5 22 13 0204 063341 Emergency Notice and Motion and Request for Submission first page not stamped RJC Bailiff's Heibert and Ramsey rejected.pdf

7/27/2019 5 22 13 0204 063341 Emergency Notice and Motion and Request for Submission first page not stamped RJC Baili…

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Zach Couglin NV Bar No: 9473 (emporary suspended, see627 6088)1 471 E. 9h S.Reno NV 89512Tel and Fax 9496677402

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I AND FO E OUNY O WASOE; SAE OF NVADA

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Emerency x Pare Moion for Exenson of me o Fle Openn Bre and EceedPae Lmaons

oghin les ts on his ow beha ue o he fac ha he ranscrip ordered o

be prepare by his r's/9 Order s no ye prepared hroug no fau of�

ouglins. ougln reqess ha e deadlne or e lng o is Openng Bref be

exended o60 day rom e curren deadne or0 days rom he receip by oughn oe ranscrp upon ben prepared by Snshne Liigaon Servces and were ch

preparaton sall included all of the foowng, or whc unshine Litgation Servces

sall be compensaed for so prparng a pubic epens and where e J w need o

prode o ouhlin drecly al AVS recordngs of any earng or rial dae in R20-

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!66334$ >hich it has yet to proide directly to Coughlin, including any sealed portions o;

such matters, including the ;ollo>ing *rial dates:

)A7A$ (including the sealed portion thereo;#, 7A$6A$, "A9A$ (including the sealed

portion thereo;#, 9A)A$ (including the sealed portion thereo;#, $$A$9A$, and $$A!A$&

+urther, the entirety o; the "A7A$ 1earing >herein Coughlin oluntarily accepted the

plea ?argain o;;ered ?y the 'tate should ?e transcri?ed and the sealed portions thereo;

proided to Coughlin&

POINTS AND AUTHORITIES

Coughlin here?y respect;ully sees (a;ter maing ?est e;;orts to timely o?tain astipulation to such ;rom opposing counsel# an etension o; time ;or ;iling my opening ?rie; in C$<!) and ;or %;le access or some other digital copy o; the materials on ;ilein C$<!) and C$3<!6$) (the C, much lie the 2/ o; $A6A$ in C$<!),;ailed to proide me a copy o; the 4A$6A$ 2/ in C$3<!6$)#& *he transcripts are notdone yet& +urther, 0 am not an e;iler in the C, / oung is, as such, an un;airadantage has ?een a;;orded him >here he has receied electronic notices regarding ;ilingin C$<!), and 0 hae not, especially >ith respect to the spate o; recent ;ilings ?y theC, including the 'upplementals o; 4A$6A$3 and the 4A6A$3 D*ranscriptsD (0 do not ?eliee it is appropriate to see to ?urden me, my ;amily, and my career >ith a 'C$$$(6# coniction, a real one, i; the County or C cannot manage to comply >ith the$A9A$3 2rder ;or .reparation o; *ranscripts at .u?lic %pense and actually producelegitimate, certi;ied ?y a CC, transcripts, >ith actual certi;ications s>orn to therein&

*he sealed transcripts that the C re;uses to release are integral to a num?er o;appeala?le issues in this matter:2rder o; hearing during insanity motions8hen an attorney maes a motion ;or determination as to >hether or not a criminalde;endant is insane, a =arsden =otion must ?e heard ?e;ore the insanity hearing, no>nas a section $36" hearing& .eople & 'tane>itE held that although criminal proceedingsmust ?e halted during a hearing ;or competency, a =arsden =otion is not a criminal proceeding and must ?e heard ;irst& D1earing a =arsden motion during a competencyhearing does not reinstate criminal proceedings against the de;endant&DF$!G +rom .eople &'tane>itE&DF$$G <D(8#hile the trial court may not proceed >ith the case against the de;endant ?e;ore itdetermines his competence in a section $36" hearing, it may and indeed must promptlyconsider a motion ;or su?stitution o; counsel >hen the right to e;;ectie assistance H>ould ?e su?stantially impaired@ i; his reuest >ere ignored&/ court re;using a =arsden =otion prior to a $36" hearing is a Iudicial error according to.eople & 'olorEano,

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*he $A9A$3 2% J/N*0NJ 0N +2=/ ./5.%0' ?y udge %lliott inC$<!), Coughlin su?mits, does include %;le accessA;ee >aier, at least to thatcriminal prosecution, and, as such, should etend to all other criminal matters >hereinCoughlin is an /ppellant or party ?e;ore epartment $!& Coughlin here?y see an 2rdermaing that more clear to the %;le sta;; and /ssistant Cler o; Corut 8ise& +urther,

