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File name: 1200. Contains case strategy and summary at end of this brief. This draft was revised 22 December 93.

Douglas Palaschak, In Pro Per

Box 1865

Camarillo CA 93011-1865

Law Library paging line: 654-2899

This brief was printed Sunday 4 November 2001. 7:22 PM unless it says something other than 1993.

SUPERIOR COURT OF CALIFORNIA

COUNTY OF VENTURA

CONTENTS AND LIST OF ISSUES PRESENTED HEREIN

TABLE OF AUTHORITIES iii

DECLARATION #1 OF DOUGLAS PALASCHAK: PROBLEMS WITH PUBLIC DEFENDER 1

Issue #1 ALR3d 27:1431 Propriety and prejudicial effect of counsel's representing defendant in criminal case notwithstanding counsel's representation or former representation of prosecution witness 14

Issue #1.1 "The prohibition against acting adversely to a former client applies to successive as well as contemporaneous representation" 14

Issue #1.2 The test for conflict of interest 14

Issue #2 What to do when one encounters problems with appointed counsel 15

Issue #3 Palaschak has a right to EFFECTIVE ASSISTANCE OF COUNSEL 15

Issue #4 The court may consider a pre-existing attorney-client relationship (such as Palaschak's pre-exisiting attorney/client relationship with Attorney Robert Schwartz) when deciding whom to appoint to represent the defendant. 15

Issue #4.1 The standards for effective assistance of counsel 15

Issue #5 Joe refuses to do adequate research to draft a successful Motion to Traverse or a similar appropriate REMEDY for this situation; he refuses to investigate the argument that regardless of whether the affiant himself had bad faith the critical information (that being the false information from the federal court that I was unlicensed) WAS NOT UNDER OATH 16

Issue #6 The question is not whether Joe Villasana has the capability; Without waiving my claim of conflict of interest, I am convinced that he is quite capable of doing an excellent job on this case or any criminal case. The question is WILL HE TAKE THE TIME TO DO IT; THE ANSWER SEEMS TO BE "NO" - and therefore I ask that the court give us more time or give me new counsel. 16

TABLE OF AUTHORITIES

CASES CITED HEREIN:

Big Bear Municipal Water Dist v Superior Court (1969) 269 CA2d 919. 2 parts of the test for conflict of interest. 15

Cowdry, Re Disbarment (1989) 69 C 32 Attorney may not successively represent adverse interests 14

Galbraith v State Bar (1933) 218 C 329 Attorney may not represent conflicting interests even successively. 14

People v Marsden (1970) 2 C3d 118, 465 P2d 44 15

Platts, US ex rel Platts v Myers (1966 DC PA) 253 F Supp23 an attorney could not represent a defendant who pleaded not guilty and at the same time repesent 2 accomplices who pleaded guilty. This is similar to the position of the public defender office in Palaschak's case. The public defender formerly represented accomplice Jessica Jobin whose testimony convicted Palaschak whose case is now on appeal and which conviction is the premise for the contested suspension which is the basis for the contemplated charge of practicing without a license. 14

Sheffield v State Bar (1943) 22 C 2d 627 Attorney may not represent interests adverse to former client. 14

Trials 31:633 Defending lawyers in disciplinary proceedings 15

CASES NOT YET CITED HEREIN PENDING FURTHER WRITING:

STATUTES CITED HEREIN

Rules of Professional Conduct 3-310 14

TREATISES CITED HEREIN

ALR3d 5:1269 Accused's right to assistance of counsel at or prior to arraignment 16

ALR3d 27:1431 Propriety and prejudicial effect of counsel's representing defendant in criminal case notwithstanding counsel's representation or former representation of prosecution witness 14

ALR3d 66:996 Indigent accused's right to choose particular counsel appointed to assist him 15

ALR4th 2:47 Modern status of rules and standards in state courts as to adequacy of defense counsel's representation of criminal defendant 16

ALR4th 3:1227 Modern status of rules and standards in state courts as to adequacy of defense counsel.." 15

ALRFed 26:218 Modern status of rule as to test in federal court of effective representation by counsel 15

L Ed 2d 64:907 Multiple representation of defendants...as violative of 6th ...federal cases 15

L Ed 2d 83:1112 When is attorney's representation of criminal defendant so deficient as to constitute denial of federal constitutional right to effective assistance of counsel 16

L Ed 2d 101:1017 Supreme Court's views as to what constitutes valid waiver of accused's federal constitutional right to counsel 16

L Ed 2d 102:49 (1990) Supreme Court's view as to accused's right to counsel on appeal 15

Proof of Facts 2nd 5:267 (1975 - with 1987 pocket insert) Ineffective Assistance of Counsel 15

Trials 30:607 Defending against a claim of ineffective assistance of counsel 15

Trials 46:571 Strategies for enforcing right to effective representation 15

TREATISES NOT YET CITED PENDING FURTHER WRITING

ALR4TH 28:1121 Admissibility of confession or other statement made by defendant as affected by delay in arraignment - modern state cases.

