Office of the Public Defender

RANDY MIZE 1 Chief Deputy Office of the Public Defender 2 County of San Diego JULIANA B. HUMPHREY 3 Deputy Public Defender State Bar No. 132966 4 765 Third Ave., Suite 100 Chula Vista, California 91910 5 Telephone: (619) 498-2022 6 Attorneys for Defendant EDWARD SNOW 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SAN DIEGO 10 SOUTH COUNTY DIVISION THE PEOPLE OF THE STATE OF ) Case No.: CS205658 11 CALIFORNIA, ) D.A. No.: BAW033 ) 12 Plaintiff, ) REPLY TO PROSECUTION ) OPPOSITION TO MOTION FOR A NEW 13 ) TRIAL FOR FAILURE TO PROVIDE v. ) DISCOVERY PURSUANT TO PENAL 14 ) CODE §§1054.1, 1054.7 AND BRADY v. ) MARYLAND 15 ) EDWARD SNOW, ) Date: June 22, 2010 16 ) Time: 1:30 p.m. ) Dept: 12 17 Defendant. ) Judge: Hon. David M. Rubin ) 18 19 I. 20 FACTUAL ADDITIONS & CORRECTIONS 21 The defense concurs with the prosecution reading of the original discovery regarding 22 Mr. Lemler’s September 20, 2006 description of the money taken from his office as being 23 “small bills”.1 What is written in Agent Desmond’s report is the following: 24 Mr. Lemler told Agent Brown there was $12,000 stolen from the rear room. 25 Lemler said there were two separate Ziploc plastic bags, one containing five- 26 dollar bills and the other containing one-dollar bills. These bags were located 27 1 The prosecution’s observation regarding this information is found at page two of its Opposition to Motion for New Trial 28 – IAC, but is pertinent to the Brady motion, too.

1 Reply to Opposition to Motion for a New Trial – Brady Violation 1 under the desk just to the left (east) as you enter the room. Lemler was unsure 2 why the suspects left the rest of the money that was in plain view throughout 3 the room. [OD 36.] 4 To make the record complete, the following are additional references to Mr. Lemler 5 found in the original discovery. 6 Agent Brown’s report of his conversation with Mr. Lemler does not contain 7 information about the money allegedly taken from Paxton Towing. [OD 39-40.] There is no 8 report from September 20, 2006 that says anything about the money being wrapped or 9 counted in a certain manner. 10 There is no report of the October 10, 2006 telephone conversation between Agent 11 Brown and Bo Lemler. This information is only found in Agent Brown’s arrest warrant 12 which states Lemler was called by Brown and told him the “money stolen during the crime 13 had been wrapped the same way” as the money seized by Agent Brown in Kansas. [OD 6.] 14 On October 17, 2006, Agent Brown met with Bo Lemler regarding his accounting and 15 method of counting his money. It was at this meeting that Agent Brown showed Lemler 16 photos of the money seized in Kansas, and Lemler provided “money ties and rubber bands” 17 he used to secure his money. [OD 130.] 18 On May 3, 2007, Mr. Lemler met with DDA Varela and DAI Martin. He spoke again 19 about how his money is wrapped in yellow sandwich paper before it is counted. He provided 20 an example bundle that was photocopied and attached to the report. [OD 351-354.] The 21 money appears to be wrapped in a piece of paper with writing on it, not a bank band. [OD 22 354.] 23 On June 27, 2007, Mr. Lemler brought a “small tan duffle bag containing large 24 amounts of currency” to his meeting with Officer Sosa, Forensic Lab Specialist Bucky 25 Wright, and DDA Varela. [OD 847.] The currency was used as part of Wright’s handwriting 26 comparison process. 27 28

