In re Hale – Discovery Violations

I am reviewing some of the past E-Journals from the summer.  With twins, it is sometimes difficult to be diligent in reviewing the E-Journal daily.  This opinion was issued July 23rd and I thought it was worth posting.

Respondent was 11 years old during the incidents at issue and was charged with two counts of CSC I (engaging in penetration with a person under the age of 13).  He was alleged to have penetrated the victim’s anus with his penis.  Respondent filed a motion to dismiss and attached the expert affidavits of five physicians and/or psychologists who opined the prosecution was not in the best interests of respondent or the public.  They opined respondent’s genital measurements were such he was incapable of sexually penetrating the victim and causing the alleged anal trauma, his sexual-acting-out behaviors were normal prepubescent sexual experimentation, and he did not have the capacity to understand what he was doing was wrong.  The referee denied the motion without prejudice.

Later a show-cause hearing was held to decide if the prosecutor should be held in contempt for failing to turn over discoverable evidence. At the hearing, respondent reinvoked his earlier motion to dismiss.  The trial court dismissed the juvenile petition on the basis of the prosecutor’s multiple discovery violations and the expert affidavits attached to respondent’s earlier motion to dismiss.

The CoA held the prosecution’s various claims were without merit and analyzed respondent’s six issues related to the discovery violations.  The court held the prosecutor engaged in repeated discovery violations as to the discoverable items in her possession, notwithstanding court orders to turn them over.  Holding the prosecutor’s “repeated and willful discovery violations” constituted a legitimate basis in and of themselves to dismiss the petition charging the respondent-juvenile with CSC I arising out of his contact with a 10-year old acquaintance/friend, the court affirmed the trial court’s dismissal of the delinquency proceedings.  The court also found a police detective engaged in, at a minimum, inexcusable neglect as to discovery.

The lesson here is that there are serious consequences when the prosecutor decides to play games with discovery.  Make sure you are diligent in getting your discovery requests out and following up with the prosecutor and the court by motion when you are not receiving answers.  Most of my practice is in Oakland County and the prosecutors are very good about getting you discovery, but I am sure there are issues with discovery here and elsewhere.

You can download or view the case here: In re Hale