Judge Alan Stephens has dismissed part of one of Chris Tapp’s petitions for post-conviction relief, while allowing other parts to move forward.
While Thursday’s ruling is mixed, it leaves Tapp an avenue to mount a substantive challenge to his conviction for the 1996 murder of 18-year-old Angie Dodge.
The decision came the same day Bonneville County Prosecutor Danny Clark released the findings of his review of the Tapp conviction. Clark does not believe there is clear and convincing evidence of Tapp’s innocence, so he will not move for the conviction to be vacated or for a new trial. The Post Register will report in detail on Clark’s findings this weekend.
Importantly, Stephens’ ruling allows the challenge to focus on whether police used the polygraph “to psychologically coerce, manipulate and trick (Tapp) into a false confession.”
That has been the key finding of numerous outside experts who have reviewed the case, including false confession experts, retired FBI supervisory special agents and polygraph experts.
The petition before the court involves two issues.
The first is whether prosecutors failed to turn over video tapes of certain polygraph and interrogations sessions at which Tapp alleges he was psychologically coerced into a confession which had left him locked up for nearly half his life.
This claim is called a “Brady violation” after the U.S. Supreme Court case Brady v. Maryland, which held that prosecutors have an obligation to turn over all evidence which tends to show a defendant isn’t guilty.
That claim suffered a significant blow when some of the tapes allegedly withheld subsequently turned up in files at the State Appellate Public Defender’s Office.
Bonneville Public Defender John Thomas, Tapp’s attorney, argued that the tapes were mislabeled, so Tapp’s original defense team likely didn’t know what was on them. But Stephens rejected that interpretation.
“The labeling was at least clear enough to put defense counsel on notice that the tapes contained either interviews or polygraphs linked to the case,” Stephens wrote.
There is one remaining tape, containing a polygraph conducted Jan. 15, 1997, which has still not been found. Stephens noted that it was not found after a third party attempted to seek it out. He ruled Tapp can continue to argue that there was a Brady violation, but only with regard to that single tape.
Thomas will still have to clear several high hurdles to prove this claim, Stephens noted, including showing that the contents of that missing tape could have been used to argue Tapp wasn’t guilty or to impeach witnesses who testified against him.
The second issue is whether Tapp can present new evidence that he was coerced into confessing. This evidence is likely to include tapes of the interrogations themselves, along with the testimony of expert witnesses.
“The seven polygraph videos have not previously been seen or heard by any court,” Thomas argued in an earlier filing. “They show the police employing extreme psychological coercion on Chris Tapp. They show how they coerced and tricked Tapp into changing his story five times.”
An earlier witness list submitted by Thomas includes retired Judge Mike Heavey, co-founder of Judges for Justice, Boise State University polygraph expert Charles Honts, retired FBI Supervisory Special Agent Gregg McCrary and Professor Steve Drizin, legal director of the Center for Wrongful Convictions at Northwestern University.
Stephens’ ruling is a blow to the first cause, while leaving the second issue open to move forward in its entirety.
“The court views these causes of action to be separate, and its decision regarding the Brady violation does not dispose of any part of the other cause of action,” Stephens wrote.
The next step in pursuing the new evidence claim is likely to be an evidentiary hearing, at which expert testimony and evidence will be presented to Stephens for review. There will be a status conference on the petition Tuesday.
Tapp has been in jail or prison for 7,250 days as of Friday.
Reporter Bryan Clark can be reached at 542-6751.