                                                                                              08/24/2016


                                          DA 14-0696
                                                                                          Case Number: DA 14-0696

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2016 MT 214



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

DAVID THOMAS WEISBARTH, II,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Eighth Judicial District,
                        In and For the County of Cascade, Cause No. CDC-13-062
                        Honorable Kenneth R. Neill, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Chad Wright, Chief Appellate Defender, Jennifer Hurley, Assistant
                        Appellate Defender, Helena, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Pamela P. Collins, Assistant
                        Attorney General, Helena, Montana

                        John Parker, Cascade County Attorney, Jennifer Quick, Deputy County
                        Attorney, Great Falls, Montana



                                                    Submitted on Briefs: May 11, 2016

                                                               Decided: August 24, 2016


Filed:

                        __________________________________________
                                          Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.

¶1     David Weisbarth appeals his conviction from the Eighth Judicial District Court,

Cascade County, for incest against his minor child, T.W. Weisbarth argues that he is

entitled to a new trial based on the State’s failure to disclose T.W.’s medical records. We

agree. The State obtained T.W.’s medical records and then failed to disclose those

records to the defense.       The medical records contained evidence that was clearly

favorable to the defense, and the withheld evidence places the trial in such a different

light that it undermines our confidence in the jury’s verdict.1 We reverse and remand for

a new trial.

¶2     The issue on appeal is whether Weisbarth is entitled to a new trial based on the

State’s failure to disclose T.W.’s medical records.

                  FACTUAL AND PROCEDURAL BACKGROUND

¶3     David Weisbarth is the birth father of T.W. Since age three, T.W. has resided with

her maternal grandfather Roy, who is her permanent guardian.                Sometime between

October 23, 2012, and December 13, 2012, when T.W. was five years old, Roy took T.W.

to visit Weisbarth at his apartment in Great Falls. Soon after visiting her father, T.W.

reported to law enforcement that Weisbarth had sexually abused her in his bathroom.

T.W. alleged that Weisbarth took her into the bathroom and “all of [a] sudden started

touching my private parts with his fingers.” As relevant to the defense’s trial strategy,
1
  The parties submitted a joint motion to seal their briefs and supporting documents because of
confidentiality concerns regarding T.W.’s medical records. This Court issued an order
authorizing the sealing of the briefs and supporting documents. While this Opinion discusses
information contained within T.W.’s medical records, we have, to the extent possible, labored to
protect the confidentiality of the records while simultaneously observing that any opinion of this
Court must be public.


                                                2
prior to T.W.’s allegation of sexual abuse, she was diagnosed with reactive attachment

disorder.   In an attempt to treat her disorder, T.W. has seen a number of medical

professionals,   including    two   child    specialists:   Dr.   Thomas     Krajacich,   a

neuropsychologist, who started treating T.W. in early 2010; and Dr. Melinda Pike, a child

psychiatrist, who began treating T.W. the following year.

¶4     On February 7, 2013, the State charged Weisbarth by Information with one count

of felony incest in violation of § 45-5-507, MCA. On April 1, 2014, Weisbarth provided

notice to the State that he intended to call Dr. Donna Veraldi, a child psychologist, as an

expert witness to testify about reactive attachment disorder and its possible effects on a

child’s behavior— in particular, its tendency to affect a child’s propensity for

truthfulness. The State filed a motion to exclude Veraldi’s testimony, reasoning that

Veraldi did not have a basis to testify about T.W.’s disorder because Veraldi had not

reviewed T.W.’s medical records. In response, Weisbarth filed a motion to compel the

State to produce T.W.’s medical records so Veraldi could form a basis to testify as to

T.W.’s specific ailments. The District Court permitted Veraldi to testify and granted

Weisbarth’s motion.      The court ordered that the State produce the medical records

directly to Weisbarth.