Coughlin reuests some compensation at pu?lic epense ;or sel; representing, and or someassignment o; co<counsel (not Bruce indsay#, ?ut Coughlin chooses to remain, at theepense o; no such assignement o; co<counsel, his primary representatie& *he $A9A$32rder, ;urther, allo>ed ;or Coughlin to utiliEe a court reporter o; his choosing, and hecon;irmed such >ith =rs& 1o>den o; epartment $!, and so directed 'unshine itigationto undertae the preparation o; such transcripts, >hich it has ?een doing and remainsdoing, ?ut the progress thereo; has ?een slo>ed ?y the C re;using to release the sealed portions o; such transcripts, >hich is particularly pro?lematic since the sealed portionsinoling matters a?solutely essential to the appeal o; this case (ine;;ectie assistance o;counsel, =ardsen =otion, competency issues, iolations o; N' $7"&4!) stay, 'tane>itEconsiderations, etc&#& /dditionally, the C, despite an 0+. ?eing long on ;ile in the matter

in $$<!6334$, is no> re;using to release to Couglin the A4A$3 and A)A$3 hearing in $$<!6334$, >here are o; essentail importance is a is appeala?le issues in ?oth C$<!)and C$3<!6$4, ?ased upon some contention that the 0+. does not etend to such hearings(there is an 0+. in ?oth the appeal and the trial court matter in $$<!6334$, and the CCler@s hae taen to typing out such re;usals to proided such, leaing them unsigned andunattri?uted#&

Coughlin here?y demonstrates that his motion ;or leae to ;ile an oersiEed ?rie;demonstrate that the compleity o; the issues on appeal Iusti;y the reuest& 'tate & 8est,$76 /riE& 43, "6 .&d $9 ($993# (oerruled on other grounds ?y, 'tate & odrigueE,$9 /riE& )", 96$ .&d $!!6 ($99"## (death penalty case#& ) +ed& & 'er& 3d )74 (9thCir& !!#& +leming & County o; Kane, 'tate o; 0ll&, ")) +&d 496, $ +ed& & 'er& 3d364 (7th Cir& $9""#&

*he issues in the instant appeal are uite comple, and een the incomplete uasi<transcript (uncerti;ied, etc# recently ;iled ?y the Iustice court is 6!! pages, and that ;ails toinlcude ey sealed protions o; the transcript a?solutely necessary to the =ardsen,'tane>itE, and N' $7"&4!) competency issues and ine;;ectie assistance o; counselanalysis at issue here&

=atters at issue in those A4A$3 (a D>arrant arraignmentD ;or a >arrantless arrest>here the docet reeals no actiely issued >arrant connected to such arrest oraraingmentD#, and the 2rder ;or Competency %aluation and impermissi?le % .arteeconsideration =otion 1earing 'etting and accompanying iolations o; the mandatorystay under N' $7"&4!) attendant thereto o; A)A$3 in ?oth $<!6)63! and $$<!6334$&

5pon consideration o; e;endant@s ecem?er $9, !$ /pplication to .roceed 0n+orma .auperis, this Court ?eliees that e;endant does not hae su;;icient income, property or resources >ith >hich to commence and maintain the action& .ursuant to Neada 'upreme Court@s 2rder /K* No&41, a person >ill ?e deemed indigent >ho isuna?le, >ithout su?stantial hardship to himsel; or his dependents, to o?tain competent

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uali;ied legal counsel on his o>n& *he Court ;inds that pursuant to N' $7$&$"",de;endant has insu;;icient assets andAor 0ncome to proceed a?sent a grant o; ;orma pauperis status& /ccordingly, this =otion is granted& N28, *1%% +2%, 0* 0'1%%B 2%% that pursuant to N' $7$&$"" de;endant is granted leae to proceedin ;orma pauperis& 0* 0' +5*1% 2%% that the Court allo> de;endant to ?ring

such action >ithout costs and ;ile or issue any necessary >rit, process, pleading or paper>ithoutcharge, >ith the eception o; Iury ;ees& 0* 0' +5*1% 2%% that the 'heri;; orany other appropriate o;;icer >ithin the state mae personal serice o; any necessary >rit, process, pleading or paper >ithout charge ;or de;endant& 0* 0' +0N/ 2%% thatthe preparation o; the transcript ?e proided at the pu?lic@s epense& /*% this day o;anuary !$3&