ALR3D 43:385 "Fruit of the poisonous tree" doctrine excluding evidence derived from information gained in illegal search.

ALR3D 33:229 Right to assistance by counsel in administrative proceedings.

ALR4TH 12:318 Adequacy of defense counsel's representation of criminal client regarding search and seizure issues.

L Ed 2d 47:922 Loss of privilege against self-incrimination by individual as result of his action or inaction occurring when he was not accused - Supreme Court cases.

L Ed 2d 43:871 The Supreme Court's views as to the federal legal aspects of the right of privacy.

L Ed 2d 32:970 Requirement under federal constitution that person issuing warrant for arrest or search be neutral and detached magistrate.

L Ed 2d 28:978 What constitutes probable cause of arrest.

Gilroy, Prosecutor's Discretionary Use of the Grand Jury to initiate or to reinstate prosecution. 1984 Am B Found Res J 1, Winter.

Reynolds, Trial and Tactics and Strategy in Adequacy of counsel claims, 11 Am J Crim L 321, November 1983.

The Confrontation clause and the hearsay rule: a problematic relationship in need of practical analysis. 14 Fla St U L Rev 949, Winter,1987.

The Emperor Has No Clothes, distributed by Loomponics and World News.

Klein, The Emperor Has No Clothes: The Empty Promise of the Constitutional Right to Effective Assistance of Counsel. 13 Hastings Const L Q 625, Summer 1986.

Hoffman, Promises to Keep: The right to Effective Assistance of Counsel - Anderson v Butler 74 Mass L Rev 28.

Rutland, The trivialization of the bill of rights. 31 William and Mary L Rev 287.

The 6th amendment right to counsel: a criminal defendant's right to counsel of choice v the courts interest in conflict-free representation. Wheat v United STates 108 S Ct 1692, 14 S Ill U L J 657.

Sixth amendment - Witness memory loss and hearsay exceptions:Are the Defendant's constitutional and evidentiary guaranties procedure or substance? 79 J Crim L and Criminology 866, Fall, 1988.

CONSTITUTIONS AND OTHER SOURCES OF FUNDAMENTAL AUTHORITY

DECLARATION #1 OF DOUGLAS PALASCHAK: PROBLEMS WITH PUBLIC DEFENDER

I, Douglas Palaschak, declare the following under penalty of perjury:

THE BIG PICTURE

I am having trouble with the public defender's office. They refuse to issue subpenas for important witnesses in this case. They refuse to answer my questions. They don't appropriate adequate time to meet and discuss the case. In particular: 1) Joe Villasana has subpeonaed nobdy from the federal courts nor has he sought declarations supporting our position that I was validly licensed at the time I did federal court work; 2) Joe Villasana has refused to answer 100 written questions in 28 letters that I have written to him; 3) The public defender office has a conflict of interest in this case because a defense on this case is the invalidity of the underlying conviction in which the public defender represents a witness testifying against me.

CONFLICT OF INTEREST

I think that the public defender has a conflict of interest in the case. The transcript of the instant proceeding reveals (at page __) that The Office of The Public Defender (by Brian Boles) represented Jessica Jobin the main prosecution witness against me in my LSD case, the validity of which is essential to the interim suspension which is the basis for the contemplated indictment for practicing law without a license. Furthermore, the Public Defender may have represented Melissa Schentner, the 2nd witness against me. The Public Defender declared a conflict in my case in 1992. The conflict remains. My (Palaschak's) LSD case is still on appeal and further litigation is quite possible. Furthermore I have an investigator (John Haley) gathering information pertaining to Melissa Schwentner's statements. Representation of Palaschak in the instant case requires taking the position that the suspension by the state bar in invalid on several grounds. Evidence in that regard includes the testimony of adverse witnesses Jessica Jobin and Melissa Schwentner.

I WOULD SUBPENA PUBLIC DEFENDER INVESTIGATORS

There are several things I would like to know regarding Melissa Schentner and Jessica Jobin that the public defender and their investigators may know. However I would be precluded from pursuing that avenue of investigation if the public defender represented me.

INVESTIGATION OF SEARCH CONDITION IN FILE OF PREVIOUS CASE

My counsel must review the file of my LSD case (in which the Public Defender represented Jessica Jobin temporarily - and maybe Melissa Schwentner, the 2nd witness against me) to determine my search conditions - and if they are valid or subject to limitations. Also, my counsel ultimately may need to deal with the issue of the validity of any probationary search terms (since the prosecution seized some of the items pursuant to these search terms) on my LSD case (CR 28428). Also, I have as a backup position that the state bar suspension is an unconstitutional punishment for the LSD conviction. At bottom the case before us now is inextricably dependant on the LSD conviction. It is unfair for the public defender to be on both sides of that LSD case (that is, both for and against me). The LSD case is on appeal and could conceivably be remitted to the superior court for reconsideration.

