The public must be provided a reasonable access to all records public.

Does the sealed documentation need to be unsealed even if only the defendant wants to inspect or obtain copies of any such records? And if so, why?

Presume Bob is accused maliciously of a crime abetted by the police, and video records may have corroborating or direct evidence of this that it recorded on its AXON.

The AXON video is reported to have been created by the police and the DA received it.

The DA provided all evidence to the defense except that audio-and-video recording or conspired the defense team to not play the audio to Bob and act like they don’t think there is anything that would really need to hear the audio, too.

Appointed counsel denies requesting the DA to hand over that specific AXON evidence including the audio despite the written request of Bob that the appointed counsel acknowledged in writing and generally denied.

Bob clearly is unable to build an affirmative defense based on the otherwise well-corroborated conspiracy because app. counsel denies to obtain and/or present let alone provide a copy of the AXON (redacted per Pen. Code or otherwise).

It is extremely adverse to the interest of the conspirators to destroy the evidence due to the fact that the police report on the AXON was submitted and a version was presented to Bob by the defense team without audio who claimed that their computer was unable to play audio.

The fact that there must be at least one copy at each agency, both going missing while no other evidence would go missing would raise such suspicion that could immediately land the case in the hands of the media.

For over 2 years, the defense team consistently denied to allow Bob to hear the audio of the specific AXON evidence or provide him with a copy of either the video or audio only recording of the AXON, or both. The record now shows that Bob was presented the AXON, and the defense team is off the hook.

It is only in the possession of the DA and the police.

Destroying the evidence will make it much more obvious than keeping Bob silent having an appointed counsel who will simply be able to assert he didn’t believe the evidence pertinent to the case than explaining why only that piece went missing should the DA asserted that.

It is only in the possession of the DA and the police.

Destroying the evidence will make it much more obvious than keeping Bob silent having an appointed counsel who will simply be able to assert he didn’t believe the evidence pertinent to the case than explaining why only that piece went missing should the DA asserted that.

Does Bob, for example due to a fair trial, to a just outcome, to effective assistance of counsel, to the right to raise concerns about the effective assistance of counsel under a Marsden motion or based on any other well-established case law or legal theory on statute, the constitution or any treaty, have a right to be presented such evidence or obtain a copy before a pre-trial conference?

  • 2
    You're suggesting that every other person involved has conspired to hide the absolute only piece of evidence required to obtain the result contrary to their motive for hiding it, yet not one at all of those people has simply destroyed the evidence involved? I have a hard time seeing what this question would achieve; practically speaking the situation would never occur, because the records would no longer exist to be accessed.
    – Nij
    Sep 12 at 2:12
  • 1
    @nij I suspect you have not actually dealt with cases like this. It is easy to deny access to Axon records; it is harder to simply destroy them.
    – bdb484
    Sep 12 at 5:50
  • 2
    So this conspiracy group will all be completely fine with not trying to destroy this evidence, or none of them who try can succeed in doing so, despite pooling all the apparently considerable resources and access? If the question is only about whether the defendant have a right to access evidence directly instead of through counsel, it should ask that - not invent some crazy story that relies on the difficult being equated to the impossible.
    – Nij
    Sep 12 at 6:23
  • 1
    I think you're missing @Nij's point here. Yes, it is easier to deny access than to destroy evidence (after all the former consists of uttering a few words while the other is a physical process which involves risks). But that's not what we're comparing here. We're comparing a conspiracy to deny access with destroying evidence. I.e. the DA has somehow managed to get everyone on board with the denial, including the opposing counsel. A conspiracy involving multiple actors is a hard thing to pull off. Harder than simply destroying something.
    – JBentley
    Sep 12 at 15:49
  • 1
    AFAIK there aren't very many things that a defendant can do over their counsel's objections: among them being "plead guilty", "plead not guilty", and "choose to testify in their own trial". If Bob thinks his lawyer is in cahoots with the prosecution, surely his main concern would be to get a different lawyer, or even to represent himself, rather than to try to circumvent his own lawyer on specifics like this. Sep 12 at 18:17

Let's start with:

Bob's lawyer does not appear to be co-operating with Bob's wish to request the video.

Bob's lawyer does not have latitude to "not cooperate" with Bob. Bob is the client, Bob's attorney is bound to treat him as such. If Bob is unhappy, he may retain a different counsel. If Bob is receiving defense through a Public Defender, he may not fire the Public Defender, but if he is not receiving the service he expects he may ask the judge to force the Public Defender to do as he wishes.

