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`10/25/2024 3:44 PM
`24CN04104
`
`IN THE CIRCUIT COURT OF THE STATE OF OREGON
`
`FOR THE COUNTY OF WASHINGTON
`
`STATE OF OREGON,
`
`Plaintiff,
`
`vs.
`
`JOSHUA DAVID GAWITH,
`
`Defendant.
`
`CASE NO. 24CN04104
`
`DEFENDANT’S DEMAND FOR
`PRESERVATION
`AND DISCOVERY, AND
`OBJECTION TO ANALYTICAL
`REPORTS
`
`DEFENDANT, Joshua David Gawith, hereby demands, pursuant to ORS 135.815–
`
`135.825, ORS 137.557, the Due Process Clause of Fourteenth Amendment to the U.S.
`
`Constitution, and Brady v. Maryland, 373 U.S. 83 (1963), along with all subsequent case law,
`
`that the state immediately preserve and disclose the following material information within its
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`possession or control, or which may at any time hereafter come into its possession or control
`
`before, during or after the trial in this case:
`
`1. The names, addresses, and phone numbers of persons, including victim(s), whom the
`district attorney intends to call as witnesses at any stage of the trial, together with their
`relevant written or recorded statements or memoranda of any oral statements of such
`persons.
`
`2. Any statements by a potential witness, whether written, recorded, or oral, made to law
`enforcement, the district attorney and their staff, government agents involved in any
`investigation relevant to this case, or at a grand jury proceeding, which contains or may
`lead to evidence that tends to exculpate defendant, mitigate sentencing, or impeach a
`potential witness, including all new statements not previously disclosed by a potential
`witness.
`
`3. Any written or recorded statements or memoranda of any oral statements made by the
`defendant, codefendant, or person the state intends to call as a witness.
`
`4. Any reports or statements of experts, made in connection with the particular case,
`including results of physical or mental examinations and of scientific tests, experiments
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`Page 1 of 5 – DEMAND FOR PRESERATION AND DISCOVERY
`
`Oregon Public Defense Commission
`
`NW Regional Trial Division
`
`4744 N. Interstate Ave.
`
`Portland, OR 97217
`
`(503) 373-0801
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`

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`or comparisons which the district attorney intends to offer in evidence at the trial or that
`may contain or lead to the discovery of exculpatory or mitigating evidence.
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`5. Any books, papers, documents, photographs, videos or tangible objects:
`a. Which the district attorney intends to offer in evidence at the trial;
`b. Which were obtained from or belong to the defendant; or
`c. Which contains or may lead to evidence that tends to exculpate defendant,
`mitigate sentencing, or impeach a potential witness.
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`6. All original notes of the investigating officers;
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`7. Any record of prior criminal convictions, in any state and in any federal jurisdiction, of
`persons whom the district attorney intends to call as witnesses at the trial;
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`8. All prior convictions of the defendant known to the state that would affect the
`determination of the defendant's criminal history for sentencing under rules of the
`Oregon Criminal Justice Commission.
`
`9. If the defendant’s breath, blood or urine was tested to determine the alcoholic content or
`the presence of a controlled substance:
`a. Any report prepared by a police officer relating to field tests, interviews,
`observations and other information relating to the charged offense;
`b. Any report relating to the test results;
`c. Any checklist prepared by the operator of the instrument for the test;
`d. Any laboratory notes; and
`e. Chain of custody documents.
`
`
`10. Defendant objects to the introduction during trial of any analytical report that might be
`introduced pursuant to ORS 475.235(4).
`
`11. The date of birth of the victim(s) if it is material to the prosecution of any of the
`charges.
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`12. The occurrence of a search or seizure, any relevant material or information obtained
`therefrom, the circumstances of the search or seizure, and the circumstances of the
`acquisition of any specified statements from the defendant.
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`13. Color copies of any photographs, as well as any video or audio recordings taken,
`obtained, or viewed by the law enforcement in the course of investigating this case.
`
`14. Any other material or information that tends to:
`a. Exculpate the Defendant;
`b. Negate or mitigate the defendant's guilt or punishment; or
`c. Impeach a person the district attorney intends to call as a witness at the trial.
`
`Page 2 of 5 – DEMAND FOR PRESERATION AND DISCOVERY
`
`Oregon Public Defense Commission
`
`NW Regional Trial Division
`
`4744 N. Interstate Ave.
`
`Portland, OR 97217
`
`(503) 373-0801
`
`
`
`

