John Thomas ISB No.

6727
Bonneville County Public Defender’s Office
605 N. Capital Avenue
Idaho Falls, ID 83402
(208) 529-1330 Ext. 1105
e-jthomas@co.bonneville.id.us
Attorney for Petitioner Chris Tapp

IN THE DISTRICT COURT FOR THE SEVENTH JUDICIAL DISTRICT OF
THE STATE OF IDAHO, IN AND FOR THE COUNTY OF BONNEVILLE

CHRISTOPHER CONLEY TAPP
2016-2549

CASE NO. CV-

Petitioner,
vs.
RESPONSE TO STATE’S
STATE OF IDAHO
RECONSIDERATION, MOTION
Respondent.

PETITIONER’S
MOTION FOR
FOR HEARING

DATE
_________________________
To: The Honorable Alan C. Stephens, Judge of the District Court
To: The Honorable Daniel R. Clark, Prosecuting Attorney for Bonneville County and
Chief Deputy
Prosecuting Attorney John Dewey, Attorney of Record

COMES NOW Petitioner Christopher Conley Tapp, by and through his attorney John
Thomas, and
submits his Response to the State’s Motion for Reconsideration of this Court’s
Decision and Order of
September 29, 2016. The Court’s Order denied the State’s Motion to Dismiss Tapp’s
Fourth Petition for
Post-Conviction Relief. The State’s Motion for Reconsideration is set to be heard on
November 22, 2016,
at 10:30 am. There is also a status conference at that time.
RESPONSE TO STATE’S MOTION TO RECONSIDER Page 1

In addition, Petitioner respectfully moves this Honorable Court to set an evidentiary
hearing date(s) for
Tapp’s Fourth Petition for Post-Conviction Relief.

I.

MOTION FOR HEARING DATE

COMES NOW, Petitioner Christopher Conley Tapp, by and through his attorney, John
Thomas, and
moves this Honorable Court for a hearing date(s) to present evidence in support of
his Fourth Verified
Petition for Post-Conviction Relief.
Petitioner will present evidence regarding his:
1. FIRST CAUSE OF ACTION – Brady violations. Pursuant to I.C. § 19-4901 (1),
Petitioner will show
that a material exculpatory polygraph video was withheld 1 and four other
polygraph videos
were not disclosed2 in violation of Brady. The coercive polygraph video
evidence is exculpatory
and undermines confidence in the verdict.
2. SECOND CAUSE OF ACTION – new evidence. Pursuant to I.C. § 19-4901 (4),
Petitioner will

1 There are a total of seven (7) Tapp polygraph videos. The 1/15/97 polygraph
video, the Rosetta Stone of the polygraph and interrogation videos, was withheld
from the defense, negligently or by design. Four other videos were produced but not
disclosed – 1/10/97, 1/29/97, 1/30/97, 1/31/97. Two others were identified in
discovery documents and produced – 1/18/97 and 2/1/97. See Appendix A for more
detail.
2 Four (4) polygraph videos were “produced,” but not disclosed. These four videos
were disguised, i.e., they were camouflaged. They were not identified in discovery
pleadings. The video cassette boxes, in which they were contained, had labels that
did not identify the polygraph videos of 1/10/97, 1/29/97, 1/30/97 and 1/31/97 as
being on the videotape(s). On September 28, 2016, John Thomas found in two
cassette boxes polygraph videos of 1/10/97, 1/29/97, 1/30/97, 1/31/97. See
Appendix A for more detail.
RESPONSE TO STATE’S MOTION TO RECONSIDER Page 2

present new evidence of polygraph videos, not previously seen or heard,
proving Tapp was
coerced by the police into falsely confessing. If the polygraph evidence were
shown to a judge
or jury it would result in Tapp’s acquittal. The coercive polygraph videos
undermine confidence
in the verdict.
Petitioner will present actual video segments of Tapp polygraphs (7) and
interrogations (9). Testifying
will be:
a. Judge Michael Heavey (Ret.)3
b. Dr. Charles Honts4
c. Either Mr. Gregg McCary5 or Professor Stephen Drizin6
We estimate we will need four days of court time to present new evidence showing
Tapp was coerced
by the police into falsely confessing.