THE WRITTEN RECORD

I began communicating with the public defender in writing because my various public defenders and their supervisors are very hard to reach by telephone or in person. Furthermore, it was obvious to me from the very beginning that the public defender office relished oral communication because there is no record of their mistakes. It have been my observation that the public defender office will not answer me in writing. Approximately 100 questions (and requests) that I have asked the public defender remain unanswered; in all fairness the public defender has answered approximately 10 of my 110 questions. My list of unanswered questions appears below in this declaration.

2 MONTHS TO COPY A TRANSCRIPT

On December 14 I finally received a copy of the transcript of the court sessions of this case of September 1993. The transcripts have been with the public defender's office for a long time. I first requested them in writing on 16 October - 2 months ago. It has taken the public defender 2 months to copy a 70 page transcript. I requested this transcript ___ times in __ letters to the public defender over the past 2 months.

THEY HAVE NOT REQUESTED THE INTERVIEW TAPES

It has been my experience as defense counsel that police officers sometimes erase interview tapes. Therefore prompt request of the tapes is fundamental. To my knowledge the public defender has not even asked for these tapes. My first written request to the public defender for these tapes was on October 19, 1993. I requested these tapes in writing ___ times over the course of the past 2 months.

DECLARATION FROM LEONARD BROSNAN

Was Douglas Palaschak licensed by the federal court at the time he was doing bankruptcies? That is the most important question in this case. I first asked the public defender in writing on October 11, 1993 to obtain a declaration from Leonard Brosnan. When the public defender began work on this case I had already prepared not only subpenas, but a motion to serve a secluded witness, having already attempted to serve a subpena upon the federal court witnesses in this case. The public defender's office at first laughed at my suggestion that we utilize the procedure of CCP 1988. Then Joe Villasana refused to ask for a continuance for the December 3, 1993 hearing. He said he was ready to go. The next week he finally talked on the telephone to Brosnan. Apparently Joe Villasana did not believe (until he heard it from Brosnan himself) my statements to him that Brosnan remembered talking to me. Nonetheless, Joe Villasana continues to contend that Brosnan's testimony or declaration is not important. I contend that everyone connected with the case wants to know if I was really licensed - or if I simply fabricated the story about talking to Brosnan in February 1993. Update: We have received a letter from Brosnan confirming that I was indeed licensed on August 7 1993 - the day that I did the bankruptcy.

REQUEST TO LOOK AT MY OWN DIARIES

Joe has declined to address the issue. I need to review my diaries to see if there are any other people in the federal court who can attest to my conversations with Brosnan.

REQUEST TO USE MY OWN SOFTWARE: DOS 6.0, WORDPERFECT.

PUBLIC DEFENDER HAS NOT EVEN CHECKED TO SEE IF I HAD SEARCH CONDITIONS

Either Joe Villasana or Howard Asher asked me if I had search conditions. I don't recall agreeing to search conditions.

DECLARATION FROM CHIEF JUDGE REAL

Chief Clerk Brosnan told me in January or February 1993 that he would look up In Re Ming (1971 CA 7th Chicago) 469 F2d 1352, chat with Chief Judge Real about the case (and my contention that a suspension would be unconstitutional), and have an answer for me in a few days. I called back and indeed he did have an answer. His assistant told me that the court granted my request and refrained from suspending me. Joe Villasana told me approximately 11 December 1993 that Brosnan confirmed to Joe by telephone and FAX that Brosnan did indeed chat with me and that I was indeed licensed at the time I was doing bankruptcies in August 1993. However Joe did not gather any evidence that Judge Real made a decision in the case. Perhaps my diaries will help us - but Joe has neglected to answer my questions regarding the diaries.

WRITTEN, NUMBERED UNANSWERED QUESTIONS THAT I HAVE ASKED JOE. Keep in mind that prior to these letters I submitted an inch thick file with briefing notes and copies of pertinent cases.

Questions asked in first letter to Joe Villasana on 11 Oct 93:

Question

Number: Question:

1 What is your strategy in writing?

2 Could they legally keep me in jail 6 days like they did?

3 What about Danny Miller taking my program manual?

4 What about Danny's comment that the girl's in the DA's office think that my forms program is slow?

5 What about their failure to give the computers to the clerk?

6 What about their reading the stuff from 1990?

7 What about using the inventory as an excuse to read everything? Were they ordered to inventory what was on the computers? No!

7a Request to investigate Brosnan, Katapodis, and Real.

7b Please answer my letters in writing.

8 When will you have time to work on this case?

9 Please get my laser printer.

10 Please get my computer.

Questions asked of Joe Villasana in Palaschak 2nd letter to Joe on 16 October 1993:

9 2nd request for laser printer.

11 Copy of the transcripts that show I relinquished no rights.

12 Request for Application disks.

13 Please retrieve my orange plastic crate.

14 What about their failure to inventory?

Questions asked of Joe Villasana in Palaschak's 3rd letter to Joe on 18 October 1993:

9 3rd request for laser printer action.

12 2nd request for application disks.

13 2nd request for orange plastic box.

10 2nd request for my downloaded computer.

