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BOISE — After a recent mistrial in which it came to light Idaho Department of Correction officials didn’t turn over all the evidence they should have, an Ada County prosecutor went to a prison in person to inspect another case’s records himself.

He found department officials hadn’t provided evidence correctly in that case either, he said in court Wednesday. It was the second time in as many weeks a prosecutor in Ada County had to tell a judge the department had withheld evidence.

Brent Ferguson is prosecuting Robert Mendez, 38, who is serving a prison sentence for aggravated battery and is back in court on another aggravated battery charge for allegedly breaking another prisoner’s jaw in May 2018.

Mendez’s latest case was set for trial May 30. In court Wednesday, Ferguson said he wanted to be sure Idaho Department of Correction officials had turned over all the necessary evidence in the case.

His doubt arose in light of the unrelated mistrial of seven Idaho prisoners charged in connection with a January 2018 prison riot. Department officials did not turn over all the information in that case, and prosecutors last week dropped all charges against the men.

Ferguson didn’t want that to happen in Mendez’s case, so he inspected the department’s file in person himself, he said.

“I can tell the court that I did find some things in their file that they had not given us,” Ferguson said Wednesday. “The information reports that have not yet been disclosed — the narratives were placed in the investigative summary that was previously disclosed to the defense, but the full reports were not. And so they had given the substance of those reports in the investigator’s overall summary of the investigation, but not the entirety of those reports.”

Jeff Ray, spokesman for the Idaho Department of Correction, provided a statement about the incident to the Idaho Press.

“While we’re unable to comment on an active case, we will continue to work with the Attorney General’s Office to ensure prosecutors and the courts have the necessary information to aggressively prosecute crimes committed in our correctional facilities,” he wrote in an email.

Citing the pending nature of the case, Bethany Calley, spokeswoman for the Ada County Prosecuting Attorney’s Office, told the Idaho Press the office was unable to comment.

Evidence-sharing between the department and the Ada County Prosecuting Attorney’s Office is different from the way the office obtains evidence from, for example, the Boise Police Department. Prosecutors must subpoena the department to ask for evidence, then rely on department officials to respond to their request. The stakes are high in a criminal case, because a defendant has a constitutional right to see much of that evidence. If it comes to light the evidence exists and defense attorneys didn’t see it, a judge could declare a mistrial — as in the case of the seven inmates accused of rioting.

Mendez’s public defender, Reed Smith, defended one of those seven inmates in that case. He said in court Wednesday he appreciated Ferguson letting him know about the withheld evidence.

“This does not make me feel comfortable based on the trial that we just had recently,” Smith said.

He said he drafted a subpoena of his own earlier that day, spelling out exactly the information he wanted, in depth.

“Drafts of documents,” he said. “Reports. Anything that the ... department of correction sort of unilaterally decided wasn’t discoverable or relevant.”

Because of that, Smith told 4th District Court Judge Nancy Baskin he couldn’t say if he was ready to go to trial or not. Mendez’s trial must take place by July 30 or his constitutional rights will be violated. Thus there was time to move the date if needed, said Baskin, who was the judge who declared the mistrial in the previous case.

Baskin said she didn’t blame Ferguson for the mishap and appreciated his efforts to find the evidence, as well as his being candid about it.

Still, Smith said, “the history that we have in front of us, unfortunately, is that IDOC does not comply with their subpoenas and that information is withheld.”

“Fortunately we were able to find that out on cross-examination at (the other) trial, but again, it leaves me pretty uncomfortable that I have everything I need to do my job to defend Robert,” Smith said.

That appeared to be on Baskin’s mind, as well.

“However, the defense’s position that they’re not completely comfortable, even with Mr. Ferguson’s representation, is also understandable and deserves this court’s attention to ensure the defendant gets a fair trial,” she said.

Mendez is scheduled to appear in court again Wednesday.

Meanwhile, the Idaho Department of Correction is appealing a judge’s decision in a separate case, ordering the department to release an array of documents it denied in a 2017 records request regarding chemicals used in executions. A University of Idaho professor who made the request sued the corrections department in September of 2017, and the case went to trial earlier this year.

Tommy Simmons is the Ada County public safety reporter for the Idaho Press. Follow him on Twitter @tsimmonsipt

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