2 Reply to Opposition to Motion for a New Trial – Brady Violation 1 On a separate issue, State Compensation Fund Insurance Senior Auditor Kathy Lowe 2 began her audit after the homicide, not before as previously stated in the Declaration of 3 Counsel. [Second Declaration of Counsel, hereafter “DC-2,” ¶ 4.] If also appears that her 4 audit was prepared prior to January 6, 2009, per her letter to Abre Enterprises (Bo Lemler) 5 which included a copy of the audit. [DC-2 14.] Additional information from the interview 6 with SCIF employees is found in the Second Declaration of Counsel attached hereto. 7 II. 8 THE MATERIALS WITHHELD RE: BO LEMLER 9 WERE DISCOVERABLE UNDER BRADY 10 As anticipated, the prosecution response to the defense argument regarding the 11 information about Bo Lemler’s fraudulent and dishonest activities can be summed up simply 12 as “it was not ripe.” The law regarding this issue is clear and not on the side of the 13 prosecution. The defense argument is set forth in Section V, pages 20-26 of its Motion for 14 New Trial – Brady Violation and will not be repeated here. 15 Factually, the prosecution continues to live in denial by claiming that the yearlong 16 investigation by SCIF was the equivalent of a “citizen’s complaint” when it began its own 17 investigation into Bo Lemler in November 2007. The reality is that whichever Deputy 18 District Attorney reviewed the “Suspected Fraud Complaint” and its supporting 19 documentation, decided to pursue it and did so within only about one week. The SFC was 20 received came in at the end of on October 2007, and the DA’s “demand letter” was dated 21 November 7, 2007. [DC2 ¶14.] DDA Marugg believed that the allegations of fraud 22 regarding cash payments to employees were solid from the beginning. [DC ¶22.] By early 23 2008, the DA’s office had much more than “suspicions” of criminal activity. By the 24 beginning of trial in March 2009 it was clear to those investigating Bo Lemler that he was a 25 liar and a cheat.2 26 2 The prosecutor’s insistence in January 2010 that the Lemler information was still “speculative” and therefore 27 not yet discoverable was belied by Scott Christie’s testimony to the Court that “by June” he was satisfied that a crime had occurred. [ICH 17.] The materials should have been turned over to Mr. Ramirez or Mr. Aragon in 28 June for appropriate action.

3 Reply to Opposition to Motion for a New Trial – Brady Violation 1 One fact that should not be held against the defendant in his quest to determine the 2 timing of the investigation into Lemler’s fraud is the laissez faire behavior by and between 3 the investigators at SCIF and the DA’s office. Combined with an utter lack of record keeping 4 regarding information received or provided, it has been a very difficult task to pin anything 5 down with certainty with either organization. [See, e.g., DC¶17, 18, 21, and 26; DC-2 ¶8, 13 6 and 15.] Where a fraud case is being prepared, it is regrettable that the record keeping of a 7 paper-intensive case is wanting; in a case where a man’s entire future is at stake, it is 8 constitutionally unacceptable. 9 By the conclusion of SCIF’s initial audit by Kathy Lowe (December 2008/early 10 January 2009), the DA’s office knew that Bo Lemler had lied about how many businesses he 11 had in addition to the underreporting of employees for purposes of avoiding payment of 12 employment taxes and workers compensation insurance premiums. [ND 510; text of Lowe’s 13 audit.] DAI Scott Christie had discovered on his own that Abre Enterprises also owned 14 “Legacy Graphics” in Chula Vista in November 2008, a company not reported to SCIF. [DC 15 ¶32.] It remains to be determined at the hearing what else DAI Christie knew about Bo 16 Lemler’s other hidden business ventures before the start of trial. Specifically at issue is what 17 Mr. Christie knew about “Selective Parking Enforcement” prior to trial. 18 The prosecution makes two arguments regarding why the information in its possession 19 was not discoverable. First, the prosecution argues that the information regarding Lemler’s 20 fraud was not “admissible”, therefore it had no obligation to turn it over. Second, the 21 prosecution argues that even if it were turned over this court would not have permitted its use 22 to impeach Mr. Lemler. Neither statement is accurate. 23 First, the defense disagrees with the quote on page 30 of the prosecution’s Opposition: 24 “The touchstone that triggers prosecutor’s duty to disclose to the defendant information about 25 a prosecution witness is potential admissibility of that evidence.” The citation is to People v. 26 Santos (1994) 30 Cal.App.4th 169. However, this is not the holding of Santos. 27 28

