IN THE CRIMINAL DISTRICT COURT FOR THE PARISH OF ORLEANS IN THE STATE OF LOUISIANA STATE OF LOUISIANA Case No. 521 -533 v. Section: Judge: Byron Williams FREDDIE JOHNSON, Defendant FILED: DEPUTY CLERK: MOTION FOR DISCOVERY RE: NOW INTO COURT, comes the Mr. Freddie Johnson, through undersigned counsel, pursuant to the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, Article 1, Sections the Louisiana Constitution, Louisiana Code of Criminal Procedure Articles 723 and 729 and Brady v. Maryland, 373 US. 83 (1963) . (exculpatory material), United States v. Augurs, 427 US. 97 (1976) (request not necessary for material evidence), Giglio v. United States, 405 US. 150 (1972) (promise of threats to arrest or for leniency may be Brady), and requests the State disclose the materials speci?ed below, and respectfully moves this Court for an order permitting discovery, to-wit: l. The date witness Charles Bingham reported to the Orleans District Attorney in relation to verbal and written threats made to Mr. Bingham in July of 2014 that he would be arrested if he did not come speak to District Attorney at their offices. The name(s) Of the person(s) who made the verbal threat to Mr. Bingham in July of 2014, or at any time, that he would be arrested if he did not come to the Orleans District Attorney?s Of?ce. The names of all persons present at any time Mr. Bingham was interviewed by the Orleans District Attorney?s of?ce. Provide any and all notes taken, or recordings made, during or after any interviews with Mr. Bingham conducted by the Orleans District Attorney?s of?ce. LAW AND ARGUMENT On November 28, 2017, the State provided to the defense two so-called DA subpoenas.l One of these purported subpoenas was served on Mr. Charles Bingham. This information was - not disclosed to the defense prior to trial. On November 29, 2017, the defendant ?led a motion based upon this new disclosure. In the defendant?s November 29, 2017 ?ling, he asserts that the purported subpoena served on Mr. Bingham constitutes a further violation of the rule laid out in Brady because it is evidence that was suppressed by the State notwithstanding that it was favorable to the defendant and material to the issue of guilt or sentence. This information would have been crucial to the defense at any suppression hearing. This is because Mr. Bingham?s statement and identi?cation made to law enforcement were almost certainly the ?'uit of an unlawful seizure of Mr. Bingham. U.S. Const. Amend. La. Const. Art. I, 5; State v. Owens, 453 So.2d 1202, 1205 (La. 1984) (?there is no equivalent under Louisiana constitutional law to the federal rule that one may not raise the violation of a third person?s constitutional rights?). Further, assuming Mr. iBingham?s statement and identi?cation was not suppressed, the coercive and unlawful conduct that lead to his statement and identi?cation would nevertheless have been material to the jury?s determination as to Mr. Bingham?s credibility?as well as to whether the State?s misconduct in this case cast doubts on the veracity of their whole presentation; especially in light of the other Brady evidence concerning state witness Terrence Watson.2 At trial in this matter, Mr. Bingham did testify that he was threatened with arrest by the Orleans District Attomey?s of?ce; however, the State never disclosed any information about this verbal threat to trial counsel. Indeed, trial counsel only learned of the threat when Mr. Bingham was testifying. Trial counsel had no way of verifying Mr. Bingham?s account. Trial counsel did not know whether Mr. Bingham was in fact threaten with an unlawful arrest or a lawful arrest, or While these documents purport to be Article 66 subpoenas they are not because no written motion was ?led with a judicial of?cer stating reasonable grounds for the need for the issuance of a subpoena and no judicial of?cer granted the issuance of these subpoena. lmportantly, as commentary on this article makes clear, ?the requirement that the prosecutor seek court approval after setting forth reasonable grounds before the subpoena is actually issued answers the only real objection to this subpoena power, that It could be abused by the district attorney." State v. Williams, So.2d 557, 562 (La.App. 3es Cir. La. C. Cr. P. art. 66, comment 2 On November 30, 2017, this Court expressed concern as to whether this type of information would be admissible at trial. To be clear, there would be no basis upon which to disallow this evidence at trial. In Giglr'a v. United States. 405 U.S. 150 (1972), the Supreme Court made clear that where a state actor tells a witness that he can be arrested if he doesn?t cooperate or promises that he won?t be arrest if he does c00perate, that evidence is admissible. Moreover, in this case the State impeached Mr. Bingham?s credibility with the extrinsic evidence of his statement and identi?cation. La. C. Cr. P. as such, the defense was he on cross examination to support Mr. Bingham?s version of events, as it had been attacked, with extrinsic evidence of their own, viz. the unlawful subpoenas, testimony from those who unlawfully had them issue, etc. Finally, it would be a violation of Mr. Johnson's right to confront witnesses against him or call forth favorable evidence as well as his right to due process to exclude this evidence of state misconduct. U.S. Const. Amends. Vi XIV. 2 merely given an appropriate warning that failure to speak to the Orleans District Attorney could result in their seeking his arrest through other, lawful means. See La. C. Cr. P. art. 66; La. R.S. 15:527. Importantly, Mr. Bingham also testi?ed that in response to the threats he received he relocated to the Orleans District Attorney?s Of?ce. Once there, he appears to have given the State an interview. The defense has never been provided with any information regarding this interview. This is the crux of the constitutional concerns that must be resolved: did this unlawful seizure of Mr. Bingham?s person impact the truthfulness of his statement and identi?cation; did the State?s willful misconduct render this trial fundamentally unfair. The requested discovery, therefore, is necessary to determine these important constitutional concerns. CONCLUSION WHEREFORE, Mr. Johnson requests that this court grant his motion for the above- mentioned discovery. Respectfully Submitted, Shanita Farris, La Bar. No. 37113 Capital Appeals roject 636 Baronne Street New Orleans, LA 70113 Tel. 504-529-5955 Cormac Boyle, Lj Bar No. 36385 CERTIFICATE OF SERVICE I hereby certify that I have caused to be served by hand delivery a copy of the foregoing document upon the prosecution in open court on the day of ?ling. Shanita Fat ?5 IN THE CRIMINAL DISTRICT COURT FOR THE PARISH OF ORLEANS IN THE STATE OF LOUISIANA STATE OF LOUISIANA Case No. 521-533 v. Section: Judge: Byron Williams FREDDIE JOHNSON, Defendant FILED: DEPUTY CLERK: ORDER The Motion for Discovery re: DA subpoenas is hereby: Granted Denied. The state has until the I day of 2018 to provide the required infant-ration. . So ordered this 3 day of a