¶5     On May 15, 2014, four days prior to the start of trial, the State filed a motion for

an in camera inspection of T.W.’s medical records.2 The prosecutor represented to the

court and defense counsel that she had reviewed the records, but expressed concern that


2
   The State obtained T.W.’s medical records after obtaining Roy’s written consent for their
release.


                                             3
T.W.’s “privacy rights have been implicated, such that the State does not feel

comfortable” producing the medical records to the defense without the District Court

reviewing the records in camera. The prosecutor did not alert the court or defense

counsel that the records contained exculpatory evidence. Instead, the prosecutor stated

that the information about T.W. was “intertwined with a multitude of other information,

which the State does not believe to be discoverable.”

¶6     The next day, on May 16, 2014, the State filed a motion to seal the medical

records. The prosecutor acknowledged that, given the proximity to the start of trial, her

request for an in camera inspection was not possible. The State then sent a heavily

redacted copy of the medical records to Weisbarth. The State explained that it “redacted

the medical records, in light of the victim’s privacy interest, so that they are limited to the

diagnosis of Reactive Attachment Disorder, the date, and the likely cause.” As a result,

the redacted medical records provided to Weisbarth consisted of a single sentence from a

three-page report written by Krajacich. The portion of Krajacich’s report provided to the

defense stated, in its entirety: “We will go slowly with differential diagnoses; but at this

time, I am convinced this young girl has reactive attachment disorder most likely based

on early neglect or even possible abuse.” The District Court granted the State’s motion to

seal the medical records, without ever viewing the records in chambers. The State did

not inform the defense or the District Court at any subsequent time that exculpatory

information existed in the medical records.

¶7     On May 19, 2014, the matter proceeded to trial.            The only direct evidence

presented by the State against Weisbarth was T.W.’s testimony. T.W. testified that


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during a visit to Weisbarth’s apartment, he pulled down her pants and his pants; touched

her private parts; and asked her to touch his private parts, but she refused. The State

presented little circumstantial evidence in support of T.W.’s testimony.         Dr. Nancy

Maynard, who examined T.W. after the alleged incident, testified that there were no

physical signs of abuse.     Dr. Robert Page, a child psychologist, who reviewed a

videotaped interview of T.W., testified that some aspects of T.W.’s disclosure were

reliable, some aspects were unreliable, and T.W.’s disclosure was probably more

consistent with an actual event. Roy testified that Krajacich indicated to him that T.W.’s

disorder was relatively mild. Roy further testified that T.W. was “doing super” prior to

the alleged incident and her counselor had indicated that T.W.’s disorder was not having

a substantial impact on her behavior. Veraldi testified for the defense. The defense

attempted to use Dr. Veraldi’s testimony to attack T.W.’s credibility. Veraldi testified

that frequently reactive attachment disorder manifests itself in behavioral issues such as

lying. During cross-examination, however, the prosecutor effectively contested Veraldi’s

testimony. The prosecutor elicited from Veraldi that not all children diagnosed with

reactive attachment disorder lie or fabricate information; that Veraldi had not actually

evaluated T.W.; and that Veraldi had, in fact, little basis to conclude that in T.W.’s case

her disorder manifests itself through lying or causes her to fabricate information.

¶8     In her closing argument, the prosecutor emphasized that T.W. was in a “stable and

loving home” at the time of the alleged incident and T.W.’s disorder was simply a “red

herring” manufactured by the defense to distract from Weisbarth’s culpability:




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       The Defense wants to attack her. She’s an angry child with reactive
       attachment disorder. Cannot tell the truth. . . . Dr. Veraldi, what assistance
       did she give you with that? Nothing. She told you that children with
       reactive attachment disorder can have a propensity to be [un]truthful. She’s
       never evaluated this victim.
                                         . . .

       And think about this, ladies and gentleman, when you’re evaluating [T.W.],
       what motive does she have to lie? . . . She was safe. [Roy] had permanent
       guardianship. She was home. She had no reason to fabricate this abuse.

