"
I
Code 1180 OR\G\NAL
IN THE SECOND JUDICIAL DISTRICT COURT OF THE STATE ot NEVADA
7 IN AND FOR THE COUNTY OF WASHOE
8
9
, . I
I
! '
2 P,O, Box 1900 Reno,Nevada 89505
3 775 334-2290
, ,/
ORIGINAL IN THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF
NEVADA
IN AND FOR THE COUNTY OF WASHOE
6 ZACHARY BARKER COUGHLIN,
RESPONDENT.
11 CERTIFIED COPY OF DOCKET
12 September 14, 2011: Criminal Complaint filed charging Defendant
with Petit
13
16
Larceny,
September 14,2011: Arrest Report and Declaration of Probable
Cause
October 10,2011: Notice of Setting Bench Trial date of November 14,
2011.
17 October 18,2011: Notice of Availability of Discovery and Request
for Reciprocal
18 Discovery,
19 October26, 2011: Application and Affidavit for Appointment of
Legal Defender.
October26, 2011: Motion to Continue November 14, 2011, trial
date.
21 October27, 2011: Order Denying Appointment of Legal
Defender.
22 October27,2011: Order Denying Motion to Continue November 14,
2011, trial date.
23 November 3, 2011: Motion for Reconsideration, Motion to Vacate
or Set Aside
24 (under Rule 59 and or 60) Order Denying Right to Counsel and
Motion to Dismiss,
November 15,2011: Notice of Setting Bench Trial date of November
30, 2011.
26 November29, 2011: Subpoena Duces Tecum filed by Defendant
Coughlin,
RENO MUNICIPALCOUR1
November 30, 2011: Notice of Appearance, Motion for Continuance,
Etc,
November 30, 2011: Trial was held in this matter. Present on behalf
of the City was
--=[ 1 ]=-- 00002
(71 ) J3 -21 1)
Pam Roberts and Defendant appeared pro per. The Court found the
defendant guilty of Petit
Larceny, a violation of RMC 08.10.040. The Defendant was sentenced
as follows:
Three Hundred and fine.
November 30, 2011: Judgment of Conviction and Court Order
November 30,2011: Order For Summary Punishment of Contempt
Committed in the
Immediate View and Presence of the Court.
December 13, 2011: Notice of Appeal, Motion to Vacate and or Set
Aside, JCRCP
59, JCRCP 60, Motion for Reconsideration; Motion for Recusal.
December 13, 2011: Record Request by Defendant Coughlin.
December 13, 2011: Record Request by Defendant Coughlin.
December 14, 2011: Financial Inquiry Application and Motion to
Proceed Informa
Pauperis.
December 15, 2011: Order denying Defendant's Motion to Proceed In
Forma
Pauperis, Motion for Publication of Transcript at Public Expense,
Motion to Vacate andlor Set
Aside, Motion for Reconsideration and Motion for Recusal.
December 15, 2011: Notice of Denial of Service filed by Reno City
Attorney.
December 16, 2011: Defendant Coughlin's Supplemental to Notice of
Appeal,
Motion to Vacate and or Set Aside, JCRCP 59, JCRCP 60, Motion for
Reconsideration;
Motion for Recusal; Motion to Strike.
December 16, 2011: Defendant Coughlin's Notice of Denial of
Service; Opposition
City of Reno's Notice of Denial of Service; Request for
Clarification Regarding Deadline for
Filing Motion for new Trial, Other tolling Motions, etc.,
Application for Deferral or Waiver of
court Fees and Cost.
December 16, 2011: Court Order ordering Defendant Coughlin from
communicating
via e-mail with Judge Howard and court staff.
December 16, 2011: Defendant Coughlin'S Notice of Denial of
Service; Opposition
City of Reno's Notice of Denial of Service; Request for
Clarification Regarding Deadline for
--=[ 2 ]=-- 00003
•
1 Filing Motion For New Trial, Other Tolling Motions, etc;
APPLICATION FOR DEFERRAL
2 OR WAIVER OF COURT FEES AND COSTS.
3 December 16, 2011:
4 Motion to Vacate and or Set Aside, JCRCP 59, JCRCP 60, Motion for
Reconsideration;
Motion for Recusal; Motion to Strike. 6
December 19,2011: Defendant Coughlin's Notice of Denial of Service;
Opposition 7
City of Reno's Notice of Denial of Service; Request for
Clarification Regarding Deadline for 8
Filing Motion For New Trial, Other Tolling Motions, etc;
APPLICATION FOR DEFERRAL 9
OR WAIVER OF COURT FEES AND COST.
December21,2011: Reno City Attorney's Opposition to Motion for New
Trial.
Defendant Coughlin's Supplemental To Notice of Appeal,
11 Dated this 22nd day of December, 20 II.
12
13
14
16
17
18
19
21
22
23
--=[ 3 ]=-- 00004
I, CASSANDRA JACKSON, Interim Court Administrator of the Reno
Municipal
Court, do hereby certity that the attached documents include full,
true and correct copies of all
papers relating to Case Number llCR22176, including a Certified
Copy of Docket. Further,
said documents have been transmitted to and filed with the clerk of
the Washoe County
District Court. d
SUBSCRIBED AND SWORN BEFORE ME day of Dece er, 2011.
""0 MUNICIl'AL COURT
p 0. EIo 19110 Ren , 1\V 8951 (775) 31-1-12'111
--= [ 4]=-- 00005
1 CERTIFICATE OF SERVICE
2 Pursuant to NRCP 5(b), I certify that I am an employee of the
Reno Municipal Court, 3
Reno, Nevada, and that on this date I served a true and correct
copy of the foregoing
document, CERTIFIED COPY OF DOCKET on the party(ies) set forth
below: 5
./' Placing said document in a sealed envelope placed for
collecting and mailing 6 in the United States mail, at Reno,
Nevada, postage prepaid, following ordinary
7 business practices.
Facsimile (FAX). 8
Reno/Carson Messenger Service. 9 Federal Express or other overnight
delivery.
10 ..,/ Inner-office mail following ordinary business
practices.
11 Personal Delivery.
12
13 City Attorney's Office Mr. Zachary Barker Coughlin P.O. Box 1900
817 N. Virginia Street, #2 14 Reno, Nevada 89509 Reno, Nevada
89501
15 Dated this day of December, 2011.
16
17
18
19
20
21
22
23
24
26
Rrno, NVII\I (7J ) JJ.j...22!Jl1 28
5 --=[ ]=-- 00006
RENO 27 M\OOCIPALCO\\1\'f P. O. BoJ. 1900
_NY"", 28 (71S)J34..t2fO
•
Case No. 09CR362 I 9 r: I L l:"e D Dept. 4
A Dtc ?, . M ' . 81' lIniCID I
.***"'.* ••
CITY OF RENO,
, I ; i , " ,
, , " Pursuant to NRS 177.105, \ 77.115,178.488, and 178.498, this
Court orders at Bail or Bond
i , on Appeal is: i
(X) GRANTED and set in the amount of $ 360.00 , with the condition
that II I
e Defendant: i '
( ) comply with all Counseling requirements
( ) comply with the Parenting Class requirement
( ) other: _________________ +_ ( ) DENIED for the following
reason(s):
( ) violent nature/seriousness of the instant offense
( ) prior criminal history
( ) lack of connection to the community
( ) lack of jurisdiction on appeal
( ) other :.--______ _________ ---+_
KENNETHR. Department Four
I I , I !
, I, I, " , ,: " I' i,1 j,i
!J ,
I
00007
00008
00009
IN THE AiIPAL COURT OF THE CITj RENO COUNTY OF WASHOE, STATE OF
NEVADA ONE SOUTH SIERRA STREET, RENO, NV 89505
Mailhlg: P.O. Box 1900, Reno, NV 89505 PHONE (775)334-2290 FAX
(775)334-3824
CITY OF RENO, PLAINTIFF VS.
DEFENDANT: COUGHLIN, ZACHARY BARKER Court Case#: 11 CR 22176 21
DOB: __ Status: OPEN Agency#: RSICPIICII0627 Accident#: Booking#:
15953 Language: ENGLISH
Offense Dt: 09/09120 II Arrest Dt: 09/0912011
Plea: 1011012011 - NOT GUILTY
DEFENDANT:-COUGHLlN, ZACHARY BA'''R;;;K'''E'''Rc--
Print Date: 10110/2011 Data Date: 10/1012011 Page I of2 00010
• .1 Balance: _} Completed I'!!""
FAILURE TO COMPLY WITH THE CONDITIONS OF BAIL AS DESCRIBED IN THIS
ORDER WILL RESULT IN THE ISSUANCE OF A FAILURE TO COMPLY WARRANT OR
IMMEDIATE ARREST AND INCARCERATION FOR CONTEMPT OF COURT ANDIOR
BAIL REVOCATION. FOR FURTHER INFORMATION, CONTACT THE SENTENCE
COMPLIANCE WINDOW LOCATED ON THE FIRST FLOOR OF THE RENO MUNICIPAL
COURT, ONE SOUTH SIERRA ST, RENO, NV (775) 334-2290.
THE DEFENDANT SHALL APPEAR AS ORDERED FOR ALL REVIEWS AND SHALL
COOPERATE FULLY WITH THE I \ +. <\ BAILIFFSIMARSHALS AND ALL
COURT STAFFt4 \'ilf"''' l'-<'o/,vlV{h b';f r ""'-U <Vic '" I
t(c/ISi\L .. ______ (,! \.{\'\cM. - 0C) '\\!" "''\t-iCf' U i-<
v..-,I"j / ' no" v "'J
THE DEFENDANT SHALL ATTEND ALL REVIEWS, COURil" APEARANCES AND
COuItT-ORDERljD PROGRAM 0J0! Til p ANEJi " -Al,COHOL AND DRUG
FRE!j;) 0'\0+ :J N IJ./Y\""J.; P\"'r\!.. iM.f'hy,-S "=''f$c}-I
\1(.. \ ".-\..0 \.4;./, ". \:: c;:..... \""v."."," IV\-.>
'("{< " .... vv!"h\ I\{tJl..Y (I\j\ v\.'l.v. THE DEFENDANT SHALL
KNOW HISIHER COURT DATE AND MAINTAIN CONTACT WITH HISIHER
ATTORNEY.
