Amicus Curiae Brief — Strickler v. Greene

MUN FiLcu | =

DEC 9 1996 Wy

f No. 98-5864

| In The

Supreme Court of the United States

OCTOBER TERM 1998

TOMMY DAVID STRICKLER,

Petitioner,

Vv.

FRED W. GREENE, WARDEN,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

MOTION FOR LEAVE TO FILE BRIEF AND

BRIEF OF NATIONAL ASSOCIATION OF CRIMINAL

DEFENSE LAWYERS, VIRGINIA COLLEGE OF CRIMINAL

DEFENSE ATTORNEYS, VIRGINIA TRIAL LAWYERS

ASSOCIATION, AND VIRGINIA CAPITAL CASE

CLEARINGHOUSE AS AMICI] CURIAE IN SUPPORT

OF PETITIONER

Gerald T. Zerkin, #16270

GERALD T. ZERKIN & ASSOCIATES

530 East Main Street, Suite 800

Richmond, Virginia 23219

(804) 788-4412

CS

HO) East Mam Street Suse 100 Richmonl, Virgeua 25219 (800) 64741477

ss

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING. IF AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED.

The Nationa] Association of Cnminal Defense Attornevs

(NACDL), the Virginia College of Cnminal Defense Attorneys

(VCCDA, the Virginia Tnal Lawvers Association (VTLA) and

the Virginia Capital Case Clearninghouse. a Special Project of

Washington & Lee University School of Law (VCCC). by

counsel, respectfully request leave, pursuant to Rule 37.3.(b) of

this Court, to file this Brief as Amici Curiae in support of the

Petitioner in the above-styled action. The Petitioner has

consented to the filing of the Brief and the Respondent has

withheld consent. The letter from counsel for Petitioner has

been filed with the Court.

NACDL is a non-profit corporation with a membership

of more than 10,000 attorneys and 28,000 affiliate members in

50 states. The American Bar Association recognizes NACDL

as an affiliate organization and awards it full representation in

its House of Delegates. NACDL was founded in 1958 to

promote study and research in the field of criminal law, to

disseminate and advance knowledge of the law in the area of

criminal practice, and to encourage the integrity, independence,

and expertise of defense lawyers in criminal cases NACDL

seeks to defend individual liberties guaranteed by the Bill of

Rights and has a keen interest in ensuring that legal proceedings

are handled in a proper and fair manner. Among NACDL’s

objectives are to promote the proper administration of justice.

VCCDA is recognized by NACDL as its Virginia state

affiliate. VCCDA is a statewide, non-profit organization of

approximately 416 criminal defense practitioners. Its purpose

is to enhance the quality of criminal justice in the

Commonwealth of Virginia and to advance the same general

goals of NACDL within the framework of Virginia practice. To

that end, it conducts continuing legal education seminars for

criminal defense practitioners to improve the quality of their

representation. In addition, it provides direct services to its

members when they face important issues implicating the

fundamental fairness of the criminal justice system. including

litigation advice and suppor, research and the filing of amicus

briefs.

VTLA is non-profit professional organization of

approximately 2,800 tral lawyers throughout the

Commonwealth of Virginia Founded in 1960, VILA works to

enhance the professionalism and skills of trial lawvers and to

promote the fair and effective administration of justice. VTLA

includes among its interest sections a Criminal Law Section Its

members regularly participate in trials in state and federal

courts. As an association of trial lawyers dedicated to

preserving the rights of individual litigants in civil and criminal

trials, VTLA believes it is well situated to recognize issues of

importance to trial lawyers and their clients and to assist the

Court.

Members of NACDL, VCCDA and VTLA are regularly

appointed by the courts of the Commonwealth and the United

States to represent capital and other defendants, and to

represent inmates in habeas corpus proceedings.

VCCC is a clinical program of Washington and Lee

University School of Law. Its competitively selected students

and tenured faculty director pursue a single paramount goal

making the right to effective assistance of counsel meaningful

in Virginia capital cases It has existed since 1988, assisting

defense counsel at all stages of litigation in hundreds of cases

That experience has provided an excellent vantage point from

which to assess the issues now before this Cour.

Amici recognize that the non-disclosure of material

exculpatory evidence by the State is a major impediment to

meaningful adversarial testing of the prosecution's case in

Vurgima. The creative employment of procedural bars, such as

the one at issue in this case, to avoid remedying non-disclosure

exacerbates the problem of such non-disclosure and contributes

to the sporting nature of life and death ligation In addition

the Fourth Circuit's interpretation and application of the so-

called “due diligence” exception to the constitutiona! duty of the

State to disclose exculpatory evidence eviscerates that

constitutional nght in the Commonwealth Being commutted to

the constitutional rights of all criminal defendants and to the

need for defendants to be able to vindicate those rights in both

the courts of the Commonwealth and the United States, Amc:

believe that the decision in this case must be overturned

No counsel for any party to this case authored the

proposed bref in whole or in part, and no person or entity other

than NACDL, VCCDA, VTLA or VCCC and their members.

made any monetary contributions to its preparation or

submission See Rule 37.6

Respectfully submitted,

BZ

GERALD T. ZERKIN

Counsel of Record

530 E. Main Street, Suite 800

Richmond, VA 23219

(804) 788-4412

Attorney for Amici Curiae

NATIONAL ASSOCIATION OF CRIMINAL

DEFENSE LAWYERS

VIRGINIA COLLEGE OF CRIMINAL

DEFENSE ATTORNEYS

VIRGINIA TRIAL LAWYERS ASSOCIATION

VIRGINIA CAPITAL CASE CLEARINGHOUSE

PAGE

TABLE OF AUTHORITIES 11

INTEREST OF AMIC/ CURIAE .. )