The prosecutor further emphasized throughout her closing argument the lack of evidence

that T.W.’s disorder manifests itself through lying:

       I think what’s telling, ladies and gentlemen, is Defense Counsel wants you
       to think that [T.W.] was lying, that she has reactive attachment disorder and
       was lying. There’s no evidence to suggest that [T.W.] exhibited any
       symptoms of lying. The only person, in fact, that tells you that she was
       lying was the Defendant. He has to have you believe she was lying, but
       there’s no evidence to support that.

¶9     The jury found Weisbarth guilty of felony incest. The District Court sentenced

Weisbarth to 100 years in the Montana State Prison, with 50 years suspended and no

parole eligibility for the first 25 years.

¶10    After the conclusion of trial, Weisbarth was able to gain access to the sealed

medical records.      The medical records provided evidence that T.W. suffers from

psychosis; that T.W.’s disorder manifests itself through lying; that T.W.’s living situation

at the time of the alleged incident was unstable and may have caused her symptoms to

worsen; that Roy reduced T.W.’s medication below the recommended therapeutic levels

around the time of the alleged incident; and that T.W. may have previously made and

then recanted an allegation of sexual abuse against her mother.




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                                  Evidence of Psychosis

¶11    The State redacted information in the medical records showing T.W.’s disorder

causes her at times to lose contact with reality. The medical records show Krajacich

diagnosed T.W. with “psychotic intrusions” in the spring of 2011. Krajacich noted T.W.

suffers from “command hallucinations” in which various figures—including her teddy

bear, Sponge Bob, and her step-brother—tell her to do inappropriate things. Krajacich

noted that, while not conclusive, the results of his testing suggest a “breakdown in

reality.” Krajacich believed T.W.’s condition was so severe that he considered whether

she should be placed in a children’s hospital for “psychiatry” services, potentially

Intermountain Children’s Hospital in Helena or a similar specialized program or in

Virginia.

¶12    The medical records also reveal that Pike confirmed Krajacich’s initial diagnosis.

The medical records show Pike prescribed 2 milligrams of Intuniv to treat T.W.’s mood

disorder in February 2011, and approximately six months before the alleged incident, in

March 2011, Pike considered prescribing antipsychotic medication to T.W., noting that

the medication may be necessary if T.W. continued to suffer from psychotic symptoms.

                                    Evidence of Lying

¶13    The State redacted information in the medical records showing T.W.’s disorder

manifests itself through lying. Krajacich noted that T.W. is very smart but, as a result of

her disorder, “struggle[s] enormously with behavioral issues.” Krajacich reported that

her grandparents complained of terrible deceptive behavior, that “she lies about a number

of things,” and that she “make[s] stuff up on the spot.” Pike similarly explained T.W.’s


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disorder manifests itself through lying, noting that T.W. “lies a lot of the time” and has

“problems with lying.”

                         T.W.’s Tumultuous Life Circumstances

¶14   The State redacted information in the medical records showing T.W.’s living

situation was unstable and may have worsened her symptoms.            Pike noted that, in

September 2011—around the time of the alleged incident—T.W.’s step-grandmother,

Gina, was divorcing Roy after seven and one-half years of marriage. Pike noted that

Gina had kicked Roy and T.W. out of the family home; Gina was afraid Roy was going

to kill her; and Roy and T.W. had been forced to live in a fifth-wheel RV trailer. Dr. Pike

further noted that, in the midst of all this, T.W.’s German shepherd had died. The

medical records reveal that Pike was seriously concerned T.W.’s tumultuous life

circumstances may cause her symptoms to worsen.                Pike noted “the current

circumstances could potentially be fairly stressful for [T.W.] and further her fears of

abandonment and attachment problems.”

