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LAW OFFICES OF ELAINE PROFANT-MACIEL BY: ELAINE MACIEL CALIFORNIA STATE BAR NUMBER 118594 2380 G STREET, SUITE D1 EUREKA, CALIFORNIA 95501 TELEPHONE: (707) 269-2840 ATTORNEY FOR DEFENDANT William Frank Whipple

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF HUMBOLDT

THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff, vs WILLIAM FRANK WHIPPLE, JR, Defendant

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Case No.: CR1001095 NOTICE OF MOTION & MOTION TO DISQUALIFY THE OFFICE OF THE HUMBOLDT COUNTY DISTRICTATTORNEY FOR CONFLICT OF INTEREST (Penal Code Section 1424(a)(1)+

NOTICE OF MOTION AND MOTION TO DISQUALIFY; APPLICATION FOR ORDER SHORTENING TIME
TO: THE HONORABLE TIMOTHY CISSNA, JUDGE OF THE SUPERIOR COURT, THE DISTRICT ATTORNEY OF HUMBOLDT COUNTY, THE CALIFORNIA STATE ATTORNEY GENERAL, AND.TO THE CLERK OF THE ABOVE- ENTITLED COURT

PLEASE TAKE NOTICE that on April 8, 2011 in Department 4, at 8:30 a.m. or as soon
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thereafter as the matter may be heard, the Defendant will move for an order disqualifying the entire office of the District Attorney for the County of Humboldt, from acting as prosecutor in this action.
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This motion is made under Penal Code section 1424 on the ground that a conflict of interest exists which impairs the prosecutor's ability to impartially perform his function, rendering it unlikely that the defendant would receive a fair trial. The motion will be based on this notice of motion, on the attached statement of facts and memorandum of points and authorities served and filed herewith, on the records on file in this action and on such oral and documentary evidence as may be presented at the hearing on the motion.

. NOTICE IS FURTHER GIVEN that the Defendant will and hereby does also apply for an
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Order Shortening Time so that the Motion may be heard sooner than ten (10) days and before the end of the preliminary hearing AND HEREBY REQUESTS SAID HEARING BE SET FOR April 8, 2011 at 8:30 am or as soon thereafter as this matter may be heard in Department 4 of the above-entitled court. April 4, 2011

Respectfully submitted,

_____________________ ELAINE MACIEL, attorney for Defendant William F. Whipple

STATEMENT OF FACTS The matter was a cold case homicide that occurred in April 2006, which involved the stabbing of Trevor Davenport, a man that was addicted to heroin in the Old Town area of Eureka, CA This stabbing resulted in the death of Mr. Davenport. The original Eureka Police Department Detective assigned to this case conducted an extensive investigation. He left the
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Eureka Police Department in Spring 2007. At that time, there was no indication that this incident was in any way gang-related. More importantly there was no suspicion that Defendant Whipple was in any way connected to this incident. The primary evidence that allegedly connect the Defendant with this crime are the statements of a jailhouse informant Charles Kesselring IV. While the Eureka Police Department attempted to tape record the Defendants alleged admissions to Kesselring, the recording were inaudible. The Defendant retained counsel, and as early as March 23, 2010 informally requested discovery, including but not limited to forensic evidence, all police reports as well as specific

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information regarding the jailhouse informant, who was specifically identified by the defense in writing on March 23, 2010 as Charles Albert Kesselring IV. At numerous court appearances, the Humboldt County District Attorney advised the defense the discovery requested would be forthcoming. Eventually, on July 22, 2010 the defense filed a formal motion for discovery. The prosecution did not file any opposition to the request, and on December 15, 2010 a stipulation and order was filed relating to the Humboldt County District Attorney was ordered

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to provide specific discovery items. This order was ignored by the prosecutor. The defense
18 19 20 21 22 23 24 25 26 A small portion of a tape recording was played (without a transcript). The only portion that appeared audible was a statement identified as the Defendants voice stating if he killed someone, he would run them over with a car.
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then filed a notice of intent to seek sanctions for failure to provide discovery. A written response to the discovery was sent to the defense, clearly stating certain items requested did not exist. While the Eureka Police Department attempted to tape record jail informant Kesselring and the Defendant, the portions of the tape recordings that allege to involve1admissions were inaudible.

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The Defendant retained counsel, and as early as March 23, 2010 informally requested discovery, including but not limited to forensic evidence, all police reports as well specific information as to the jailhouse informant, who was specifically identified by the defense in writing on March 23, 2010 as Charles Albert Kesselring IV. At numerous court appearances, the Humboldt County District Attorney advised the defense the discovery requested would be forthcoming. Eventually, on July 22, 2010 the defense filed a formal motion for discovery. The prosecution did not file any opposition to the request, and on December 15, 2010 a stipulation and order was filed relating to the Humboldt County District Attorney was ordered

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to provide specific discovery items. This order was ignored by the prosecutor. The defense then filed a notice of intent to seek sanctions for failure to provide discovery. A written response to the discovery was sent to the defense, clearly stating certain items requested did not exist. Facts that Support the Recusal of the Humboldt County District Attorney The state of the evidence on February 8, 2011(the first day the preliminary hearing was set to begin) the Humboldt County District Attorney stated all discovery had been provided.

