in the form of a video tape of two particular witness interviews in the case.

    The defense wanted me off the case – that is what a recusal motion is about. They hoped to accomplish that by using me as a witness. The defense hoped I could impeach the detective – a hope that rested upon two premises: (1) I would have to recall the entire conversation verbatim as would the detective, and (2) my recall would have to differ from the recall of the detective to an extent and in a way that would impeach his credibility as a witness in the trial such that I would then become a defense witness in the case.

    The conversation with the detective took place in the spring of 2002, outside of the courtroom just before the detective testified at the preliminary hearing in the matter. The conversation was specifically about the fact that at that moment and for the first time, the detective informed me that he had inadvertenlty taped over a small part of the named victim’s telephone interview. This was clearly exculpatory evidence. I immediately complied with my duty to disclose all exculpatory evidence to defense: I walked into the courtroom and told the defense attorney RIGHT THEN what the detective had just said about the victim’s audio taped interview.

    The defense attorney even questioned the detective about the tape in that very hearing (for which a transcript exists). There was a police report that summarized that particular interview that was given to defense. The detective never wrote a report about the taped-over tape. This could be in part because the defense attorney already knew about it and the transcript of the preliminary hearing makes that clear.

    I testified about all of that in the 2005 hearing. I testified that I might not recall verbatim the entire spring 2002 conversation in part because of an injury I suffered in late 1999. In the spring of 2002, I had some lingering effects. I felt I had a duty to disclose that to the judge.

    The defendant’s then wife (now ex-wife) and mother of the victim chose to be interviewed by the detective on video tape some time after the preliminary hearing and while the first attorney was still on the case, as did another child of hers. A police report about the interviews was generated. The report stated that the interviews were taped. Another part of the report itemized the tapes as pieces of evidence booked in the case. (There were hundreds of items of evidence booked in this case that also involved computer use to obtain sexually explicit material that was showed to the victim prior to molesting the child.) That attorney and I discussed the interviews and the taping of them.

    In the spring of 2003, the defendant and that first attorney had a legal conflict of interest develop and the first attorney was relieved. A new attorney was appointed.

    By the time the case went to trial two years after that, it was the new attorney who tried it. The new attorney was given all of the files from the previous attorney that included the reports talking about the video taped interviews, and the transcript that identified the fact that the audio taped had been taped over, and any physical evidence (like tapes) that the previous attorney had. During the two years he had the case, the new defense attorney never asked for a copy of the video taped interviews that were described in the reports and file he had in his possession until just weeks before the trial. He asked for the video tapes and I immediately gave him copies. He and I discussed the fact that we could not tell whether the tapes had or had not been given to him or to the prior attorney and whether defense had lost their copies or not. He could not locate them and so immediately upon his request I provided copies. During the two years he had the case, the new attorney never asked me to write a statement out, nor did he seek a hearing about the conversation I had with the detective in 2002. It was not brought up until that hearing just before the trial in an effort to remove me from the case.

    If it had been untimely, the judge could have ordered that the jury be told I provided the discovery late. The judge did not do so. The judge in the case determined that I had not delayed discovery of the video tapes from defense.

    The judge also determined that I testified truthfully about the extent to which I could recall the details of the conversation with the detective about the audio tape being taped over.

    Whether “forgetting” the details of the conversation “certainly cost [me] the election” is conjecture at best. A convicted child molester and my opponent and his supporters chose to make something of it is all one can say.

    My testifying about my prior injury in a 100 mph car crash caused by a driver who had been drinking was an effort to be MORE open and to FULLY disclose to the court an issue that he should consider when determining my credibility as a witness in the case. The ability of a witness to see, hear, perceive and recall facts about which the witness is testifying are just some of the factors a judge must weigh in a hearing when determining witness credibility. My testimony was certainly not a “Chappaquiddickesque explanation.”

    I did not withold exculpatory evidence. I beg to differ, SAH, I never “stole fundamental rights from defendants and used the lame excuse’I forgot’.” In my career, I have done quite the opposite and ensured that defendants’ fundamental rights were always protected. I have never had any case reversed for misconduct on my part. I have never had any case reversed for failing to disclose exculpatory evidence. Please check your facts and read transcripts before you make such a statement about me in the future.

    P. Lenzi

  36. Anonymous

    In response to SAH:

    The pre-trial hearing was actually aan attempt by the second defense attorney (1) to have me removed as the prosecutor (“recused”) because he wanted to call me as a witness to impeach a detective and (2) to have an instruction read to the jury that I provided discovery to the defense after the legal deadline to provide it, and therefore have an unstruction on “late discovery” read to the jury. Note: it was not about withholding anything – it was about what I PROVIDED.