4 Reply to Opposition to Motion for a New Trial – Brady Violation 1 Santos involved the defense request for discovery of the “rap sheet” information 2 related to witness Villareal who testifed against Mr. Santos in the context of a prison assault. 3 One purpose behind the request was to discover whether a witness had suffered misdemeanor 4 convictions involving moral turpitude, the conduct behind such convictions being admissible 5 to impeach the witness’s veracity. (People v. Santos, supra, at 177.) 6 The Court upheld the trial court’s ruling that the fact of the conviction was not 7 discoverable under Evidence Code §1054.1 as it was not in and of itself exculpatory 8 evidence. (Id. at 178.) Nonetheless, the Court held that the prosecutor had an obligation 9 under the Federal due process clause to provide the misdemeanor conviction to the defense: 10 This constitutional duty of disclosure: “‘extends to evidence which may 11 reflect on the credibility of a material witness. [Citation.] ... ”[S]uppression of 12 substantial material evidence bearing on the credibility of a key prosecution 13 witness is a denial of due process ....“ [Citation.]’ [Citation.] Thus, ‘[w]hen the 14 “reliability of a given witness may well be determinative of guilt or innocence,” 15 nondisclosure of evidence affecting credibility’ may require a new trial. 16 [Citation.]” (People v. Santos, supra, at 178; quoting People v. Hayes (1992) 3 17 Cal.App.4th 1238 at pp. 1244-1245, fns. omitted.) 18 The Court in Hayes considered discovery in the context of an alleged victim of sexual 19 abuse and held that the witness’s misdemeanor convictions were discoverable as well as 20 “pending charges, status of being on probation, any acts of victim’s dishonesty…” 21 (Emphasis added.) (People v. Santos, supra, at 178; quoting People v. Hayes, supra, at 1243, 22 1245.) 23 The Santos Court explained that witness Villareal’s misdemeanor convictions, as with 24 the alleged victim in Hayes, were indeed discoverable despite the fact that the convictions 25 themselves were inadmissible hearsay: “disclosure of the existence of such convictions will 26 certainly assist the defendant in obtaining direct evidence of the misdemeanor misconduct 27 itself. Therefore, the trial court erred by not allowing discovery of any misdemeanor 28

5 Reply to Opposition to Motion for a New Trial – Brady Violation 1 convictions involving moral turpitude.” (Santos, supra, at 179.) The Court ultimately held 2 that the failure to provide the misdemeanor convictions of the witness was error, but 3 harmless. 4 “To be material under Brady, undisclosed information or evidence acquired 5 through that information must be admissible. See Brady, 373 U.S. at 89-90.” (Emphasis 6 added.) (United States v. Kennedy (1989 9th Cir) 890 F.2d 1056, 1059, cert. denied, 494 7 U.S. 1008 (1990). A Brady violation will not be found where the information is neither 8 admissible itself nor likely to lead to admissible evidence. (See, e.g., Wood v. Bartholomew 9 (1995) 516 U.S. 1018 – no Brady violation in prosecution’s failure to provide polygraph 10 results for one of its witnesses.) 11 In this case, the information about Bo Lemler’s various acts of dishonesty involving 12 moral turpitude would themselves be admissible to impeach him. Whether this information 13 could have lead to additional useful information is also possible but not necessary for this 14 Court’s analysis under People v. Wheeler (1992) 4 Cal.4th 284. 15 The prosecution’s premise that it has no duty to provide discovery – or even analyze 16 the information in its possession – until after search warrants are issued and a case can be 17 “proven” to the DA’s satisfaction to file a complaint completely misses the legal mark 18 regarding specific conduct used to prove dishonesty under Wheeler as clearly stated by 19 People v. Hayes set forth above. The term “acts of dishonesty” clearly does not mean only 20 those acts that rise to the level of prosecution, per Hayes and Wheeler. The prosecution can 21 cite no case that supports its contention. 22 Next, the prosecution relies upon the capital case of People v. Sapp (2003) 31 Cal.4th 23 240 to support its position that this court would never have permitted the defense to use 24 Lemler’s specific acts of dishonesty to impeach him. However, the Sapp case is inapposite to 25 the instant case. 26 First, in Sapp, unlike this case, the defense had information in advance of trial 27 regarding a MediCal fraud investigation involving the prosecution’s psychologist and sought 28