0@ll trade the uasi<transcripts ;or a uasi<coniction, dealL 2r, >e could ;ind a>ay to get the deal 0 accepted on "A7A$ in court that disposed o; all three prosecutions($$<!6334$, $<!6)63!, $<!679"!#& 0 realiEe / oung gre> annoyed >ith >hat he

interpreted to ?e a lac o; gratitude ;or >hat >as, admittedly, a ery reasona?le plea deal&0 apologiEe ;or that& =y only mitigating ;actor to assert relates to some o; the ;riction ?et>een my pu?lic de;ender and mysel;, >hich >as compounded ?y some issues >ith anC Baili;;, >hom has ?een going through some tri?ulations o; his o>n since 'eptem?er!$$, including a +V *.2, ?anruptcy, and diorce >ith children&&&D0@ll put my ?oot upyour assD he said to me on $!A"A$ >hile 0 >as seated net to 8C. eslie&&&he has onnumerous occasions re;used to accept my ;ilings ;or incredi?ly du?ious reasons(presenting si minutes prior to ) pm, 0 do not ?eliee, entitles a Baili;; to unilaterally alterthe terms o; the $A!A$ D/dministratie 2rder !$<!$&&&see >hat some might ie> asan encroachment upon your eecutie ;unction ?y the Iudiciary in C!$3<!7$437#&&&especially on dates >here N' $7)&)$) or $"9&!$! deadlines are ;alling&+urther, 0 don@t ?eliee it is appropriate ;or such Baili;; to ?e eorting me, sarcastically, toDtae your medicationD, or to shoe his ;orearm in my midsection in the /' cu?icle insome attempted to more authoritatiely iolate the courthouse sanctuary ruleAimmunitya;;orded to litigants and attorney@s ;rom serice >hile attending court, >here attempting tosere a 'BN *.2 that is inordinately suspect, especially >hen ie>ed in conIunction >ith/ 8atts<Vial@s $$A$3A$ ;a regarding the su?poenas that the C udges andCustodians o; ecords ;ailed to respond to incident to / 8atts<Vial@s instructions&*his is especially true >here 'C $$! is controlling, not NC. 4) (and regardless,Coughlin is and >as DauthoriEed to practiceD in the disciplinary hearing setting, and >asand is Dan attorneyD#, and >here 'C $$!(3#<(4# mae clear that Iurisdiction to rule on=otions to Muash such su?poenas resides only >ith the NNB Chairman, not the .anelChair (see / 8atts<Vial@s reliance upon such a oid ;or lac o; Iurisdiction $$A7A$2rder ?y .anel Chair %cheerria that did not een mention the C su?poenas&

+urther, it is not entirely clear >hy / 8atts<Vial >as apparently the attorneyassigned to respond to the su?poenas o; $!A3$A$ on the C udges and Custodian o;ecords, ?ut, apparently, not ;or the $!A3!A$ su?poenas on C Court /dminstrator'tee *uttle and Chie; Ciil Cler Karen 'tancil, and the C Custodian o; ecords&

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.erhaps the C ;ailed to in;orm the eecutie ?ranch o; such mattersL 2r, perhaps, the Iudicial ?ranch has autonomy to handle such matters as it sees ;it&

/dditionally, the etremely close temporal connection ?et>een Couglhin@s A$A$3email to the 8C/@s 2;;ice and the N' $7$&$36 iolating >arrantless arrest a;ter 7 pm

in Coughlin@s o>n home ?y the epartment o; /lternatie 'entencing, is trou?ling&

Coughlin appealed the 3A$$A$3 2rder in C!$3<!7$437, and C$$<!6334$(+urther, the A$A$3 arrest >as not, contrary to a su?seuent assertion, ?ased upon some;ailure to get a mental health ealuation done, and there >as no actie >arrant incident toany such allegation at the time o; the A$A$3 arrest#&

8hether the Ddistur?ancesD in the C Criminal iision +iling 2;;ice o;;ered as a ?asis ;or depriing Coughlin, >ith no notice or opportunity to ?e heard, o; his li?erty rightto access the ;iling o;;ice >as connected to some allegations inoling the same CBaili;; re;erenced a?oe purporting to sere Coughlin the a 2rder or *.2, is unclear, as

the C ;ailed to comply >ith N' &!3!(#@s reuirement that any such conduct notoccurring in the Dimmediate ie> and presence o; the courtD ?e set out in an a;;idait&