SUMMARY OF ARGUMENT 4

ARGUMENT .... : oh. Rat an8 $

] THE COURT OF APPEALS’ ASSUMPTION THAT

THE FILES OF PROSECUTORS AND LAW

ENFORCEMENT AGENCIES IN VIRGINIA ARE

READILY SUBJECT TO DISCOVERY IN STATE

POST-CONVICTION PROCEEDINGS IS

DIRECTLY CONTRARY TO VIRGINIA LAW,

PUBLIC POLICY AND PRACTICAL

EXPERIENCE AND CONTRADICTS THE OFTEN

STATED POSITION OF THE COMMONWEALTH

da DESIRE ey sas warary a

A Virginia Habeas Corpus Petitioners are not

Afforded Discovery to Investigate Possible

Claims ._.. 3 7

B Under Virginia Law, The Work Product of

Attorneys for the Commonwealth and Their

Agents is Privileged. Its Disclosure Would

Violate Virginia's Strong Public Policy and

the Respondent s Consistent Position ts that

It is not Discoverable “pry pial 7 &

PAGE

I] THE FOURTH CIRCUIT'S U“1QUE

INTERPRETATION OF BRAD \ MARYLAND

AND ITS PROGENY HAS CAUSED ITS “DLE

DILIGENCE” EXCEPTION TO SWALLOW THE

RULE THAT THE PROSECUTION MUST

DISCLOSE EXCULPATORY EVIDENCE ._.. 16

COTATI oo 505. i hc ek ee 19

APPENDIX :

ii

TABLE OF AUTHORITIES

CASES PAGE

Abdell . Commonwealth. 173 Va 458.2 S E.2d

Pt ee el ta }]

Banks v Reynolds, 54 F.3d 1508 (10th Cir 1995)... 1

Barnes. Thompson, 58 F.3d971(1995) ..... ...._ 18

Bellfield v Commonwealth, 215 Va. 303. 208 S E.2d

771 (1974), cert. denied, 420U.S 963(1975)...... ss I]

Brady vy Maryland, 373 U.S. 83(1963)........... passim

Enzgerald v Bass, 6 Va.App. 38, 366 S E.2d 615

(1988) (en banc), cert. denied sub. nom.,

Entzgerald v Thompson. 493 US 945(1989)..... 7,15

Hoke v_ Netherland, 92 F.3d 1350 (4th Cir ),

cert. denied, 117 $.Ct. 630(1996).............. 18, 19

Howard v_ Warden. 232 Va 16.348 S E.2d, 211 (1986) 14

Hughes v_ Commonwealth, 18 Va App. 510, 446 S.E.2d

451 (1994)(enbanc) 13

Jencks v United States, 353 US 657(1957) ..... 1]

Kyles v Whitley, 115 S$ Ct 1555(1995) ............ 19

Levin v Katzenbach, 363 F.2d 287 (D.C Cir. 1966),

rev'd on other grds, 427 US. 97(1976) ........... 17

iii

CASES PAGE

Lowe . Commonwealth. 218 Va 670. 239S E.2d

112 (1977), cerit.demed 435 U.S 930(1978) 18

Lugo. Munox. 682 F.2d 7 (1st Cir. 1982) 17

Penny Smyth, 188 Va. 367,49$ E.2d600(1948) 7

Pennsylvania vy Richie, 480 U.S 39 (eet Ss Tres 1§

Rakes v Fulcher, 210 Va. 542, 172 S.E.2d 751

SPO oe eee ek ot ee RTL 7,13

Ramdass v Commonwealth, 246 Va. 413, 437 S.E.2d

566 (1993), rev 'd.on other grounds, 512 U.S

ies (lowe. re aah 82 Rae, 14

27177 20 Va. 292, 456

$51 (1995) App. S.E.2d

5s ies aha AMAR elie da bie ear Bem IE bn &

7-77" Paeeeeed 24 Va App. 308, 482 S.

1, eee af a SE 8

Sinckler vy Commonwealth 241 Va 482, 404S E 2d.

227, cert. denied, 502U.S 944(1991) sss 8

Suickler vy Pruett, 149 F.3d 1170, 1998. WL 340420

COGS. Were. oS. OF A Eee 18,19

United States v Agurs, $10 F.2d 1249(DC Cir 1975) 17

United States v_ Brown, 562 F.2d 1144

(9th Cir. 1977)

_ 17,18

iv

CASES

United States v Davis. 785 F.2d 610 (8th Cir 1986) 1°.

Lininasd Sane. SAGES. 564 F.2d 763

(7th Cir. 1977).

United States v Kelly, 35 F.3d 929 (4th Cir. 1994)

United States v Morris, 80 F.3d 1151)

(7th Cir. 1996).........

United States v Payne, 63 F.3d 1200 (2nd Cir. 1995)

United States v Perdomo, 929 F.2d 967

ON ho 0) NS Bere ey ee ee

United States v Shelton, 588 F.2d 1242

Pea SOON es PSR Pes

United States v_ Todd, 920 F.2d 399 (6th Cir 1990)...

United States v_ Valera. 845 F.2d 923 (11th Cir. 1988) .

United States v. White, 970 F.2d 328 (7th Cir. 1992)

Watkins v Commonwealth. 229 Va 469, 331 S.E.2d 422

(1985), cert. denied, 475 U.S. 1099 (1986)

Westley v_ Johnson, 83 F.3d 714 (Sth Cir. 1996) .......

White v_ Commonwealth. 12 Va. App. 99, 402 S.E.2d

692, (1991)

PAGE

1§

17

STATUTES PAGE

Va. Code § 2.1-342(b)(1) c )

Va. Code § 8.01-654(c)(1)

'>

RULES PAGE

United States Supreme Court Rule 37.3 ._. fate eee. ty

United States Supreme Cour Rule37.6.......... ]

Virginia Supreme Court Rule3A:1] ..............__ 8

Virginia Supreme Court Rule 3A:] MD wee ES. &

Virginia Supreme Court Rule 3A:14 _- : Cee ete. 1]

Virginia Supreme Court Rule 4: 1(b)(3) . eee

Virginia Supreme Court Rule 4: PSF . 7,10

1980-8] Va Op. Atty Gen 141, 198] WL 14108)

(VaAG) ........ POPES pt: O01

1997 WL 174148 (Ve AG)... Sot ies 9,15

vi

INTEREST OF AMICI] CURIAE

The National Associaton of Cnmina] Defense Attorneys

(NACDL), the Virginia College of Criminal Defense Attorneys |

(VCCDA). the Virginia Tna] Lawyers Association (VTLA). and

the Virginia Capital Case Clearinghouse. a Special Provect of

Washington & Lee University School of Law (VCCC), file this

joint brief in suppor of the petitioner. See, Rule 37.3(a)

Counsel for petitioner has consented to the filing of this bnef

Counsel for respondent has refused to consent to the filing of

this Brief’

NACDL is a non-profit corporation with a membership

of more than 10,000 attorneys and 28,000 affiliate members in

50 states. The Arserican Bar Association recognizes NACDL

as an affiliate organization and awards it full representation in

its House of Delegates. NACDL was founded in 1958 to

promote study and research in the field of criminal law, to

disseminate and advance knowledge of the law in the area of

criminal practice, and to encourage the integrity, independence,

and expertise of defense lawvers in criminal cases. NACDL

seeks to defend individual liberties guaranteed by the Bill of

Rights and has a keen interest in ensuring that legal proceedings

are handled in a proper and fair manner. Among NACDL’s

objectives are to promote the proper administration of justice.