6 Reply to Opposition to Motion for a New Trial – Brady Violation 1 to cross-examine him about false MediCal claims to impeach his credibility during penalty 2 phase. (People v. Sapp (2003) 31 Cal.4th 240, 290.) The Sapp Court held that the trial court 3 acted within its discretion to preclude the cross-examination “about MediCal claims that he 4 submitted years before petitioner's trial and that were never proven to be fraudulent.” (Id.) 5 More specifically, the Court found that the proposed impeachment “was, at most, 6 nominally relevant to the subject matter of his testimony: expert opinion that defendant's 7 criminal behavior was attributable to antisocial personality disorder, not brain abnormalities 8 or family dysfunction.” (Id.) Further, the Court agreed that since the doctor was not then 9 subject to prosecution for the alleged fraud – and never would be – he had no incentive to 10 slant his testimony toward the prosecution to “aid his cause.” (People v. Sapp, supra, at 290- 11 291.) 12 This case is nothing like Sapp. The potential impeachment information of Bo Lemler 13 is current, not old. Mr. Lemler’s fraud is far more than “nominally relevant” in this case – it 14 relates precisely to the exact subject matter of his testimony. It should have been turned over 15 for use by the defense at trial. And it would have been admissible under Wheeler. 16 The prosecution does not argue that the information about Bo Lemler’s lies and fraud 17 are not relevant. It jumps ahead to an Evidence Code §352 analysis, arguing that 18 presentation of evidence which showed Mr. Lemler to be a crook would have consumed “too 19 much time” on a “collateral issue”, would have “confused” the jury, and, finally, would have 20 been more prejudicial than probative. 21 If the plain language of Prop. 8 (“Truth in Evidence”) and the cases interpreting 22 §28(d) of our Constitution are to be given any meaning, parties are entitled to present 23 evidence in support of specific acts of misconduct. Presentation of such evidence takes some 24 time, as does presentation of any evidence at a trial. Prosecutors have often used this section 25 effectively, taking the time to present evidence of, for example, “prior reliability as a police 26 informant” to attack or support a witness’s credibility; and “a jailhouse informant’s threats 27 against witnesses in his own case implied dishonesty and moral laxity. Hence, we ruled, the 28

7 Reply to Opposition to Motion for a New Trial – Brady Violation 1 threats were relevant and admissible to impeach him under section 28(d).” (People v. 2 Wheeler, supra, at 292; referring to facts within People v. Harris (1989) 47 Cal.3d 1047 at 3 1080-1082 and People v. Mickle (1991) 54 Cal.3d 140 at 168, respectively.) It is pure 4 speculation that there would be an “undue” consumption of time in this matter. 5 It is further speculation that the jury would be in any way “confused” by the 6 information that Mr. Lemler is a dishonest man. To the contrary, the defense contends that 7 our jurors can easily understand the meaning of Mr. Lemler’s shady business deals and lies to 8 the authorities. It would then remain for the jury to decide whether to believe his testimony in 9 light of ALL the fact surrounding his credibility. Last, the impeachment is clearly probative 10 and is not more “prejudicial” than any impeachment regarding honesty and credibility. On 11 balance, particularly in a homicide case, the evidence should be admitted. 12 In sum, evidence of Mr. Lemler filing false documents with government agencies, 13 lying about the existence of business endeavors and about employees for personal gain 14 illustrates a general dishonesty, the “immorality” discussed in People v. Wheeler, which may 15 be proven through direct evidence of the acts committed. The defense is confident some or 16 all of these acts of dishonesty – bearing on his business dealings, the subject of his testimony 17 – would be admissible to impeach Mr. Lemler. 18 III. 19 THE EVIDENCE WAS MATERIAL 20 The prosecution asks this Court to simply excise the testimony of Bo Lemler from the 21 case and see if Edward Snow would still have been convicted. [Opposition at p. 33.] In doing 22 so, the prosecution ignores the reality of how it used the testimony of Mr. Lemler in this case, 23 particularly as an “honest” Paxton counterpoint to Taylor and Myers, the two alleged co- 24 conspirators in this matter. The prosecution relies upon Lemler to identify the amount of 25 money taken, its condition (bands, writing), and everything else having to do with the 26 operations at Paxton. Further, Mr. Lemler was utilized to “corroborate” the testimony of 27 Taylor and Myers regarding this incident: he supported Taylor’s last-minute statement to the 28