+urther, some glo?al resolution >ould certainly resole some o; the issues relatedto the alternate court appointed la>yer, Bruce indsay@s representations to Coughlin thatall three criminal prosecutions (the pro?ation iolation in $$<!6334$, the appeal in C$<!), and C$<!679"!, and C$<!6)63!# as >ell as >hicheer case num?er theD/dministratie 2rder !$<!$D and accompanying A)A$3 2rder to 'ho> Cause thereinhad ?een met >ith an agreement ?y the 8C/@s 2;;ice to glo?ally resole all such in amanner >herein Coughlin >ould hae no 'C $$$(6# conictions in the C& /s it standsno>, Coughlin >as sold a certain ?ill o; goods >hich has not materialiEed, particularly>ith respect to the t>o 'C $$$(6# conictions (o; $$A!A$ in C$$<!6334$, no> onappeal in C$<!), and on, apparently, o; 4A3A$3 in C$<!6)63! (Couglhin has not ?een sered any such Dudgment o; ConictionD listed on the docet therein#, no> onappeal in C$3<!6$4#&

+urther, >ith respect to the NC. 7&!")ANC. $$ implication in the *.2A%.2o?tained in D8ashoe County Zachary CoughlinD, C.!$<!!!)99, there are a num?ero; Iurisdictional prereuisites that >ere not su;;icient to support such an application& 2ne,eslie is the one >hom signed the eri;ication on page " o; the mandatory ;orm& 'uch isnot allo>a?le under N' 33&7! >here eslie, necessarily, is one o; those the orders seeto protect& 0t must ?e one@s employer, >hich means (to >hateer etent the 8C. is anDindependent contractor, not>ithstanding# 8ashoe County >ould ?e reuired to ;ile suchapplication, >hich means the 8C/@s 2;;ice >as reuired to ;ile such& 0tsunderstanda?le, gien the con;lict analysis sure to ensue, >hy 8C/ / 8atts<Vialchose not to sign the eri;ication or ;ile the pleading as an attorney representing a client&

1o>eer, >here such *.2 application in )99 sees an order o; protection as to(the caption listing D8ashoe CountyD, rather than the 8C., not>ithstanding# an entity(>hich is not actually permissi?le under N' 33&)!&&&# the DemployerD o; said entity is

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not as listed in the application, D8ashoe County .u?lic e;ender@s 2;;iceD, ?ut rather, the8C.@s 2;;ice@s DemployerD is D8ashoe CountyD&

/dditionally, the ;ailure o; 8C. eslie to accurately ans>er the uestions o;.age 4 o; 6 in that $A$"A$ *.2 /pplication are trou?ling, particularly >here eslie and

the 8C. >here a?solutely a>are (made so in >riting, as >as the 8C/@s 2;;ice# o;ichard J& 1ill, %s&@s *.2 against Coughlin on $A$A$ in C.$<!!!!$" (such ?ecoming an issue in the Dmisuse o; 9$$ sericesD trial in C$<!6)63!#, and the =ilanKre?s *.2 against Coughlin (the . certainly >as ?usy shoing *.2 applicationsagainst Coughlin in a ariety o; ;aces these past couple years# C.!$<!!!"7 (such;ailure ?y eslie to procure and proide to Coughlin the /V' recording o; the hearing o;"A)A$ therein ?ecoming a real point o; contention&&&>hich is all the more connected to the8C/@s 2;;ice, 8C'2@s, C, and 8C. gien the >rong;ul eiction in C$<!!$!4", and concomitant arrest on the same date as the locout order >as ?eing>rong;ully e;;ected, in iolation o; 'oldal, on 6A"A$ in C$<!679"!#&

+urther, ?oth eslie and the 8C/@s 2;;icer >ere made a>are, in >riting, o; the*.2 Couglin ;iled against an C Baili;; in !$, and that Couglin moed ;or one inCourt against 8C. eslie himsel; on 9A)A$&

+urther, eslie@s ans>er to the ;irst uestion on page 6 o that $A$"A$ application is pro?lematic, especially considering the caption in that case C.$<)99&&&its as i; the8C. and 8C/@s 2;;ice and D8ashoe CountyD eep picing and choosing >hichentity is the DemployerD ersus the party seeing protection, and

*hat uestion reads: D1ae there ?een any other court actions or any other relationship ?et>een the employer and the /derse .artyLD eslie@s ans>er is completely misleadingand unaccepta?le >here the DemployerD (see the caption listing D8ashoe CountyD ratherthan D8ashoe County .u?lic e;enderD# is D8ashoe CountyD, >hich has, ?een inoled ina erirty o; other Dcourt actionsD inoling the D/derse .artyD, >ell ?eyond eslie@smisleading indication o;: D/ttorney<cleint see %h& $D& 'uch a misleading ans>er is particularly iolatie o; .C 3&$, 3&3, and 3&4 >here the Delie; euestD >as socompletely onerous and oer<reaching >here these DpartiesD necessarily still had uite a ?it o; ?usiness le;t ?et>een each other (including a multitude o; discoery issues and othermatters addressing the apparent contempt incident to the C, 8C.@s 2;;ice, 8C'2,C, and 8C/@s 2;;ice ;ailure to comply >ith Coughlin@s Dla>;ully issuedD su?poenasin NJ$<!!4, etc&, not to mention the ;act that 8C.@s eslie idea o; turning oer aDclient@s ;ileD is >oe;ully inadeuate, etc&D