VCCDA is recognized by NACDL as its Virginia state

affiliate VCCDA is a statewide, non-profit organization of

approximately 416 criminal defense practitioners. Its purpose

No counsel for any party to this case authored this brief in

whole or in part. and no person or entity other than NACDL,

VCCDA, VTLA or VCCC and their members, made any

monetary contributions to its preparation or submission. See

Rule 37.6.

is tO enhance the quality of cnmuna! justice in the

Commonwealth of Virginia and to advance the same genera!

goals of NACDL within the framework of Virgima practice To

that end. 1 conducts continuing legal education semunars for

cnmunal defense practitioners to improve the quality of their

representation. In addition, it provides direct services to its

members when they face important issues implicating the

fundamental fairness of the criminal justice system. including

es advice and support, research and the filing of amicus

nefs.

VTLA is non-profit professional organization of

approximately 2,800 trial lawyers throughout the

Commonwealth of Virginia. Founded in 1960, VTLA works to

enhance the professionalism and skills of trial lawyers and to

promote the fair and effective administration of justice. VTLA

includes among its interest sections a Criminal Law Section. Its

members regularly participate in trials in state and federal

courts’ As an association of trial lawyers dedicated to

preserving the rights of individual litigants in civil and criminal

trials, VTLA believes it is well situated to recognize issues of

importance to trial lawyers and their clients and to assist the

Coun. eres eae

Members of NACDL, VCCDA and VTLA are regularly

appointed by the courts of the Commonwealth and the United

States to represent capital and other defendants, and to

represent inmates in habeas corpus proceedings

VCCC is a clinical program of Washington and Lee

University School of Law Its competitively selected students

and tenured faculty director pursue a single paramount goal

making the right to effective assistance of counsel meaningful

in Virginia capital cases~ It has existed since 1988. assisting

defense counsel] at all stages of litigation in hundreds of cases

That experience has provided an excellent vantage point from

which to assess the issues now before this Coun

Amici recognize that the non-disclosure of materia!

exculpatory evidence by the State is a major impediment to

meaningful adversarial testing of the prosecution's case in

Virginia. The creative employment of procedural bars, such as

the one at issue in this case. to avoid remedving non-disclosure

exacerbates the problem of such non-disclosure and contributes

to the sporting nature of life and death litigation. In addition.

the Fourth Circuit’s interpretation and application of the so-

called “due diligence” exception to the constitutional duty of the

State to disclose exculpatory evidence eviscerates that

constitutional nght in the Commonwealth. Being committed to

the constitutional rights of all criminal defendants and to the

need for defendants to be able to vindicate those rights in both

the courts of the Commonwealth and the United States, Amici

believe that the decision in this case must be overturned

The brief of Amici does not address every point argued

by the parties. For example, Amici do not address the

arguments of the parties as to the materiality of the suppressed

evidence. Amici concentrate instead on two issues which may

The program statement of purpose reads “The Virginia Capital

Case Clearinghouse is not about theoretical or philosophical

support for or opposition to the death penalty. Rather, it 1s

about commitment to the principle that one who stands to

forfeit his life is entitled to the effective assistance of counsel,

both for his sake and for the sake of those who would take that

life.”

ge th RITE RE: Lt RNR NTE ERR ORT, TE 5 RTE Re Meee ee ne ee

assist the Cour -- Virgimia law. public policy and practice

related to discovery in criminal and post-conviction cases anc

the Fourth Circuit's interpretation and application of its “due

diligence” exception to the duty to disciose exculpatory

evidence. *

SUMMARY OF ARGUMENT

The Fourth Circuit predicated its finding that Petitioner

had defaulted his Brady claim on a theory never advanced by

Respondent -- indeed, on a theory that is entirely inconsistent

with Virginia law, public policy and practice. Contrary to the

assumption of the Court of Appeals, the investigatory files of

the prosecution and law enforcement agents are not subject to

discovery during habeas corpus proceedings in Virginia. In

post-conviction, discovery is narrower, not broader, than at

trial, and, at tral, such information is not discoverable. Indeed.

such information is privileged in Virginia, as the Virginia

Attorney General has opined in formal opinions and has

successfully argued in numerous Capital post-conviction cases

Moreover, in the context of claims of non-disclosure of

exculpatory evidence, declarations by prosecutors that no

exculpatory evidence exists, or that all such evidence has been

disclosed, are fina/, whether at trial or thereafter, and preclude

discovery, absent detailed factual allegations in the petition as

to the evidence not disclosed. In shor, discovery is not

available in Virginia to enable a habeas corpus petitioner to

investigate potential claims, regardless of the suspicions of

3

Amici adopt the Petitioner’s Statement of Facts. Copies of the

unpublished cour records referred to in this Brief have been

collected by counsel for Amici and will be provided upon

request to the Court or parties

4

counsel. but only. under extremel\ limited circumstances. to

facilitate proof of a claim after an evidentiary hearing has been

granted.

In addition to being wrong regarding Virginia post-

conviction practice, the Fourth Circuit has been dangerouslv

wrong about the Brady doctrine. In its recent decisions on the

subject, the Fourth Circuit has developed a unique interpretation

of the so-called “due diligence” exception to the duty of the

State to disclose exculpatory evidence. While two Courts of

Appeals have refused to recognize such an exception and two

others have limited it to the prevention of “blatant

gamesmanship” by defense counsel, the remaining Courts of

Appeals have applied the exception only where the evidence at

issue was readily available to the defense. On the other hand.

the Fourth Circuit has applied the exception whenever the Coun

can hypothesize a means by which the defense could have

discovered the evidence itself, regardless of its actual.

Consequently, the exception has swallowed the rule in the

Fourth Circuit, eliminating any incentive for prosecutors to

disclose such evidence.