Questions asked of Joe Villasana in Palaschak's 4th letter to Joe Villasana on 19 October 1993:

15 Request for Danny Miller's tape recording.

16 2nd Request for investigation of Katapodis.

17 2nd Request to touch base with Carol Rossi of state bar.

18 2nd Request to investigate Brosnan.

Questions asked of Joe Villasana in Palaschak's 5th letter to Joe Villasana on 21 October 1993:

9 4th request for laser printer

12 3rd request for application disks.

13 3rd request for orange plastic box.

19 2nd request to answer my letters in writing.

Questions asked of Joe Villasana in Palaschak's 6th letter to Joe Villasana on 22 October 1993:

20 Bellis issue. 5th amendment re testimonial evidence.

21 Tamura procedure.

22 Please review my book:Constitutional Rights of the Accused, Pages __ (not copied on my copy)

Questions asked of Joe Villasana in Palaschak's 7th letter to Joe Villasana on 25 October 1993:

23 Gouled, Boyd, and Entick. Let's discuss.

17 3rd request to investigate Carol Rossi, counsel for state bar.

24 Lawyering is speech. No? Anticipating Near prior restraint argument.

Questions asked of Joe Villasana in Palaschak's 8th letter to Joe Villasana on 27 October 1993:

19 3rd request to please answer my letters. I have written 8 letters and received no reply in writing.

24 Can your office print from my WordPerfect floppy?

25 Please contact Brenda Brannen at the federal court.

26 Does Brenda consider the letter to be an order.

27 What prompted Brenda to write the letter?

28 Is this the way she does these orders?

Related questions asked Dec 10, 1993:

29 Dec 10 What is the standard delay?

30 Dec 10 Has anybody else waited 1.5 years for an order?

Questions asked of Joe Villasana in Palaschak's 8th letter to Joe on 17 October 1993:

31 Who is Brenda Brannen's supervisor?

32 When will you contact Brenda Brannen?

18 3rd request to contact Brosnan.

33 Suggest a letter from Brosnan to sign.

34 Request to view January and February diaries and to copy them.

35 Why haven't you copied the diaries sooner? You copied the stuff that they copied.

36 Why have you not issued subpenas? This includes subpenas duces tecum - and any discovery!

37 Please contact Honey who works for Brosnan and Katapodis.

38 Will you go into federal court for 1983?

39 Will you go into federal court for unlawful search and seizure?

40 Will you go into federal court for conspiracy to deny civil rights?

41 Will you go into federal court for Bivens action?

42 What is Brian Vogel doing on my case?

19 4th request to answer my questions - in writing.

9 5th request for laser printer

Questions asked of Joe Villasana in Palaschak's 9th letter to Joe Villasana on 29 October 1993:

34 2nd request to copy and view diaries.

24 2nd inquiry. Can you copy from floppy?

50 Please print and read my omnibus brief.

24 2nd inquiry about 1st amendment rights? Prelude to Near

20 2nd inquiry on Bellis, Gouled, Boyd issues.

QUESTION IN NOVEMBER:

Questions asked of Joe Villasana in Palaschak's 10th letter to Joe Villasana on 3 November 1993:

Question

Number Date Question

34 3rd request to read and copy January and February diaries.

51 Ask federal court if I am licensed.

19 5th request to answer my letters.

36 2nd general request to do discovery.

24 3rd inquiry re: Near 1st amendment approach.

20 3rd request re: Bellis, Gouled, Boyd

52 Touch base with Steve Powell.

53 Request legislative history if appropriate.

54 Request to discuss material cited in Geilum.

55 Request to look at the work product approach to viewing the diaries and obtaining the computer.

Questions asked of Joe Villasana in Palaschak's 11th letter to Joe Villasana on 4 November 1993:

18 4th request for facts from Brosnan

16 3rd request for facts from Katapodis.

56 I dispute the contention that we cannot bring live witnesses; what is the history of this proscription!

34 4th request to view the diaries.

I have grown weary; there are 20 more letters. The pattern is clear; I am repeating questions and getting no answers.

Questions asked of Joe Villasana by Palaschak in his 12th letter to Joe Villasana on 4 November 1993 (2nd letter that day).

57 Please state your reason for contending that our access to my own WORK PRODUCT diaries mandates access to them by the prosecution.

18 5th request for some presentable evidence from Brosnan - I suggest a declaration from Brosnan.

16 4th request for some presentable evidence from Katapodis

7a 2nd request for some presentable evidence from Judge Real who ruled on my informal motion in January 1993.

58 Why did you switch from investigator Mike Catanzarite to Investigator Jimenez? I suspect that you are treating me as an adversary and desire a witness on your side.

59 Why was Doug Daily at the meeting? I suspect you are treating me as an adversary and desire a witness on your side.

60 What about the trade secrets privilege as applied to Danny Miller and my bankruptcy programs?

11 2nd request for copy of transcripts of previous sessions

15 2nd request for interview tapes with Danny Miller

61 2nd request to include the opinion of the attorney general as an authority - the first request was when I gave Howard Asher my inch brief which included that cite as the main feature.