8C. eslie@s DeclarationD on page 6 o; 6 o; that $A$"A$ *.2 /pplication is ;urtherdemonstratie o; his o>n pro;essional misconduct >here he purports to ?e Dthe employerDo; D8ashoe CountyD or the DauthoriEed agentD, especially >here N' 33&7! prohi?its the person seeing the 8orplace 1arassment order o; protection ;rom ;iling ;or such on hiso>n ?ehal;& /dd to this the ;act that the Iurisdictional prereuisite o; a security ?ond >asnot posted (the docet is prima ;acie eidence o; ;act, there >as no >aier thereo;, such isstatutorily (per the /2C# at a minimum $!! (and the A"A$3 arrest ?y . etectie

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tru?ide and su?seuent negligent in incorrect oercharging o; a N' !!&)9$ D'talingD*.2 ()99 is a di;;erent ?reed, the D8orplace 1arassmentD ariety, >ith a iolationthereo; inoling a DmisdemeanorD under N' $93, as clearly indicated in ?old on page $o; such $A$"A$ 2rder, maing the ;act that tru?id@s >i;e, ody, and another tru?ide>or ;or %C2==A9$$ ispatch particularly trou?ling considering the ?ene;it inuring to

the 'tate@s prosecution in C$<!6)63! (the misuse o; 9$$ case# upon Coughlin ?eingarrested on A"A$3 (the . came out to Coughlin@s home o;;ice, and trespassed into the ?ac yard >ith their guns dro>n, pointing such as Coughlin@s head ;rom ;our ;eet a>ay prior to issuing een a single command or >arning# >here the trial in !6)63! >as set tocontinue, and perhaps conclude on A)A$3 (>ait, that >as made more disorienting ?y thesuspicious A$A$3 /' summary >arrantless pro?ation iolation arrest incident to thedu?ious allegation that the C Baili;;@s >aiting Iust long enough, on $A3A$3 ?e;oreDescortingD Coughlin to the /' chec<in, ;or /' to close its doors, despite such postedhours ending at 3 pm and Coughlin presenting to security at :)4 pm (made all the more pro?lematic ?y the ;act that the $A!A$ /dministratie 2rder !$<!$ ?y udge';erraEEa does not apply to areas, such as the /' chec in cu?icle (there are a separate

department udge .earson ultimately concluded# not under the Declusie controlD o; theC#&&&especially >here 8C'2 'argent Jreg 1errera has sent >ritten correspondence tommeyer->ashoecounty&us and others (including the 2lympi 'ecurity courthousedetail# that hae order the 2lympi 'ecurity personnel to announce to Couglin an DorderDthat he must >ait ;or an DescortD een >here enturing to areas not under the DeculsiecontrolD o; either the =C or C, and as such, not >ithin the purie> o; either o; theD/dministratie 2rdersD entered in those courts >ith respect to Coughlin&

*hen there is >itness . Nic uralde@s >i;e, essica uralde also ?eing an %C2==dispatcher&&&%C2== ispatcher odi tru?ide@s hus?and . etectie tur?ideordering Coughlin@s arrest on A"A$3 on the een o; the A$A$3 trial date in C!$<!6)63!&&&Coughlin@s ?eing taen o;; his medication ?y Iail sta;; incident to the A$A$3 toA)A$3 incarceration resulting ;rom the etremely du?ious and N' $7$&$36 iolating/' >arrantless pro?ation iolation arrest a;ter 7 pm o; A$A$3 (around $ hours a;terCoughlin@s email to the 8C/@s 2;;ice#, and again ?et>een A"A$3 and A9A$3&&&thenCoughlin ?eing sentenced summarily to ) days incarceration on A$3A$3 ?y ;ormer8C/@s 2;;ice prosecutor no> C udge Cli;ton in $<!6)63! ;or ?eing thirty minuteslate to court (oddly, indsay ?eing t>enty minutes late to court on 3A$$A$3 did not result inhis incarceration in $$<!6334$, $3<!7$437#, >here the Carranged to hae, >ho else,Bruce indsay purport to proide Coughlin some representation at the summary criminalcontempt hearing on A$3A$3 ;or >hich Coughlin >as proided no notice o;, noconsultation >ith indsay ?e;ore hand, etc& etc&&#&