ARGUMENT

The Fourth Circuit’s judgment was erroneous on two

grounds which Amici address here: (1) its conclusion that

exculpatory information in the files of the prosecutor and law

enforcement agents is subject to discovery is entirely

inconsistent with Virginia law, public policy and practice. and

(2) its unique interpretation of the so-called “due diligence”

exception to the constitutional requirement that exculpatory

evidence known to the prosecution be disclosed, threatens the

continuing vitality of the duty to disclose. For these reasons,

the decision must be reversed.

rr rt till

1. THE COURT OF APPEALS’ ASSUMPTION

THAT THE FILES OF PROSECUTORS AND

LAW ENFORCEMENT AGENCIES IN VIRGINIA

ARE READILY SUBJECT TO DISCOVERY IN

STATE POST-CONVICTION PROCEEDINGS IS

DIRECTLY CONTRARY TO VIRGINIA LAW.

PUBLIC POLICY AND PRACTICAL

EXPERIENCE AND CONTRADICTS THE

OFTEN STATED POSITION OF THE

COMMONWEALTH ITSELF

In finding that Petitioner was procedurally barred from

pursuing his due process claim under Brady vy Maryland. 373

U.S. 83 (1963), and its progeny, the Court of Appeals fashioned

from whole cloth the notion that habeas corpus petitioners in

Virginia are entitled to broad discovery, even as to claims for

which the petitioner does not yet have evidentiary suppon

Indeed, before the Court of Appeals reached that conclusion.

Respondent had never even suggested that Strickler would have

been entitled in state court to subpoena the police file

Under these circumstances, no habeas petitioner in

Virginia could have obtained police files through discovery At

tna], the Commonwealth had represented that it had made a// its

evidence available to the defense through an “open file.” In

response to an ineffective assistance of counsel claim in the state

habeas proceedings, the State denied the existence of any

undisclosed exculpatory evidence. attesting that it had provided

all the Commonwealth's exculpatory evidence through the

prosecution's “open file ”

A. Virginia Habeas Corpus Petitioners are not

Afforded Discovery to Investigate Possible

Claims

The suggestion by the Cour of Appeals that a

Virgimia habeas corpus petitioner who does not already know

the factual basis of his claim can simply subpoena the contents

of the police file is fanciful at best. First. a claim lacking factual

details would be summanily disrussed as a conclusory pleading.

even if the petitioner has no way to know the facts in the

possession of the Commonwealth's agents. See Fuzgerald v

Bass. 6 Va App. 38, 44, 366 S.E.2d 615, 618 (1988)(en banc)

(cimg, Penn v Smyth, 188 Va. 367, 370-1, 49 S.E.2d 600. 601

(1948). cert. demed, Ejizgerald . Thompson. 493 U.S. 945

(1989)

Moreover, even if summary dismissal could be avoided.

discovery in habeas cases is extremely limited The applicable

rule of coun provides that discovery is allowed only “with leave

of the court” and that the court “may deny or limit discovery...”

Va. Sup. Ct Rule 4:1(b)(5). A showing of “good cause” is a

prerequisite to obtaining discovery. See Rakes Fulcher. 210

Va 542, 547, 172 S$ E.2d 751, 756 (1970) (holding that

discovery is available only upon demonstration of substanual

need for the material) Thus, claim can not survive summary

dismissal. and the petitioner can not obtain discovery. unless he

can at least set forth the details of the exculpatory information

that exists and is sought White . Commonwealth, 12 Va App

99, 102, 402 S.E.2d 692, 694 (1991) *

While White involved a motion made at the trial level rather

than in post-conviction, discovery 1s more restrictive in habeas

corpus, not less. as the Commonwealth has consistently argued

_

’

B. Under Virginia Law. The Work Product of

Attorneys for the Commonwealth and Their

Agents is Privileged. Its Disclosure Would

Violate Virginia's Strong Public Policy and —

the Respondent's Consistent Position is that

It is not Discoverable.

Where, as here, the information sought is the

work product of the attorney for the Commonwealth or law

enforcement agents. Virginia courts are particularly vigilant in

. .

lumuting the petitioner's access See. e.g. Rosser»

Commonwealth, 24 Va App 308, 316, 482 S.E.2d 83. 87

(1997) (initial report of investigating officer not

discoverable)(citing, Ramurez v_ © ommonwealth. 20 Va App

292, 296-7, 456 S.E.2d $51, $53 (1995)) and Va Sup Ct Rule

3A:11(b)(2)), see also Va Sup. Ct Rule 4:1(b\3)(work

product of attorney's agents not discoverable absent showing of

£.g., Warden's Opposition to Motion for Leave to Invoke

Discovery in Goins v__Netherland Record No 962477

(Va. S.Ct. 1997)(Petitioner not entitled to more discovery than

at criminal trial) App 3, Director's Opposition to . _ Motion

for Order to Release Files and Motions for Discovery in M.D

Willams v_Angelone, Record No. 970491 (Va.S.C1. 1997)

(“... Willams is not entitled to most of the requested items

because he was not entitled to them even when he was a

criminal defendant in a criminal proceeding See Rule 34.11},

Sinckler v Commonwealth. [24] Va 482], 404 SE 2d 227,

233, [] cert. demed 502 US 944 (1991)"), Opposition to

Petitioner's Motion for Discovery in Yeatts v_ Murray (Cir Ct

Pittsylvania Co 1993)(" because Yeatts was not entitled to

such information at his crimunal trial, there is no basis for

discovery of this information in collateral proceedings”)

substanua! need)

Indeed. at every judicial and legislative tum. Virgimua has

opted for the non-disclosure of the work product of the

prosecutorial team The General Assembly has maintained the

privilege for such documents by exemptng al! criminal!

investigatory material from the disclosure requirements of

Virginia's Freedom of Information Act, even afier the

conclusion of the prosecution.’ Va. Code § 2.1-342(b)(1). See.