3 Retired Judge Heavey is the CEO of an innocence organization, Judges for Justice.
He has watched hundreds of hours of Tapp polygraph and interrogation videos. He
will present relevant video segments in chronological order. He has over 40 years of
experience as a lawyer (since 1976) or general jurisdiction trial judge (12+). He has
taught a CLE course on wrongful convictions and lectured to law students, law
faculty, lawyers and others on wrongful convictions over 50 times.
4 Dr. Honts is a Boise State University psychology professor. He is a nationally
recognized expert on the polygraph. He is also an expert on police interrogation
procedures and false confessions.
5 Gregg McCrary is a retired former FBI Supervisory Special Agent. He has
investigated violent crimes for over 40 years, is a former FBI profiler and is a
nationally recognized expert on false confessions.
6 Professor Drizin is a law professor at Northwestern University School of Law and
runs the Center on Wrongful Convictions. He is a nationally recognized expert on
false confessions.
RESPONSE TO STATE’S MOTION TO RECONSIDER Page 3

II.

STATE’S MOTION FOR RECONSIDERATION SHOULD BE DENIED

Four Tapp Polygraph Videos Found In Trial Counsel Files
On September 28, 2016, undersigned counsel searched the records of the appellate
public defender.
The appellate public defender had the files of Tapp’s trial attorney, Robert Booker. In
those files were
found two video cassette boxes that contained four (4) 7 Tapp polygraph videos.
These four polygraph
videos had not been previously identified as being produced.
State Moves for Reconsideration
Because of the finding of the above four polygraph videos the State has moved for
reconsideration of
the Court’s denial of the motion to dismiss on September 29, 2016.
Argument
DPA John Dewey argues “that discovery documents alone are insufficient to sustain
Petitioner’s claims.”
He has previously argued that the missing polygraph videos of 1/10/97, 1/15/97,
and 1/30/97 may
actually be in defense counsel’s files, but had not been formally recorded in
discovery pleadings.
He is partially correct, defense counsel on September 28, 2016, established the
following.
i.

The coercive polygraph videos of 1/10/97 and 1/30/97 were found in the
files.

ii.

The coercive polygraph video of 1/29/97 was also found in the files. The
Defense had
previously believed that this polygraph video did not exist. 8

7 The four polygraph videos were 1/10/97, 1/29/97, 1/30/97 and 1/31/97. (The
defense had assumed that the video of the 1/29/97 polygraph had been destroyed
and it no longer existed.)
8 In a 2/29/12 hearing, Det. Steven Finn testified under oath that he had not
“saved” the 1/29/97 polygraph video.
RESPONSE TO STATE’S MOTION TO RECONSIDER Page 4

iii.

Also found was the 1/31/97 polygraph video, it is not coercive. 9

iv.

Counsel did not find the polygraph video of 1/15/97 in the files. 10

Does “production” equal “disclosure?”
Normally the production of evidence would equal “disclosure” of the evidence, but
not in this case. We
respectfully submit there is a difference between “production” and “disclosure.”
Two Polygraph Videos Were Produced, Identified in Pleadings and on Cassette
Boxes
Two benign polygraph videos, 1/18/97 and 2/1/97, were accurately identified in the
discovery pleadings.
Their respective cassette boxes had labels that also clearly identified them. 11 Please
see Appendix A for
an accounting of all seven polygraph videos.
Four Polygraph Videos Were Produced, But Not Identified in Pleadings or on the
Cassette Boxes
Four videos [1/10/97, 1/29/97, 1/30/97, 1/31/97] were found in trial counsel’s files
on September 28,
2016. BUT they had not been “disclosed.” In effect, they were hidden. By
negligence or design, their
existence was kept secret from the defense. The four polygraph videos were not
identified in the formal
pleadings and were not identified on the cassette box labels. See Appendix A.
Hypothetical
9 The four polygraph videos were not identified in discovery pleadings, nor were
they identified on the cassette box labels. See Appendix A for detail on the
polygraph examination videos.
10 The 1/15/97 polygraph video is the Rosetta Stone of all the polygraph videos. It
ties together all of Tapp’s six stories and shows how the police were able to coerce
Tapp into falsely confessing. Using the leverage of Tapp’s immunity agreement they
were able to convince Tapp that he was actually at the scene of the crime. They did
this by continually telling him he was deceptive and Tapp’s subconscious had
blocked out his memory of being at the crime scene. In order to “pass” the
polygraph Tapp changed his stories to the police crime theory of the moment.
11 See Second Affidavit of John Thomas and Appendix A.
RESPONSE TO STATE’S MOTION TO RECONSIDER Page 5