PRIOR TO CHANGING HISIHER ADDRESS OR PHONE NUMBER, THE DEFENDANT
SHALL NOTIFlY THE COURT OF SUCH CHANGE.
OBEY ALL LAWS,
/J /J) THE HONORABLE WILLIAM GARDNER / / "'.if'. A .Jf/% / JU D G
E'SSI GN A TU R E:== ============ -J======D ATE :==================
___ _
Vou are ordered by the Court to arrive drug/alcohol free and on
time for all Court hearings and Court related progams. Failure to
appear in Court will result in the issuance of a warrant for your
arrest. Any violation of this instant order may result in contempt
proceedings and the filing of additional criminal charges. In
accordance with NRS 22,010, it is a misdemeanor for any person to
fail, refuse or neglect to comply with the terms of any order
issued by the Municipal Cour Ju<!ge, This orill remain in effect
until the Court issues another order superseding it. I / J
I UNDERSTAND AND PROMISE TO OBEY THIS ORDER. DEFENDANT,:' __
,/.If::.C::...-':.:::. __________ _____ 11 /;
DATE:, __ __ . ____ TIME: ____ _
I, THE SWORN INTPRETER HAVE FULLY INTERPRETED THIS ORDEVTo THE
DEFENDANT: DATE:, ______ TIME: _ ___ _
RECEIVED BY DEPUTY: ___ -E' ____ ----------DATE:,------ TIME: ____
_
ISSUED BY MARSHAL: K DATE:! l) I J.() J 1/ TIME: DEFENDANT:
COUGHLIN, ZACHARY BARKEt< Defendant [nitials:
Agency#: ICII0627 Print Date: 10/1012011
COURT CASE #: 11 CR 22176 21 Data Date: 10110/2011 Page 2 of
2
00011
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
•• FILED
DEPT. NO.4
IN THE MUNICIPAL COURT OF THE CITY OF RENO -, !.
IN AND FOR THE COUNTY OF WASHOE BY ..¢At-
OEifUTY
DISCOVERY AND REQUEST FOR
Ir-----------------_______ I
Please call the Criminal Division at 334-2050 to arrange for
preparation of discovery in
this case. After your call requesting preparation of discovery, it
will be available for pickup at
the Reno City Attorney's Office, Monday - Thursday 10:00 a.m. to
3:00 p.m. All potential
witnesses for the City's case in chief are named in the discovery
(which includes a copy of the
police report), and pursuant to NRS 174.234-235 no other "witness
list" need be or will be
provided.
The City hereby requests that the Defendant provide discovery and
notice of defense
witnesses pursuant to NRS 174.234 and 174.235.
DATED this l?>fI1 day of October, 2011.
Deputy City Attorney
25 A copy of this Notice has been sent to Zachary Coughlin at 121
River Rock Street, Reno,
26 Nevada 89501 on October 011.
27
28
Reno, NY 89505
-1-
00012
RENO MUNICIPAL COURT APPLICATION AND AFFIDAVIT FOR APPOINTMENT OF
LEGAL DEFENDER
FILED RENO MW/fCIP/;I COURT CORTE MUNICIPAL DE RENO SOUCITUD Y
DECLARACION JURADA PARA ASIGNACION DE DEFENSOR LEGAL
\ \ - I \ 'I
2011 OCT 26 AM II: 38 k 7J. ----JJN U
I declare that I am an indigent person without financial means to
employ an attorney and that all 01 the facts, figures, answers and
statements contained in this application are true and correct. Yo
declaro ser una persona indigente y carezeo de recursos econ6mieos
pera contratar los servieios de un abcgado y dec/aro que;a
informacion, cifras, respuestas y declaraciones contenidas en esta
solicitud son verdaderas y co"ects. _ } . . . <: ¥'lj/17 N)-"2
0o.
1. Do you receive any form of public assistance such as food stamps
or public housing? ;/ Yes [1 No [ 1 Recibe ustad alguna forma de
ayuda financiera del gobiemo tal como cupones pera comida, 0
vivienda ptib/? Si [J No [ J
J 1 __ )
2.
3.
4.
If yes, please specify "m /l /7 I '=:1 ' '. Si la respuesta es
afirmativa, especifique ' ;
What proof of this assistance do you have? Que prueba puade usted
presentar de esla ayuda?
I ' .
V
Are you currently serving a sentence in a jail or prison?
Actualmente esta usted cump/iendo una sentencia en una carcel 0
prision?
Vest 1 Nof.{ Sir ] No[ ]
If yes, list charges, case numbers and time to serve. Si la
respuesta es afirmativa, indique los cargos, el ntimero del caso y
cuanto tiempo Ie queda por cumplir.
How many people are in your household (live with you)? Cuantas
personas viven en su residencia (viven con usted)?
What is the total weekly fami income for everyone living in your
household? Cuant6 es el ingreso lotal semanal familiar de lodos los
que viven en su residencia?
What is the total monthly family income for everyone living in your
household? Cuanlo es el ingreso tolal mensual familiar de todos los
que viven en su residencia?
$ ,,\1_'(1.: Ii Z c?() $ _- $,--- $,----
' , ,. ,
00013
00014
COUNTY OF WASHOE, STATE OF NEVADA
CITY OF RENO,
COURT DATE: November 14,2011 @ 1:00 p.m. Department Four -
Courtroom B
An Application for appointment of a Legal Defender having been
filed with this Court,
and having been reviewed by this Court, therefore;
This Court does hereby DENY said appointment for the reason that if
convicted of this
charge, the standard sentence carries no jail time.
It is so ORDERED.
DATED this 27'hday of October, 2011 / / If? If ,F) :J-'L KENNETH R.
HOWARD, JUDGE
00015
TRANSMISSION OK
TXlRX NO RECIPIENT ADDRESS DESTINATION ID ST. TIME TIME USE PAGES
SENT RESULT
********************$ ••• TX REPORT ••• *********************
3
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
COUNTY OF WASHOE, ST ATE OF NEV ADA
CITY OF RENO,
ORDER DENYING LEGAL DEFENDER
COURT DATE: November 14,2011 @ 1 :00 p.m. Department Four -
Courtroom B
An Application for appointment of a Legal Defender having been
filed with this Court,
and having been reviewed by this COllrt, therefore;
This COUl1 docs hereby DENY said appointment lelr the reason that
if cOllvictcd of this
charge, the standard sentence carries llO jail time.
It is so ORDERED.
DATED this 27' h
day of October, 2011 / ' /,?, 0 ;/" 1/ l ! """'-.i,{. -" I ,,~,
.i'j,,- -(J '"-..,)1111), .Ah'-', ,lIP
00016
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
• 1 •
CERTIFICATE OF SERVICE
Pursuant to NRCP 5 (b) , I certify that I am an employee of
the
Reno Municipal Court, Reno, Nevada, and that on this date I
served
a true and correct copy of the foregoing document, ORDER
DENYING
MOTION TO CONTINUE TRIAL DATE AND APPOINTMENT OF LEGAL DEFENDER
on
the party (ies) set forth below:
x
X
Placing said document in a sealed envelope placed for collecting
and mailing in the United States mail, at Reno, Nevada, postage
prepaid , following ordinary business practices.
Facsimile (FAX).
Personal Delivery.
Reno, NV 89505
Reno, NV 89501
mc:C!
00017
State; · Plaintiff
2ill j rlOI! _ '2 -D ~' I I • ;, UYl/USJ L;: 56 ,- . ... v.. Reno
Municipal Court Case
Case: REV2011-
;,~~~~;:, ~~~~:~ge Kenneth How3'd
I. ~ Moti6n for Reconsideration, Motion to Vacate or Set Aside
(under Rule 59 and or 60) Orde Denying Right to Counsel, Motion to
Dismiss
Trevino v. State 555 SW.2d 750 Formerly 110k641.2(4), 110k641 .2
Tex.Crim.App.,1977 Criminal defendants in misdemeanor cases are
entitled to counsel if there exists a possibility that imprisonment
may be imposed.
Judge Gardner refused to tell the undersigned the last names of the
four attorneys who might be appointed counsel. Accused has a right
to know that, its important to check qualifICations and experience.
Further, Judge Gardner touted their abilities by mentioning some,
or all, of them were former prosecutors. The NFL doesn1 hire to
many offensive coordinators to coach defense. I feel the same about
criminal defense.
The arrest did not occur in the presence of the police officer.
There was no consent to search. Officer made statements
conditioning whether arrest woul~ be made upon whether consent to
search was given, there are other impermissible acts but I am not
going to get into unless absolutely necessary. APPOINTMENT OF AN
ATTORNEY FOR DEFENDANT [IF CRIME CHARGED CARRIES A POSSIBLE JAIL
SENTENCE] N OTE: the Court Intends to suspend the sentence.
ETERMINATION OF EUGIBILITYD Any defendant charged with a public
offense who is an indigent may, by oral statement to the district
judge, justice of the peace, municipal judge or master, request the
appointment of an attorney to represent him. NRS 171.188, means of
employing an attorney; and (b) facts with some particularity,
definiteness and certainty concerning the defendant's financial
disability." whether the defendant is eligible and whether counsel
should be appointed. In addition to the requirements set forth in
specific definition of indigency in its Administrative Docket 411
Order of January 4,2008, which can be found Section 1 - CRIMINAL
Chapter 4 - MISDEMEANORS 4-6
at http://www.nevadaJudiciary.us/index.php/vlewdocumentsandforms/
func-startdown/70/, and is commonly referred to as the Indigent
Defense Order. The definition is a follows: A person will be deemed
'indigent' who is unable, without substantial hardship to himself
or his dependents, to obtain competent, qualified legal counsel on
his or her own. 'Substantial hardship' is presumptively determined
to include all defendants who receive public assistance, such as
Food Stamps, Temporary Assistance for needy Families, Medicaid,
Disability insurance, reside in public housing, or earn less than
200 percent of the Federal Poverty Guidelines. A defendant is
presumed to have a substantial hardship if he or she is currently
serving a sentence in a correctional institution or housed in a
mental health facility. Defendants not falling below the
presumptive threshold will be subjected to a more rigorous
screening process to determine if their particular circumstances,
including seriousness of charges being faced, monthly expenses, and
local private counsel rates, would result in a substantial hardship
were they to seek to retain private counsel. llle current federal
poverty guidelines are renected in the table below:
httns-//writer zoho com/editor im 11/1/2011 00018
The current federal poverty gUidelines are reflected in the table
below: 2009 POVERTY GUIDELINES FOR THE 48 CONTIGUOUS STATES AND THE
DISTRICT OF COLUMBIA Persons in family Poverty guideline 1
................................................ $10,830 2 ......