62 Request to put points and authorities in a standard form with tables of authorities so that I don't have to search through the papers to see if you have included the attorney general's opinion or any other authority.

63 Was there a suspension effective at the time of arrest? We have 2 conflicting stories; Brosnan says no; Katapodis says Yes.

64 Please include PC 1540 in your authorities.

65 Please cite Skelly, McCue, etc in your second motion.

66 Please argue that the federal court has discretion - that local rule 2.6.2.1 is applicable - rather than 2.6.2.2 - that there is a discretionary right to suspend.

67 Please cite Ming in your authorities.

68 We cannot acknowledge the validity of the state court suspension. Contest it!

69 Please argue that the prosecution should have obtained expert opinion regarding federal suspension.

69 Please argue that the prosecution should have obtained expert for the computer issue.

18 6th request for some presentable evidence from Brosnan - because it would bolster page 12 of your motion #2.

70 Please discuss the cases that you cite - and take out the junk cases so that Judge Storch will not have to look up the cases unless he wants more than what you have told him about the case.

71 Do the motions again - and correct the grammatical error.

Questions asked of Joe Villasana by Palaschak in his 13th letter to Joe Villasana on 4 November 1993 (3rd letter that day).

72 Please deal with Christine.

Questions asked of Joe Villasana by Palaschak in his 14th letter to Joe Villasana on 8 November 1993 (3rd letter that day).

24 2nd request to deal with the Unlawful Prior Restraint issue.

19 6th request to answer my questions.

Questions asked of Joe Villasana by Palaschak in his 15th letter to Joe Villasana on 10 November 1993.

72-99 No questions.

100 Please use People v Ivey.

101 Will you use People v Ivey?

102 Is there anything I can do to help?

103 Answered.

104 Do you want me to supply some authority for your 1524 motion? You listed no cases.

105 Will you do a motion like that appearing in CEB update to Search and Seizure at 2.28 citing P v Holland to return cash?

106 Why did you not discuss Leon sliding scale?

107 Answered

108 (Same as 64) You did not cite PC 1540. Please do it.

109 Same as 20. 4th request re: Bellis, Gouled, Boyd

110 Please admit that you don't have the time and withdraw from this case.

Questions asked of Joe Villasana by Palaschak in his 16th letter to Joe Villasana on 10 November 1993.

111 Same as #34 - 5th request to copy pages of my diary.

112 Why can't we view the diaries? 2nd request. Same as Question 57.

113 Will you ask for a stip to look at the telephone conversations in diaries?

114 What is your comment on 113?

115 Will you investigate prosecutorial misconduct or think about the "marching orders" mentioned by DeNoce?

116 Comment on 115?

117 Are you aware of similar prosecutorial discrimination in my LSD case?

Questions asked of Joe Villasana by Palaschak in his 17th letter to Joe Villasana on 10 November 1993 (3rd letter today).

12 4th request for application disks.

60 2nd Request to discuss trade secrets approach which is mentioned in the cases I gave you in my original files and in their case MOORE.

118 Retest for PC - use that theory.

20 5th request re: Bellis, Gouled, Boyd - Consider 5th amendment testimonial aspect - Gouled

106 2nd request to discuss Leon sliding scale

Questions asked of Joe Villasana by Palaschak in his 18th letter to Joe Villasana on 11 November 1993.

12 5th request for application disks.

119 Please ask for my Magic Mountain pass.

Questions asked of Joe Villasana by Palaschak in his 20th letter to Joe Villasana on 12 November 1993.

51 2nd request to ask federal court if I am licensed - Brenda Brannon.

36 2nd request to issue subpenas This includes subpenas duces tecum - and any discovery!

110 2nd request to admit that you don't have the time and withdraw from this case.

Questions asked of Joe Villasana by Palaschak in his 21st letter to Joe Villasana on 17 November 1993.

57 3rd request to view the diaries.

120 Please ask for the $2.90 postage stamp to see if they know they have it.

19 7th request to answer my questions.

123 When can I view and copy my diary?

124

Questions asked of Joe Villasana by Palaschak in his 22nd letter to Joe Villasana on__ November 1993.

__

Questions asked of Joe Villasana by Palaschak in his 23rd letter to Joe Villasana on__ November 1993.

__

Questions asked of Joe Villasana by Palaschak in his 24th letter to Joe Villasana on__ November 1993.

__

Questions asked of Joe Villasana by Palaschak in his 25th letter to Joe Villasana on__ November 1993.

__

Questions asked of Joe Villasana by Palaschak in his 26th letter to Joe Villasana on__ November 1993.

__

Questions asked of Joe Villasana by Palaschak in his 27th letter to Joe Villasana on__ November 1993.

__

Questions asked of Joe Villasana by Palaschak in his 28th letter to Joe Villasana on __ November 1993.

__

The above has been a list of the questions asked of Joe Villasana in writing to which he has refused to take time to answer.

