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Hard Drive Turned Over to Criminal Defendant – Eight Years Later – eDiscovery Case Law

If you think discovery violations by the other side can cause you problems, imagine being this guy.

As reported by WRAL.com in Durham, North Carolina, the defense in State of North Carolina v. Raven S. Abaroa, No. 10 CRS 1087 filed a Motion to Dismiss the Case for Discovery Violations after the state produced a forensic image of a hard drive (in the middle of trial) that had been locked away in the Durham Police Department for eight years.

After the state responded to the defendant’s March 2010 discovery request, the defendant filed a Motion to Compel Discovery in October 2012, alleging that the state had failed to disclose all discoverable “information in the possession of the state, including law enforcement officers, that tends to undermine the statements of or reflects negatively on the credibility of potential witnesses”.  At the hearing on the motion, the Assistant DA stated that all emails had been produced and the court agreed.

On April 29 of this year, the defendant filed another Motion to Compel Specific Items of Discovery “questioning whether all items within the state’s custody had been revealed, including information with exculpatory or impeachment value”.  Once again, the state assured the court it had met its discovery obligations and the court again denied the motion.

During pre-trial preparation of a former forensic examiner of the Durham Police Department (DPD) and testimony of detectives in the case, it became apparent that a hard drive of the victim’s that was imaged was never turned over to the defense.  On May 15, representatives of the DPD located the image from the victim’s hard drive which had been locked away in a cabinet for eight years.  Once defense counsel obtained a copy of the drive, their forensic examiner retrieved several emails between the victim and her former boyfriend that were exchanged within a few weeks of the murder that belied the prosecution’s portrayal of the defendant as an unfaithful, verbally abusive and controlling husband feared by his wife.  In testimony, the defendant’s forensic examiner testified that had he known about the hard drive in 2005, steps could have been taken to preserve the emails on the email server and that they could have provided a better snapshot of the victim’s email and Internet activity.

This led to the filing of the Motion to Dismiss the Case for Discovery Violations by the defense (link to the filing here).

As reported by WTVD, Judge Orlando Hudson, having been recently ruled against by the North Carolina Court of Appeals in another murder case where he dismissed the case based on discovery violations by Durham prosecutors, denied the defense’s requests for a dismissal or a mistrial.  Sounds like interesting grounds for appeal if the defendant is convicted.

So, what do you think?  Should the judge have granted the defense’s request for a dismissal, or at least a mistrial?  Please share any comments you might have or if you’d like to know more about a particular topic.

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