.. .. ...................................... 14,570 3 .......... ..
.................................... 18,310 4 .. ..
............................................ 22,050 5
................................................ 25,790 6
............ .... ................................ 29,530 7
................................................ 33,270 8
................................................ 37,010 For
families with more than 8 persons, add $3,740 for each additional
person.
Further. I have just been evicted from my home. as such. my ability
to defend myself and prepare for a Trial on November 14th. 2011 has
been severly compromised and would work an undue hardship on me.
especially to the extent these charges. for which I am innocent.
would impact my reputation and job prospects.
Page 2 of3
I do probably make uner $10,830, depeding upon from when to when
its measure. I am indigent, have barely any money to my name.
DISQUAUFICATION The public defender must be appointed unless
disqualified. disqualified to represent more than one co-defendant
and he may be disqualified for other reasons, but such conflict of
interest or disqualification must be brought to the attention of
the court before a private counsel may be appointed by the court.
The court must state the reasons for the disqualification on the
record. 7.115. those fees is set forth in
Rule 6: Continuances No continuance shall be granted, including a
stipulated continuance, except for good cause. A motion or
stipulation for continuance must state the reason therefore and
whether or not any continuance has previously been sought or
granted. I have not sought a continuance for any other hearing in
this matter, and further, I may have had a right to counsel at the
arraignment which was not met. Additionally, the bailiff at the
arraignment was threatening, retaliatory, and hostile when I asked
about my right to counsel and the video the Judge made of himself
advising litigants of their rights was somewhat frightening and
coercive in that it basically said "it is never a good idea to
represent yourself'. This is unjust, especially in the context of
this Court's Order denying my right to have counsel appointed where
jail time is a possibility, regardless of how the court intends to
treat the matter, statutorily, on paper, its a possibility. The
police shouldn't arrest so many people baselessly, and shouldn't
resort to illegal, coercive and unjust tactics, especially if the
tax base does not allow the court to uphold the procedural and
substantive protections required by the laws of our land. Cut
corners somewhere else.
Past-request questianing ar interragatlOn, Interrogation by police
after assertion of right to counsel at arraigrunent or similar
proceeding, waiver, see 625, 89 L.Ed.2d 631 Invocation of right,
muteness at preliminary hearing, court-ordered appointment of
counsel, subsequent interrogation, see 2079, 173 L.Ed.2d 955
Invocation of light to counsel, subsequent police-initiated
conversation, impeachment, see 293
Post-request responses to further interrogation, clarity of initial
request for counsel, see Smith v. Illinois, U.S.Ill.l984, 105 S.C!.
490, 469 U.S. 91, 83 L.Ed.2d 488
I declare under penalty of perjury under the laws of the State of
Nevada that the foregoing is true and correct. Dated November
2.2011
httns-llwriter zoho com/editor im 1113/2011 00019
'k7."E~'~ IZ 1 Ri er ock St. Reno, 89501 775338 SUS
[email protected]
Page 3 of3
Please do not call me, or attempt "house rules" phone notice, phone
situation is in flux due to Casey Baker. Esq.'s antics. The court
may email me, Casey Baker, Esq. may not serve me anything vi;)
email. Licensed in Nevada
httnS-//writer mho com/editor im 11/1/2011 00020
IN THE .NI~IPAL COURT OF THE CITftF RENO COUNTY OF WASHOE, STATE OF
NEV A~
ONE SOUTH SIERRA STREET, RENO, NV 89505 Mailing: P.O. Box 1900,
Reno, NV 89505 PHONE (775)334-2290 FA (77.5'/3:34182" /..:;
VS.
DEFENDANT: COUGHLIN, ZACHARY BARKER Court Case#: II CR 22176 21
Agency#: RSICPIICll0627
Offense Dt: 0910912011 Arrest Dt: 0910912011
DOB: 09/27/1976 Accident#:
'--~A-g-en-c-y#O:-""IC=Il"'067.2"'7;-----'--
'----------;c""o"'UR""'f CASE #: 11 CR 22176"11'"'
Print Date: 1111512011 Data Date: 11115/2011 Page 1 of2 00021
NextProofDt: Balance: Completed Dt:
FAlLURE TO COMPLY WIlli THE CONDITIONS OF BAlL AS DESCRIBED IN
lliIS ORDER WILL RESULT IN THE ISSUANCE OF A FAlLURE TO COMPLY
WARRANT OR IMMEDIATE ARREST AND INCARCERATION FOR CONTEMPT OF COURT
ANDIOR BAlL REVOCATION. FOR FURTHER INFORMATION, CONTACT THE
SENTENCE COMPLIANCE WINDOW LOCATED ON THE FIRST FLOOR OF THE RENO
MUNICIPAL COURT, ONE SOUlli SIERRA ST, RENO, NV (775)
334-2290.
THE DEFENDANT SHALL APPEAR AS ORDERED FOR ALL REVIEWS AND SHALL
COOPERATE FULLY WIlli THE BAlLIFFSIMARSHALS AND ALL COURT
STAFF.
THE DEFENDANT SHALL ATTEND ALL REVIEWS, COURT APPEARANCES AND
COURT-ORDERED PROGRAMS ON TIME AND ALCOHOL AND DRUG FREE.
THE DEFENDANT SHALL KNOW mSIHER COURT DATE AND MAlNTAlN CONTACT
WIlli mSIHER ATTORNEY.
PRIOR TO CHANGING HISIHER ADDRESS OR PHONE NUMBER, THE DEFENDANT
SHALL NOTIFIY THE COURT OF SUCH CHANGE.
OBEY ALL LAWS.
Ii'). ~ R~ INFORMATION: 3 city witnesses appeared for bench
trial
ADDITIONAL CASE INFORMATION: DEFENDANT WAS IN CUSTODY AT TIME AND
DATE OF BENCH TRIAL; DEFENDANT WAS TRANSPORTED BUT NOT BROUGHT INTO
COURT
1111412011 ADDITIONAL CASE INFORMATION: BAIL FORFEITURE CANCELLED
10/10/2011 ADDmONAL CASE INFORMATION: DEFENDANT DID NOT WANT A
COURT APPOINTED ATTORNEY.
THE HONORABLE
y.jk~I! _() I( J5~{ JUDGE'S SIGNATURE: DATE:
You are ordered by the Court to arrive drug/alcohol free and on
time for all Court hearings and Court related progams. Failure to
appear in Court will result in the issuance of a warrant for your
arrest. Any violation of this instant order may result in contempt
proceedings and the filing of additional criminal charges. In
accordance with NRS 22.010, it is a misdemeanor for any person to
fail, refuse or neglect to comply with the terms of any order
issued by the Municipal Court Judge. This order will remain in
effect until the Court issues another order superseding it.
I UNDERSTAND AND PROMISE TO OBEY THIS ORDER. DEFENDANT:
I. THE SWORN INTPRETER HAVE FULLY INTERPRETED THIS ORDER TO THE
DEFENDANT:
RECEIVED BY DEPUTY:
ISSUED BY MARSHAL:
Data Date: 11/1512011 Page 2 of2 00022
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
• CERTIFICATE OF SERVICE
Pursuant to NRCP 5(b), I certify that I am an employee of the
Reno Municipal Court, Reno, Nevada, and that on this date I
served
a true and correct copy of the foregoing document, NOTICE
SETTING
HEARING on the party(ies) set forth below:
x
X
Placing said document in a sealed envelope placed for collecting
and mailing in the United States mail, at Reno, Nevada, postage
prepaid, following ordinary business practices.
Facsimile (FAX).
Personal Delivery.
Zachary Barker Coughlin 121 River Rock SI. Reno, NV 89501
DATEcz:et~"Y of N"vemhe, 2011
00023
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
\ .) • CERTIFICATE OF SERVICE
Pursuant to NRCP 5(b), I certify that I am an employee of the
Reno Municipal Court, Reno, Nevada, and that on this date I
served
a true and correct copy of the foregoing document, ORDER
NOTICE
SETTING HEARING on the party(ies) set forth below:
x
X
Placing said document in a sealed envelope placed for collecting
and mailing in the United States mail, at Reno, Nevada, postage
prepaid, following ordinary business practices.
Facsimile (FAX).
Personal Delivery.
Zachary Barker Coughlin 817 NVirginia St #2 Reno, NV 89501
r.d ~ day of November 2011
00024
THE CITY OF RENO, Plaintiff;
Vs.
SUBPOENA .; \..0, ~ i
~~_ ~S \ ' . ,;; -~ .. and subpoena duces tecum
TN VIOLATION OF please appear and further bring any evidence
including medial rei-ate~ toC~ retaliatory threats by walmart staff
or lp per~s~o~nn~~e'l------------
THE MUNICIPAl,- COURT OF THE CTTY OF RENO SENDS.GREETTNGS TO: Loss
prevent loon manager and John Ellis and ASM "Connie" 7th St.
walmart
Janice cashier, Brian Bain store Manager; LP manager, 2nd ST.
