IN THE GENERAL SESSIONS COURT FOR BLOUNT COUNTY, TENNESSEE

AT MARYVILLE

STATE OF TENNESSEE )

)

v. ) CASE NO. T0028053

)

John Davis Lee II )

MOTION AND BRIEF FOR ORDER DIRECTING THAT THE STATE

REVIEW FILES FOR BRADY MATERIAL

Comes now the defendant pro se, and respectfully moves that the District Attorney General review all information, including, but not limited to, that requested in the subpoena duces tecum attached hereto as Exhibit 1, and further moves that all Brady material be provided to defendant prior to or at the date set for hearing in the General Sessions Court.

The Court in Brady v. Maryland, 373 U.S. 83 at p. 85, 10 L.Ed.2d 215 at 218, 83 S.Ct. 1194 at 1196, (1963) held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material, either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” It is recognized that the defendant is not entitled to Rule 16 discovery in general sessions court. State v. Willoughby, 594 S.W.2d 388, p. 392 (Tenn. 1980). In Willoughby, the defendant had requested Rule 16 discovery in the general sessions court, which request was denied by the general sessions judge.

The circuit court in Willoughby sustained the general sessions court in all respects except as to defendant’s entitlement to exculpatory evidence as defined in Brady, supra, which was granted. The end result of Willoughby was that Willoughby received Brady material, but was not entitled to Rule 16 material.

Willoughby held that the general sessions court may “decline to hear from the defendant such proof as, in his best judgment, is solely designed for discovery purposes, but may not abridge the right of the defendant to have a full, bona fide opportunity to refute probable cause.” Willoughby, p. 390. A preliminary hearing is a critical stage in a criminal proceeding. McKeldin v. State, 516 S.W.2d 82 (Tenn. 1974); Willoughby, p. 390. The defendant “must be permitted to call any witness whose testimony is designed to refute probable cause or screen out questionable prosecutions.” Willoughby, at p. 390.

The test of the probable cause determination in either making or refuting probable cause is “good faith.” Willoughby, at p. 390.

CONCLUSION

For the state to proceed in a preliminary hearing in good faith, it must provide to the defense all exculpatory evidence, pursuant to Brady, in its possession or which, through diligence, it may obtain.

Respectfully submitted,

_________________________________________

John Davis Lee II, pro se

CERTIFICATE OF SERVICE

I hereby certify that a true and accurate copy of the foregoing was forwarded by U.S. mail, postage prepaid, to Mike Flynn at the Office of the District Attorney General, Blount County Justice Center, 942 E. Lamar Alexander Parkway, Maryville, TN 37804-5002, phone (865) 273-5600.

on this ____ day of _______________, ______.

______________________

John Davis Lee II, pro se

7486 Chapman Hwy. #104

Knoxville, Tennessee 37920