1980-81 Va Op. Atty. Gen. 141, 1981 WL 141051 at *3

(Va AG) For its part, Magrte a Coun of Virginia [has]

ld, 1981 WL 141051 at "3 (emphasis added). Consequently,

the Attornev General has concluded “that it would be contrary

10 public policy and the sound administration of justice for any

court routinely to order the prosecution in criminal cases to turn

over its files to defense attorneys.” ]d (Emphasis added)

Renee St ey ee because -

inst disclosure, it 1s the province o

oF pocar heme a aaacenies dle: to determine whether the

officer's notes should be disclosed to the defense 1997 WL

174144 (Va. AG.) That policy is so strong that, in one habeas

case, Fishery Murray. CL-89006620-00 (Cir. Ct. Bedford Co.)

the Attorney General sought to have the petitioner sanctioned

for even requesting police files under FOIA

Not surprisingly. the Attorney General has consistently

As recently as 1996. the Virginia General Assembly rejected an

attempt to amend this provision of the FOIA by allowing for the

release of such material following the conclusion of the tra! and

direct appeal in a criminal case House Bil) 974 See.

http:/Negis state va us/cgi-bin/legp 504

g

argued that such documents are privileged ‘ And. under the

ype of Coun, privileged documents are exempt from

iscovery im state habeas proceedings Va Sup Ct Rul

4-1(b)(5) " : sen

é

See, e.g., Respondent's Response to Motion to Conduct

Discovery in King vy Murray. No. CL93000211 (Cir Ct

Roanoke Co. 1993) (“The requested materials, mcluding the

Commonwealth’s files and records and the files and records of

the named law enforcement officers are privileged matters, not

discoverable by the petitioner.”); Respondent's Objection to

Petitioner’s Motion for Leave to File a Request for the Issuance

ofa Subpoena Duces Tecum...in T_ Williams v Thompson, No

LP 88-8] (Cir.Ct. City of Danville 1989) (“When one considers

the legisiative intent expressed in the Freedom of Information

Act, the Supreme Court of Virginia's intent expressed in the

cnmunal rules, and the case law from across the country, reasons

compels the conclusion that the criminal investigative files of the

Commonwealth, fall within the meaning of the word

“privileged” as used in Rule 4:1(b)(5)"), Respondent's

Memorandum in Opposition to Petitioner’s Motion for Leave

to Conduct Discovery from the Commonwealth in Correll v

Thompson, No. 87-04-1787 (Cir Ct. Franklin Co. 1987). (“lt

would be a bizarre result indeed to hold that a criminal

defendant, whose freedom hangs in the balance. is precluded

under Rule 3A:14 from obtaining criminal investigative files, but

the policy reasons underlying the rule somehow dissipate to

allow the same individual to gain access to the same files by

filing a civil habeas corpus action. The Supreme Coun of

Virginia, in promulgating the rules, never intended such an

anomalous result"), Response to Petitioner's Motion for Leave

to Conduct Discovery in Beaver v_ Thompson, No

. 3 _ 88-

(CirCt. Prince George Co. 1988)(same). ig

10

Consistent with that public policy. and contrary to the

federal rule. see. Jencks . United States. 33 U.S 687 (195%).

among others. Virginia has also refused to require prosecutors

to make the statements of its witnesses available to the defense

even after thev have testified. Bellfield . Commonwealth. =15

Va. 303. 306-7, 208 §. E.2d 771, 774 (1974), cert. denied. 420

U.S. 963 (1975). In so holding, the Virginia Supreme Coun

concluded that the rule of Jencks would be inconsistent with “the

same policy of fundamental fairness in protecting the ability of

the Commonwealth to prosecute, which we recognized in our

earlier cases and led to the adoption of [Va Sup Ct. Rule

3A‘14....” Belifield, 215 Va. at 307, 208 S.E.2d at 774 See also

Abdell v Commonwealth 173 Va 458, 472. 2 S.E.2d 293. 298-

99 (1939) (a rule allowing pretrial disclosure of the

Commonwealth's evidence would “tend to subject the attorney

for the Commonwealth to great annovance. lead to the probable

destruction or loss of material evidence.... Such a rule.. would

_subvert the whole system of criminal law”).” Indeed, it does

not even require disclosure of the names of the Commonwealth s

witnesses prior to their taking the stand. See, e.g., Watkins \

Commonwealth, 229 Va 469, 479. 331 § E.2d 422, 430-3)

(1985), cert. denied, 475 U.S. 1099 (1986)

Nor is the privilege for investigatory information limited to

criminal litigation. See, 1980-81 Va Op Atty Gen. 141, 198)

WL 14105] at *2 (noting that. in Ine Comm of Va Dept Of

State Police. Record No. 781249 (Va Sup. Ct. 1978), the

Court, at the behest of the Attorney General, issued a writ of

prohibition barring a trial court from enforcing its order in a

civil case directing the State Police to disclose the results of its

related investigation)

12

Not only the law. but also the lesson of practca!

expenence in Virgina belies the theory of discovery asserted b\

the Court of Appeals For example, since exclusive onginal

junsdicuon over capital habeas corpus cases was vested in the

Virgima Supreme Court in 1995, see. Va Code § 801-

654(c)(1), that court has denied discovery in each of the twelve

cases in which it has been requested '

It is hardly surprising. therefore, that the theory advanced

by the Court of Appeals was not advanced by Respondent:

himself The Commonwealth, represented by the Attorney

General, has consistently and successfully argued that, where the

petitioner has not already alleged sufficient facts to state a

consututional claim, he is not entitled to discovery to enable him

to mvestigate potential claims, no matter how suspicious of

prosecutonal misconduct he may be.’ Consequently, in each of

The last grant of discovery was in 1992, in Payne y_ Thompson.

(Cir. Ct. Powhatan Co. 1990)

5

See, e.g. Respondent's Response to Motion to Conduct

Discovery in King vy Murray, No. CL93000211 (Cir.Ct.

Roanoke Co. 1993) (“Petitioner's speculations are insufficient

basis for discovery of the prosecutor and police files”):

Warden's Opposition to Motion for Leave to Invoke Discovery

in Goins v Netherland. Record No 962477 (VaS.Ct

1997)(Petitioner not entitled to discovery because Brady claims

are “speculative” and petitioner cannot show he is entitled to

rebef based on his petition), Opposition to Petitioner’s Request

for Subpoena Duces Tecum in Stewar vy Angelone, Record

No. 952042 (Va.S.Ci. 1996)(Petitioner not entitled to his own

medica] records from pre-trial] incarceration as he has failed to

produce evidence in habeas petition showing he was not

12

the habeas corpus cases in which discovery of any kind has beer:

granted. an evidenuary hearing had already been ordered "See

also, Rakes. 210 Va at 546, 172 S.E.2d at 755 (“The mere

asseruon that discovery is necessary for @ movant to

investigate fully and prepare his case 1s clearly insufficient as a

statement of good cause...")