8 Reply to Opposition to Motion for a New Trial – Brady Violation 1 DA regarding the power shut off,3 and testified about Myers acting strangely and trying to 2 see if money was in the office “the night before” the incident. To suggest that Mr. Lemler 3 was not a key witness defies the reality of the trial in this case. This is not to say that the 4 prosecution had no other evidence and Mr. Snow would have been acquitted had the Brady 5 material been provided – but that is not the standard. 6 As stated previously, in applying the materiality standard, the Supreme Court has 7 explained that “[t]he question is not whether the defendant would more likely than not 8 have received a different verdict with the evidence, but whether in its absence he received 9 a fair trial, understood as a trial resulting in a verdict worthy of confidence.” (Kyles, 514 U.S. 10 at p. 434, emphasis added.) “We cannot overemphasize the importance of allowing a full and 11 fair cross examination of government witnesses whose testimony is important to the 12 outcome of the case.” (Emphasis added.) (Silva v. Woodford (9th Cir. 2002) 279 F.3d 825, 13 854, quoting United States v. Brooke (9th Cir. 1993) 4 F.3d 1480, 1489.) Bo Lemler was an 14 important witness who should have been subject to a “full and fair cross-examination.” 15 The Supreme Court, in the context of the evaluation of trial court errors, “has clearly 16 established that the combined effect of multiple trial errors may give rise to a due process 17 violation if it renders a trial fundamentally unfair, even where each error considered 18 individually would not require reversal.” (Parles v. Runnels (2007 9th Cir.) 505 F.3d 922, 19 928, citing Donnelly v. DeChristoforo (1974) 416 U.S. 637 at 643, and Chambers v. 20 Mississippi (1973) 410 U.S. 284, at 290 n. 3, 298, 302-03.) “Rather, the fundamental 21 question in determining whether the combined effect of trial errors violated a defendant’s due 22 process rights is whether the errors rendered the criminal defense ‘far less persuasive,’ 23 Chambers, 410 U.S. at 294, and thereby had a ‘substantial and injurious effect or influence’ 24 25 3 The prosecution cannot have it both ways. In this motion, and at trial, the prosecution relies upon its 26 evidence regarding the “power being cut” as stated at the last minute by Mr. Taylor (2/28/09 interview with DAI Innumerable and DDA Varela), as a significant piece of the evidentiary puzzle against Mr. Snow. [Opp- 27 Brady at pp. 8, 9, 10, 34, 43 48 and 49.] Yet in its response to the Motion for New Trial – IAC, it scoffs at the importance of this evidence in support of defense counsel’s failure to call witnesses to rebut it. [Opp-IAC at 28 pp. ]

9 Reply to Opposition to Motion for a New Trial – Brady Violation 1 on the jury’s verdict, Brecht, 507 U.S. at 637, (internal quotations omitted).” (Parles v. 2 Runnels (2007) 505 F.3d 922, 928.) 3 In Parles, the prosecution had ample evidence that the appellant stabbed his wife in 4 the back, killing her; they also had ample proof of the longstanding animosity and violence 5 that permeated the couple’s relationship. (Parles, supra, at 925.) The issue at trial was his 6 state of mind at the time of the killing. (Id.) 7 Despite the fact that Mr. Parles was able to present evidence in support of mental state 8 defense, the Court held that evidence erroneously permitted and erroneously excluded, when 9 considered cumulatively, rendered his defense “far less persuasive” to the jury than it could 10 have been. (Parles, supra, at 928.) It is important to note that the Court did not hold that Mr. 11 Parles bore the burden of proving he would have been acquitted, only that the error had 12 “substantial and injurious effect or influence” on the jury’s verdict. (Id.) Said another way, 13 “[w]here a trial court commits an evidentiary error, the error is not necessarily rendered 14 harmless by the fact there was other, cumulative evidence properly admitted.” (Id., citations 15 omitted.) 16 EDWARD SNOW has not argued that a single harm to his trial glares sufficiently to 17 require a new trial. Rather, the defendant contends that his right to a fair trial was killed by 18 numerous, smaller injuries that, considered together, require a new trial. The effect of the 19 suppressed evidence is to be viewed cumulatively, not item by item. (Kyles v. Whitley, 20 supra, 514 U.S. at p. 436.) Once the materiality of the suppressed evidence is established, no 21 further harmless error analysis is necessary, even in the context of federal habeas review: 22 when the government has suppressed material evidence favorable to the defendant, the 23 conviction must be set aside. (Kyles, 514 U.S. at pp. 435 36.) 24 IV. 25 CONCLUSION 26 EDWARD SNOW contends that the failure to provide Brady evidence to defense 27 counsel prior to trial deprived him of his due process right to a fair trial. There is no 28

