United States v. Narciso, Crim. No. 6-80884

Citation446 F. Supp. 252
Decision Date19 December 1977
Docket NumberCrim. No. 6-80884,7-80149.
PartiesUNITED STATES of America v. Filipina NARCISO and Leonora Perez.
CourtUnited States District Courts. 6th Circuit. United States District Court (Western District Michigan)










Philip Van Dam, James K. Robinson, U. S. Attys., Richard L. Delonis, Richard F. Yanko, Asst. U. S. Attys., Detroit, Mich., for plaintiff.

Edward R. Stein, Ann Arbor, Mich., Laurence C. Burgess, Detroit, Mich., Thomas C. O'Brien, Michael C. Moran, Ann Arbor, Mich., for defendants.

Memorandum Opinion and Order Denying Defendants' Motion to Strike January 27, 1977.

Memorandum Opinion and Order Denying Defendants' Motion To Suppress Testimony of Richard Neely February 11, 1977.

Memorandum Opinion and Order Granting Defendants' Motion in Limine February 11, 1977.

Memorandum Opinion and Order Granting Defendants' Motion to Strike Overt Acts February 11, 1977.

Memorandum Opinion Denying Defendants' Motion to Dismiss Superseding Indictment May 18, 1977.


PHILIP PRATT, District Judge.

During the months of July and August, 1975, 35 patients at the Ann Arbor Veterans Administration Hospital suffered a total of 51 cardiopulmonary arrests. An intensive epidemiological and criminal investigation was begun to determine the cause of these unexpected events. In June, 1976 a Grand Jury in this District returned an indictment charging the defendants with five counts of murder,1 ten counts of unlawfully mingling a poison in the food and medicine of certain patients,2 and conspiracy to commit those offenses.3 Before turning to the precise issues before the Court, it is appropriate to discuss some of the aspects of this case in general terms so that the rulings which follow may be put in proper perspective.

The indictment presents charges that, in a most dramatic way, raise difficult issues of medicine and law. The defendants are charged with a capital crime.4 If convicted they could be sentenced to life imprisonment. The fact that the defendants were nurses at the Veterans Hospital at the time of these arrests has contributed to the intense public interest in the case.5 Despite the eight month time interval between the arraignment and the scheduled commencement of trial, preparation has been time consuming and highly demanding. The list of complex, novel issues is quite lengthy. For example, during the course of the exhaustive pre-indictment FBI investigation new and intricate scientific tests were developed and hypnosis was employed in the process of questioning certain hospital patients. A determination as to the legal validity of either of these investigative techniques and the appropriate presentation of the issues has required extraordinary efforts by attorneys who are not well versed in the intricacies of chemistry and psychology. Nor is the case devoid of the more common problems in a criminal case. Motions with regard to the use of possible hearsay testimony, challenges to the accuracy of certain eyewitness testimony and extensive discovery motions have already been filed. These require substantial time commitments on both sides for proper preparation and presentation.

In addition to legal issues which must be resolved prior to the trial, there is a staggering amount of potential factual information which might be elicited at the trial. An exhaustive investigation by various federal agencies, continuing for approximately ten months, preceded the indictment in this case. The Ann Arbor Veterans Administration Hospital, site of the alleged crimes, is a 430 bed acute-care institution which had a large staff and patient population. As is typical of acute-care hospitals, many of the staff and patients were no longer easily accessible after the incidents with which we are now concerned occurred. The task of fact gathering alone is a monumental one.6 When combined with the preparation necessary for the legal motions discussed above, some of which involve complex and novel legal issues, some idea of the difficulty of the case can be gained. Current estimates for the length of the trial run from 4-6 months. What this amounts to is what some commentators describe as a "big" criminal case, see Developments in the Law — Discovery, 74 Harv.L.Rev. 940, 1000 (1961), which will be very demanding for everyone involved.