Hypothetically, in 1997 Smith gave Jones a Bible. In that Bible, Smith secreted a
check for $10,000
payable to Jones (payment for a debt) and did not tell Jones it was there. Jones
never discovered the
$10,000 check. In 2016 Jones brings an action to collect the 1997 debt of $10,000
from Smith. Can Smith
successfully claim he has already tendered payment and his debt satisfied?
Such is the claim of the prosecutor today; the State argues that because four
polygraph videos were
found in trial counsel’s files in 2016, they satisfy the State’s debt to produce and
disclose them back in
1997. However, like the $10,000 check, they were “hidden” and not disclosed to the
recipient.
Does the secreting of four polygraph videos, negligently or by design, 12 satisfy
Brady’s mandate that
material exculpatory evidence is disclosed to the defense prior to trial? We think
not.
This complex set of facts concerning seven Tapp polygraphs can be distilled down to
the following, they
mandate against reconsideration:
a. There is still no record of the 1/15/9713 polygraph video being produced. It
was not found in trial
counsel’s files.14 See Appendix A.
b. The four polygraph videos of 1/10/97, 1/29/97, 1/30/97 and 1/31/97 were not
properly
disclosed. They were hidden from the defense. See Appendix A.
12 The benign Tapp polygraph videos for January 18, 1997, and February 1, 1997,
were clearly identified in discovery and on the cassette boxes. Four (4) polygraph
videos were produced but not identified in discovery pleadings and not identified on
the label of their respective video cassette box; i.e., they were not disclosed. See
Appendix A.
13 The 1/15/97 polygraph video is extremely coercive. It makes it possible to
understand exactly how and why Tapp kept changing his stories.
14 See Second Affidavit of John Thomas.
RESPONSE TO STATE’S MOTION TO RECONSIDER Page 6

c. The two non-coercive polygraph videos of 1/18/97 and 2/1/97 were clearly
identified in
discovery pleadings and on their respective cassette box. See Appendix A.
The critical polygraph video of 1/15/97 was not disclosed and four other polygraph
videos were not
properly identified and were, in effect, hidden. Essentially, five of the seven
polygraphs were not
disclosed to the Tapp trial defense. The State’s motion for reconsideration of the
Court’s
order of September 29, 2016, should be denied.

If the Court denies the State’s Motion for Reconsideration, the Court need not read
further. The
remainder of this pleading addresses why the court should not grant the State’s
Motion to Dismiss.

III.

TAPP’S SECOND CAUSE OF ACTION

Even if all seven polygraph videos had been produced, had been properly identified
in discovery
pleadings, and the cassette boxes had been correctly labeled, Tapp’s Second Cause
of Action survives. It
is separate and not connected to his First Cause of Action – Brady violations.
The seven polygraph videos have not previously been seen or heard by any court.
They show the police
employing extreme psychological coercion on Chris Tapp. They show how they
coerced and tricked Tapp
into changing his story five times. They are new evidence pursuant to I.C. § 19-4901
(4). This new
evidence, if presented to a judge or jury, would result in a Tapp acquittal.