Joe Villasana has also refused to subpena the pertinent witnesses in the federal court and is apparently satisfied with a non-certifed letter from Brosnan; without much more work he could at least obtain a declaration mailed directly from Brosnan to the court. Villasana has refused to subpena Judge Real, Izabell Katapodis, Brenda Brannon, and Leonard Brosnan. I prepared the subpenas for Villasana and even the motion under ccp 1988 to serve secluded witnesses.

Villasana has refused to discuss ways to view the diaries and says that they contain nothing useful which he could not know since he has not seen them.

Villasana does not have a plan; he is just being reactionary.

Villasana did not show me the response brief until he was off my case and gave it to me with part of my case file. I had prepared a 30 page response brief but Villasana did not even look at it or discuss it with me.

Villasana admitted that there was prosecutorial misconduct in their withholding the information that Brosnan had talked to them and confirmed that I was validly licensed with the federal bar but Villasana was too busy to deal with it or discuss it or consider what to do - yet he said he was ready to go on the case.

I gave Joe Villasana my omnibus brief on floppy diskette about a month ago and he printed out only part of it. Then I gave him a paper copy and he still would not take the time to discuss it.

I prepared a declaration explaining why my attempt to sort the documents as part of the judge-ordered inventory did not constitute a waiver (as the DA insists) and Villasana would not take the time to look at the declaration on my computer screen - or on paper when I printed it.

I continually resolve issues that Villasana dropped without resolving. Example: Today I see that PC 1540 seems to preclude the need for the preliminary showing of Franks v Delaware.

ATTORNEY ROBERT SCHWARTZ

I discussed with Attorney Schwartz the fact that I would be requesting that he be appointed and he told me that he would be happy to take the case if appointed.

CONFLICT OF INTEREST EXISTED AT TIME THAT PUBLIC DEFENDER WAS

DISCHARGED

On 17 December I asked the public defender to ask for a continuance and Joe Villasana, the public defender, refused my request. I then asked the court for more time to complete this motion, motion 1200. My request was denied. Had I completed the motion I would have included my concern about a conflict of interest. As I explained to the court on the 17th, the motion 1200 version 1 that I filed was all that I could do in the short time that I had to do the motion. This time shortage was caused by the public defender's refusal to answer my simple question as to whether he would agree to seek a continuance. I asked the question with a deadline (Saturday Dec 11) for the simple yes-or-no answer but I received no answer until the 2nd day after the deadline - which caused me to run short of time to complete this motion.

I so declare under penalty of perjury.

________________________ Tuesday 21 December 1993.

Douglas Palaschak

POINTS AND AUTHORITIES

Issue #1 ALR3d 27:1431 Propriety and prejudicial effect of counsel's representing defendant in criminal case notwithstanding counsel's representation or former representation of prosecution witness. The public defender (Brian Boles) represented Jessica Jobin the main prosecution witness against me in my LSD case, the validity of which is essential to the interim suspension which is the basis for the contemplated indictment for practicing law without a license. Furthermore, the Public Defender may have represented Melissa Schentner, the 2nd witness against me.

Issue #1.1 "The prohibition against acting adversely to a former client applies to successive as well as contemporaneous representation"⁽¹⁾. In US ex rel Platts v Myers (1966 DC PA) 253 F Supp23 an attorney could not represent a defendant who pleaded not guilty and at the same time repesent 2 accomplices who pleaded guilty. This is similar to the position of the public defender office in Palaschak's case. The public defender formerly represented accomplice Jessica Jobin whose testimony convicted Palaschak whose case is now on appeal and which conviction is the premise for the contested suspension which is the basis for the conteomplated charge of practicing without a license. Palaschak's LSD case is still on appeal and further litigation is quite possible. Representation of Palaschak in the instant case requires taking the position that the suspension by the state bar in invalid on several grounds. Evidence in that regard includes the testimony of adverse witnesses Jessica Jobin and Melissa Schwentner. The public defender now should review my LSD case in which the public defender previously declared a conflict of interest.

Issue #1.2 The test for conflict of interest taken partly from Rules of Professional Conduct 3-310 is 1) whether the acceptance of the new case would require the attorney, in forwarding the interest of his client to do anything which will injuriously affect his former client in any matter in which he formerly represented him; 2) whether he will be called upon, in his new relations to use against his former client any knowledge or information acquired through their former connection. Big Bear Municipal Water Dist v Superior Court (1969) 269 CA2d 919; and 3) whether loyalty to the prior client would hinder zealous representation of the contemplated future client. Application: The public defender might be reticent to zealously pursue furtherance of Palaschak's interest if that would require damaging the credibility of witnesses (and former clients) Jobin and (possibly) Schwentner. Joe Villasana has been assisting Palaschak's state bar counsel, Ellen Pansky, and to that end he is furthering Palaschak's state bar case which ultimately is antagonistic to the testimony of Jobin and Schwentner.

Issue #2 What to do when one encounters problems with appointed counsel is discussed in People v Marsden (1970) 2 C3d 118, 465 P2d 44.