Walmart
WE COMMAND YOU, that all and singular, business and excuses being
set aside, you appear and attend before the MUNICIPAL COURT OF THE
CITY OF RENO, WASHOE COUNTY, NEVADA, in the COURTROOM ATONE SOUTH
SIERRA, RENO, NEVADA,
011 November 30, '-------------~-------,
2011,at ___ 1_p_m _____________________ ___
, and for failure to attend you may be deemed
2011 29th .November TN WITNESS WHEREOF, I have hereunto set my hand
(his ___ Clay of . __________ ,_.
cassal1~~kson,( co::. ~dministrator
Declaration I'f!ljI'fl:W.tlqltJF PERSONAL SERVICE under penalty of
perjury NRS
STATE OF NEVADA
COUNTY OF WASHOE) emailed
J hereby certify rhar J received the within SUBPOENA on the
._~~trJliy ofNOv:'~:'_~ .. _~_? ~~ __ ., and that I faxed to or
personally ~erved the san:f~g'l.!l the person hereinafier named by
showing himiher the within SUBPOENA and delivering a copy to
hun/her on the __ '~ay of November 2 O,lJ:......., in Washoe
County, Nevada, to-wn:
Signed: /s/ zach coughlin, signed electroncially
Subscribed and sworn to before me this 2 9tJ:ijay or .. ___
~'2.ve~:..: ... ,2.E_1.!.. J:.:~~_<:'_::~_ n~~i_~.~:e_c:i d~~~re
f fd. Declaration under penalDym~~~~as as sa s
of perjury made NRS df
00025
5
7
8
, , _________________________________ 5
17 - -------------------------------
Tele: 775-338-8118
Fax: 949-667-7402
Attorney for Defendant Coughlin 6
IN THE MUNICIPAL COURT OF THE CITY OF RENO STATE OF NEVADA IN AND
FOR
THE COUNTY OF WASHOE
NOTICE FOR
It is important to state again here that the Bailiffwsa threatening
and retaliatory w
when the undersigned appeared before Judge Gardner on October 10,
20 II, including 21 making intimidating statements to the
undersigned seemingly in a retaliatory fashion
and designed to prevent the undersigned from seeking court
appointed representation. 22 The Bailiff's name might have been
"Monte" or something similar, however, the
23 records of that interaction are being held under an
impermissible rent distraint by an opposing attorney. Obviously,
such actions, when combined with the lack of a PD at
24 the arraignment, an arraignment video being shown by the court
which contains threatening statements and overly ominous tones when
advising litigants against
l5 appearing pro se, the City of RenolReno Municpal Court's alleged
practice of only hiring "former prosecutors" to be court appointed
counsel, in conjunction with the 26
failure to allow the defendant access to the PC sheet and discovery
for over I month, 27 much less 48 hours from the arrest, combine to
make a fair trial impossible in this
2lI
00026
matter.
Please note that the undersigned hereby files this Notice of
Appearance as counsel of record in this matter.
Reno Municipal Court rules
“Court Rules and Procedures Rule 1: Applicability of Rules A. These
rules may
be referred to as the Reno Municipal Court rules and may be
abbreviated as
R.M.C.R. These rules are intended to supercede the rules
promulgated and made
effective on January 1, 1980 by the Reno Municipal Court. B.
Whenever it appears
that a particular situation does not fall within the purview of a
rule, or that a literal
application of a rule would cause a hardship or injustice in a
case, the court may
make such order as the interests of justice require. Rule 2:
Organization of the Court
A. The Municipal Court consists of a number of departments
designated by City
Council resolution, each presided over by a judge duly elected or
appointed to that
position. Judges pro tem may sit in each department from time to
time as authorized
by law. A judge pro tem duly appointed and authorized by the
presiding judge of a
particular department to sit in that department shall have the same
jurisdiction as the
presiding judge, except that the judge pro tem has jurisdiction
only over matters to be
heard on his or her assigned docket. Judges pro tem are not
permitted to act on any
motion filed in any case, except those requiring resolution before
a case can proceed
on the docket to which the pro tem judge is assigned. B. All cases
set for trial or other
post-arraignment proceeding, except a sentencing set by the
arraigning judge, shall be
randomly or sequentially assigned to one of the departments.
Insofar as is practical,
all cases pertaining to a defendant shall be assigned to the same
judge. In the event a
judge must recuse himself or herself, the matter shall be sent to
the administrative
judge for reassignment to another department. C. The elected or
appointed judges of
each department may act for one another by mutual agreement as
circumstances
dictate. D. Each year, the elected or appointed judges shall select
one of their number
NOTICE OF APPEARANCE; MOTION FOR CONTINUANCE
Page 2
00027
to act as administrative judge for the upcoming fiscal year. The
administrative judge
shall handle all court administrative matters and shall be
authorized to speak publicly
for the court on matters of court policy. Rule 3: Authorization to
Represent A.
Attorneys representing defendants shall promptly serve written
notice of their
appearance with the City Attorney and file the same with the Court.
B. An attorney
desiring to withdraw from a case shall file a motion with the court
and serve the City
Attorney with the same. The court may rule on the motion or set a
hearing. Rule 4:
Motions A. Except for good cause shown, all motions shall be
accompanied by
affidavit, and, when appropriate, by points and authorities. All
motions must be
served on the opposing party and must be file stamped along with
accompanying
proof of service. B. The opposing party may file and serve
answering points and
authorities on the moving party within 10 days after service of a
motion. C. The
moving party may file and serve reply points and authorities within
5 days thereafter.
D. Upon the expiration of any time period set for response by this
rule, either party
may file and serve a written request for submittal of the motion,
or the court may
consider the motion submitted. E. An opposition to a motion must
state the reason(s)
for objection. F. Motions shall be decided without oral argument
unless oral
argument is ordered by the court. Rule 5: Motions by Facsimile A.
All rules and
procedures that apply to motions filed in person at the court shall
also apply to
motions filed by facsimile, except as otherwise specified in this
rule. B. All persons
are eligible to use motion-by-facsimile procedures. C. All motions
filed by facsimile
must be accompanied by a cover sheet which must include the
person’s name,
address, fax number and telephone number. D. All facsimile motions
filed by an
attorney must include the attorney's name, the firm’s name,
address, fax number and
telephone number. In addition, the attorney’s state bar number must
be conspicuously
displayed on the cover sheet. E. All motions filed by facsimile
must be accompanied
by proof of service. Service may be accomplished by facsimile when
the receiving
NOTICE OF APPEARANCE; MOTION FOR CONTINUANCE
Page 3
00028
party is a governmental agency, an attorney, or with the consent of
the receiving
party. If service of the motion is accomplished by facsimile the
3-day allowance for
mailing shall not be computed into the time for response. F. A
defense attorney filing
a motion in the first instance must also file a proper
authorization to represent. G.
Any motion received by the court after 4:30 p.m. or on a non-court
day shall be filed
on the following court day. Rule 6: Continuances No continuance
shall be granted,
including a stipulated continuance, except for good cause. A motion
or stipulation for
continuance must state the reason therefore and whether or not any
continuance has
previously been sought or granted. Rule 7: Corporations Except with
the permission
of the court, a corporation or other business entity shall not
appear in propria persona.
Rule 8: Courtroom Conduct and Attire Proceedings in court should be
conducted
with dignity and decorum. All persons appearing in the court must
be appropriately
attired. All attorneys must wear appropriate business attire. Rule
9: Appeals to
District Court Except as otherwise provided in NRS 177.015 a
defendant in a
criminal action tried before a Municipal Court Judge may appeal
from the final
judgment therein to the Second Judicial District Court, at any time
within 10 days
from the date that judgment is rendered. Effective January 1,
2000”
MOTION FOR SANCTIONS AND ATTORNEY'S FEES POINTS AND
AUTHORITIES Coughlin/Defendant, Zach Coughlin, Esq., hereby files
MOTION
FOR SANCTIONS AND ATTORNEY'S FEES based on the papers on file in
this
action, all correspondence between Roberts, Coughlin, Reno City
Attorney Roberts,
Hylin, and others, and the points and authorities herein contained.
Court-appointed
attorney as subject to liability under 42 U.S.C.A. § 1983. 36
A.L.R. Fed. 594
(Originally published in 1978). Public defenders are not immune
from liability under
42 U.S.C.A. § 1983 for alleged con- spiracy, with state officials,
under color of state
law, to deprive clients of federal rights. Tower v. Glover, 467
U.S. 914, 104 S. Ct.
NOTICE OF APPEARANCE; MOTION FOR CONTINUANCE
Page 4
00029
2820, 81 L. Ed. 2d 758 (1984). Public defender may be held liable
under § 1983 if he
or she engaged in a conspiracy with officials acting under the
color of state law to
deprive a person of a right secured by the Con- stitution. 42
U.S.C.A. § 1983. Warren
v. Fischl, 33 F. Supp. 2d 171 (E.D.N.Y. 1999). County public
defender acted under
"color of state law" in failing to request indigency hearing on
behalf of motorist
convicted and fined for misdemeanor reckless driving, prior to
motorist's
incarceration for failure to pay his fine, for purpose of § 1983
action against county
public defender's office, alleging that it had a policy or custom
of failing to seek such
indi- gency hearings; the act of not requesting indigency hearing
was administrative,
as it was due to the office's alleged systemic inaction. 42
U.S.C.A. § 1983. Powers v.
Hamilton County Public Defender Com'n, 501 F.3d 592 (6th Cir.
2007). Appointed
defense attorney was not immune from action under 42 U.S.C.A. §
1983 and § 1985,
either in his own right or derivatively from alleged
co-conspirators' absolute
immunity, for conspiracy with judge and prosecutor to impanel
all-white jury for
defendants criminal tri- al and may be regarded as having acted
under color of state
law in view of conspiracy alleged with public officals. White v
Bloom (1980, CA8
Mo) 621 F2d 276. Attorney's liability for malpractice in connection
with defense of
criminal case, 53 A.L.R.3d 731. Negligence, inattention, or
professional
incompetence in handling client's affairs as ground or disciplinary
action, 96
A.L.R.2d 823. Joe Roberts has indicated to his client, Coughlin,
that his superiors at
the WCPD have made him feel uncomfortable doing much in the way of
defending
Coughlin, and that doing so with much zeal would adversely affect
his opportunities
for advancement at the WCPD and perhaps even his job security.
Ineffective
Assistance of Counsel, 5 Am. Jur. Proof of Facts 2d 267 Strategies
for Enforcing the
Right to Effective Representation, 46 Am. Jur. Trials 571 Avoiding
Legal
Malpractice Claims in Litigation, 46 Am. Jur. Trials 325 Prisoners'
Rights litigation,
22 Am. Jur. Trials 1 Actions Against Attorneys for Professional
Negligence, 14 Am.
