who needs things like "evidence" and "fair trials" when the patriot act has replaced the bill of righs Original Article Miller evidence stirs dispute By Gary Grado, Tribune April 13, 2006 Prosecutors and the man indicted in the Barrington Estates slayings in Mesa are heading toward a courtroom showdown over a fundamental concept of American justice: A suspects right to know what evidence his accusers have on him. The state has taken the rare step of asking a Maricopa County Superior Court judge to protect the identities and statements of certain witnesses from William Miller of Scottsdale, who is charged with five counts of first-degree murder. Our hands are completely tied behind our backs, said Phil Noland, one of two defense attorneys representing Miller. Its difficult to try to find a weakness in the states case and find out how to defend a case if youre not disclosed the information. Even though prosecutors are required to turn over all police reports and evidence they have as early and as completely as possible so defendants can prepare for trial, there are exceptions, said Stephen Gerst, a retired judge who teaches at Phoenix International School of Law. In the end, though, the judge overseeing the case will likely permit Miller to have the information that prosecutors are keeping from him because not allowing him to have it would be an issue for appeal, said Gerst, who isunaffiliated with the case. The judge is going to bend over backward, Gerst said. He doesnt want to see this case tried twice. Miller stands accused in the Feb. 21 deaths of Steven Terrence Duffy, 30, and his girlfriend, Tammy Lovell, 32, her children, Cassandra Lovell, 15, and Jacob Lovell, 10, and Duffys brother, Shane Donovan Duffy, 18. Deputy Maricopa County attorney Bob Shutts has alleged in court documents that the killings were to eliminate witnesses in an arson case against Miller, whose home burned Nov. 25. Mesa police and the Maricopa County Attorneys Office have released limited information about the killings and have obtained court orders to seal search warrants. They have released heavily redacted versions of the written justification for Millers March 3 arrest. Shutts said last week that witnesses could be harmed if certain information is publicized in the news media or given to the defense. Sealing information from the public is not so uncommon. Keeping it from the defense, however, is rare, Gerst and Noland said. Shutts has invoked a part of Arizonas Rules of Criminal Procedure that allows withholding witness information if disclosure would result in a risk or harm outweighing any usefulness of the disclosure to any party. The State avows the risk cannot be currently eliminated by less substantial restriction of discovery rights, Shutts wrote in a motion, quoting the rule. Noland said he will challenge the states request. It will be up to the trial judge whether the state can keep withholding the information and the decision can be appealed, Gerst said. It seems like a pretty fair procedure to me, but it is rare, Gerst said. Noland has also asked the court to unseal the search warrant affidavits the written, sworn documents in which the police justify the search. Court records show at least seven warrants have been served in the case, including searches at the homicide scene and both Millers rented house and burned home. Miller defense attorney Carmen Fischer said the defense usually gets to see the search warrant affidavits, but in this case the state has taken the extraordinary step of sealing them from the defense. Paul Bender, an Arizona State University law professor who specializes in constitutional law, said he believes it will be more difficult for the state to withhold the affidavits. If the legality of the warrant is maybe an issue that is, if the case would come out one way if the warrant was legal and another way if it was illegal youve got to show the other side the warrant and youve got to show them the affidavit on which the warrant is based, Bender said. Contact Gary Grado by email, or phone (602) 258-1746