+urther, the *.2 /pplication in )99 ;ails to Dincorporate ?y re;erenceD the D'ummaryD(>hich is unsigned, and argua?ly not een attri?uted# in D%hi?it $D (especially >here+orm 4<Continuation .age is reuired to ?e utiliEed and >here the %hi?it eslie didattach ;ails to contain any o; the reuired language therein speci;ically asserting that suchmatters attested therein are Dto ?e incorporated ?y re;erenceD into the 6 page D+orm B<3/pplication ;or *emporary 2rder ;or .rotection /gainst harassment in the 8orplaceD inC C.$<)99&

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astly, it is not appropriate ;or the C@s Cathy 8ood to ?e transcri?ing the /V'recordings, much less DsigningD them DCathy 8&D& 0ts a transcript in a court o; la>, not a*<=o?ile representatie notation on one@s cell phone accounts records&

8C'2 'argent 1errera sent, in an email o; 4A$)A$3 at $:3" .= a message >hich included

the ;ollo>ing:

*2: mmeyer->ashoecounty&us,>mullen->ashoecounty&us,

Ialgeo->ashoecounty&us, seely->ashoecounty&us

D=r& Coughlin needs to ?e stopped at screening at ?oth ?uildings and escorted to his

destination due to his current ?ehaior& Court control needs to ?e noti;ied so they can

attempt to monitor his presence and mae noti;ications& 8e >ill continue the practice o;

noti;ying the eno ustice Court Baili;;@s, the eno =unicipal Court =arshals, /

0nestigators, and epartment o; /lternatie 'entencing so that they &&&&D&

'argent 1errera ordered the 2lympi 'ecurity court house security detail to carry out the

a?oe directies, and so communicate such to Coughlin&

0 respect;ully reuest that this Cour consider >hether there hae ?een some

unno>n ;actors at play in some o; the less than smooth sailing seen at times, and >hether

there might ?e some opportunity to amica?ly resole these matters&

/dditionally, epartment $! should not hae ?een assigned this case ?y >ay o; an

incorrect assignement o; C$$<!64, gien that C:

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uleO&OOCase assignment&OO%ach criminal action shall ?e randomly assigned to a

department o; the court and shall remain in such department until ;inal disposition o; the

action, unless:

(a#Othe action is ?rought against a de;endant >ho is the su?Iect o; another pending or

prior action in this court, in >hich case the action shall ?e assigned to the department o;

the most recent other action or

(?#Oas other>ise ordered ?y the chie; Iudge consistent >ith a plan o; court>ide case

management

Comment:OO*o the etent possi?le, cases inoling a de;endant >ho is the su?Iect o;

another case in this district shall ?e assigned to the department o; the other case&

2ther>ise, cases shall ?e randomly assigned&

CV$$<!3$6 >as a prior acting Pin this courtQ, meaning epartement 4 >as Pthe most

recentQ, and gien not contrary order >as eer made ?y the chie; Iudge (com?ined >ith

the con;lict inherent to udge %lliott sitting on C//8@s %ecutie Board and presiding

oer CV$$<!$9))&

C uleO$!&OOContinuances&

(a#O*he timing o; proceedings as directed ?y the court at the initial appearance shall

not ?e enlarged ecept upon a sho>ing o; good cause&

(?#O'tipulations or reuests ;or the continuance o; any proceeding shall ?e in >riting,

signed ?y counsel and the de;endant, and su?mitted to the court as soon as practica?le ?ut

in no eent later than 4:!! p&m& on the Iudicial day immediately preceding the eent& *he

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court may >aie the signature o; the de;endant proided counsel certi;ies he or she has

o?tained the consent o; the de;endant to the continuance&

Comment:OOContinuances o; any criminal proceeding are not ;aored, ?ut, i; reuested,

shall ?e presented to the court under the terms o; this rule

/ =arsden motion is the only means ?y >hich a criminal de;endant can ;ire a court<

appointed attorney or communicate directly >ith a Iudge in a Cali;ornia state court&F$G 0t is

?ased on a de;endant@s claim that the attorney is proiding ine;;ectie assistance or has a

con;lict >ith the de;endant& *he name comes ;rom the case .eople & =arsden& /

de;endant is reuired to no> to mae a challenge o; ine;;ectie assistance o; counsel, and

mae one, or the claim o; ine;;ectie assistance o; counsel or the issue cannot ?e raised on

appeal& *here is no reuirement to noti;y a de;endant o; such a reuirement& / criminal

de;endant cannot simply ;ire a court<appointed attorney& *he trial Iudge has discretion

