I am having some success with writing DA’s, post conviction, to request discovery when defense counsel does not have it, and I have reason to believe it does exist. My favorite memory was when I relentlessly emailed a supervising DA for discovery until he finally punted it to an intern. She was so eager to do “a good job” that she did not realize that “helping” meant she was helping me prove a Brady violation. The DA’s office didn’t know what was happening until she was about to sign a declaration. Then a supervisor called me to berate me that the intern was just trying to help and did not know what she was doing and she would not be signing a declaration. It was probably the funniest most enjoyable conversation I’ve had: “uh, this sounds like a communication and HR issue for your office, I’m having a hard time understanding why you’re calling me?” She probably called me because I should know better than to manipulate this poor girl. And, I did feel marginally guilty about this poor girl not knowing what she was doing. But, here’s an idea, don’t violate Brady and your interns aren’t going to declare that you violated Brady. #sorrynotsorry
Anyway, I digress. There is both a statute and a case which can be used to justify a request for post-conviction discovery…. Penal Code section 1054.9 and People v. Garcia (1993) 17 Cal.App.4th 1169 [prosecutorial duty to disclose any exculpatory / impeachment evidence extends post-conviction and sentencing].)
Penal Code section 1054.9 (below) *technically* applies only to cases with a 15 year or more sentence and *technically* is about making a motion not informally asking the DA….but I cite it in any case and throw in the word “in the spirit of” 1054.9. Ammiright?! Happy fishing!
(a) In a case of a serious felony or a violent felony resulting in a sentence of 15 years or more, upon the prosecution of a postconviction writ of habeas corpus or a motion to vacate a judgment, or in preparation to file that writ or motion, and on a showing that good faith efforts to obtain discovery materials from trial counsel were made and were unsuccessful, the court shall, except as provided in subdivision (b) or (d), order that the defendant be provided reasonable access to any of the materials described in subdivision (c).(b) Notwithstanding subdivision (a), in a case in which a sentence other than death or life in prison without the possibility of parole has been imposed, if a court has entered a previous order granting discovery pursuant to this section, a subsequent order granting discovery pursuant to subdivision (a) may be made in the court’s discretion. A request for discovery subject to this subdivision shall include a statement by the person requesting discovery as to whether has previously been granted an order for discovery pursuant to this section.(c) For purposes of this section, “discovery materials” means materials in the possession of the prosecution and law enforcement authorities to which the same defendant would have been entitled at time of trial.