                                       Medication

¶15   The State redacted information in the medical records showing Roy began

reducing T.W.’s medication below therapeutic levels around the time of the alleged

incident without approval from Pike. Pike noted that, sometime before March 2013, Roy

started reducing T.W.’s Intuniv dosage. According to the medical records, Roy believed

that the medication was making T.W. drowsy so he reduced her Intuniv dosage by half,

giving her 1 milligram per day instead of the prescribed 2 milligrams. After learning that

Roy was reducing T.W.’s dosage, Pike admonished Roy for doing so and warned him


                                            8
against altering T.W.’s medication again in the future.      Pike explained to Roy that

“cutting it in half can destroy the long term effects” of the medication.        Roy later

acknowledged to Dr. Pike that T.W. needs the full 2 milligrams because “anything less

does not work” and “there are problems when she is not taking it” as prescribed.

                            False Accusation of Sexual Abuse

¶16    Finally, the State redacted information in the medical records regarding a potential

allegation of sexual abuse. Krajacich noted that T.W. had a few overnight visits with her

mother and her mother’s boyfriend. Krajacich’s report states:

       The first overnight visit seemed to go fairly well, but the second visit
       seemed to be more difficult for [T.W.]. She claimed that she had seen
       sexual behavior between mother and [boyfriend], and Roy and Gina are
       really suspicious about whether that is really a real observation versus
       “something pretend.” [T.W.] initially said that something happened to her
       also, but again, she then backed away from that later. Therefore, they are
       not really sure what has gone on.

(Italics in original.)

¶17    After obtaining T.W.’s medical records, Weisbarth appealed his conviction.

                              STANDARDS OF REVIEW

¶18    Brady claims not contained within the trial record are reviewed under the plain

error authority of § 46-20-701(2)(b), MCA. State v. Ellison, 2012 MT 50, ¶ 12, 364

Mont. 276, 272 P.3d 646. A motion to dismiss charges based on the State’s suppression

of exculpatory evidence is a question of law. State v. Duncan, 2008 MT 148, ¶ 17, 343

Mont. 220, 183 P.3d 111. We review conclusions of law for correctness. Valley Bank v.

Hughes, 2006 MT 285, ¶ 15, 334 Mont. 335, 147 P.3d 185.




                                            9
                                     DISCUSSION

¶19 Whether Weibarth is entitled to a new trial based on the State’s failure to disclose
T.W.’s medical records.

¶20    Weisbarth argues that the State’s suppression of the medical records violated his

right to due process. He maintains that the records clearly contained evidence favorable

to his defense and prejudice ensued from the State’s failure to disclose the medical

records. Under the landmark case of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194,

(1963), the prosecution is constitutionally obligated to provide any exculpatory or

impeachment evidence in its possession to the defense. We have explained that a party

seeking to establish a Brady violation must establish: (1) the State possessed evidence,

including impeachment evidence, favorable to the defense; (2) the prosecution

suppressed the favorable evidence; and (3) had the evidence been disclosed, a reasonable

probability exists that the outcome of the proceedings would have been different.

McGarvey v. State, 2014 MT 189, ¶ 16, 375 Mont. 495, 329 P.3d 576. We have further

explained that even if the foregoing elements are satisfied, there is no Brady violation if

the petitioner could have obtained the exculpatory evidence with reasonable diligence.

McGarvey, ¶ 16.

                                  I. Favorable Evidence

¶21    We agree with Weisbarth that the medical records contained evidence favorable to

his defense. Although the evidence differs in kind, it all shares a common feature: it

impugns T.W.’s credibility.      Clearly, all of the evidence in the medical records

concerning T.W.’s mental health casts doubt on T.W.’s ability to credibly recall the



                                            10
alleged incident. This is “classic impeachment evidence.” Browning v. Trammell, 717

F.3d 1092, 1105 (10th Cir. 2013). “A witness’s credibility may always be attacked by

showing that his or her capacity to observe, remember, or narrate is impaired.”

Browning, 717 F.3d at 1105 (citing 4 Jack B. Weinstein & Margaret A. Berger,

Weinstein’s Federal Evidence § 607.05[1] (Joseph M. McLaughlin ed., 2d ed. 2014)).

