Cowans v. City of Boston et al

MOTION for Discovery Motion for Criminal Record of Plaintiff Stephan Cowans

D. Mass.December 20, 2006

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS DOCKET NO. 2005-11574 RGS STEPHAN COWANS, ) Plaintiff ) v. ) ) CITY OF BOSTON, BOSTON POLICE ) DEPARTMENT, DONALD L. DEVINE, ) DEPUTY SUPERINTENDENT OF THE ) BUREAU OF INVESTIGATIVE SERVICES ) OF THE BOSTON POLICE DEPARTMENT, ) IN HIS INDIVIDUAL CAPACITY, ROBERT ) FOILB, SUPERVISOR OF THE BOSTON ) POLICE DEPARTMENT IDENTIFICATION ) UNIT, IN HIS INDIVIDUAL CAPACITY, ) GREGORY D. GALLAGHER, IN HIS ) INDIVIDUAL CAPACITY, DENNIS LEBLANC, ) IN HIS INDIVIDUAL CAPACITY, ) JOHN H. MCCARTHY, IN HIS INDIVIDUAL ) CAPACITY, PAUL T. MCDONOUGH, ) IN HIS INDIVIDUAL CAPACITY, ) ROSEMARY MCLAUGHLIN, IN HER ) INDIVIDUAL CAPACITY, HERBERT L. ) SPELLMAN, IN HIS INDIVIDUAL CAPACITY; ) AND DOES 1-10, ) Defendants ) DEFENDANT DENNIS LEBLANC’S MOTION FOR CRIMINAL RECORD OF PLAINTIFF STEPHAN COWANS Now comes the defendant, Dennis LeBlanc, in the above-captioned action, and respectfully requests that this Honorable Court order the Criminal History Systems Board of the Commonwealth of Massachusetts to provide the defendant, Dennis LeBlanc, with the criminal and/or probation records of the plaintiff, Stephan Cowans, Date of Birth 9/07/1970. As reasons therefor, the defendant states that: 1. This is a claim for wrongful incarceration due, in part, to an allegedly misidentified Case 1:05-cv-11574-RGS Document 76 Filed 12/20/2006 Page 1 of 6 fingerprint. 2. On information and belief, the plaintiff had a lengthy criminal record at the time of his wrongful incarceration and had been previously incarcerated on several occasions before his incarceration based on the wrongfully identified fingerprint in this case. 3. On information and belief, the plaintiff has been arrested at least twice since his release from his alleged wrongful incarceration. 4. Credibility will be a material issue in the trying of this case. 5. The information sought is necessary in order that the defendant may have available to him evidence that may impeach the credibility of the plaintiff. 6. The plaintiff’s criminal history and history of prior confinement is relevant to the issue of the plaintiff’s claim for monetary damages. 7. The use of evidence of prior criminal convictions to impeach the credibility of a witness is specifically authorized by Fed. R. Evid. 609. 8. In addition, the information is required in order that the defendant be able to completely and thoroughly cross-examine the plaintiff with regard to past or present matters. 9. The Criminal History Systems Board has given a general grant of access to the criminal records information of offenders for attorneys of record in civil litigation who seek the information for trial strategy or witness impeachment purposes, provided that attached to the motion requesting approval of the trial judge there is an affidavit attesting to the purpose for which the information is sought and certifying that the information will not be disclosed to any unauthorized person. 