Counsel’s suspicions that exculpatory evidence exists

simply do not legally suffice in Virginia to justify discovery of the

work product of the prosecutor or law enforcement agents. See,

Rakes, 210 Va at 517, 172 SE.2d at 756, Hughes v

competent at the time of trial); Respondent's argument on

petitioner’s discovery motions in Mueller v Murray. No CL94-

HC-550 (Cir.Ct. Chesterfield Co. 1995)("The petitioner seems

to suggest that, well, | need to have discovery and | need to

have a plenary hearing and we will see if there is any validity to

my claims. This is putting the cart before the horse The

pleadings, based on the record [,] case law. et cetera have to be

cognizable in and of themselves —- you normally don’t have

discovery [in habeas cases] ”

16

See, Fitzgerald v. Bass, (Cir.Ct. Chesterfield Co. 1984), Fisher

vy. Murray, CL-89006620-00 (Cir. Ct. Bedford Co.), O*’Dell v.

Thompson, CL89-1475 (Cir.Ct. City of Virginia Beach 1990).

L Williams vy Thompson, No LP 88-8) (Cir.Ct City of

~Danville 1989), Payne v Thompson, (Cir.Ct. Powhatan Co

1990), Pruett vy Thompson, CL87-2070 (Cir.Ct. City of

Virginia Beach 1988), Evans v. Michel], No. 7371 (Cir.Ct. City

of Alexandria 1986); Jones v Blair, No. L-3652 (Cir. Ct. York

Co. 1985); Clark vy Morris. No. 50768 (Cir.Ct. Fairfax Co

1982).

13

Commonwealth 1§ Va App 510, §26. 446 S E.2d 45]. 46!)

(1994 wen banc). Ramdass v Commonwealth. 246 Va 413, 42¢-

21, 437 S.E.2d $66, 570-7) (1993). rev a. on other grounds, §\2

U.S 1217 (1994) See also Howard vy Warden. 232 Va 16. 17

348 S E.2d 211, 212 (1986) (noting circuit coun decision that

police files are pnvileged and not open for examination even

when state habeas petition alleges Brady violation and petitioner

moves for discovery) Thus, Strickler, who did not know the

facts necessary to plead a specific Brady claim. could not have

obtained discovery of undisclosed police files

Finally, there is no support for the suggestion that a

habeas petitioner in Virginia can obtain access to police

investigatory files by making an informal “request” for

exculpatory evidence during the state habeas proceedings. The

Commonwealth simply does not recognize the existence of a

conunuing post-trial duty to disclose exculpatory evidence. E.g.,

Director's Opposition to Renewed Motion for Expert Services,

Motion to Amend, Motions for Order to Release Files, and

Motion for Discovery in M.D Williams v Angelone, Record No

970491 (Va Sup.Ct. 1997) ("The “exculpatory evidence” cases

which govern a prosecutor's production of information in a

cnmunal tna] simply do not apply to a post-conviction proceeding

in which the Deparment of Corrections is the

defendant/respondent"); Opposition to Petitioner's Motion for

Disclosure of Exculpatory Evidence and Discovery in Cardwe]]

\_Angelone. Record No. 951539 (Va. Sup.Ct. 1995) (“Cardwell

has cited no authority for extending the rule in Brady to habeas

proceedings and respondent has found none”), Response in

Opposition to Motion for Disclosure of Favorable Evidence and

Statements, Motion for Extension of Time and Motion for Leave

to File Amended Petition in Royal v_ Netherland. Record No

960620 (Va. Sup.Ct. 1996) (“The affirmative obligations imposed

upon the Commonwealth under Brady simply do not apply :> the

14

post-conviction civil proceeding”) No Virgima court has helc

otherwise and the petitioners mouons for exculpatory evidence

in Cardwel]. Royal and Williams were denied by the Virgima

Supreme Court."

In the face of an affirmative denia] by the Commonwealth

as to the existence of exculpatory evidence. no discovery 1s

available. See, Lowe vy Commonwealth. 218 Va. 670, 679, 239

S.E.2d 112, 118 (1977) (defendant not entitled to discovery

absent clear showing that state failed to comply with the tnal

court’s general order to turn over any exculpatory matenal), cer’.

denied, 435 U.S. 930 (1978). As this Court has noted.

“‘lu}niess defense counsel becomes aware that other exculpatory

evidence was withheld and brings it to the court’s attention. the

prosecutor’s decision on disclosure is final.’ Pennsylvania v

Richie, 480 U.S. 39, 59 (1987). Also, 1997 WL 174144 at "2

(Va.A.G.). As a consequence, Virginia does not even require

counsel to demand exculpatory evidence after the

Commonwealth Attorney has advised the defense that none

exists. See, Fitzgerald, 6 Va.App. at 48, 366 S.E.2d at 620-21

In short, discovery in Virginia is not available to a habeas

13

In Cardwell v_ Angelone, Record No. 951539 (Va. Sup. Ct

1995), the accomplice witnesses testified they received no

promises or benefits, yet two of them were not prosecuted at

all. The most important accomplice witness suggested in his

confession that he had been promised a benefit for cooperating

and he ultimately did enter into a highly beneficial plea

agreement. Nevertheless, discovery of exculpatory evidence as

to these witnesses was denied and the claim was dismissed. See,

Motion for Disclosure of Exculpatory Evidence and for

Discovery, Order.

15

peuuoner for the purpose of investigating and identifving possible

clams Rather. discovery is available. if at all. onlv to aid in the

proof of clasms which have already been pied with sufficien:

factual specificity to demonstrate the petitioner's entitlement to

rebef if those facts are proven at an evidentiary hearing That 1s

al] the more true where the evidence which the petitioner seeks

would be contained in the files of the prosecutor or the police.

especially if the Commonwealth states that all its evidence was

disclosed to the defense The suggestion of the Coun of

Appeals, therefore, that Strickler could have subpoenaed the

police files, when he lacked sufficient information to plead his

Brady-related claim fully, and in the face of both the

Commonwealth's asserted “open file” at trial and its denials as to

the existence of exculpatory evidence during post-conviction

proceedings, 1s entirely inconsistent with Virginia law, public

policy and practical expenence, and with the often stated position

of the Attorney General, on behalf of the Commonwealth.

a. TSE FOURTH CIRCUIT'S UNIQUE

INTERPRETATION OF BRADY V. MARYLAND

AND ITS PROGENY HAS CAUSED ITS “DUE

DILIGENCE” EXCEPTION TO SWALLOW THE

RULE THAT THE PROSECUTION MUST

DISCLOSE EXCULPATORY EVIDENCE.