RESPONSE TO STATE’S MOTION TO RECONSIDER Page 7

Tapp’s Second Cause of Action – New Evidence 15
Tapp’s second cause of action is based upon I.C. § 19-4901 (4), “new evidence.”
I.C. § 19-4901 (4) provides,
“There exists evidence of material facts, not previously presented and heard, that
requires vacation
of the conviction or sentence in the interest of justice;”
To prevail on a claim of “new evidence,” Idaho law 16 requires the defendant to
demonstrate:
(1) that the evidence is newly discovered and was unknown to the defendant at
the time of trial;
(2) that the evidence is material, not merely cumulative or impeaching;
(3) that the evidence will probably produce an acquittal; and
(4) that failure to learn of the evidence was not due to a lack of diligence on the
part of the
defendant.17
In an evidentiary hearing, Tapp’s defense will prove all four of the above prongs. We
will prove that new
evidence, not previously seen or heard, requires the vacation of Tapp’s convictions
in the interest of
justice. This is Tapp’s Second Cause of Action and it stands separate from his Brady
violations claim in his
First Cause of Action.

15 The new evidence shows Tapp was coerced into confessing by the police, a
violation of Tapp’s constitutional right to due process. See Connelly v. Colorado, 479
U.S. 157, 167 (1986). Also it is new evidence, Drapeau, infra.
16 State v. Drapeau, 97 Idaho 685, 551 P.2d 972 (1976).
17 At a hearing, retired judge Michael Heavey, who has over 40 years of legal
experience, will opine that there was no lack of diligence by defense counsel. No
reasonable attorney could foresee that the polygraph examinations of Tapp would
be used as coercive tool.
RESPONSE TO STATE’S MOTION TO RECONSIDER Page 8

IV.

STATE LAW REQUIRES A FULL ANALYSIS OF CLAIMS PRIOR TO
DISMISSAL

The State’s motion to dismiss does not provide the required evaluation of Tapp’s
claims. This Court
cannot dismiss either of Tapp’s claims without a proper analysis. 18
Idaho law requires a full analysis by the Court prior to granting a motion to dismiss.
This required
evaluation will lead the Court to a conclusion that both Tapp causes of action,
“undermine confidence in
the verdict.”
The case evaluation is required to prevent the continuation of a miscarriage of
justice. It would be unjust
to impose an arbitrary statute of limitations where a case evaluation shows the
petitioner has raised
important due process issues and his claims are adequately supported by facts and
claims in the
pleadings.19
In Kyles v. Whitney, 514 U.S. 419 (1995), the United States Supreme Court
conducted a detailed analysis
of Kyles’ claims. Kyles claimed, as does Tapp, both Brady violations and new
evidence. The U.S. Supreme
Court determined the Kyles verdict was not “worthy of confidence.” They granted
him a new trial. In
1998, the State of Louisiana dismissed all charges against Kyles and he walked out
of prison a free man.
He had spent 18 years on death row.
In Charboneau, 144 Idaho 900 (2007), the Idaho Supreme Court held the rigid
application of the statute
of limitations in I.C. § 19-4902 would preclude the court from considering “claims
which were simply not
18 See Charboneau v. State, 144 Idaho 900 (2007).
19 See Charboneau v. State, 144 Idaho 900, 174 P.3d 870 (2007); Rhoades v. State,
148 Idaho 247, 220 P.3d 1066 (2009). Federal law also requires a detailed analysis
of the claims, Kyles v. Whitley, 514 U.S. 419 (1995).
RESPONSE TO STATE’S MOTION TO RECONSIDER Page 9

known to the defendant within the time limit, yet raise important due process
issues.”
Charboneau Analysis
The Supreme Court in Charboneau, supra, established an analysis structure to be
applied to each case.
This evaluation model requires a two step process to determine if there should be
an equitable tolling
of the statute of limitations for a successive petition. 20
1. The first step is to determine if the petitioner raises important due process
issues.21
2. The second step is to determine if Tapp’s claims are supported by facts and
claims in the
pleadings.22
Charboneau First Step Satisfied
Tapp raises important due process issues, a. Brady violations,23 and b. new evidence
showing police
coercing Tapp into a false confession. 24 The first step of Charboneau is satisfied.
Charboneau Second Step Satisfied
Petitioner has shown through the affidavit of Dr. Charles Honts that the polygraph
was used as a ruse,
was a sham, was psychologically coercive in the extreme, and was administered
unethically by the
police. We see the extreme psychological coercion in the video affidavit of Judge
Michael Heavey (Ret.).
20 This is Tapp’s fourth petition.
21 Charboneau v. State, supra.
22 Charboneau v. State, supra.
23 Brady v. Maryland, 373 U.S. 83 (1963).
24 Colorado v. Connelly, 479 U.S. 157 (1985) held, inter alia, a false confession rises
to a constitutional due process violation if it was coerced by a state agent such as
the police.
RESPONSE TO STATE’S MOTION TO RECONSIDER Page 10