The evidence of T.W.’s problems with lying was valuable to the defense for

impeachment purposes. While under M. R. Evid. 403, a court may exclude relevant

evidence if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, needless presentation of cumulative evidence, waste of

time, undue delay, or misleading the jury, it is well-settled law that evidence of a witness

having previously lied is favorable evidence that the defense may use for impeachment

purposes absent a determination of inadmissibility pursuant to Rule 403. See State v.

Passmore, 2010 MT 34, 355 Mont. 187, 225 P.3d 1229. Thus, the evidence of T.W.’s

mental health and the related evidence of T.W.’s problems with lying were favorable

evidence for the defense.

¶22    The evidence of the prior accusation of sexual abuse, however, presents a more

difficult question because of the potentiality of invoking Montana’s Rape Shield Statute,

§ 45-5-511, MCA, et seq. Krajacich’s report documented the potential prior accusation

of sexual abuse. We have recognized that a complaining witness’s prior false accusation

of a sexual offense “may often be probative of the complaining witness’ specific

reputation for untruthfulness.” State v. Anderson, 211 Mont. 272, 283, 686 P.2d 193, 199

(1984). However, such evidence is admissible only if the accusation has been “proven or


                                            11
admitted to be false.” State v. Ring, 2014 MT 49, ¶ 17, 374 Mont. 109, 321 P.3d 800. In

order to establish whether a contention is false, we require the trial court to conduct a

separate hearing outside of the jury’s presence. Ring, ¶ 17. The hearing must address

whether it is proper to question the witness regarding a previous accusation, as well as the

admissibility of corroborating evidence. Ring, ¶ 18. Here, because the State failed to

disclose to the defense T.W.’s prior accusation, the defense was unaware and thus unable

to initiate the process set forth above to obtain a determination of whether the accusation

was admissible. The defense, through the State’s actions, was prevented from obtaining a

judicial ruling regarding whether the accusation was proven or admitted to be false and

whether any corroborating evidence may have been admissible. Further, without the

benefit of the requisite hearing and further evidence presented, this Court is unable to

review on appeal whether Krajacich’s report documenting the prior accusation of sexual

abuse was admissible.

¶23    The State argues that inadmissibility of the evidence is dispositive in determining

whether the evidence should have been disclosed under Brady. The State reasons, that

for purposes of Brady, inadmissible evidence cannot be considered favorable evidence

because it cannot be used by the defense at trial. We have never squarely addressed

whether inadmissible evidence can properly be considered Brady evidence. However,

the majority of courts that have addressed the issue have concluded that inadmissible

evidence can constitute Brady evidence. See Ellsworth v. Warden, 333 F.3d 1, 5 (1st Cir.

2003); United States v. Gil, 297 F.3d 93, 104 (2d Cir. 2002); Maynard v. Gov’t of Virgin

Islands, 392 F. App’x 105, 115-16 (3d Cir. 2010); United States v. Sipe, 388 F.3d 471,


                                            12
485 (5th Cir. 2004); Sawyer v. Hofbauer, 299 F.3d 605, 614 (6th Cir. 2002); United

States v. Asher, 178 F.3d 486, 496 (7th Cir. 1999); Madsen v. Dormire, 137 F.3d 602 (8th

Cir. 1998); Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999).

¶24   We agree with the majority of courts that have addressed the issue. The focus of

the inquiry should not be on whether the evidence is admissible or inadmissible, but

rather whether the evidence is favorable to the defense and could have affected the

outcome of the proceedings. We decline to develop a rule that would foreclose the

development of defense strategy and investigation or to presuppose what information the

defense may have developed as a result of properly disclosed evidence. In light of the

policy underlying Brady, we believe that even inadmissible evidence could have

“substantial value to the defense that elementary fairness requires it to be disclosed.”

