Professional Documents
Culture Documents
6727
Bonneville County Public Defenders 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
Petitioner,
vs.
RESPONSE TO STATES
STATE OF IDAHO
RECONSIDERATION, MOTION
Respondent.
PETITIONERS
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 States Motion for Reconsideration of this Courts
Decision and Order of
September 29, 2016. The Courts Order denied the States Motion to Dismiss Tapps
Fourth Petition for
Post-Conviction Relief. The States 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 STATES MOTION TO RECONSIDER Page 1
I.
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 STATES MOTION TO RECONSIDER Page 2
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 STATES MOTION TO RECONSIDER Page 3
II.
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 STATES MOTION TO RECONSIDER Page 4
iii.
iv.
Counsel did not find the polygraph video of 1/15/97 in the files. 10
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 counsels files in 2016, they satisfy the States 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
Bradys 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
counsels 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 STATES 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 States motion for reconsideration of the
Courts
order of September 29, 2016, should be denied.
If the Court denies the States Motion for Reconsideration, the Court need not read
further. The
remainder of this pleading addresses why the court should not grant the States
Motion to Dismiss.
III.
Even if all seven polygraph videos had been produced, had been properly identified
in discovery
pleadings, and the cassette boxes had been correctly labeled, Tapps 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.
15 The new evidence shows Tapp was coerced into confessing by the police, a
violation of Tapps 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 STATES MOTION TO RECONSIDER Page 8
IV.
The States motion to dismiss does not provide the required evaluation of Tapps
claims. This Court
cannot dismiss either of Tapps 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 STATES 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 Tapps 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 Tapps 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 STATES MOTION TO RECONSIDER Page 10
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 States Motion to Dismiss should be denied:
A. In the States motion to dismiss Tapps Fourth Verified Petition for PostConviction Relief there
is no motion to dismiss Tapps Second Cause of Action. In Tapps 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 States motion to dismiss Tapps Fourth Verified Petition for PostConviction Relief there
is no analysis of Tapps 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 States Motion to Dismiss should be denied.
RESPONSE TO STATES MOTION TO RECONSIDER Page 11
____________________________
John Thomas, ISB 6727
Attorney for Petitioner Chris Tapp
Chief Deputy Public Defender for Bonneville County
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 STATES 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 counsels 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.
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