The following letter to the Judge regarding Charles motion for discovery after the trial. This shows how Pennington County States Attorney Mark Vargo manipulates the facts and manipulates his his key witnesses. His methods are scandalous and illegal! I wonder what he used to threaten a 15 year old girl into changing her testimony? August 26, 2013 The Honorable Wally Eklund Circuit Court Judge Pennington County Courthouse Rapid City, SD 57701 RE: State v. Charles Birds Head, Court File No. 13-229 Dear Judge Eklund: Please find attached a copy of Defendant’s Motion for Discovery filed in this matter with attached proposed Order. All information being requesting was learned of by the Defense for the first time at the trial on the manslaughter and gun charges in this matter. Defendant maintains the State’s failure to disclose this information violated both this Court’s Order granting Defendant’s First Motion for Discovery and applicable state and federal law. For instance, regarding Jennica’s changed testimony, Defense made a motion for mistrial and moved to dismiss the case with prejudice as violating the State’s discovery obligations as required by law. Jennica’s changed testimony prejudiced Mr. Birds Head because it materially undercut his set-up theory. Mr. Birds Head had no time to prepare for this change in testimony that the State was fully aware would be testified to by Jennica. Her testimony also undercut Mr. Birds Head being able to attack the credibility of Shy Betteyloun and Frank Milk. Defense counsel argued a Brady violation; and the Pennington County State’s Attorney argued Brady only applied to exculpatory, or favorable information for the Defendant, therefore arguing he had no duty to disclose prior to trial. This failure to disclose was clearly governed by this Court’s Order granting Defendant’s First Motion for Discovery. It also is contrary to well-settled law. In Strickler v. Greene, 527 US 263 (1999), the United States Supreme Court rejected the government’s argument that Brady didn’t apply because the information was inculpatory. We reject respondent’s contention that these documents do not fall under Brady because they were “inculpatory.” Our cases make clear that Brady’s disclosure requirements extend to material that, whatever their other characteristics, may be used to impeach a witness. See footnote 21at 282. The South Dakota Supreme Court recently cited the rule laid out in Strickler: There are three components of a true Brady violation: the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued. State v. Lessinger 670 NW 2d 371, 375 (SD 2003). Clearly, Jennica’s changed testimony was impeaching, and therefore discoverable. It was prejudicial, because Mr. Birds Head could not be expected to “cure” the violation by cross-examining Jennica on this, just learned of information, during trial. When did she change her testimony? Why? To whom? Was any consideration given to her for this change in testimony? Further, the State could have tried to argue the change in testimony would open the door to the State introducing into evidence what this Court had excluded in its prior severance order. Finally, this kind of antics of a Pennington County State’s Attorney has already been admonished as impermissible in State v. Krebs, 714 NW 2d 91 (SD 2006), where then Pennington County State’s Attorney, Glen Brenner, introduced inculpatory evidence for the first time during trial through the testimony of one of its witnesses; and the conviction was reversed as denying the defendant a fair trial because it was material to his theory of self-defense. Sincerely, Jamy Patterson Attorney for Charles Birds Head cc: Court File Mark Vargo, State’s Attorney file
Posted on: Fri, 30 Aug 2013 00:44:01 +0000
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