>hether or not to appoint ne> counsel on reuest o; the de;endant& / =arsden motion is a

uniue means ?y >hich a criminal de;endant can communicate >ith the court& 'ince a

criminal de;endant is represented ?y counsel, he or she cannot other>ise communicate

>ith the court ecept through his or her counsel& 'ince that counsel@s competency or a?ility

to >or >ith the de;endant is ?eing challenged, the attorney cannot at the same time

de;end against and represent the de;endant@s claims o; incompetency or con;lict& 'o the

Cali;ornia courts allo> a de;endant represented ?y court<appointed counsel to directly

communicate >ith the trial Iudge in the contet o; a =arsden motion, and only in such a

contet& / =arsden motion is a ;ormal reuest made ?y a criminal de;endant to the court&

*he court hears arguments on the motion ;rom the de;endant and the attorney, >ithout the

presence o; the prosecutor& *he ?asis ;or maing the motion may ?e inadeuate or

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incompetent assistance o; counsel, legal malpractice, or ?ecause there is a con;lict ?et>een

attorney and client that su?stantially inter;eres >ith the attorney representing the client&

*he de;endant must esta?lish either that the representation has ?een inadeuate, or that a

con;lict maes it liely that it >ill ?e inadeuate&FGF3G 0n the case o; a denial o; the

motion, the standard o; reie> is a?use o; discretion& Contents FhideG $ %ssential

%lements $&$ Con;lict ?et>een client and attorney $& 0nadeuacy o; representation

=arsden case 3 /ssociated cases 3&$ ight to Counsel 3& 0ncompetent assistance o;

counsel 3&3 Con;lict >ith attorney 4 .rocedure o; hearing =arsden =otion 4&$ .resence o;

prosecutor 4& 1o> a criminal de;endant can ;ile a =arsden =otion 4&3 2rder o; hearing

during insanity motions 4&4 .resentation o; eidence 4&4&$ 8itnesses 4&4& ocument

su?poenas 4&) .aper trail ) e;erences FeditG%ssential %lements FeditGCon;lict ?et>een

client and attorney *he language o; the =arsden decision contains the su;;icient criterion

that attorney and de;endant are Dem?roiled in such an irreconcila?le con;lict that

ine;;ectie representation@ is liely to result&DF4G FeditG0nadeuacy o; representation

FeditG=arsden case 0n $96", e;endant =ichael ohn =arsden >as charged and conicted

o; crimes in Cali;ornia& =arsden appealed the coniction& *he only stated ?asis o; the

appeal >as that he >as denied his constitutional right to counsel ?ecause o; his counsel

>as ine;;ectie& /t trial, =arsden complained that his attorney >as not adeuately

representing him ?e;ore his trial& =arsden ased the court to appoint another attorney& *he

Iudge re;used to listen to the speci;ic eamples =arsden tried to tell the Iudge& =arsden

>as conicted& =arsden appealed& *he appeals court ;ound that the Iudge must consider

speci;ic eamples o; inadeuate representation ?e;ore deciding >hether or not to appoint a

ne> attorney ;or a criminal de;endant& =arsden reuested that his attorney ?e remoed

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?e;ore his trial& =arsden told the trial Iudge that he >as receiing inadeuate

representation ;rom the attorney& =arsden o;;ered to gie the court speci;ic eamples& *he

court >ould not let =arsden gie the speci;ic eamples& *he court denied the motion to

hae =arsdenRs attorney remoed& 0n his appeal, =arsden contended that this denial

>ithout giing him an opportunity to list speci;ic eamples o; inadeuate representation

depried him o; a ;air trial& 0n its opinion, the appellate court cited the case o; Jideon &

8ainright as esta?lishing that criminal de;endants >ho cannot a;;ord counsel are entitled

under the constitution to hae the court appoint an attorney to ?e paid ;or ?y the

goernment&F)G 0t held that this did not gie a de;endant the right to hire and ;ire attorneys

?eyond this appointment, and le;t it >ith the trial court to esta?lish >hether or not there is

adeuate assistance& 0n other >ords, the court has discretion as to >hether to remoe an

attorney, not the de;endant& 1o>eer, the appellate court ;ound that in =arsdenRs case, the

trial court could not hae properly eercised its discretion >ithout allo>ing =arsden to

speci;y instances o; inadeuate representation& *he court ;ound that critical in;ormation

a?out the adeuacy o; representation may not ?e in the court records ?ecause o; that

inadeuacy, so a de;endant must hae a right to speci;y them, and they must ?e inuired

into ?y the court& FeditG/ssociated cases =arsden =otion appeals hae cited associated

cases releant to application o; the =arsden decision& FeditGight to Counsel 0n Jideon &

