February 1997
AFFIDAVIT OF
THOMAS W. HILLIER, II
STATE OF WASHINGTON)
)ss.
COUNTY OF KING )
_______________________ )
I, Thomas W. Hillier, II, being first duly sworn and upon my oath, depose and say:
1. I am an attorney and the Director of the Federal Public Defender’s Office for the Western District of Washington
2. I am counsel of record representing John L. Kirk in a criminal case brought in this district encaptioned United States v. John Irvin Pitner, et al., No.CR96-500C. Among other things, the Indictment charges a group of defendants with conspiring to make and possess destructive devices.
3. A number of exhibits were sent to the FBI lab in Washington, D.C. for examination and use in the government’s case. Results of those examinations were provided during the discovery process.
4. Trial commenced on January 15, 1997. The case was submitted to the jury on February 20, 1997. During the time the case was being tried, it was reported in the media that a Department of Justice draft report on its investigation of the FBI lab had been completed.
5. Portions of the report that related to government witnesses were given to our trial judge, under seal for in camera inspection. The government requested that the Court rule the materials therein not relevant to issues in our case and, therefore, not disclosable to the defense. The Court did disclose the information to the defense and allowed us to use the report while examining government witnesses.
6. The information we received was clearly impeaching evidence. The fact that it was released in a timely manner, despite government resistance, was useful to the defense.
After the government rested, I was informed that one of the witnesses was mentioned in the report in places other than those disclosed at trial. I also learned that the report was prepared using raw materials including notes of interviews, reports of interviews and possibly even transcripts or recordations of interviews. One of the witnesses in my case testified in a way which was superficially consistent with materials contained in the report. However, the testimony may have been inconsistent with statements actually made to government investigators.
Based upon this experience, it is my emphatic belief that discovery of the entire report and surrounding documentation at the earliest possible time is essential to lawyers who are preparing for trial or post-conviction relief. Defense counsel is best situated to assess the importance of the material to a client and that assessment is best made in the full light of the entire report and surrounding documentation. Obviously, the sooner one receives the material the better.
7. It is my belief that my cross-examination of the witnesses who appeared in my case was not as effective as it could have been had I received complete documentation of the investigation.
DATED this 20th day of February, 1997.
__________________________________
Thomas W. Hillier, II
SUBSCRIBED AND SWORN to before me this 20th day of February, 1997.
__________________________________
NOTARY PUBLIC in and for the State of
Washington, residing at Seattle.
My appointment expires 5/19/98.
National Association of Criminal Defense Lawyers (NACDL)