    The “issue” regarding recusal of me and discovery of evidence in the case I prosecuted was twofold: (1) whether I could impeach the testimony of the detective in the case by recounting a 2002 extremely brief conversation in a way that differed materially from the detective’s testimony about the conversation, and that occurred almost 3 years prior to my 2005 testimony about that very conversation; and a separate motion (2) whether the defense had been given discovery in the form of a video tape of two particular witness interviews in the case.

    The defense wanted me off the case – that is what a recusal motion is about. They hoped to accomplish that by using me as a witness. The defense hoped I could impeach the detective – a hope that rested upon two premises: (1) I would have to recall the entire conversation verbatim as would the detective, and (2) my recall would have to differ from the recall of the detective to an extent and in a way that would impeach his credibility as a witness in the trial such that I would then become a defense witness in the case.

    The conversation with the detective took place in the spring of 2002, outside of the courtroom just before the detective testified at the preliminary hearing in the matter. The conversation was specifically about the fact that at that moment and for the first time, the detective informed me that he had inadvertenlty taped over a small part of the named victim’s telephone interview. This was clearly exculpatory evidence. I immediately complied with my duty to disclose all exculpatory evidence to defense: I walked into the courtroom and told the defense attorney RIGHT THEN what the detective had just said about the victim’s audio taped interview.

    The defense attorney even questioned the detective about the tape in that very hearing (for which a transcript exists). There was a police report that summarized that particular interview that was given to defense. The detective never wrote a report about the taped-over tape. This could be in part because the defense attorney already knew about it and the transcript of the preliminary hearing makes that clear.

    I testified about all of that in the 2005 hearing. I testified that I might not recall verbatim the entire spring 2002 conversation in part because of an injury I suffered in late 1999. In the spring of 2002, I had some lingering effects. I felt I had a duty to disclose that to the judge.

    The defendant’s then wife (now ex-wife) and mother of the victim chose to be interviewed by the detective on video tape some time after the preliminary hearing and while the first attorney was still on the case, as did another child of hers. A police report about the interviews was generated. The report stated that the interviews were taped. Another part of the report itemized the tapes as pieces of evidence booked in the case. (There were hundreds of items of evidence booked in this case that also involved computer use to obtain sexually explicit material that was showed to the victim prior to molesting the child.) That attorney and I discussed the interviews and the taping of them.

    In the spring of 2003, the defendant and that first attorney had a legal conflict of interest develop and the first attorney was relieved. A new attorney was appointed.

    By the time the case went to trial two years after that, it was the new attorney who tried it. The new attorney was given all of the files from the previous attorney that included the reports talking about the video taped interviews, and the transcript that identified the fact that the audio taped had been taped over, and any physical evidence (like tapes) that the previous attorney had. During the two years he had the case, the new defense attorney never asked for a copy of the video taped interviews that were described in the reports and file he had in his possession until just weeks before the trial. He asked for the video tapes and I immediately gave him copies. He and I discussed the fact that we could not tell whether the tapes had or had not been given to him or to the prior attorney and whether defense had lost their copies or not. He could not locate them and so immediately upon his request I provided copies. During the two years he had the case, the new attorney never asked me to write a statement out, nor did he seek a hearing about the conversation I had with the detective in 2002. It was not brought up until that hearing just before the trial in an effort to remove me from the case.

    If it had been untimely, the judge could have ordered that the jury be told I provided the discovery late. The judge did not do so. The judge in the case determined that I had not delayed discovery of the video tapes from defense.

    The judge also determined that I testified truthfully about the extent to which I could recall the details of the conversation with the detective about the audio tape being taped over.

    Whether “forgetting” the details of the conversation “certainly cost [me] the election” is conjecture at best. A convicted child molester and my opponent and his supporters chose to make something of it is all one can say.

    My testifying about my prior injury in a 100 mph car crash caused by a driver who had been drinking was an effort to be MORE open and to FULLY disclose to the court an issue that he should consider when determining my credibility as a witness in the case. The ability of a witness to see, hear, perceive and recall facts about which the witness is testifying are just some of the factors a judge must weigh in a hearing when determining witness credibility. My testimony was certainly not a “Chappaquiddickesque explanation.”

    I did not withold exculpatory evidence. I beg to differ, SAH, I never “stole fundamental rights from defendants and used the lame excuse’I forgot’.” In my career, I have done quite the opposite and ensured that defendants’ fundamental rights were always protected. I have never had any case reversed for misconduct on my part. I have never had any case reversed for failing to disclose exculpatory evidence. Please check your facts and read transcripts before you make such a statement about me in the future.

    P. Lenzi

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