For the State to violate Brady. it must suppress evidence

See, Brady, 373 U.S. at 86-90. Absent suppression, there is no

violation Some courts. however. have additionaliy created a so-

called “due diligence” exception to the Brady doctrine, relieving

the State of its disclosure obligations where the evidence 1s

otherwise available to the defense

Only the Coun of Appeals for the Fourth Circuit has

adopted and applied an interpretation of the so-called “due

16

diligence” exception to the State's duty to disclose exculpatorn

evidence which shifts to the defense the burden to discover for

itself exculpatory evidence solely in the possession of the State

Some other Courts of Appeals have recognized the exception.

but have applied it only where the evidence was actually known

by, or was fully available to, the defense, or where the defense

actually had all the information needed to produce the evidence

itself See, e.g., Lugo vy Munox, 682 F.2d 7, 9-10 (ist Cir

1982); United States v Payne, 63 F.3d 1200, 1208-09 (2nd Cir

1995): United States v. Perdomo, 929 F.2d 967, 973 (3rd. Cir

1991); Westley v Johnson. 83 F.3d 714, 725-26 (Sth Cir. 1996),

United States vy. Todd, 920 F.2d 399, 405 (6th Cir. 1990), United

States vy. Morris, 80 F.3d 1151, 1170 (7th Cir. 1996), United

States v. Davis, 785 F.2d 610, 618 (8th Cir. 1986); United States

v. Brown. 562 F.2d 1144, 1151 (9th Cir. 1977), United States v_

Valera, 845 F.2d 923, 927-28 (11th Cir. 1988)."? Indeed, prior

However, two Courts of Appeals, the D.C. and Tenth Circuits,

have explicitly rejected the idea of any such “exception.” See,

Banks v_ Reynolds, 54 F.3d 1508, 1517 (10th Cir. 1995),

United States v Agurs, 510 F.2d 1249, 1253 (D.C. Cir

1975)(citing, Levin vy Katzenbach, 363 F.2d 287, 291 (D.C

Cir. 1966)), rev'd on other grds, 427 U.S. 97 (1976), and two

others have conceded the logic of the position of those two

Circuits, while adopting a highly restrictive rule of "diligence"

to avoid blatant "gamesmanship" by defendants. See, United

564 F.2d 763, 768 (7th Cir. 1977); United

States v_ Shelton, 588 F.2d 1242, 1250 (9th Cir. 1978). See

also United States v_ White, 970 F.2d 328, 337 (7th Cir

1992)(no duty of disclosure when information is “fully

available” to the defense). Thus, in reality, there is little

difference in the positions of these two Circuits and those of the

D.C. and Tenth Circuits, since, based upon the resulting lack of

17

to ts decision in Hoke . Netherland. 92 F.3d 1380 (4th Cir }

cert. demed. 117 § Ct 630 (1996). the Fourth Circuit similari,

lmuted application of this exception See. e.g, Uinned States .

Kelly 3§ F.3d 929, 933-37 (4th Cir 1994)(finding violation

based, yer alia, upon failure to disclose information contained

in affidavit which had been placed in cour file after star of tna!

even though Government had alened defense to relevant areas of

inquiry and even provided leads for successful pursuit of

information); Barnes v Thompson. 58 F.3d 971. 975-77

(1995)(holding defense counsel responsible for knowing evidence

adduced at the trial of a co-defendant)

As the Fourth Circuit rule has evolved in Hoke and now

Suuckler.“* however, the State is excused from disclosing

exculpatory evidence if the Cour, in retrospect, can hypothesize

some means by which the defense could have uncovered the

information itself, In the view of the Fourth Circuit, the

exception applies whether or not the defense knew the evidence

Or witnesses existed, what efforts it did make to uncover the

evidence, what difficulties the police themselves encountered in

discovering the information. or even whether the information was

located in places to which the defense had no access Thus. in

Hoke, the Court found no duty to disclose where counsel

attempted to uncover the information, but was met with hostility

matenality, the Tenth Circuit has also held that no constitutional

violauion occurs where the defense actually has the evidence.

Compare, Banks, 54 F.3d at 1517 with Davis, 785 F.2d at 618

and Brown, 562 F.2d at 115]

3%

Strickler v Pruett, 149 F.3d 1170, 1998 WL 340420 (4th Cir

1998)

16

and threats. where he did not uncover relevant witnesses. anc

where the police themselves had difficulty coaxing the truth from

the victim's “erstwhile bedmates " 92 F.3d at 1369 (Hall. J.

dissenting) Hoke. of course. was followed by the instant case.

in which the Fourth Circuit concluded, sua sponte. and in direct

conflict with the law of Virginia, that privileged information in

the possession of the police, the existence of which the

Commonwealth had denied, could simply have been subpoenaed

during the state habeas proceedings. See, Strickler, 1998 WL

340420 at *8

The Fourth Circuit has, thus, entirely shifted the burden

from the State (to disclose exculpatory evidence) to the defense

(to find that evidence itself), regardless of whether the defense

actually could have done so. If this does not formally abolish the

Brady doctrine, a mere three years after this Court reaffirmed it

in Kyles v_ Whitley, 115 S.Ct. 1555 (1995), it wounds it fatally.

Indeed, it eliminates any practical incentive for a prosecutor to

disclose evidence which may be harmful to the State’s case. A

defendant who does manage to discover the evidence himself will

have no complaint. However, an aggrieved defendant who does

not discover the evidence, once convicted, must not only find the

evidence that was suppressed at his trial and demonstrate its

materiality, he must also preclude any and all scenarios by which

he theoretically could have discovered the evidence himself prior

to trial, a burden constrained only by the limits of the Cour of

Appeals’ imagination.

CONCLUSION

For the foregoing reasons, the decision of the Court of

Appeals for the Fourth Circuit should be reversed.

19

Respectfully submutted

GERALD RKIN

Counse/ ecord

S30 E in Street, Suite 800

Richmond, VA 23219

(804) 788-4412

Attorney for Amici Curiae

NATIONAL ASSOCIATION OF CRIMINAL

DEFENSE LAWYERS

VIRGINIA COLLEGE OF CRIMINAL

DEFENSE ATTORNEYS

VIRGINIA TRIAL LAWYERS ASSOCIATION

VIRGINIA CAPITAL CASE CLEARINGHOUSE

20

APPENDIX

TABLE OF CONTENTS

Va.S.Ct. Rule 3A:11. .

Va.S.Ct. Rule 4:1(6X5).

Va. Code Ann. § 2.1-342(BX1\Supp. 1998)

(Virginia Freedom of Information Act) ..........

le

Va.S.Ct. Rule 3A:11:

VIRGINIA SUPREME COURT RULE 3A:11.

