COUNTY COURT, BOULDER COUNTY, COLORADO Court Address: Boulder County Justice Center 1777 Sixth Street Boulder, Colorado 80302 Court Phone: __(303) 441-3750 PEOPLE OF THE STATE OF COLORADO. vs, TOBIAH PETER FERNSLER, COURT USE ONLY Defendant ‘Aifomey Name: Michael S, Petrash, Reg. # 46122 Case No: 15Mi202 Deputy District Attorney Boulder County Justice Center Division: 8 1777 Sixth Street Boulder, CO 80302 Attorney Phone: (303) 441-4818 Attorney Fax: (303) 441-4703 Attomey E-mail: mpetrash@bouldercounty.org PEOPLE'S RESPONSE TO MOTION FOR SANCTIONS FOR VIOLATIONS OF RULES OF DISCOVERY ‘The People, through Dis response to the Defendant's Motion. ict Attorney Stanley L. Garnett, respectfully submit the following 1) On August 24, 2016, six days before the previously scheduled jury trial, the People emailed copies of three (3) investigative reports produced by this office to Mr. Fernsler. The reports detail trial prep and informational meetings with witnesses listed in discovery. Prior to trial the People noticed it was unclear whether the People disclosed the reports. The People are unable to verify if and when the reports were disclosed due to errors in bate stamping made by the DA’s office discovery department. In the interest of caution the People emailed the documents to Mr. Fernsler, who stated that he had not previously received the reports. 2) A discovery order does not impose an affirmative obligation on the prosecution to reduce the oral statements of anticipated witnesses to writing and to furnish the substance of their testimony to the defense. People v. Garcia, 627 P.2d 255 (Colo. App. 1980) However, the People did reduce the statements to writing and intended to turn the statements over to defense because such a procedure is common practice in this jurisdiction and itis fair. Additionally, the People concede that the reports were not ‘turned over as soon as practical. 3) The People’s untimely disclosure is not the product of bad faith on the part of the People. ‘The late disclosure is the product of an error by the discovery department and poor communication between the administrative staff and the various DDA’s handling thecase, 4) A sanction for a failure to comply with Rule 16 is within the sound discretion of the trial court, People v. Lyle, 613 P.2d 896 (1980). The trial court should take into aecount the reason why the disclosure was not made, the extent of prejudice, if any, to the opposing party, the feasibility of rectifying that prejudice with a continuance, and any other relevant circumstances. People v. District Court, 793 P.2d 163 (Colo. 1990). An order preventing the district attorney from using certain evidence is a harsh sanction. People v. District Court, 664 P.2d 247 (Colo. 1983). Exclusion or suppression of evidence which should have been disclosed by prosecution to defense does not further search for truth and is not warranted where prosecutor had no actual knowledge of the evidence, where evidence is erucial to the case, where a continuance would cure any prejudice suffered by the Defendant, and where prosecutor did not act in bad faith. People v. District Court, 793 P.2d 163 (Colo. 1990). 5) Here, the reason for the late disclosure was human error absent bad faith. As soon as the People realized the office might not have turned over the documents the People emailed them directly to Mr. Fernsler. The testimony of the witnesses related to these reports will further the truth seeking process. The continuance did not unduly prejudice the Defendant because he has been granted a continuance of the jury trial, he awaits trial out of custody, and the continuance did not affect his speedy trial rights. As such, a continuance of the is the proper remedy for the late disclosure. The Defendant will have ample time to review the documents before the scheduled jury trial. WHEREFORE, the People ask the Court to deny the Defendant's motion, Respectfully submitted, By: alr STANLEY L. GARNETT Michael S. Petrash, 46122 DISTRICT ATTORNEY Deputy District Attorney August 31, 2016 IT IS SO ORDERED. Done this day of TudgeCERTIFICATE OF SERVICE Thereby certify that I mailed a true and correct copy of this pleading to: J Keith Collins Collins & Rafik, LLC 1881 9th Street, Suite 315 Boulder, CO 80302 Isl Dated: