86-CR-17-499 STATE OF MINNESOTA Filed in Tenth Judicial District Court 11/2/2017 6:05 PM Wright County, MN DISTRICT COURT COUNTY OF WRIGHT TENTH JUDICIAL DISTRICT D.C.86-CR-17-499 State of Minnesota, ) ) Plaintiff, ) ) MOTION FOR PRODUCTION vs. ) OF BRADY MATERIALS ) Laura Lynn Bultman, M.D., ) ) Defendant. ) ********************* The Defendant, Dr. Laura Bultman, through and by her attorney, Paul Engh, and in accordance Brady v. Maryland, 373 U.S. 83 (1968), United States v. Agurs, 427 U.S. 97 (1976), and State v. Williams, 593 N.W.2d 227 (Minn. 1999), and Rules 9.01, Subd. 1(6) and 11.02(c), Minn. R. Crim. P., moves the Court for an Order requiring the State of Minnesota to disclose information favorable to the defense. 1. Our motion is premised in what has always been a sense of fair largess. “[T]he ends of justice will best be served by a system of liberal discovery which gives both parties the maximum possible amount of information with which to prepare their cases and thereby reduce the possibility of surprise at trial.” Wardius v. Oregon, 412 U.S. 470, 473 (1973). The expansion of discovery rights has been 1 86-CR-17-499 Filed in Tenth Judicial District Court 11/2/2017 6:05 PM Wright County, MN deemed a “salutary development.” Id. at 474. “The adversary system of trial is hardly an end in itself; it is not yet a poker game in which the players enjoy an absolute right always to conceal their cards until played.” Williams v. Florida, 399 U.S. 78, 82 (1970). The Minnesota Supreme Court has cited Williams and Wardius with approval. See e.g., State v. Schwantes, 314 N.W.2d 243, 244 (Minn. 1982); State v. Lindsay, 284 N.W.2d 371, 372 (Minn. 1979). 2. The State’s anticipated complaint as to the disclosure requests below – that the data is not within the quiet confines of a prosecutor’s office – is not a recognized excuse for a lack of effort, and never has been, Williams, 593 N.W.2d at 234-35; Kyles v. Whitely, 514 U.S. 419, 432 (1995), particularly where, as here, the requests are relevant. Rule 9.01, Subd. 2 (3). 3. The main witness against the defendants is Daniel Pella, a purported whistle blower who was once in an out-of-state graduate school. On information and belief, he left that institution and then came to the University of Minnesota, where he graduated with a Ph.D. A year gap exists on his resume. We have a further good faith belief that, while in Michigan, Mr. Pella was diverting raw materials that, when combined, could be made into contraband, and for that reason, among perhaps others, he was asked to leave that particular institution. The State has complete and unfettered access to Mr. Pella, who was not asked 2 86-CR-17-499 Filed in Tenth Judicial District Court 11/2/2017 6:05 PM Wright County, MN about his academic credentials in any detail, nor was he forthcoming in the absence of inquiry. 4. Further, the defense has learned that Daniel Pella was married for a short period of time – conveniently just two years – for the purpose of securing his immigration status (he is from South America). That the marriage, such as it was, provided an avenue for Mr. Pella to stay in the United States. Upon information and belief, the use of controlled substances were involved in the divorce. The family court records in New York state, what we believe to be the venue, are inaccessible to the public, but are to the State’s witness, who has, undoubtedly, a record of his marriage. We seek those documents, which are, again, accessible to the State’s witness, hence the prosecution itself. Williams, 593 N.W.2d at 235. 5. On April 7, 2016, upon his dismissal as an employee, Mr. Pella indicated to his former employees that the company would “pay” for his termination, and that he would “take this company down.” Shortly thereafter, Mr. Pella vandalized the company’s analytical High Performance Liquid Chromatography instrument, causing Vireo in turn to pay $2,445.00 in needless repair costs, and over $100,000 in lost production time. The discovery provided reflects that authorities were summoned, and that the company requested criminal damage to property charges, Minn. Stat. 609.595, Subd. 1 (4), be lodged against Mr. Pella. None were. 3 86-CR-17-499 Filed in Tenth Judicial District Court 11/2/2017 6:05 PM Wright County, MN Accordingly we request: A) Promises of immunity afforded to Mr. Pella, within the meaning of Minn. Stat. 609.09, Subds. 1 and 2. When he testifies, he will be asked about his bias against his employer, a bias manifested in a serious crime. If he admits without immunity, he will have convicted himself. If he denies, he will have committed felony perjury. B) The reasons for the State not charging him with a felony where the evidence was overwhelming of his motive along with his attendant guilt. C) Communications by the BCA to the Wright County Attorney’s office directing that no charges be filed. This is not work product. This is, rather, the BCA and Wright County giving a direct benefit to Mr. Pella for his anticipated testimony in this case. The inference from the declination we draw, as will the jury, is that the law is not applied equally in Wright County. 6. During the investigation of this case, BCA agents violated Rule 4.2, Minn.R.Prof.R., which mandates that when a witness is represented by counsel he or she may not by contacted the law enforcement agents without notice and presence of counsel. We are aware of several witnesses who were intimidated in this fashion. The repeated contact was in clear contravention of State v. Miller, 600 N.W.2d 457, 463-64 (Minn. 1999)(interpreting Rule 4.2 to law enforcement 4 86-CR-17-499 Filed in Tenth Judicial District Court 11/2/2017 6:05 PM Wright County, MN agents from interviewing witnesses who are represented by counsel). With this predicate in mind, we specifically request: A) The investigative documents concerning these Agents’ repeated violations of Rule 4.2, and their respective knowledge that the witnesses they contacted for interviews were indeed represented by counsel; B) The sanctions imposed upon the Agents, sanctions authorized by Miller, 600 N.W.2d at 468; or C) If no sanctions were imposed, we request the reasons for declination. The credibility of the Agents and their investigation is a central concern. Their willingness to ignore Rule 4.2 reflects a bias against conducting a fair investigation in accordance with the law, and thus is impeaching, and is, ergo, Brady material. 7. Finally, we request evidence of all Tennessen advisory notices offered and given to Vireo employees in April 2015, by investigators of the Minnesota Department of Health. See Minn. Stat. 13.04, Subd. 2 (defining the notice). After the Vireo employees (including Dr. Bultman) were given the Tennessen notices, a portion of that confidential data, secured by the interviews and the documents produced, was erroneously provided to the BCA. The witnesses were never informed, as they had to have been, that the information they provided would be 5 86-CR-17-499 Filed in Tenth Judicial District Court 11/2/2017 6:05 PM Wright County, MN used in this criminal case. The protected and subsequently tainted witness statements and documents were thereafter erroneously read and evaluated by Wright County in making the charging decision here. Once the Tennessen notices are provided, further motions will be necessary. Dated: November 3, 2017 Respectfully submitted, /s/ Paul Engh ___________________________ Paul Engh, Lic. 134685 Suite 420 U.S. Bank Plaza 200 South Sixth Street Minneapolis, MN 55402 (612) 252-1100 Attorney for Dr. Bultman 6