Issue #3 Palaschak has a right to EFFECTIVE ASSISTANCE OF COUNSEL. See L Ed 2d 102:49 (1990) Supreme Court's view as to accused's right to counsel on appeal, ALR3d 66:996 Indigent accused's right to choose particular counsel appointed to assist him (summary: there is no such right), ALR4th 3:1227 Modern status of rules and standards in state courts as to adequacy of defense counsel..", ALRFed 26:218 Modern status of rule as to test in federal court of effective representation by counsel, L Ed 2d 64:907 Multiple representation of defendants...as violative of 6th ...federal cases, Trials 46:571 -Strategies for enforcing right to effective representation.

Issue #4 The court may consider a pre-existing attorney-client relationship (such as Palaschak's pre-exisiting attorney/client relationship with Attorney Robert Schwartz) when deciding whom to appoint to represent the defendant. Attorney Robert Schwartz successfully defended Palaschak in his LSD case CR 28428 - and Palaschak requests appointment of Schwartz now.

Issue #4.1 The standards for effective assistance of counsel are set out in Proof of Facts 2nd 5:267 Ineffective Assistance of Counsel, Trials 30:607 Defending against a claim of ineffective assistance of counsel, Trials 31:633 Defending lawyers in disciplinary proceedings, ALR3d 5:1269 Accused's right to assistance of counsel at or prior to arraignment, ALR4th 2:47 Modern status of rules and standards in state courts as to adequacy of defense counsel's representation of criminal defendant, L Ed 2d 83:1112 When is attorney's representation of criminal defendant so deficient as to constitute denial of federal constitutional right to effective assistance of counsel, L Ed 2d 101:1017 Supreme Court's views as to what constitutes valid waiver of accused's federal constitutional right to counsel.

Issue #5 Joe refuses to do adequate research to draft a successful Motion to Traverse or a similar appropriate REMEDY for this situation; he refuses to investigate the argument that regardless of whether the affiant himself had bad faith the critical information (that being the false information from the federal court that I was unlicensed) WAS NOT UNDER OATH - the thus violates the mandate of the 4th amendment that "NO WARRANTS SHALL ISSUE but upon probable cause SUPPORTED BY OATH OR AFFIRMATION."⁽²⁾

Issue #6 The question is not whether Joe Villasana has the capability; Without waiving my claim of conflict of interest, I am convinced that he is quite capable of doing an excellent job on this case or any criminal case. The question is WILL HE TAKE THE TIME TO DO IT; THE ANSWER SEEMS TO BE "NO" - and therefore I ask that the court give us more time or give me new counsel.

EXHIBIT A - CASE SUMMARY

STRATEGY AND TIMETABLE

1. Joe, what is the game plan? Can you commit it to writing?

LIST OF UNANSWERED SUBSTANTIVE QUESTIONS ABOUT THE EVENTS OF THE CASE:

1. Does Judge Real remember deciding my case informally with Leonard Brosnan.

2. What does Brosnan say.

3. What does that clerk who wrote the August 25 federal suspension letter say? Who told her to write that? What was her trigger? Why did she not send the letter a year earlier if indeed they received notice in May 92 as Katapodis says? Would she have send the letter had she known that I already dealt with the matter in January?

4. I don't believe that the letter came August 25th by coincidence. No. Sorry. It had to be triggered by the DA investigation. Hey, ask Brenda Brannon.

5. What are the marching orders that Kevin De Noce had? And what was the rush? And who is the driving force?

HERE ARE SOME THINGS THAT NEED TO BE DONE:

I need the interview tapes and a transcript of the interview tapes.

I need a copy of their response.

When can I view my diaries?

THINGS TO DO - AND WHO WILL DO IT - AND WHEN?

1. I need a copy of the transcript before Judge Hadden.

1. What about getting the tapes. Will we have a transcript of the tapes of my conversation with Dan Miller prior to the arrest.

1. Joe, if we seek a lesser remedy then we have a greater chance of success.

Is there any case where the stuff has ever been suppressed on appeal.

3. Try again for laser printer with a different tack - and a written request for temporary relief upon showing of likelihood of prevailing on the merits.

5. Joe, will you go to federal court for this - or do I have to do it myself.

6. What about their failure to inventory?

7. Joe, have you read my file yet that I gave you?

8. Joe, I think that you have read the federal local rules wrong if you think that they say that they need a court order to suspend me. where is that in the rules?

9. Did the DA tell you that the federal court needs an order? Maybe the DA is using outdated rules. They were revised in May 92.

10. How do we get an opinion from the attorney general of California?

DISCOVERY - GATHERING INFORMATION - STUFF WE NEED TO GATHER

1. Joe, when are you going to view the diaries and copy Jan/Feb where I talked to Brosnan so that Mike can question him specifically.

2. Then we can get the phone records. They called me back also.

3. We need a written statement from Brosnan.

4. We need a written statement from Judge Real.

5. We need a written statement from Brenda J Brannon, the clerk who wrote the Aug 25 letter. Why did she write it then?

6. We need a statement saying that I was not on suspension prior to August 25. Aha! Maybe Brosnan will give us that.

PLAYERS

Carol Rossi - She is a witness to my federal license allegation of validity - but that gets us little.