NOTICE OF APPEARANCE; MOTION FOR CONTINUANCE
Page 5
Ineffective Representation During Pretrial Phase of Criminal Case,
42 Causes of
Action 2d 707. Bines, Remedying Ineffective Representation in
Criminal Cases:
Departures from Habeas Corpus. 59 Va L Rev 927 Mallen, The
Court-Appointed
Lawyer and Legal Malpractice—Liability or Immunity. 14 Am Crim L
Rev 59 Note,
Remedying Ineffective Representation by Public Defenders—An
Administrative Al-
ternative to Traditional Civil Actions. 60 Minn L Rev 123 Note, The
Right of the
Indigent Client to Sue His Court-Appointed Attorney for Malprac-
tice. 33 La L Rev
740. In each of the following cases, a public defender was held not
to be immune
from liability for professional malpractice. In Spring v
Constantino (1975) 168 Conn
563, 362 A2d 871, an action by a state criminal defendant against a
public defender
for malpractice, the court held that an attorney occupying the
position of public
defender and assigned to represent an indigent defendant did not
enjoy immunity
from liability for professional malpractice. Stating that a public
defender is like any
other attorney whose duties as an officer of the court and to an
individual client and
whose principled and fearless conduct of the defense are not
deterred by the prospect
of liability, the court rejected the contention of the public
defender that the doctrine
of judicial immunity should be extended to public defenders on the
ground that the
immunity rule is designed to promote principled and fearless
decisionmaking by
removing the fear that unsatisfied litigants might bring harassing
actions. The court
also rejected the contention that the common-law doctrine of
sovereign immunity
which extends to public officials applied to a malpractice ac- tion
brought against a
public defender, saying that a public defender, in representing an
indi- gent, is not a
public official, since even though the state must insure that
indigents are repres-
ented by competent counsel, it could not be argued that the actual
conduct of the
defense of an individual is a governmental act. The court also
rejected the third
suggested ground of im- munity: the statutory immunity of public
officers and state
NOTICE OF APPEARANCE; MOTION FOR CONTINUANCE
Page 6
00031
employees. The court said that while it was true that a public
defender could be told
when he is to work and within what area, those elements of control
were indicia of
the master-servant relationship and incidents of a public
defender's employment
which are not within the scope of the attorney-client relation-
ship. Stating that the
independence of the public defender was a key constitutional
underpin- ning of the
public defender system, the court said that other than the source
of the public de-
fender's compensation, the relationship of public defender and
client is the same as
that of privately employed counsel and client. A public defender
was held not to be
immune from liability for malpractice, in Reese v Danforth (1979)
486 Pa 479, 406
A2d 735, 6 ALR4th 758, In holding that the public defender was not
a public official
entitled to immunity, the court said that the overriding duty of
zeal- ous
representation of a client's interest attaches to the role of the
public defender and thus
the performance of that duty by the defender was similar to the
performance of
privately retained counsel. Stating that the relationship between
the county and the
public defender was similar to that between an independent
contractor and the party
contracting his services, the court said that while the
availability of court-appointed
counsel to represent indigents is indubitably the public business,
once the
appointment of a public defender in a given case is made, his state
or public function
ceases and thereafter he functions purely as a private attorney
concerned with
servicing his client, and his professional relationship with his
client takes on all the
obliga- tions and protections attendant upon a private
attorney-client relationship
except that the pub- lic pays the attorney's fee. The court also
rejected the contentions
that not granting immunity to the public defender would hinder the
recoupment of
able lawyers to represent indigents, and would inhibit the
defender's professional
discretion in declining to press the frivolous, to assign
priorities between indigent
litigants, and to make strategic decisions with regard to a
particular litigant as to how
his interest may best be advanced. In the following case, a public
defender was held
NOTICE OF APPEARANCE; MOTION FOR CONTINUANCE
Page 7
00032
not liable for the malpractice of one of his deputies. A public
defender was held not
to be liable solely by virtue of his office, for the malprac- tice
of one of his deputies,
in Sanchez v Murphy (1974, DC Nev) 385 F Supp 1362. Stating that
the professional
relationship between court-appointed counsel and indigent criminal
de- fendants
under public defender systems is no different than that between a
client and privately
retained counsel, the court went on to say that the relationship of
the public defender
and his deputies among themselves was not a partnership
relationship, since the
economic justifica- tion for holding one partner liable for the
misconduct of another
partner was grounded on the fact that fees for services are shared,
whereas each of the
public defender attorneys was com- pensated independently by salary
for his own
services. Stating that a deputy public defender is an independent
officer, the court
noted that there was substantial authority in support of the rule
that in the absence of
statute imposing liability or of negligence on his part in
appointing or supervising his
assistants, a public officer is not liable for the default and
misfeasance of assistants
appointed by him. Related Annotations are located under the
Research References
heading of this Annotation. CUMULATIVE SUPPLEMENT Cases:
Plaintiff's
malpractice action against public defender was not precluded by
quasi-judicial
immunity. Wilcox v. Brummer, 739 So. 2d 1282 (Fla. Dist. Ct. App.
3d Dist. 1999).
Public defender attorneys were not entitled to sovereign immunity
from legal
malpractice claims brought by former client convicted in criminal
case and later
exonerated; attorneys' duty to client arose independently of their
state employment.
Johnson v. Halloran, 312 Ill. App. 3d 695, 245 Ill. Dec. 408, 728
N.E.2d 490 (1st
Dist. 2000), appeal allowed, 189 Ill. 2d 688 (2000). The court in
Dziubak v Mott
(1993, Minn) 503 NW2d 771 held that a public defender is immune
from liability for
malpractice: In contrast, the court in Veneri v Pappano (1993, Pa
Super) 622 A2d
977 noted that a pub- lic defender is not immune from liability for
malpractice.
Attorney's liability for malpractice in connection with defense of
criminal case, 53
NOTICE OF APPEARANCE; MOTION FOR CONTINUANCE
Page 8
00033
A.L.R.3d 731; The independence of the public defender is of utmost
importance to its
duties to indigent defendants. Crist v. Florida Ass'n of Criminal
Defense Lawyers,
Inc., 978 So. 2d 134 (Fla. 2008). Trial court's comments on
perceived deficiencies of
public
defender system, made in its order denying defendant's request for
35–day
pretrial continuance of capital murder trial, did not create a
conflict of interest
between defendant and public defender which required public
defender to withdraw
from the representation. Sup. Ct. Rules, Rule 3.130, Rules of Prof.
Con- duct, Rule
1.16(a). Furnish v. Com., 95 S.W.3d 34 (Ky. 2002), as modified,
(Dec. 10, 2002). At
the hearing on the Competency Evaluation, Judge Sferrazza could be
heard, during a
recess, making an excited utterance wherein he commented that the
bill for the
ridiculous, baseless, and clearly motivated by a retaliatory intent
request for a
Competency Evaluation made by PD Hylin would not be accepted by the
Reno
Justice Court, and that it would be returned to the Public
Defender's Office and they
could pay the bill for the Competency Evaluation if they wanted to
waster money so
bad. Mr. Roberts, Please provide, in writing an inventory of
everything you believe
you have provided me. Further, your flip disregard and non response
in relation to my
FOIA requests and other requests, made in writing, asking you to
file a Motion to
Dismiss, and other motions is truly troubling and reflects
exceedingly poorly on your
level of professional responsibility. In fact, I have commenced an
inquiry into
whether you have EVER filed a Motion to Dismiss on behalf of ANY
client and,
similarly, whether you, in your long tenure at the WCPD have ever
asked for
sanctions of any sort against the Reno City Attorney. In court, at
a hearing featuring
Reno City Attorney Roberts, you walked over to Reno City Attorney
Roberts's file,
without a hint of consternation from Reno City Attorney Roberts,
and rifled through
his file looking for something, yet you deny me access to my file.
That sort of
fraternization with the Reno City Attorney's Office (you still have
not answered
NOTICE OF APPEARANCE; MOTION FOR CONTINUANCE
Page 9
whether Reno City Attorney Roberts was in your retinue at the free
trade coffee place
that day I saw you on the street) is inappropriate an reflects
poorly on the legal
profession and the WCPD's Office, particularly in the context of
your myriad refusals
to file even a single document in my defense, you cohorts forcing
me into a
burdensome and insulting Competency Evaluation, your non response
to my FOIA
request, the patently retaliatory falsehoods Mr. Hylin attributes
to Jessica, your
receptionist, Mr. Bosler's hiring by Reno City Attorney Gammick,
and all the other
13th chimes of the clock one hears in the tape from this case. Just
a few turns on the
EQ, and this case could be a symphony of transparency. Coughlin
further moves for
sanctions against Deputy City Attorney Roberts pursuant to NRS
7.085, for the
attorneys' fees Coughlin has needlessly incurred due to Roberts's
cowardly, lethargic,
largesse and reckless uses of this court's processes.
ANALYSIS
If a Reno City Attorney has in his or her possession exculpatory
video and audio
evidence, in addition to audio and video evidence which shows
material witnesses
not only completely contradicting themselves, but also seeking to
dissuade other
material witnesses from testifying, it would be troubling to see
that Reno City
Attorney or someone filling in for him as some preliminary hearing
to continue to
appear in court and stand behind the Criminal Complaint, all while
collecting a
paycheck that is more and more put into rather stark relief in
comparison to that
which similarly experienced and educated inviduals garner in the
private sector.
Further, if other material witnesses can be seen in audio and video
evidence
assaulting and battering an investigator asking questions related
to exculpating the
accused in a matter, it would be all the more troubling to see a
prosecutor continue to
appear in court advocating orally and filing documents in support
of the allegations
of the criminal complaint. It is important to clarify statements
made in court today
with respect to whether NRCP Rule 11 sanctions may be levied
against a prosecutor.
NOTICE OF APPEARANCE; MOTION FOR CONTINUANCE
Page 10
00035
Such a proposition was met with general doubt today. However,
Nevada law is quite
clear in this regard. Clearly, they can. Contrary to any indication
in court today, the
Reno City Attorney does not play with some sort of special safety
net the rest of the
attorneys in the state fail to have: Office of Washoe County Dist.
Atty. v. Second
Judicial Dist. Court ex rel. County of Washoe, 116 Nev. 629, 5 P.3d
562 (2000) .