My Public Defender daughter had a client who insisted that she request dash cam evidence that did not exist (no dashcam camera existed in the cruiser). She submitted the motion for the non-existent evidence, which was not supplied, but she submitted the request as per her client's request.

As to discovery in general, Bob is entitled to any evidence which may help him and any evidence that won't as well. If his attorney won't help he will need to petition to Court directly.

  • +1 although note that "entitled to any evidence" is not quite true. Evidence can be closed (e.g. it has national security considerations).
    – JBentley
    Sep 13 at 9:44
  • While I perfectly agree with the sentiment of this answer, at least for the State of California, I do not see its basis in decisional law derived from statute or either Constitutions; in fact, I see the exact contrary to be well-established: The client, if finding counsels action ineffective, can only Marsden them. That’s the only thing one appears to be permitted to address the court or the people. Both the court and the people will refuse to answer, and one may be sanctioned. We need this fact pattern because, presumed the court is not conspired, Bob would get new counsels [...]
    – kisspuska
    Sep 13 at 23:57
  • […] and the arguments would compel counsel to 1st informally request production, the formally, the Brady the DA thru the court. But if the public defender board of program is in on the collusion, Bob ends up at the mercies of malicious counsel or worse, doesn't get new counsel and without the AXON’s, Bob won’t be able to prove his contentions relating to counsel’s decisions. Bob needs an individual right, and this fact pattern reaches beyond the normal rules. The question is: What are the closest relating actual grounds close in in support of Bob for Bob to compel the DA to produce.
    – kisspuska
    Sep 14 at 0:02
  • @Tiger Guy Your daughter is a diligent, conscientious and active advocate for their clients which will allow them a fair trial and a just outcome. However, appointed counsel has been afforded broad discretion, (no explicit constitutional right, no statute, no state bar rules) to deny; any reversal or substitution of counsel based on a theory of denial of fair trial will "almost never" (People v. Doane, 200 Cal.App.3d 852, 246 Cal. Rptr. 366 (Cal. Ct. App. 1988) happen. Any rights to move the court to obtain are discretionary to the court, and counsel.
    – kisspuska
    Sep 19 at 2:41
  • @kisspuska this might be de jure, but I find it exceedingly unlikely a judge would allow such an occurrence. The accused would able able to address the court, and the presence of a refusal on the record would be damning.
    – Tiger Guy
    Sep 19 at 18:04

Does Bob have a right to be presented such evidence or obtain a copy before a pre-trial conference, without his lawyer's co-operation?

Bob can't both be represented by a lawyer and represent himself at the same time. It's either one or the other.

So, the answer is "no" while the lawyer is still his lawyer. If Bob wants the evidence, he has two options:

  • Get rid of the non-cooperating lawyer and get a cooperating one;
  • Get rid of the non-cooperating lawyer and represent himself.
  • 1
    I am hoping that whoever downvoted this did so because of some knowledge that this answer is wrong (vs. just being an asshole) and that I will somehow learn that knowledge.
    – Greendrake
    Sep 13 at 5:26
  • As the answer by @Tiger Guy said, Bob is (normally) entitled to any evident the prosecution has, and if his lawyer won't move to obtain it, Bob can get the Judge to require the lawyer to do so. Bob is generally entitled to control his own defense, even if he is stupid about it. Moreover I think you are mistaken about Bob not being able to represent himself along with a lawyer, but I don't yet have a source about that. I didn't downvote, but almost did on those grounds. Sep 13 at 16:09
  • @DavidSiegel Bob getting the Judge to do anything is effectively representing himself, isn't it? So, if you think Bob can do that, you do think that he can represent himself along with a lawyer. If this is possible I would really like to see the source.
    – Greendrake
    Sep 13 at 16:14
  • No I would not agree that Bob complaining to the Judge about his lawyer failing to follow instructions constitutes representing himself. But I will post specific authority on this when I have a proper citation. While I am confident that this is correct, i do not have a citation at hand. Sep 13 at 16:44
  • 1
    @kisspuska I think that several of the statements in your comments are incorrect, But I will need to do some research to confirm that and be able to support it with sources, and it may turn out that I am mistaken. But I think the question worth considering and have upvoted it. Some of the points in the comments perhaps should be separate question threads, such as when a person is entitled to counsel in the US system. Sep 14 at 0:42

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