10 Reply to Opposition to Motion for a New Trial – Brady Violation 1 justification for withholding the evidence and its impact on a key witness was “material” as 2 required under our laws. 3 The posture of this case is unique in a significant way. This Court will hear evidence 4 not only regarding the Brady violation but also evidence about whether Mr. Snow’s trial 5 counsel performed as a competent defense attorney is required. The two issues necessarily 6 intersect on questions of “materiality” of the missing evidence under Brady and ineffective 7 assistance of counsel under Strickland, et al. At the close of the evidence taken in this matter, 8 this Court will be able to evaluate for itself the impact of the missing materials in the context 9 of this trial. When it does, the defense submits that the Court will have doubts about the all- 10 around fairness of Mr. Snow’s trial and grant him a new one. 11 Dated: ______Respectfully submitted, RANDY MIZE 12 Chief Deputy 13 Office of the Public Defender 14 ______15 JULIANA B. HUMPHREY Deputy Public Defender 16 17 Attorneys for Defendant EDWARD SNOW 18 19

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11 Reply to Opposition to Motion for a New Trial – Brady Violation RANDY MIZE 1 Chief Deputy Office of the Public Defender 2 County of San Diego JULIANA B. HUMPHREY 3 Deputy Public Defender State Bar No. 132966 4 765 Third Ave., Suite 100 Chula Vista, California 91910 5 Telephone: (619) 498-2022 6 Attorneys for Defendant EDWARD SNOW 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SAN DIEGO 10 SOUTH COUNTY DIVISION THE PEOPLE OF THE STATE OF ) Case No.: CS205658 11 CALIFORNIA, ) D.A. No.: BAW033 ) 12 Plaintiff, ) SECOND DECLARATION OF v. ) COUNSEL IN SUPPORT OF 13 ) MOTION FOR A NEW TRIAL – EDWARD SNOW, ) BRADY VIOLATION 14 Defendant. ) ) 15 ) 16 17 I, JULIANA B. HUMPHREY, declare the following: 18 1. On June 15, 2010 at 11 a.m. I visited the office of the State Compensation Insurance 19 Fraud offices to meet with Senior Investigator Kathy Lowe, Claims Investigator Bill Velier, 20 support staffer Nichelle Epps, and attorney Anthony Romo. The interview was audiotaped 21 and a CD copy was provided to DDA Carlos Varela on June 18, 2010. 22 2. Mr. Velier obtained a copy of the police report from CVPD, but nothing from the 23 DA’s file. He did have a copy of the arrest warrant regarding Edward Snow. He did not 24 share information with the police. 25 3. Mr. Velier interviewed Bo Lemler one time, but may have had some follow-up 26 questions for him later. He also spoke with Mr. Sanders’ wife and son. His role was to 27 investigate the claim. After he finished his interviews, he sent his report to the insurance 28