10. Attached is the required affidavit from defendant's counsel. Case 1:05-cv-11574-RGS Document 76 Filed 12/20/2006 Page 2 of 6 Respectfully submitted, Defendant, Dennis LeBlanc By his Attorney, /s/ Kenneth H. Anderson Kenneth H. Anderson, Esq. B.B.O. #556844 FINNERAN, BYRNE & DRECHSLER, L.L.P. Eastern Harbor Office Park 50 Redfield Street Boston, MA 02122 (617) 265-3900 DATED: December 20, 2006 CERTIFICATION PURSUANT TO LOCAL RULE 7.1(A)(2) AND FED.R.CIV.P. 37.1 I certify that I have conferred with counsel for the plaintiff in a good faith attempt to resolve the or narrow the issues presented through this motion with plaintiff’s counsel. I further certify that this motion filed through the EFC system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non-registered participants on December 20. 2006/ /s/ Kenneth H. Anderson Kenneth H. Anderson Case 1:05-cv-11574-RGS Document 76 Filed 12/20/2006 Page 3 of 6 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS DOCKET NO. 2005-11574 RGS STEPHAN COWANS, ) Plaintiff ) v. ) ) CITY OF BOSTON, BOSTON POLICE ) DEPARTMENT, DONALD L. DEVINE, ) DEPUTY SUPERINTENDENT OF THE ) BUREAU OF INVESTIGATIVE SERVICES ) OF THE BOSTON POLICE DEPARTMENT, ) IN HIS INDIVIDUAL CAPACITY, ROBERT ) FOILB, SUPERVISOR OF THE BOSTON ) POLICE DEPARTMENT IDENTIFICATION ) UNIT, IN HIS INDIVIDUAL CAPACITY, ) GREGORY D. GALLAGHER, IN HIS ) INDIVIDUAL CAPACITY, DENNIS LEBLANC, ) IN HIS INDIVIDUAL CAPACITY, ) JOHN H. MCCARTHY, IN HIS INDIVIDUAL ) CAPACITY, PAUL T. MCDONOUGH, ) IN HIS INDIVIDUAL CAPACITY, ) ROSEMARY MCLAUGHLIN, IN HER ) INDIVIDUAL CAPACITY, HERBERT L. ) SPELLMAN, IN HIS INDIVIDUAL CAPACITY; ) AND DOES 1-10, ) Defendants ) AFFIDAVIT OF KENNETH H. ANDERSON, ESQ. I, Kenneth H. Anderson, on oath, hereby depose and state that I am an attorney for the defendant, Dennis LeBlanc and hereby certify that I seek the criminal offenders record information ("CORI") of the individual listed in the defendant’s Motion For Criminal Records Of Plaintiff Stephan Cowans, exclusively for the purpose of witness impeachment or trial strategy and that the CORI to which I am granted access shall not be disclosed to unauthorized persons and/or in violation of G.L. c.6, Sections 167 et. seq. or 803 CMR 1.00 et. seq. Case 1:05-cv-11574-RGS Document 76 Filed 12/20/2006 Page 4 of 6 Signed under the pains and penalties of perjury this 20th day of December, 2006. /s/ Kenneth H. Anderson Kenneth H. Anderson, Esq. Case 1:05-cv-11574-RGS Document 76 Filed 12/20/2006 Page 5 of 6 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS DOCKET NO. 2005-11574 RGS STEPHAN COWANS, ) Plaintiff ) v. ) ) CITY OF BOSTON, BOSTON POLICE ) DEPARTMENT, DONALD L. DEVINE, ) DEPUTY SUPERINTENDENT OF THE ) BUREAU OF INVESTIGATIVE SERVICES ) OF THE BOSTON POLICE DEPARTMENT, ) IN HIS INDIVIDUAL CAPACITY, ROBERT ) FOILB, SUPERVISOR OF THE BOSTON ) POLICE DEPARTMENT IDENTIFICATION ) UNIT, IN HIS INDIVIDUAL CAPACITY, ) GREGORY D. GALLAGHER, IN HIS ) INDIVIDUAL CAPACITY, DENNIS LEBLANC, ) IN HIS INDIVIDUAL CAPACITY, ) JOHN H. MCCARTHY, IN HIS INDIVIDUAL ) CAPACITY, PAUL T. MCDONOUGH, ) IN HIS INDIVIDUAL CAPACITY, ) ROSEMARY MCLAUGHLIN, IN HER ) INDIVIDUAL CAPACITY, HERBERT L. ) SPELLMAN, IN HIS INDIVIDUAL CAPACITY; ) AND DOES 1-10, ) Defendants ) ORDER OF THE COURT Upon motion of the defendant, Dennis LeBlanc, in the above-captioned action, this Honorable Court does herewith ORDER the Criminal History Systems Board of the Commonwealth of Massachusetts to forthwith produce to defendant’s counsel, Kenneth H. Anderson, Esq., the criminal history and probation records of each of the following individuals: 1. Stephan Cowans, Date of Birth 9/07/1970 ___________________________________ J. Dated: ______________________________ Case 1:05-cv-11574-RGS Document 76 Filed 12/20/2006 Page 6 of 6