The Reno City Attorney absolutely is subject to NRCP 11, and so is
any with the
Washoe County Public Defender's Office or the court appointed “four
former
prosecutors” the Reno City Attorney and Reno Municipal Court call
court
appointed defense attorneys.. "In a case brought by the district
attorney to
enforce a Washington child support order in Nevada, the district
court imposed
NRCP 11 sanctions against the district attorney for failing to
discontinue
enforcement of the support order after the district court's
previous ruling that
Washington had continuing exclusive jurisdiction to adjudicate the
arrearage
amount. District attorney's office, as a non-party in underlying
proceedings to
enforce out-of-state child support order, did not have right to
appeal district court's
order imposing Rule 11 sanctions against the office, and thus writ
of mandamus was
an available remedy. Office of Washoe County Dist. Atty. v. Second
Judicial Dist.
Court ex rel. County of Washoe, 2000, 5 P.3d 562, 116 Nev. 629.
District judge
abused his discretion in imposing $2,500 sanctions against city
manager and city
attorney for their alleged failure to participate in good faith in
settlement conference
and, therefore, petition for writ of mandamus to prevent district
court from enforcing
sanctions would be granted; sanctions levied did not fit purported
violations at issue.
City of Sparks v. Second Judicial Dist. Court In and For County of
Washoe, 1996,
920 P.2d 1014, 112 Nev. 952. In the United States Supreme Court
case of Buckley v.
Fitzsimmons, 509 U.S. 259, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993),
the petitioner
alleged the prosecutors and police conspired to link the boot print
at the murder scene
with his print by witness “shopping.” “At the time of this witness
shopping the
NOTICE OF APPEARANCE; MOTION FOR CONTINUANCE
Page 11
assistant prosecutors were working hand in hand with the sheriff's
detectives....” Id. at
272, 113 S.Ct. 2606. The Court held the prosecutors were not
entitled to absolute
immunity, stating: A prosecutor's administrative duties and those
investigatory
functions that do not relate to an advocate's preparation for the
initiation of a
prosecution or for judicial proceedings are not entitled to
absolute immunity. Id. at
273, 113 S.Ct. 2606. See Gentile v. County of Suffolk, 926 F.2d 142
(2d Cir. 1991)
(holding that a county district attorney's long practice of
ignoring evidence of police
misconduct and sanctioning and covering up wrongdoing could make
the county
liable); Claude H. v. County of Oneida, 626 N.Y.S.2d 933 (App. Div.
1995) (holding
that district attorney's command that plaintiff be unlawfully
arrested could support
action against county for false imprisonment). Nevada Rules of
Professional
Conduct, Rule 3.8. Special Responsibilities of a Prosecutor. " The
prosecutor in a
criminal case shall: (a) Refrain from prosecuting a charge that the
prosecutor knows
is not supported by probable cause; (b) Make reasonable efforts to
assure that the
accused has been advised of the right to, and the procedure for
obtaining, counsel and
has been given reasonable opportunity to obtain counsel; (c) Not
seek to obtain from
an unrepresented accused a waiver of important pretrial rights,
such as the right to a
preliminary hearing; (d) Make timely disclosure to the defense of
all evidence or
information known to the prosecutor that tends to negate the guilt
of the accused or
mitigates the offense, and, in connection with sentencing, disclose
to the defense and
to the tribunal all unprivileged mitigating information known to
the prosecutor,
except when the prosecutor is relieved of this responsibility by a
protective order of
the tribunal; (e) Not subpoena a lawyer in a grand jury or other
criminal proceeding
to present evidence about a past or present client unless the
prosecutor reasonably
believes: (1) The information sought is not protected from
disclosure by any
applicable privilege; (2) The evidence sought is essential to the
successful
completion of an ongoing investigation or prosecution; and (3)
There is no other
NOTICE OF APPEARANCE; MOTION FOR CONTINUANCE
Page 12
feasible alternative to obtain the information; (f) Except for
statements that are
necessary to inform the public of the nature and extent of the
prosecutor’s action and
that serve a legitimate law enforcement purpose, refrain from
making extrajudicial
comments that have a substantial likelihood of heightening public
condemnation of
the accused and exercise reasonable care to prevent investigators,
law enforcement
personnel, employees or other persons assisting or associated with
the prosecutor in a
criminal case from making an extrajudicial statement that the
prosecutor would be
prohibited from making under Rule 3.6 or this Rule." Under Brady v.
Maryland, 373
U.S. 83, 87 (1963), “the suppression by the prosecution of evidence
favorable to an
accused ... violates due process where the evidence is material
either to guilt or to
punishment....”United States v. Shaygan, 661 F.Supp.2d 1289, 1325
(S.D. Fla. 2009)
(judge reserved the right “to impose any further sanctions and/or
disciplinary
measures as may be necessary against [the federal prosecutors]
after reviewing the
results of the Justice Department’s investigation.”); United States
v. Jones, No. CR
07-10289- MLW, 2010 WL 565478 (D.Mass. 2010) (court determined
that
imposition of sanctions against AUSA or government for failure to
adequately train
AUSA based on failure to disclose plainly material exculpatory
evidence were
neither necessary nor appropriate where, since violation
disclosure, AUSA, US
Attorney’s Office and DOJ officials took actions such as
participating in discovery
training programs, which obviated need for sanctions). As for the
Public Defender:
Roy B. Flemming, If You Pay the Piper, Do You Call the Tune? Public
Defenders in
America's Criminal Courts, 14 LAW & SOC. INQUIRY 393 (1989)'.
What Public
Defender? The undersigned was denied one in contravention of the
Sixth
Amendment, and it doesn't matter if the state doesn't intent to
seek jail time, one is
required where jail time is a possibility. Such a decision would
constitute an
"objective" of the representation. See MODEL RULES OF
PROFESSIONAL
CONDUCT Rule 1.2(a); ABA Standards for Criminal Justice, Standard
4-5.2
NOTICE OF APPEARANCE; MOTION FOR CONTINUANCE
Page 13
"Control and Direction of the Case" (1992) (specifying that the
decisions to be made
by the accused after full consultation with counsel include what
pleas to enter,
whether to accept a plea agreement, whether to waive jury trial,
whether to testify,
and whether to appeal). The lawyers who characteristically
gravitate toward indigent
defense would not, it seems, easily adjust to a practice that
involved adhering to a set
of overriding institutional objectives. Neither their training nor
their impulses would
typically prepare public defenders to bend to the office's larger
goals. In fact, the anti-
authoritarian nature of the work appealed to me as a staff lawyer.
I expected to
represent my clients without either intervention or interference
from my supervisors.
My clients' objectives were not only important, but the only ones
that mattered. I
remain sensitive that by imposing institutional controls that to
some extent curb the
rebellious spirit of defenders, the defender office might run the
risk of changing both
the nature of defenders' practice and the type of lawyers who
choose to join the
office. Clearly, if a criminal defendant has a legitimate and
articulable basis for
wanting a Motion to Dismiss filed, it should be filed, even by a
Public Defender
whose boss was chosen, in part, by the District Attorney. This is
particularly true
where exculpatory audio and video evidence exists, and even more so
where
extortion or other police misconduct is evident, such as coercive
attempts to garner
consent to search, threats to bad mouth one to a professional
licensure body,
excessive force, sexual battery, overcharging in a retaliatory
manner in light of an
assertion of Fourth or Fifth Amendment rights, false imprisonment,
etc.... By now,
the actions of Michael Nifong, the former District Attorney of
Durham County, North
Carolina, that led to his disbarment are well known. See generally
Robert P.
Mosteller, The Duke Lacrosse Case, Innocence, and False
Identifications: A
Fundamental Failure to “Do Justice”, 76 Fordham L. Rev. 1337
(2007). Some argue
that the situation involving Nifong is an isolated case. Yet
prosecutorial overreaching
has been an issue well before this headline-grabbing case came
along. A recent report
NOTICE OF APPEARANCE; MOTION FOR CONTINUANCE
Page 14
00039
issued by the California Commission on the Fair Administration of
Justice referred to
a study that reviewed 2,130 California appellate cases in which a
claim of
prosecutorial misconduct was raised. Cal. Comm’n on the Fair Admin.
of Justice,
Report and Recommendations on Professional Responsibility and
Accountability of
Prosecutors and Defense Lawyers (2007), available at
http://www.ccfaj.org/documents/reports/prosecutorial/official/official
report on
reporting misconduct.pdf. Of those 2,130 cases, 443 resulted in
findings that
prosecutorial misconduct actually occurred. In 53 of the 443 cases,
a reversal of
conviction was the result—the rest concluding that the misconduct
was harmless
error. Perhaps the most disturbing statistic is that a follow-up
study looking at half of
the cases resulting in a reversed conviction concluded that the
prosecutor was not
referred to the California State Bar for discipline, which is
required under California
law. If there is a positive aspect to the Duke Lacrosse saga, it is
that Nifong’s actions
and ultimate disbarment have served to highlight the important
issue of prosecutorial
misconduct and the need for effective remedies. Prosecutorial
Misconduct and
Wrongful Convictions: Shaping Remedies for a Broken System, 2006
Wis. L. Rev.
399, 403 (2006). Moreover, assuming that the defendant is factually
culpable, a
conviction secured through the improper actions of a prosecutor
could be
unconstitutional and, thus, subject to reversal. The result is that
the innocent are
convicted and the guilty go free, which can only exacerbate the
public’s loss of trust
in the integrity of the criminal justice system. PROSECUTORIAL
GUIDELINES In
performing their duties to seek justice, prosecutors are bound by
constitutional
standards, case law governing trial conduct, and various ethics
rules and standards
pertaining to the prosecutorial function. Rule 3.8 of the ABA Model
Rules of
Professional Conduct (“Model Rules”) specifically covers the
actions and
responsibilities of prosecutors. All state jurisdictions have an
ethics rule imposing
special responsibilities on prosecutors, most based on Model Rule
3.8. Prosecutors
NOTICE OF APPEARANCE; MOTION FOR CONTINUANCE
Page 15
are also guided by standards found in the ABA Standards for
Criminal Justice
Prosecution Function and Defense Function (3d ed. 1993) (“ABA
Standards”) and
the National District Attorneys Association Prosecution Standards
(2d ed. 1991)
(“NDAA Standards”). In assessing the conduct of prosecutors, courts
have oftentimes
looked to the ABA Standards for guidance. See, e.g., Miller v.