Brenda J Brannon She sent that letter of suspension to me August 25. I stopped in to see her approximately Oct 14 but she was out to lunch. We need to interview her.

Leonard Brosnan

Chief Judge Real

Izabell Katapodis

Honey Works in Brosnan's office. She is the one who took my calls when Brosnan and Katapodis refused to talk to me after I got out of jail those 6 days in August/Sept 93.

CHRONOLOGY

1993 Aug 27 Raid at GOOD NITE INN

September 1993:

30 Letter #1063. Complaint about Howard Asher and threat to sue.

October 1993:

11 Meeting with Joe Villasana from 1:15 to 3.

11 1st Letter to Joe Villasana.

Question 1: What is your strategy in writing?

I expect written answers to my questions in 2 days.

Get temporary relief with the printer, computer, and SS card.

Request to subpena Real, Brosnan, and Katapodis.

Do a motion regarding secluded witnesses.

16 2nd letter to Villasana.

18 3rd letter to Villasana.

19 4th letter to Villasana. Tuesday.

21 5th letter to Villasana. Thursday.

22 6th letter to Villasana. Friday.

25 7th letter to Villasana. Monday.

26 Tues 2:30 Palaschak meets with Joe Villasana. Joe wants a declaration from Palaschak regarding the incident of the arrest at Good Nite Inn.

27 8th letter to Villasana. Wednesday.

29 9th letter to Villasana. Friday.

November 1993

3 10th letter to Villasana

4 11th letter to Villasana

Wed 24 Nov 10 Palaschak asks for Joe at public defenders office but Joe is not available. 3 days later Joe says that Palaschak missed their meeting at 3.

Sat 27 November 1993. 9:52

Joe comes down to see Palaschak. Palaschak asks Joe to do a continuance. Joe says he is ready for Dec 3 hearing. Events of the next week prove that Joe was indeed not ready - and this premature hearing could have been fatally jeopardized but for Palaschak's continuance. Palaschak tells Joe that Joe is not ready and neither is Palaschak. Joe is missing these 3 points and more:

1. DA:"We went through the stuff and found what may be a crime". Answer: You cannot justify a search by what you find. And Takahishi.

2. DA:"We went through the 1990 before Palaschak did his 1538 motion - before he asked that the records be sealed." Answer: The warrant ordered it to the custody of the court. It was already sealed!

3. Palaschak consented to us viewing the documents. Answer: Palaschak was ordered to inventory the stuff - and he objected that it was already inventoried.

4. "We had to check the 1990 file because he could have labelled it wrong". There is no probable cause if the file is labelled wrong unless you have some probable cause that Palaschak labels his files wrong.

Palaschak asks Joe to chat with him but Joe never does come back to chat with Palaschak. Palaschak writes letter #1171 to Joe with copies to Ken Clayman and Duane Dammeyer

1 pm Palaschak calls security and gives the letters to the chubby young male white (hispanic) security guard who will drop them in the crack in the door of the PD office.

December 1993:

Wed 1 Dec 93.Joe falsely accuses Palaschak of discussing case with PD client. Dammeyer walks out of meeting with Palaschak. Palaschak writes letter to Clayman.

2 Dec 2:53 Letter 1183 to Joe Villasana. 24th letter to Joe Villasana. Subjects:

Ready to talk about their response to our brief.

Where are the copies of the letters you promised?

Where are the transcript copies for me to work with?

We need the tapes of my meeting with Miller because they prove that they knew the search was bogus.

We need federal witnesses because otherwise we cannot distinguish me from the multitude of people disciplined because they did not clear with the federal bar as did Ruffalo.

I have a reply brief. Would you like to cooperate in filing one or do I have to do it myself.

Tuesday 7 December 1993. 3:34 pm

Wed at 2

93 Dec 8 Aha. The call to Brosnan today proves that Joe was NOT ready to go forward on the 3rd! It is a good thing that I did the continuance motion.

Friday 10 December 1993. 3:38 pm I receive copies of most of my letters to Joe so far.

Saturday 11 December 1993. 12:39 pm I am trying to draft a reply to the DA response but I NEED THE TRANSCRIPTS THAT I REQUESTED FROM JOE SOME WEEKS AGO; HE HAS NOT ANSWERED ME YET EITHER TO PROVIDE THEM OR DENY THEM.

11 Dec 93. 3:29 pm. Joe comes down to talk to me. He has filed something to augment the record but he is not confident that we can prevail on a motion to traverse. He does not have time to listen to me. He says he is a little punchy. I tell him 1) there is no reason to hurry this; and 2) join me in a motion to continue. I reminded him that he promised to give me an answer regarding the continuance today at 4; he gave me no answer. I wanted to show him all the stuff that I wrote all day but he has been working hard all day and I will talk with him Monday.

INDEX