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`Additionally, defense counsel is specifically requesting that the state preserve and discover:
`
`
`15. The entire case file. This request applies to all disciplines including, but not limited to,
`Forensic Biology, DNA, Firearms, Latent Prints, Trace, Chemistry, Crime Scene,
`Toxicology, etc. Electronic format (i.e. pdf) is requested.
`
`16. Any and all laboratory reports and the corresponding analytical case notes, examination
`documentation, deviation forms, including, but not limited to, Forensic Biology, DNA,
`Firearms, Latent Prints, Trace, Chemistry, Crime Scene, Toxicology, etc. Electronic
`format (i.e. pdf) is requested. If any of the case notes are in color, please ensure the
`scan is in color so that all photographs contained within the notes are clear and any
`color markings are clearly discernible.
`
`17. Any and all samples, controls, reagent blanks, allelic ladders, size standards, batch
`paperwork, electropherograms, plus any extraction, quantitation, amplification,
`capillary electrophoresis run documents, etc. relied upon that have not been included
`above.
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`18. Any and all documentary images (printed and/or electronic) and evidentiary images not
`already included above.
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`19. Any and all data and electronic files including, but not limited to DNA raw data,
`processed and unprocessed, that is created or relied upon during the analysis of this
`case. This would include, but is not limited to unedited and edited GeneScan,
`Genotyper, GeneMapper, stutter files, reports, etc. (Examples of file types included,
`but are not limited to, are: fsa, .hid, .ser, .mtx, .xml, .txt, .csv. etc.)
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`20. Any and all STRmixTM results folders, files, analysis reports, advanced reports, edited
`and unedited files, interpretation guidelines, operation manuals, procedure manuals, and
`laboratory specific parameters and files used or applied in this case.
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`21. Any incident reports or contamination events associated with this case.
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`22. All Chain of Custody records for all items submitted to the laboratory, including current
`disposition.
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`23. Communication/conversation logs.
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`24. All protocols, procedures manuals, etc. including any memos, updates to protocols,
`temporary revisions, or any other documents in effect or relied upon at time of
`analysis. This includes, but is not limited to, FSD Operations Manual, FSD Quality
`Manual, Discipline specific Quality Manuals, Procedures Manuals, Protocols or
`Procedure Manuals used with any aspect of CODIS samples, FSD DNA Lab Technician
`Protocols or Procedures Manuals, Guidance Documents, “Frequently Asked Questions”
`Documents, and all relevant Training Manuals.
`
`Page 3 of 5 – DEMAND FOR PRESERATION AND DISCOVERY
`
`Oregon Public Defense Commission
`
`NW Regional Trial Division
`
`4744 N. Interstate Ave.
`
`Portland, OR 97217
`
`(503) 373-0801
`
`
`
`

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`25. Curriculum vitae for all analysts who performed any portion of the analysis or work on
`this case.
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`26. Training records for each analyst involved with any portion of the analysis documenting
`the approval to perform the testing involved and records of all proficiency/competency
`tests results.
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`27. Any validations study summaries and/or experiments or studies that were performed
`and/or released during the timeframe of this case.
`
`DATED: October 25, 2024.
`
`
`
`/s/ Rose Woodbury
`Rose Woodbury, OSB# 242812
`Attorney for Defendant
`Oregon Public Defense Commission
`Northwest Regional Trial Division
`
`
`AUTHORITIES:
`Brady v. Maryland, 373 U.S. 83, 83 S Ct 1194 (1963)
`Giglio v. United States, 405 U.S. 150 (1972) (the duty to disclose includes any and all
`information that may be used to impeach the character or testimony of a witness for the
`prosecution, including police)
`Kyles v. Whitley, 514 U.S. 419 (1995) (the state must disclose evidence known to the
`prosecutor as well as evidence known only to investigators and not to the prosecutor; thus the
`prosecutor has an obligation to learn of any favorable evidence known to others acting on the
`governments behalf, including police)
`Strickler v. Greene, 527 U.S. 263, 281–82 (1999) (evidence is suppressed where it is known to
`the state and not disclosed to the defendant, even if the prosecutor inadvertently fails to
`communicate the information to the defendant)
`Milke v. Ryan, 711 F.3d 998, 1012 (9th Cir 2013) (evidence is favorable even if its value is
`only minimal)
`Comstock v. Humphries, 786 F.3d 701 (9th Cir 2015) (the duty to disclose includes information
`and recollections disclosed by a witness prior to trial that is favorable to the defense)
`ORS 135.805 to 135.865
`State v. Gallup, 108 Or App 508 (1991)
`State v. Olson, 79 Or App 302 (1986)
`State v. Webber, 85 Or App 347 (1987)
`State v. Matthews, 30 Or App 1133 (1977)
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`Page 4 of 5 – DEMAND FOR PRESERATION AND DISCOVERY
`
`Oregon Public Defense Commission
`
`NW Regional Trial Division
`
`4744 N. Interstate Ave.
`
`Portland, OR 97217
`
`(503) 373-0801
`
`
`
`

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`Washington County District Attorney's Office
`150 N. 1st Ave., Suite 300
`Hillsboro, OR 97124
`
`
`PROOF OF SERVICE
`
`I hereby certify that I directed that the foregoing DEMAND FOR PRESERVATION
`AND DISCOVERY, AND OBJECTION TO ANALYTICAL REPORTS be served on:
`
`
`
`
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`by the following indicated method or methods:
`
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`☐ Hand Delivery
`☐ U.S. Mail:
`☐ Fax:
`☒ E-Service: dafileandserve@washingtoncountyor.gov
`
`DATED: October 25, 2024.
`
`
`
`
`
`
`
`
`
`/s/ L. Alberto Villavicencio
`L. Alberto Villavicencio, Legal Secretary
`Oregon Public Defense Commission
`Northwest Regional Trial Division
`
`Page 5 of 5 – DEMAND FOR PRESERATION AND DISCOVERY
`
`Oregon Public Defense Commission
`
`NW Regional Trial Division
`
`4744 N. Interstate Ave.
`
`Portland, OR 97217
`
`(503) 373-0801
`
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