North Carolina, 583
F.2d 701, 706 n.6 (4th Cir. 1978). For years, the U.S. Department
of Justice (“DOJ”)
took the position that Assistant United States Attorneys (“AUSAs”)
were exempt
from state ethics rules. The McDade Amendment in 1999 laid to rest
this argument.
The amendment, attached as a rider to an appropriations bill,
provides: An attorney
for the Government shall be subject to State laws and rules, and
local Federal court
rules, governing attorneys in each State where such attorney
engages in that
attorney’s duties, to the same extent and in the same manner as
other attorneys in that
State. 28 U.S.C. § 530B(a). The Professional Responsibility
Advisory Office within
the DOJ provides advice to AUSAs regarding ethical issues and
choice-of-law
matters. EXAMPLES OF PROSECUTORIAL MISCONDUCT “Like the Hydra
slain
by Hercules, prosecutorial misconduct has many heads.” United
States v. Williams,
504 U.S. 36, 60 (1992) (Stevens, J., dissenting); see also Joy,
supra, at 402 (listing
numerous forms of prosecutorial misconduct). This article focuses
on five categories:
(1) suppression of evidence, (2) misuse of the media, (3)
misconduct involving
witnesses, (4) investigative misconduct, and (5) trial misconduct.
Any specific act of
prosecutorial misconduct may fall into more than one category. For
example,
knowingly presenting perjured testimony would be misconduct
involving a witness,
as well as a violation of the duty to disclose exculpatory
evidence. Nifong committed
investigative misconduct in devising the photo array that led to
the arrest of the three
lacrosse players. The accuser in the case, Crystal Mangum, had been
shown two
photo arrays— one on March 16, 2006 and another on March 21,
2006—that did not
contain any “fillers.” Every single picture, 36 in total, that
Mangum looked at was a
NOTICE OF APPEARANCE; MOTION FOR CONTINUANCE
Page 16
00041
lacrosse player. Mangum was unable to identify any of her alleged
attackers. Then,
on March 31, 2006, Nifong suggested to the police that Mangum be
shown
photographs of all 46 white members of the team at the same time.
See Mosteller,
supra, at 1398. During this procedure, which occurred on April 4,
2006, Mangum, at
the direction of Nifong, was told that the police had reason to
believe that all of the
men she was looking at were at the party where she was allegedly
raped. Again, the
array contained no “fillers.” In essence, Mangum was told that she
could not make a
wrong choice. It was at this time that Mangum identified the
players who were later
charged. The direct consequence of this investigative misconduct
was the indictment
of three innocent people. Trial Misconduct Prosecutorial misconduct
during the
course of trial covers a broad spectrum. For example, a prosecutor
may improperly:
introduce evidence, assassinate the character of a defendant, refer
to the fact that a
defendant did not talk to the police or take the stand in his or
her defense, make
inflammatory statements during closing argument, or attempt to
bolster the credibility
of a prosecution witness. See generally, Lawless, supra, §§ 9–10;
Gershman,
Misconduct, supra, §§ 10–11. ABA Standard 3-5.8 and NDAA Standard
85.1 govern
the scope of closing arguments. The NDAA Standard simply states:
“Closing
arguments should be characterized by fairness, accuracy,
rationality, and a reliance
upon the evidence or reasonable inferences drawn therefrom.” NDAA
Standard 85.1.
The ABA Standard goes further and specifically states that a
prosecutor should not
express his or her personal belief as to the veracity of any
evidence or guilt of the
defendant. The ABA Standard also provides that a prosecutor should
not appeal to
the prejudices of the jury. See ABA Standard 3- 5.8(b)– (c). Case
law is filled with
innumerable instances of improper trial conduct—most of which is
deemed harmless.
One prosecutor who repeatedly went over the line according to
appellate courts is
Robert H. Macy, the former District Attorney of Oklahoma County,
Oklahoma. See
Ken Armstrong, “Cowboy Bob” Ropes Wins—But at Considerable Cost,
Chi. Trib.,
NOTICE OF APPEARANCE; MOTION FOR CONTINUANCE
Page 17
00042
Jan. 10, 1999, at 13. Called a “true patriot” by former Attorney
General William Barr
and honored as “America’s prosecutor” by the Oklahoma Senate upon
his retirement
in 2001, Macy left behind a string of cases commenting unfavorably
on his trial
conduct. Paxton v. Ward, 199 F.3d 1197 (10th Cir. 1999); Washington
v. State, 989
P.2d 960 (Okla. Crim. App. 1999); Ochoa v. State, 963 P.2d 583
(Okla. Crim. App.
1998); Torres v. State, 962 P.2d 3 (Okla. Crim. App. 1998); Le v.
State, 947 P.2d 535
(Okla. Crim. App. 1997); Duckett v. State, 919 P.2d 7 (Okla. Crim.
App. 1995);
Robinson v. State, 900 P.2d 389 (Okla. Crim. App. 1995); Hawkins v.
State, 891
P.2d 586 (Okla. Crim. App. 1995); Hooker v. State, 887 P.2d 1351
(Okla. Crim.
App. 1994); Howell v. State, 882 P.2d 1086 (Okla. Crim. App.
1994);
McCarty v. State, 765 P.2d 1215 (Okla. Crim. App. 1985); Cantrell
v. State, 697
P.2d 968 (Okla. Crim. App. 1985) (Parks, J., dissenting). The
rebukes seem not to
have had any effect on his conduct. Nevada Rules of Professional
Conduct Rule 1.2.
Scope of Representation and Allocation of Authority Between Client
and Lawyer. (a)
Subject to paragraphs (c) and (d), a lawyer shall abide by a
client’s decision
concerning the objectives of representation and, as required by
Rule 1.4, shall consult
with the client as to the means by which they are to be pursued. A
lawyer may take
such action on behalf of the client as is impliedly authorized to
carry out the
representation. A lawyer shall abide by a client’s decision whether
to settle a matter.
In a criminal case, the lawyer shall abide by the client’s
decision, after consultation
with the lawyer, as to a plea to be entered, whether to waive jury
trial and whether the
client will testify. (b) A lawyer’s representation of a client,
including representation
by appointment, does not constitute an endorsement of the client’s
political,
economic, social or moral views or activities. (c) A lawyer may
limit the scope of the
representation if the limitation is reasonable under the
circumstances and the client
gives informed consent. (d) A lawyer shall not counsel a client to
engage, or assist a
client, in conduct that the lawyer knows is criminal or fraudulent,
but a lawyer may
NOTICE OF APPEARANCE; MOTION FOR CONTINUANCE
Page 18
00043
discuss the legal consequences of any proposed course of conduct
with a client and
may counsel or assist a client to make a good faith effort to
determine the validity,
scope, meaning or application of the law. [Added; effective May 1,
2006.] Model
Rule Comparison—2006 Rule 1.2 (formerly Supreme Court Rule 152) is
the same as
ABA Model Rule 1.2. Rule 1.3. Diligence. A lawyer shall act with
reasonable
diligence and promptness in representing a client. [Added;
effective May 1, 2006.]
Model Rule Comparison—2006 Rule 1.3 (formerly Supreme Court Rule
153) is the
same as ABA Model Rule 1.3. Investigative Misconduct Pressure to
solve a crime
might lead a prosecutor to get intimately involved in the pre-trial
investigation of a
matter. See ABA Standard 3-3.1 (“[T]he prosecutor has an
affirmative responsibility
to investigate suspected illegal activity when it is not adequately
dealt with by other
agencies.”). REMEDIES To date, prosecutorial misconduct—even the
most
egregious—has largely gone unchecked. See Gershman, Misconduct,
supra, at vi
(“Relatively few judicial or constitutional sanctions exist to
penalize or deter
misconduct; the available sanctions are sparingly used and even
when used have not
proved effective.”). In January 1999, the Chicago Tribune published
a five-part series
titled: Trial & Error: How Prosecutors Sacrifice Justice to
Win. Analyzing thousands
of cases, the newspaper found that since 1963 at least 381
defendants had their
convictions reversed either because prosecutors suppressed
exculpatory evidence or
suborned perjury. Alarmingly, of those 381 cases, “not one of those
prosecutors was
convicted of a crime. Not one was barred from practicing law.
Instead, many saw
their careers advance, becoming judges or district attorneys. One
became a
congressman.” Ken Armstrong & Maurice Possley, The Verdict:
Dishonor, Chi.
Trib., Jan. 10, 1999, at 1. Criminal Prosecutions The criminal
prosecution of a
prosecutor is extremely rare. According to the Chicago Tribune
series, “[f]ew
prosecutors nationally have been indicted, and they were acquitted
or, at worst,
convicted of a misdemeanor and fined.” Ken Armstrong & Maurice
Possley, Break
NOTICE OF APPEARANCE; MOTION FOR CONTINUANCE
Page 19
00044
Rules, Be Promoted, Chi. Trib., Jan. 14, 1999, at 1 [hereinafter
Armstrong & Possley,
Break Rules]. This statistic seems not to have changed in the last
nine years.
Subsequent to the Tribune series, two separate cases were brought
against
prosecutors for acts committed in their official capacity; neither
resulted in
convictions. The first occurred in mid-1999— a case in which three
former Illinois
state prosecutors were charged with conspiring to frame a man by
the name of
Rolando Cruz for murder. Cruz spent nearly 10 years on Death Row
before it became
clear that the prosecution had suppressed evidence that another
person had
committed the crime and that prosecutors had conspired with police
officers to
introduce a “dream statement” of Cruz’s into evidence at his
original trial and two re-
trials. A judge dismissed charges against two of the prosecutors
for insufficient
evidence. (One later became an Illinois judge—the other, an AUSA.)
A jury
acquitted the third after a 28-day trial. See Andrew Bluth,
Prosecutor and 4 Sheriff ’s
Deputies Are Acquitted of Wrongfully Accusing a Man of Murder, N.Y.