United States v. Agurs, 427 U.S. 97, 110, 96 S. Ct. 2392, 2401 (1976). Here, although

Krajacich’s report may have been inadmissible for any number of reasons, at the very

least disclosure of the report had substantial value to the defense given its potential to

lead directly to admissible exculpatory evidence. We therefore conclude that Krajacich’s

report constituted favorable evidence within the meaning of Brady.

¶25   In sum, we agree with Weisbarth that the medical records contained favorable

evidence to his defense. After obtaining the medical records, the State should have

disclosed the substance of the records to Weisbarth. Thereafter, any concerns of the State

regarding privacy rights of the victim, relevancy, and inadmissibility under the Rape

Shield Statute, could be subsequently raised and considered by the District Court.    We




                                           13
therefore turn to the question of whether the State’s failure to alert Weisbarth of the

substance of the records caused him prejudice.

                                      II. Prejudice

¶26   In order to establish prejudice, Weisbarth must show that the undisclosed evidence

was material to his defense. Evidence is material for purposes of Brady, if it “could

reasonably be taken to put the whole case in such a different light as to undermine

confidence in the verdict.” Kyles v. Whitley, 514 U.S. 419, 435, 115 S. Ct. 1555, 1566

(1995). “The materiality of excluded evidence is considered collectively, not item by

item.” McGarvey, ¶ 17. Further, “[i]mpeachment evidence is especially likely to be

material when it impugns the testimony of a witness who is critical to the prosecution’s

case.” United States v. Price, 566 F.3d 900, 914 (9th Cir. 2009).

¶27   T.W. was unquestionably the State’s most important witness. In contrast to the

other circumstantial evidence with arguably minimal value, T.W.’s testimony provided

direct testimonial evidence of Weisbarth’s guilt. With the significant redactions made by

the State in T.W.’s medical records, the defense was unable to seriously challenge her

testimony and the jury had little reason to doubt her memory or truthfulness.          The

prosecutor exploited this throughout her closing argument. The prosecutor emphasized

that T.W. was in a safe environment and had no reason to fabricate:

      Now, look at the timing of the disclosure, and the sexual abuse that
      occurred, not until 2012. This isn’t an ongoing custody dispute that she’d
      like to get out of that situation. She was safe. [Roy] had permanent
      guardianship. She was home. She had no reason to fabricate this abuse.

The prosecutor further emphasized the lack of evidence demonstrating untruthfulness:



                                           14
      I think what’s telling, ladies and gentlemen, is Defense Counsel wants you
      to think that [T.W.] was lying, that she has reactive attachment disorder and
      was lying. There’s no evidence to suggest that [T.W.] exhibited any
      symptoms of lying. The only person, in fact, that tells you that she was
      lying was the Defendant. He has to have you believe she was lying, but
      there’s no evidence to support that.

Weisbarth, of course, did not have any information to rebut the prosecutor’s narrative and

to give the jury any evidence to question T.W.’s credibility.      That information the

prosecutor concealed. The State did not reveal the evidence of T.W.’s psychosis, her

history of lying, or the prior allegation of sexual abuse. Nor did the State reveal the

evidence in the medical records showing that T.W.’s life was in a state of upheaval at the

time of the allegation and that her grandfather had altered her medication below

therapeutic levels around the time of T.W.’s disclosure.

¶28   Had Weisbarth been able to discredit T.W.’s testimony with this evidence, there is

a reasonable probability that he could have persuaded the jury that T.W. fabricated the

allegations against him. By using the lack of any evidence casting doubt on T.W.’s

credibility against the defense, the prosecutor further heightened the medical records’

impeachment value and the defense’s need for the suppressed evidence. Absent the

concealed evidence, T.W.’s testimony firmly established Weisbarth’s guilt in the eyes of

the jury and rendered his ability to undermine the State’s case exceedingly difficult. If

the State had provided the evidence to the defense, Weisbarth would have been in a

position to seriously challenge T.W.’s credibility through cross-examination and the

direct testimony of Veraldi.    In short, the undisclosed evidence in question “could

reasonably be taken to put the whole case in such a different light as to undermine



                                            15
confidence in the verdict.” Kyles, 514 U.S. at 435, 115 S. Ct. at 1566. We conclude

therefore that the State’s suppression of the medical records was prejudicial to the

defense.

