Post-Conviction Discovery And Funds David J. Nathanson, Wood & Nathanson, LLP, MACDL Post-Conviction Litigation Conference, March 24, 2017

Rule 30(c)(4) (4) Discovery. Where affidavits filed by the moving party under subdivision (c)(3) establish a prima facie case for relief, the judge on motion of any party, after notice to the opposing party and an opportunity to be heard, may authorize such discovery as is deemed appropriate, subject to appropriate protective order.

Simultaneous motion for new trial required? A) Yes, maybe. B) Try anyway! C) No, maybe.

Why “No, maybe”? Rule 30(c)(3) says “motions” not “motions for new trial”. There are lots of motions under Rule 30. Due process should not require you to put the client’s head in the lion’s mouth. Such a requirement could be an ineffective remedy for protecting a substantive constitutional right like Brady.

Prima Facie Case “Discovery is appropriate where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he or she is entitled to relief.” Commonwealth v. Daniels, 445 Mass. 392, 407 (2005) (emphasis added, citing Reporters' Notes).

Are affidavits required? Yes. Rule 30(c)(3). Except for purely legal matters. Affidavits from counsel based on reliable identified hearsay may suffice. Commonwealth v. Lampron, 441 Mass. 265, 270-71 (2004).

Inherent Authority Discovery can be an inherent authority. See Commonwealth v. Teixeira, 475 Mass. 482, 488–95 (2016) (inherent authority to order discovery prior to a probable cause hearing). Power to enforce court’s own orders (i.e., pre- trial discovery orders). Prosecutor can’t just wait out his obligations. Commonwealth v. Gallarelli, 399 Mass. 17, 23–24 n. 7 (1987); Commonwealth v. Healy, 438 Mass. 672, 678 (2003).

Brady Duty The Commonwealth’s Brady duty continues post-conviction. Commonwealth v. Daniels, 445 Mass. 392, 404–405 (2005) Commonwealth v. Murray, 461 Mass. 10, 17-19 (2011).

M.G.L. c. 278A, § 7(c). At least as to forensic testing: “may authorize such discovery as provided for under Rule 30(c)(4) . . . from either party or any third party as is deemed appropriate. . . . The court, when considering such discovery requests, shall not require the establishment of a prima facie case for relief under Rule 30 of the Massachusetts Rules of Criminal Procedure.”

Ethical Duty Imbler v. Pachtman, 424 U.S. 409, 427 n.25 (1976). Mass. R. Prof. Cond. 3.8(c) (pre-trial Brady duty does not include “materiality” requirement). Mass. R. Prof. Cond. 3.8(i-k) (limiting post- conviction duties to “reasonable likelihood” of innocence).

Motions for Funds Motion for new trial not required. Rule 30(c)(5). “The court, after notice to the Commonwealth and an opportunity to be heard, may also exercise discretion to allow the defendant costs associated with the preparation and presentation of a motion under this rule.”

Motions for Funds (cont’d) Find an expert! Figure out the rate. Talk to the expert. Make a showing. Don’t lowball. Endorsed motion to the expert. Make sure they’re set up in Vbill.