Times, June
5, 1999, at A9. Rule 1.4. Communication. (a) A lawyer shall: (1)
Promptly inform the
client of any decision or circumstance with respect to which the
client’s informed
consent is required by these Rules; (2) Reasonably consult with the
client about the
means by which the client’s objectives are to be accomplished; (3)
Keep the client
reasonably informed about the status of the matter; (4) Promptly
comply with
reasonable requests for information; and (5) Consult with the
client about any
relevant limitation on the lawyer’s conduct when the lawyer knows
that the client
expects assistance not permitted by the Rules of Professional
Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably
necessary to permit the
client to make informed decisions regarding the representation.
...Added; effective
May 1, 2006; as amended; effective November 21, 2008.] Model Rule
Comparison—
2007 Rule 1.4 (formerly Supreme Court Rule 154) is the same as ABA
Model Rule
1.4, except that the 2007 amendments include language in paragraph
(c) that was
NOTICE OF APPEARANCE; MOTION FOR CONTINUANCE
Page 20
00045
previously part of repealed Rule 7.2A(a) through (d) and (f)
(formerly Supreme Court
Rule 196.5) which is Nevadaspecific language and has no counterpart
in the Model
Rules. Disciplinary Actions Each state bar has a mechanism in place
for the
discipline of misconduct by attorneys licensed in that state.
Separately, federal courts
may discipline attorneys who appear before them, which may result
in the suspension
or disbarment of attorneys from that particular court. See, e.g.,
In re Kramer, 282
F.3d 721 (9th Cir. 2002). Further, the DOJ’s Office of Professional
Responsibility
(“OPR”) has responsibility for investigating allegations of
misconduct committed by
AUSAs. It appears that these procedures are rarely effective in
dealing with
prosecutorial misconduct. The disciplinary action against Nifong is
unusual in that
not only did it result in disbarment, but because it was initiated
while charges against
the Duke students were still pending. Recently, the Center for
Public Integrity
conducted a study that found only 44 instances of disciplinary
actions against
prosecutors since 1970. Of those 44: ? in 7, the court dismissed
the complaint or did
not impose punishment; ? in 3, the court remanded the case for
further proceedings; ?
in 24, the court assessed the costs of the proceedings against the
prosecutor; ? in 20,
the court imposed a public or private reprimand or censure; ? in 1,
the prosecutor was
placed on probation; ? in 12, the prosecutor’s license was
suspended; ? in 2, the
prosecutor was disbarred. Neil Gordon, Misconduct and Punishment:
State
Disciplinary Authorities Investigate Prosecutors Accused of
Misconduct (2007),
http://www.publicintegrity.org/pm/default.aspx?act=sidebarsb&aid
=39; see
generally Steve Weinberg et al., Ctr. for Pub. Integrity, Harmful
Error: Investigating
America’s Local Prosecutors (2003). A follow-up to the Tulia case
discussed above
revealed that the prosecutor, whose subornation of perjury and
Brady violations led
to the wrongful convictions of scores of people, received two years
of probation. See
Disciplinary Actions, 68 Tex. B.J. 753, 758 (2005). The OPR has the
authority to
determine whether an AUSA committed “professional misconduct in the
exercise of
NOTICE OF APPEARANCE; MOTION FOR CONTINUANCE
Page 21
Justice Office of Prof’l Responsibility, Analytical Framework (rev.
2005), available
at http://www.usdoj.gov/opr/framework.pdf. Professional misconduct
is defined as
the intentional or reckless disregard “of an obligation or standard
imposed by law,
applicable rule of professional conduct, or Department regulation
or policy.” Id. If the
OPR determines that an AUSA committed professional misconduct, it
recommends a
certain sanction to the attorney’s supervisor. Available sanctions
range from a written
reprimand to removal. The OPR may also refer the matter to the bar
disciplinary
authority in the jurisdiction in which the attorney is licensed.
See U.S. Dep’t of
Justice Office of Prof’l Responsibility, Policies & Procedures,
available at
http://www.usdoj.gov/opr/ polandproc.htm. In 2001, a General
Accounting Office
report concluded that the OPR was ineffective in dealing with
prosecutorial
misconduct. See News Advisory, U.S. House of Representatives,
Committee on the
Judiciary, GAO Report Finds Significant Problems with Justice
Department’s Office
of Professional Responsibility (Feb. 20, 2001), available at
http://www.judiciary.house.gov/legacy/news0220.htm. A recent
highly-publicized
case illustrates the problem. Chief Judge Mark Wolf of the U.S.
District Court,
District of Massachusetts found “extraordinary misconduct by the
Department of
Justice in its investigation and prosecution of members of the
Patriarca Family of La
Cosa Nostra.” Ferrara v. United States, 384 F. Supp. 2d 384, 387
(D. Mass. 2005), aff
’d, 456 F.3d 278 (1st Cir. 2006). Chief Judge Wolf found that AUSA
“Jeffrey
Auerhahn, violated [his] clearly established constitutional duty to
disclose . . . before
trial, important exculpatory information that directly negated
[Vincent Ferrara’s and
Pasquale Barone’s] guilt on” murder charges. Id. The suppression of
the evidence
was intentional according to Chief Judge Wolf. See id. at 393– 98.
The First Circuit
agreed, stating: “[T]he government’s actions in this case . . .
paint a grim picture of
blatant misconduct. The record virtually compels the conclusion
that this feckless
NOTICE OF APPEARANCE; MOTION FOR CONTINUANCE
Page 22
course of conduct . . . constituted a deliberate and serious breach
of its promise to
provide exculpatory evidence.” Ferrara v. United States, 456 F.3d
278, 293 (1st Cir.
2006) (footnote omitted). The OPR investigated Auerhahn and
concluded that he had
acted in reckless disregard of his duty to disclose exculpatory
evidence.
I have been evicted and perhaps subject to an illegal lockout and
unlawful rent
distraint by an attorney representing my Beverly Hills High School
graduate
California Neurosurgeon landlord, who has spent approx $30,000 in
attorneys fees
pursuing a summary eviction, and whose attorney is withholding my
state issued
indentification, wallet, and all materials necessary to my law
practice all in an
unlawful rent distraint prohibited by NRS 40.460 and 40.520. I am
pursuing a
continuance of the upcoming hearing/trial, I cannot even access
when that hearing is.
I have informed opposing counsel Roberts of some of the issues
which will require
extensive discovery, a jury trial, and more time to afford myself a
legitimate
opportunity to defend this case. I have not been served any Order
responding to my
request for appointment of counsel, as I believe it is required
even if the State does
not "intend" to seek jail time, where any incarceration is a
possibility, the Sixth
Amendment guarantees it. Please note that my temporary address for
now is: Zach
Coughlin, Esq. c/o Silver Dollar Motel 817 N. Virginia St., Unit #
2 Reno, NV 89501
The opposing counsel in the summary eviction matter is withholding
my phone as
well and refusing to allow me to access any mail that may remain at
the property
from those times when the USPS was processing my official Change of
Address.
Email is the best way to get in contact with me during this
transition period. For
instance, I am unware whether my Motion for Appointment of Counsel
was granted
or not. I called Judge Howard's assistant and requested that she
email me the docket
in this case and any pleadings or orders filed, including any order
that may have
stemmed form any of my previous motions, as I am not sure how those
were ruled
on. I believe my internet based fax service will allow me to
receive those materials at
NOTICE OF APPEARANCE; MOTION FOR CONTINUANCE
Page 23
00048
my number 949 667 7402, though I would prefer email, but I know
many
governmental entities prefer to fax such items. I am requesting a
jury trial, a
substantial continuance, and the appointment of counsel. I object
to the RMC's
practice of refusing to tell litigants who the 4 "house" appointed
defenders are upon
questioning. Further, it has become clear that some of these
"former prosecutors"
who are now the gang of four "house" defenders, do not even
announce to accused
arraignees that they are, in fact, the defender or an attorney or
that they may be
representing the arraignees. I am hereby filing a motion in limine
regarding any
materials or information gleaned from the unlawful search by the
RSIC Officer, who
clearly announced that they would base their probable cause to
arrest and conduct a
search incident to arrest upon any failure to consent to a search
by the accused.
Further, the alleged conduct did not occur in the Officer's
presence, and I believe
there exists authority preventing a minor misdemeanor arrest and
transport under
those circumstances. Additionally, more time is needed to conduct
discovery in this
matter, especially in light of allegations that Walmart had
previously threatened
individuals, including, perhaps, the accused, with retaliatory
action, including illicit
abuse of process, for the purported attempts by someone to have the
Walmart Return
Policy enforced, and to hold accountable all Walmart employees and
managers, some
of whom have over a decade experience in their positions, who
curiously "forget"
they Return Policy Walmart holds out to the public when it is
convenient to do so,
the same Return Policy that Walmart used to drive out of business
so many
competitors. Further, this case is likely to get extremely
complicated given the
apparent conflict of interest stemming from the fact that the
Walmart in question is
on land owned by the RSIC, which may own or employ the RSIC police,
and which
is rented or owned in part by Walmart. I know Opposing Counsel
Roberts may
appreciate a continuance as well and the opportunity it would
afford her to fulfill her
NRCP 11 duty and other prosecutorial duties to conduct a reasonably
diligent inquiry
NOTICE OF APPEARANCE; MOTION FOR CONTINUANCE
Page 24
00049
into these matters.....”I did obtain a copy of the "discovery"
about the second day it
was made available to me from your office in person. At that time,
no video evidence
was made available to me. Is there now some video or audio
recording to which I
may be provided access? Would you mind just emailing me the names
of the
intended witnesses. Do you believe you do not have a duty to make a
reasonably
diligent inquiry of either Walmart or RSIC do assess the validity
of the matters
mentioned in my last email, ie the retaliatory motive vis a vis
Walmart and or the
impermissible search/ 42 USC Sec 1983 police misconduct of the RSIC
officers?
Full view||Back to messagesRE: motion for continuance? 11/16/11
Pamela
RobertsTo Zach Coughlin From: Pamela Roberts (
[email protected])
Sent: Wed
11/16/11 5:12 PM To: Zach Coughlin (
[email protected]) Mr.
Coughlin,
you should have already received a notice regarding the
availability of discovery and
request for reciprocal discovery. You just need to call ahead at
334-2050 and arrange
to pick it up. You are entitled to copies of all the reports and
witness statements and
video we may have on this case. Since I am not calling any
additional witnesses that
are not already mentioned in the reports/statements, I am not
obligated