The second step of Charboneau is satisfied.
State Fails to Evaluate Tapp’s Claims
Although the State’s motion to dismiss cites Charboneau, the State’s briefing does
not include the
analysis required by the Supreme Court of Idaho. Petitioner has satisfied the two
step analysis to
determine if an equitable tolling of the statute of limitations contained in I.C. § 194902 should be
granted.
The State’s motion to dismiss should be denied.

V.

SUMMARY

This is a rare petition because it shows that Tapp is innocent. Most petitions for postconviction relief
do not show the defendant is innocent.
The State’s Motion to Dismiss should be denied:
A. In the State’s motion to dismiss Tapp’s Fourth Verified Petition for PostConviction Relief there
is no motion to dismiss Tapp’s Second Cause of Action. In Tapp’s response
brief we noted the
State had not addressed the Second Cause of Action and the second cause of
action stands
alone. It remains even if the Brady first cause of action were dismissed.
B. In the State’s motion to dismiss Tapp’s Fourth Verified Petition for PostConviction Relief there
is no analysis of Tapp’s claims pursuant to Charboneau v. State, supra.
C. Tapp has shown that the polygraph video of 1/15/97 has not been produced.
Tapp has shown
that four other polygraph videos were physically produced, but hidden, i.e.,
not disclosed.
The State’s Motion to Dismiss should be denied.
RESPONSE TO STATE’S MOTION TO RECONSIDER Page 11

Bottom Line - Ultimate Issue
To be successful a post-conviction petition alleging a Brady violation (1st Cause of
Action) and/or new evidence (2nd Cause of Action) must, in the final analysis,
“undermine confidence in
the outcome of the trial.”25
Both Tapp’s First Cause of Action - Brady violation and Second Cause of Action - new
evidence, clearly
undermine confidence in Tapp’s verdict.
Petitioner has shown through the affidavit of Dr. Charles Honts that the polygraph
was used as a ruse,
was a sham, was psychologically coercive in the extreme, and was administered
unethically by the
police. We see the extreme psychological coercion in the video affidavit of Judge
Michael Heavey (Ret.).
At a hearing Petitioner will present expert testimony from a nationally recognized
expert on false
confessions.26
RESPECTFULLY SUBMITTED this ______ day of November, 2016.

____________________________
John Thomas, ISB 6727
Attorney for Petitioner Chris Tapp
Chief Deputy Public Defender for Bonneville County

APPENDIX A - ACCOUNTING OF SEVEN (7) POLYGRAPH VIDEOS
25 Kyles v. Whitney, 514 U.S. 419, at 434 ((1995).
26 Either Professor Steve Drizin or Mr. Gregg McCrary.
RESPONSE TO STATE’S MOTION TO RECONSIDER Page 12

1. Polygraph video of 1/10/97
Discovery pleading27 paragraph 11., “h. Chris Tapp interview dated January
10, 1997”.
Cassette box labeled,28 “96-067, 96-03137, Christina Walden 2-25-96, 96081P, 96-05917, Merle Parsons 66-96, 96-14974, Chris Tapp, 1-10-97,
Homicide”.
This is a coercive polygraph. The discovery pleading identifies the video as an
“interview” not a polygraph. The cassette box had various numbers and three
persons identified, no “polygraph” was indicated in either the discovery
response or on the cassette box.
2. Polygraph video of 1/15/97
This coercive polygraph has not been produced; it is not identified as
produced in any discovery response nor was it found in a search of trial
counsel’s files.29 DPA John Dewey provided the Defense a copy of the 1/15/97
polygraph video in late September 2015.
3. Polygraph video of 1/18/97
Discovery pleading30 paragraph 11., “i. Chris Tapp polygraph dated January
18, 1997”.
Cassette box labeled,31 “Chris Tapp Polygraph 1/18/97”.
This is a benign polygraph, Tapp is smiling and appears to be happy. It is
clearly identified as a polygraph video in the discovery response and on the
cassette box.
This is exactly how all seven polygraph videos should have been produced
and identified.
4. Polygraph video of 1/29/97
Discovery pleading paragraph 11., “j. Chris Tapp polygraph, not dated”.