                               III. Reasonable Diligence.

¶29   The State further argues that the medical records do not establish a Brady violation

because it is unclear “what information the defense could have obtained with the exercise

of reasonable diligence.” Citing the Ninth Circuit Court of Appeals’ decision in Amado

v. Gonzalez, 758 F.3d 1119, 1135 (9th Cir. 2014), Weisbarth counters that a prosecutor’s

obligation under Brady is not excused by defense counsel’s failure to exercise diligence

with respect to suppressed evidence. Alternatively, Weisbarth argues that he exercised

reasonable diligence in attempting to obtain the medical records.

¶30   We have on several previous occasions refused to find a Brady violation where the

defense could have obtained the exculpatory evidence through the exercise of reasonable

diligence. See, e.g., State v. James, 2010 MT 175, ¶ 34, 357 Mont. 193, 237 P.3d 672;

State v. Parrish, 2010 MT 212, ¶ 21, 357 Mont. 477, 241 P.3d 1041; McGarvey, ¶ 18.

We acknowledge that this precedent is now seemingly at odds with that of the Ninth

Circuit. Amado, 758 F.3d at 1136 (concluding that the requirement of due diligence is

contrary to federal law as clearly established by the Supreme Court and unsound public

policy). (Internal citation omitted.) However, we nonetheless decline to address the

apparent conflict or revisit our previous decisions here.      Because we believe that

Weisbarth exercised reasonable diligence in this instance, it is unnecessary to do so.

Here, Weisbarth had no way of knowing what evidence the medical records contained


                                            16
and he did the only thing he could do to obtain the records by filing a motion with the

District Court requesting their disclosure. The court granted the motion and ordered the

State to produce the records. The State then represented, on the eve of trial, that it had

produced all discoverable material from the medical records. Weisbarth was entitled to

rely on the State’s representation. See Banks v. Dretke, 540 U.S. 668, 674, 124 S. Ct.

1256, 1263 (2004). In short, Weisbarth exercised due diligence in attempting to gain the

records; the State thwarted those efforts.

¶31    As a final matter, the State argues that pursuant to State v. Johnston, 2014 MT

329, 377 Mont. 291, 339 P.3d 829, rather than reversing Weisbarth’s conviction, the

proper remedy is to dismiss the appeal without prejudice and remand to the District Court

for an in camera inspection of the medical records. We disagree. In Johnston, the

district court erred by denying disclosure of confidential state agency records without

first reviewing the records for exculpatory evidence, and we remanded the case to the

district court to conduct an in camera review of the records. Johnston, ¶ 10. We did so,

however, because the records were still in the agency’s possession and not in the record

on appeal. Johnston, ¶ 4. Here, T.W.’s medical records are part of the record on appeal.

Thus, because the medical records are reviewable on appeal, there is no need to remand

to the District Court.

                                     CONCLUSION

¶32    We realize that child abuse is one of the most difficult crimes to prosecute, in large

measure because there are often no witnesses except the victim. We acknowledge as well

that there is something innately human about wanting to protect a young child from her


                                             17
abuser and the release of her personal information. In our system of justice, however,

prosecutors occupy a unique position of public trust and their obligations extend beyond

the protection of the victim. Prosecutors must ensure above all else that justice is done

which necessarily requires that they provide a defendant, regardless of the nature of the

offense, due process of law. For the foregoing reasons, we are not convinced that this

occurred here.

¶33   Reversed and remanded.


                                                /S/ LAURIE McKINNON


We Concur:

/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ MICHAEL E WHEAT




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