12 Reply to Opposition to Motion for a New Trial – Brady Violation 1 adjuster for them to decide whether to pick up the case or not. 2 4. In 2007, Kathy Lowe’s title was “senior auditor”, in the “premiums/policy” side of 3 SCIF, received her assignment after Mr. Velier completed his interviews and relied upon 4 them regarding, for example, cash payments being made and other employees working for 5 Mr. Lemler (who may not appear on his payroll). She corrected my mistake in my previous 6 declaration that she had already been auditing Mr. Lemler – she had not. 7 5. Attorney Romo verified that sometimes policy audits do occur after a claim is made. 8 Mr. Velier said he may have mentioned some of the strange things he learned from his work 9 to Ms. Lowe or someone else in “policy” after he was finished. There was a question about 10 the decedent even being on the payroll, for example. 11 6. Attorney Romo explained that a statutory scheme governs the exchange of 12 information and that they comply with the statute. The process of the DA writing a demand 13 letter for information is part of that process. (The first demand letter sent by the DA was 14 dated 11/6/07; the second was dated 11/20/08.) [ND 387, 3.] Once the demand letter is sent, 15 the request for information is deemed ongoing. Because of the volume of cases with this 16 DA’s office, the contact may be more informal as there is a lot of contact with the SD DA’s 17 office. 18 7. Nichelle Epps stated that demand letter responses to the DA include everything, 19 including internal memos; “we were very thorough.” She pulls the information then provides 20 it the legal department for review. After the review, the documents are delivered to the DA. 21 8. Ms. Lowe said when the SFC goes to the DA, there is some documentation with it. 22 The demand letter asks for the entire file. There is no copy of what is sent to the DA’s office 23 – documents are copied from the scanned file and delivered to the DA. Ms. Lowe said there 24 would be no way to know what was sent to the DA. The report by Mr. Velier should have 25 been sent with the first group of documents. However, there is no letter or other 26 documentation listing the documents sent in response to either of the demand letters. 27 9. Ms. Lowe explained that the DA does receive some documents along with the 28

13 Reply to Opposition to Motion for a New Trial – Brady Violation 1 “Suspected Fraudulent Claim” Form (SFC) to support the allegation of fraud. (Other 2 agencies only receive the single page SFC form.) The form and documents are hand- 3 delivered to the DA’s office. 4 10. Until the DA does a search warrant, they are not notified that a criminal case is being 5 pursued. Between January 2008 and March 2009, Ms. Lowe contacted the DA’s office to 6 provide updates and new developments, including two additional claims by other workers at 7 Paxton. 8 11. Ms. Lowe also communicated with Bo Lemler’s accountant. Ms. Lowe made memos 9 regarding her communication to the DA. The DA’s office may have received her memos 10 during 2008 or with the next demand letter. She did not keep track of her contact with the 11 DA’s office; most of the communication would be in the form of quick telephone calls. 12 12. Ms. Lowe did not know the details of the DA’s investigation. For example, she did 13 not find out about the hot dog concession stands until after she completed her audit. Her 14 audit was based upon information from Lemler through his accountant, Mr. Bullen (who did 15 not ever tell her about the concession business). 16 13. Ms. Lowe recalls the email of October 16, 2008 to Mr. Christie that provided him with 17 names of tow truck drivers she received from Mr. Bullen. [ND 13.] Ms. Lowe was aware 18 from the police investigation about the money kept at Paxton and cash payments made to 19 employees from their own investigation. She may have received information from the DA’s 20 office but does not specifically recall. 21 14. Kathy Lowe’s audit for SCIF was completed by January 2009 and hand-delivered to 22 the DA’s office shortly thereafter. She thinks her audit documentation went to the DA at the 23 time she delivered her audit. I attempted to verify the timing of the completion of the audit 24 with a telephone call to Ms. Lowe on June 20, 2010. I called because I noticed the date of 25 the audit on the bottom of the forms [e.g. MD 484] and the date on the letter providing a copy 26 of the audit to “Abre Enterprises” (Lemler) is January 6, 2009. [ND 510.] We had been 27 assuming during our discussing that the audit was turned over on or about January 29, 2009. 28

14 Reply to Opposition to Motion for a New Trial – Brady Violation 1 15. After the search warrant issued, she received the DA’s reports of interviews and other 2 information to complete another audit. Ms. Lowe was the one who went through all the 3 boxes seized during the search warrant. 4 16. Scott Christie was Ms. Lowe’s main point of contact. She did not memorialize her 5 contacts with him in a report, or on a calendar. She may have run into him while at the DA’s 6 office on another case. There were no formal, scheduled meetings. She had the impression 7 he had contact with someone in the murder case but did not clearly recall the context or 8 timing. 9 17. DDA Fiona Khalil is the attorney with whom she had most contact. Kathy Lowe and 10 Bill Velier testified at before the Grand Jury in March 2010. 11 Further I state not. 12 I declare under penalty of perjury that the foregoing is true and correct except as to 13 matters declared upon information and belief and as to those matters, I believe them to be 14 true. Executed on June 21, 2010 at Chula Vista, California. 15 ______16 JULIANA B. HUMPHREY 17 Deputy Public Defender 18 19

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