DISCOVERY AND INSPECTION

(a) Application of Rule. This Rule applies only to

prosecution for a felony in a circuit court.

(b) Discovery by the Accused.

(1) Upon written motion of an accused a court shal! order

the Commonwealth's attorney to permit the accused to inspect and

copy or photograph any relevant (i) written or recorded statements

or confessions made by the accused, or copies thereof, or the

substance of any oral statements or confessions made by the

accused to any law enforcement officer, the existence of which is

known to the attorney for the Commonwealth, and (ii) writien

reports of autopsies, ballistic tests, fingerprint analyses,

handwriting analyses, blood, urine and breath tests, other scientific

reports and written reports of a physical or mental examination of

the accused or the alleged victim made in connection with the

particular case, or copies thereof, that are known by the

Commonwealth's attorney to be within the possession, custody or

control of the Commonwealth.

(2) Upon written motion of an accused a court shal! order

the Commonwealth's attorney to permit the accused to inspect and

copy or photograph designated books, papers, documents, tangible

objects, buildings or places, or copies or portions thereof, that are

within the possession, custody, or control of the Commonwealth,

upon # showing that the items sought may be material to the

preparation of his defense and that the request is reasonable. This

subparagraph does not authorize the discovery or inspection of

statements made by Commonwealth witnesses or prospective

Commonwealth witnesses to agents of the Commonwealth or of

reports, memoranda or other internal Commonwealth documents

made by agents in connection with the investigation or prosecution

of the case, except as provided in clause (ii) of subparagraph (6)(1)

of this Rule.

2e

Va.S.Ci. Rule 4:1(0\(5)

VIRGINIA SUPREME COURT RULE 4:1

GENERAL PROVISIONS GOVERNING DISCOVERY

(b) Scope of Discovery. Unless otherwise limited by order

of the court in accordance with these Rules, the scope of ayscover)

is as follows:

(5) Limitations on Discovery in Certain Proceedings. \p

any proceeding (1) for separate maintenance. divorce or annulment

of marriage, (2) for the exercise of the right of eminent domain.

or (3) for a writ of habeas corpus in the nature of coram nobis: (a)

the scope of discovery shal] extend only to matters which are

relevant to the issues in the proceeding and which are not

privileged; and (b) no discovery shall be allowed in any proceeding

for a writ of babeas corpus or in the nature of coram nobis without

prior leave of court, which may deny or limit discovery in any

such proceeding. In any proceeding for divorce or annulment of

marriage, # notice to take depositions must be served in the

Commonwealth by an officer authorized tu serve the same, except

that, in cases where such suits have been commenced and ap

appearance bas been made on bebalf of the defendant by counsel.

notices to take depositions may be served ip accordance with Rule

1:12.

3e

Va. Code Ann. § 2.1-342(B\(1 (Supp. 1998):

VIRGINIA FREEDOM OF INFORMATION ACT

Section 2.1-342. Official records to be open to inspection;

procedure for requesting records and responding to request;

charges; exceptions to application of chapter. - A. Except as

otherwise specifically provided by law, al! official records sbal! be

open to inspection and copying by any citizens of the

Commonwealth during the regular office hours of the custodian of

such records. Access to such records shall not be denied to

citizens of the Commonwealth, representatives of newspapers and

magazines with circulation in the Commonwealth, and

representatives of radio and television stations broadcasting in or

into the Commonwealth. The custodian of such records shal! take

all necessary precautions for their preservation and safekeeping.

Any public body covered under the provisions of the is chapter

sball make an initial response to citizens requesting records open

to inspections within five work days after the receipt of the request

by the public body which is the custodian of the requested records.

Such citizen requests shal] designate the requested records with

reasonable specificity. A specific reference to the is chapter by the

requesting citizen in bis requesi shall not be necessary to invoke

the provisions of this chapter and the time limits for response by

the public body. The response by the public body within such five

work days shall be one the following responses:

1. The requested records shall be provided to the

requesting citizen.

2. If the public body determines that an exemption applies

to all of the requested records, it may refuse to release such

records and provide to the requesting citizens a written

explanations as to why the records are not available with the

explanations making g specific reference to the applicable Code

sections which make the requested records exempt.

3. If the public body determines that an exemption

applies to a portion of the requested records, it may delete or

excise that portion of the records to which an exemption applies,

4s

but shal) disclose the remainder of the requested records and

provide to the requesting cilizen # written explanations as to wb)

these portions of the record are not available to the requesting

citizen with the explanation making specific reference to the

applicable Code sections which make that portion of the requested

records exempt. Any reasonably segregatable portion of an official!

record shall be provided to any person requesting the record after

the deletion of the exempt portion.

4. If the public body determines that it is practically

impossible to proved the requested records or to determine whether

thy are available within the five-work-day period, the public body

shal] so inform the requesting citizen and shall have an additional

seven work days in which to provide one of the three preceding

responses.

B. The following records are excluded from the provisions of this

chapter but may be disclosed by the custodian in his discretion.

except where such disclosure is prohibited by law:

1. Memoranda, correspondence, evidence and complaints

related to criminal investigations; adult arrestee photographs when

necessary to avoid jeopardizing an investigation‘in felony cases

unti] such time as the release of such photograph will no longer

jeopardize the investigation; reports submitted to the state and loca!

police, to investigators autborized pursuant to § 53.1-16 and to the

campus police departments of public institutions of higher

educations as established by Chapter 17 (§ 23-232 et seq.) of Title

23 in confidence; portions of records of local government crime

commissions that would identify individuals providing information

about crimes or criminal activities under a promise of anonymity;

records of local police departments relating to neighborhood watch

programs that include the names, addresses, and operating

schedules of individual participants in the program that are

provided to such departments under a promise of confidentiality;

and al] records of persons imprisoned in penal institutions in the

Commonwealth provided such records relate to the imprisonment.

Information in the custody of law-enforcement officials relative to

Se

the identity of any individual other than a juvenile who is arrested

and charged, anc the status of the charge or arrest, shal! not be

excluded for the provisions of this chapter.

Criminal incident information relating to felony offenses

Shall not be excluded from the provisions of the chapter; however.

where the release of criminal incident information is likely to

jeopardize an ongoing criminal investigation or the safety of an

individual, cause a suspect to flee or evade detection, or result in

the destruction of evidence, such information may be withheld

until the above-referenced damage is no longer likely to occur

from release of the information.