8ainright, it >as determined that a criminal de;endant >ho cannot a;;ord an attorney is

entitled to hae a court appoint an attorney, and the goernment must pay ;or the attorney&

Jedeon >as one o; the ?ases ;or the =arsden decision& FeditG0ncompetent assistance o;

counsel FeditGCon;lict >ith attorney 0n 'chell & 8ite, 0t >as ;ound that ;orcing a

criminal de;endant to go to trial >ith an irreconcila?le con;lict >ith his or her attorney

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>ould deprie them o; the e;;ectie assistance o; counsel&F6GF7G %en >hen counsel is

;ound to ?e competent, it has ?een ;ound that a con;lict ?et>een counsel and de;endant

that cannot ?e resoled >ould create a situation >here the de;endant is ?eing denied the

right to counsel& 0n aniels V& 8ood;ord, it >as ;ound that >hen a court re;uses to appoint

ne> counsel a;ter a de;endant has completely lost trust in their attorney, that de;endant is

there?y e;;ectiely there?y constructiely denied any counsel >hatsoeer, D%en i; trial

counsel is competent, a serious ?reado>n in communications can result in an inadeuate

de;ense&D F"GF9G FeditG.rocedure o; hearing =arsden =otion FeditG.resence o; prosecutor

/ prosecutor may not ?e present during a court hearing on a =arsden =otion& FeditG1o> a

criminal de;endant can ;ile a =arsden =otion Because a criminal de;endant ;iling a

=arsden =otion is represented ?y counsel, he or she cannot directly communicate >ith

the court& FeditG2rder o; hearing during insanity motions 8hen an attorney maes a

motion ;or determination as to >hether or not a criminal de;endant is insane, a =arsden

=otion must ?e heard ?e;ore the insanity hearing, no>n as a section $36" hearing&

.eople & 'tane>itE held that although criminal proceedings must ?e halted during a

hearing ;or competency, a =arsden =otion is not a criminal proceeding and must ?e heard

;irst& D1earing a =arsden motion during a competency hearing does not reinstate criminal

proceedings against the de;endant&DF$!G +rom .eople & 'tane>itE&DF$$G < D(8#hile the

trial court may not proceed >ith the case against the de;endant ?e;ore it determines his

competence in a section $36" hearing, it may and indeed must promptly consider a motion

;or su?stitution o; counsel >hen the right to e;;ectie assistance H>ould ?e su?stantially

impaired@ i; his reuest >ere ignored& / court re;using a =arsden =otion prior to a $36"

hearing is a Iudicial error according to .eople & 'olorEano, ho>eer, a su?seuent appeal

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court decision in People v Govea did not consder such eror to be prejudcial,and dd ot

reverse a convction ndig that "there was no preudcal Marsde error .[12]

edt]Presetato of evdece A deedat may prese evdence suppo o his or her

arsde oton [edt]Wtesses [edt]Documet supoeas [edt]Paper trail Deendants

makg arsde Motos are ote advised by advocates to create a clear paper tail. Ths

s ecause the court oe gves more credblty to aoeys tha to crmal deedats

ad a successul arsden Moto automatically trggers[ctaton needed] a state Bar

investigton Aram James,a ormer pulc deender and watchdog o abuses by the publc

defender, who teaches deedats and ter amiles ho to e a Mrsde oto,

emphasises creaton o a paper trail as essetal to the success o the moto pror to trial,

or to basng a appeal on the deial o the moto [edt]Reerences / " a Marsde

moton whch s the ocial way to re a attoey Although a judge ca deny the

moton,ad chaces are he would this would n eect allow Karim to address the cout

ad get Lotus' alleged commet o record, ales From A ral Ra ayadev, Sa ose

etro,-608 / People v Barne 998) 7 Cal 4th 044 085/ People v. Mayeld

(997) 4 Ca4th 668,795 People v arsde, supra,2 Ca3d at p 23. Gdeo v

Wainwright 963) 372 U.S. 335, 9 LEd.2d 799,83 SCt 792,93 ALR.2d 733/ People

o the State o alora Vs. Brando Aae aylor,Case No S062562,No. Calora

Superor out #S385 Appelants Reply Bre:s secodary source on Schel v

Witek and and Brow v. Crave, p7 Schell v. Wtek 9th Cr. 2000) 28 F.3d 07,

025,quotig rown v Cave 9th Cir 970 424 F.2d 66 70./ People o the State

o Caliorn Vs. Brado Arae Taylor Case No S0625.62,o alioa Superior

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