DEFENDANT, by and through undersigned counsel and pursuant to Rule 3.220(n) of the Washington DC Rules of Criminal Procedure, Brady v. Maryland, 373 U.S. 83 (1963), and United States v. Agurs, 427 U.S. 97 (1976), respectfully requests this Honorable Court dismiss the Information in this case. As grounds for this Motion, the Defendant states as follows:
- On January 31, 2010, the Defendant’s co-worker, John Smith, reached into an open safe in the manager’s office at Denny’s Restaurant located at Fictitious Highway, Washington DC, Washington DC, and removed $680 cash.
- The restaurant had a security camera operating in the restaurant manager’s office at the time of the theft.
- At the time of the theft, the Defendant was in the office with the restaurant manager. Undersigned counsel has been informed that the entire incident and the described parties appeared on the security camera recording.
- Prior to calling police to report the theft, the restaurant manager viewed the video. Reportedly, police also viewed the video before impounding it into evidence. The State now claims that the Defendant acted as a distraction for the manager while XXXX stole the cash in question.
- The Defendant maintains she did not assist Smith with the theft and, in fact, warned him not to do so.
- Pursuant to discovery rules, a copy of the security video was requested from the State in June 2010. The video was not provided due to its destruction by the State subsequent to Smith’s guilty plea to the theft in April 2010.
- The video in question would provide exculpatory evidence in support of the Defendant’s assertion that she did not participate, nor act in complicity, with Smith when the cash was stolen.
- Due to the State agency either losing or destroying the video, the Defendant’s due process rights have been violated.
- The lost or destroyed tape creates a reasonable doubt that would not otherwise exist without the material evidence to the defense case.
- The lost tape is of great importance to the question of guilt or innocence because it would enable the Defendant to contradict the testimony of State witnesses.
- Dismissal of the State’s Information is the only viable and just remedy to this violation of the Defendant’s due process rights.
WHEREFORE, Defendant requests that this Honorable Court, grant this motion and dismiss the charges in this case.