27 STATE’S SECOND SUPPLEMENTAL DISCOVERY RESPONSE dated March 21, 1997.
28 See photo of cassette box in Exhibit B to Second Affidavit of John Thomas, “h”.
29 See Second Affidavit of John Thomas dated September 29, 2016.
30 STATE’S SECOND SUPPLEMENTAL RESPONSE TO DISCOVERY dated March 21,
1997.
31 See photo of cassette box “i” in Exhibit B of John Thomas’ Second Affidavit dated
September 29, 2016.
RESPONSE TO STATE’S MOTION TO RECONSIDER Page 13

Cassette box labeled, “j. Melanie Briggs 32 3/05/97, 97-113, 97-115, 97-114

} Chris Tapp Polygraph”.33
This polygraph video shows Detective Finn informing Tapp of crime
information. Finn informs Tapp that the DNA of Hobbs, Sargis and Tapp does
not match semen DNA. He informs Tapp that Angie Dodge was murdered in
her bedroom, not her living room as Tapp had been saying up to this point.
The polygraph of 1/29/97 was given to defense counsel in late May of 2016.
We had previously not believed it existed. It was one of three Tapp polygraph
videos found on this cassette, the other two were 1/30/97 and 1/31/97.
Although the cassette box only indicates one Tapp polygraph, it actually
contains three Tapp polygraphs.
5. Polygraph video of 1/30/97
Discovery pleading paragraph 11., “j. Chris Tapp polygraph, not dated”.
Cassette box labeled, “j. Melanie Briggs 3/05/97, 97-113, 97-115, 97-114 }
Chris Tapp Polygraph”.34
This was an extremely coercive polygraph. Tapp is told he needs to save
himself from the death penalty by saying he was in fear for his life. He
stabbed Angie because he was threatened by Ben Hobbs.
6. Polygraph video of 1/31/97
Discovery pleading paragraph 11., “j. Chris Tapp polygraph, not dated”.
Cassette box labeled, “j. Melanie Briggs 3/05/97, 97-113, 97-115, 97-114 }
Chris Tapp Polygraph”.35
This was a benign polygraph. Tapp had previously confessed to stabbing the
victim the day before, 1/30/97.
7. Polygraph video of 2/1/97
Discovery pleading paragraph 11., “k. Chris Tapp polygraph dated February 1,
1997”.
Cassette box labeled, “k Thomas Brown polygraph 1/31/97, Chris Tapp
Polygraph 2/1/97”.
This is a benign polygraph. It is clearly identified in the pleading and on the
cassette box.

32 The defense does not know who Melanie Briggs is or her connection to the Tapp
case.
33 On this cassette were a polygraph of Melanie Briggs plus three polygraphs –
1/29/97, 1/30/97, and 1/31/97.
34 On this cassette were a polygraph of Melanie Briggs plus three polygraphs –
1/29/97, 1/30/97, and 1/31/97.
35 On this cassette were a polygraph of Melanie Briggs plus three polygraphs –
1/29/97, 1/30/97, and 1/31/97.
RESPONSE TO STATE’S MOTION TO RECONSIDER Page 14

This is exactly how all seven polygraphs should have been identified and
produced.
Photos of the actual cassette boxes found in trial counsel’s files on September 28,
2016, can be seen in the Second Affidavit of John Thomas. This affidavit was
submitted to the Court on September 29, 2016.
///////////////////////////////////END OF APPENDIX A/////////////////////////////////////////////////////

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