Highly unusual cases of the type at bar are particularly appropriate for liberal discovery treatment. Numerous commentators have noted that increased pretrial discovery in criminal cases would help our trial courts achieve just decisions in a more efficient way. See, e. g., ABA Standards Relating to Discovery and Procedure Before Trial, Part II, (1970); Developments, supra, at 1053-66:

"The belief that a criminal trial should be a balanced contest between adversaries has long been criticized as a `sporting theory of justice' which is particularly inappropriate in light of the high stakes involved in criminal litigation . . . Insofar as the sporting theory suggests that broad disclosure is undesirable as an infringement upon the opportunity for ingenuity in the use of trial tactics, it would seem to conflict with the duty of the state's prosecutor to seek results which are in accord with the facts rather than to achieve a record of indiscriminate convictions. If the use of discovery is likely to increase the probability that verdicts will be based on the facts rather than on clever trial maneuvers, its broad use in the criminal area would be desirable." Id. at 1063.

Nonetheless our adversary system has traditionally afforded criminal defendants significantly less discovery than is available to a defendant in the civil law system. Damaska, Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: A Comparative Study, 121 U.Pa.L.Rev. 506, 533-6 (1973). Yet the recognition is growing that adjustments in the "sporting theory" are necessary if the adversary system is to reach verdicts that are consistently in accord with the underlying factual realities.7 Even the authors of the Federal Rules of Criminal Procedure recognize this, for in commenting on the text of Rule 16 they said:

"The rule is intended to prescribe the minimum amount of discovery to which the parties are entitled. It is not intended to limit the judge's discretion to order broader discovery in appropriate cases." 62 F.R.D. 307-8 (1974).

Courts as well have, in certain limited cases of particularized need, exercised discretionary authority to order wide-ranging discovery. In U. S. v. Achtenberg, 459 F.2d 91 (8th Cir. 1972), the defendant, a student who was accused of setting fire to a campus ROTC building, requested the transcripts of Grand Jury testimony. In granting the request, the court said,

"A need for discovery because of the numerous potential witnesses and the fact that the student witnesses had scattered after the school year were asserted. Defendant's contention was that the government had superior ability through the FBI to contact possible witnesses and that the time and expense of defendant in obtaining interviews with the many prospective witnesses would be prohibitive." Id. at 96.

In part, the Achtenberg court relied on the Supreme Court's observation in Dennis v. U. S., 384 U.S. 855, 873, 86 S.Ct. 1840, 1851, 16 L.Ed.2d 973 (1966) that,

"In our adversary system for determining guilt or innocence, it is rarely justifiable for the prosecution to have exclusive access to a storehouse of relevant fact."

In the case at bar, there is one additional factor to consider. One of the defendants is represented by appointed counsel. In addition to bearing the cost of the trial itself and the investigation of the alleged offense, the government is responsible for much of the cost of the defense as well under the Criminal Justice Act, 18 U.S.C. § 3006A. While this fact does not infringe on the Constitutional protections afforded a defendant in a criminal case and established law must not be ignored, it does suggest a persuasive reason for eliminating a duplication of effort and cost for which the government must pay. In short, the particular facts of this case persuade the Court that insofar as the law permits, maximum discovery should be ordered.


The defense has filed extensive discovery motions. In an effort to facilitate the discovery process the Court conducted several conferences akin to the Omnibus Hearings used in several United States District Courts around the country, Cf. 37 F.R.D. 95 (1965).8 These conferences resulted in substantial voluntary and mutual discovery.9 There remain, however, several issues on which the parties are unable to agree. Accordingly, this opinion will resolve the discovery disputes which remain as to:

1. The discoverability of statements allegedly made by the defendants to third persons, not government agents, which are in the possession of the government;
2. The discoverability of certain FBI 302 forms;10 3. The discoverability of any overt acts not named in the indictment which will be relied upon at trial;
4. Whether certain FBI 302 forms never seen by the U.S. attorneys are discoverable under the dictates of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Under the authority of F.R.Cr.P. 16(a)(1)(A) ...

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