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The defense was informed that no additional interviews with informant Kesselring existed;
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there were no requests to process the unidentified DNA with the defendants DNA existed. Further the prosecution did not believe any additional information, despite the Court order, as it relates to the informant Kesselring was required. The evidence had not yet been provided. During the first week of the preliminary hearing, the following information regarding discovery was provided to the Court:

ITEMIZATION OF ITEMS DEFENSE HAS REASON TO BELIEVE HAVE NOT BEEN PROVIDED & BASIS FOR BELIEF
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1. All negotiations regarding any deals made between law enforcement/probation/ prosecution and/or Charles Kesselring IVs & his Defense Attorney in conjunction with this case. ANSWER 1. Interviews with Kesselring: As of the morning of March 23, 2011 the only information regarding interviews with law enforcement and Kesselring IV consisted of 3 meetings. a. One being on July 18, 2009 when Kesselring was being fitted with a tape recording device and includes conversation between Eureka Police Detective Liles & Kesselring -Identified as A-4 b. A second meeting with Kesselring & Detective Liles consisting of discussion prior to the initialization of the recorded conversation on July 29, 2009. The beginning of the tape has recordings of Liles unless he was present when the recording device was installed, as his voice was heard along with an unidentified woman ( who it is assumed is a Correctional Officer) and Liles advises the officer that he would like to meet with Kesselring after his Medical visit the next day c. The third and final meeting the defense was provided was an interview between Detective Liles and Kesselring IV on September 10, 2009 wherein Kesselring disavows all conversations with Defendant Whipple occurred regarding the alleged Confession/admissions Basis for belief of additional discovery regarding interviews: 1. Information regarding the recording device & its installation 2. The last discovery provided was a statement wherein Kesselring states he never heard Defendant Whipple discuss any involvement in a homicideThe defense believed additional meetings with Kesselring occurred, as the last one provided information that Kesselring denied the conversation took place. However the existence of any additional meetings/interviews with Kesselring was denied by Eureka Police Department on February 8, 2011 and the denial of these meeting was also documented in the written response to the discovery order provided to the defense in early February 2011 and attached as exhibit 3 on motion for sanctions . CONFIRMATION OF ADDITIONAL DISCOVERY - at the morning break in Court on March 23, 2011 the defense was provided a two page report from Eureka Police Officer Liles dated 1/19/11 that provides the following information and existence of taped interviews with informant Liles: I Interviews between Eureka Police Department & Kesselring IV 1. Detective Liles accompanied Senior Probation Officer Andy McLaughlin to interview Kesselring IV on June 11, 2009 meeting in interview room at HCCF- recorded and logged as CI-A-1 Notes, complete report or audio of interview NOT provided. (subsequent to the submission of this to the Court a severely redacted version of the transcript, redacted by Eureka Police Department was provided)
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2. Second interview with EPD Liles and Kesselring IV at HCCF in afternoon of June 12, 2009 recorded as CI-A-2 Notes, complete report or audio of interview NOT provided. (subsequent to the submission of this to the Court a severely redacted version of the transcript, redacted by Eureka Police Department was provided) 3. Third Interview between EPD Liles and Kesselring IV on 7/16/09 wherein Kesselring was provided with written documentation regarding being an informant this case. He was to have initialed and signed this document, there is no indication this meeting was recorded. Notes, complete report and written documentation were NOT provided. (Subsequent to the submission of this document the audio recording was provided). 4. Fourth Interview between EPD Liles and Kesselring IV on July 18, 2009. The interview was recorded and identified as C1-A-4. While defense was provided with A copy of interview labeled A-4, which was the3 beginning of what was described in the police report as an unsuccessful attempt to obtain a confession/ admission from Defendant Whipple, the recorded interview identified CI-A-4 is presumed to be separate and distinct from recorded interview CI-A-4. It is unclear whether the formal police report which discusses meeting with Kesselring incorporates the full interview, however there were no notes of this meeting provided, the recording of CI-A-4 NOT provided.

Fifth interview between EPD Liles and Kesselring IV on July29, 2009 to discuss the wire recording device. The newly provided synopsis described the digital recording device was dropped at HCCF by EPD Liles and that Liles met with Kesselring to explain the plan to wire the cell. This interview was recorded and identified as CI-A6. It is unclear whether the formal police report which briefly discusses meeting with Kesselring incorporates the full interview, however no notes of this meeting provided, the recording of CI-A-6 NOT provided. However the defense was later advised CI-A-6 does not exist. v 6. Sixth interview between EPD Liles and Kesselring IV on August 7, 2009. The synopsis provided March 23, 2011 states Kesselring confirms the voices on the tape A-6 are his and Defendant Whipples voices No indication whether this interview was recorded, however the defense assumes is was recorded, No discovery other than the short synopsis that was provided on March 23, 2011. 5. 7. Seventh interview between EPD Liles and Kesselring IV on August 19, 2009 to discuss this matter. Interview was recorded and identified as CI-A7. No discovery other than the short synopsis that was provided on March 23, 2011 and the recording identified as C1-A-7 was NOT provided. Eighth interview between EPD Liles and Kesselring IV on September 10, 2009. An interview identified as A-15 was provided in discovery in which Kesselring IV Disavows that Defendant Whipple provided any admissions/confessions to

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Kesselring. The newly discovered synopsis provided information that the interview identified as A-15 was in intentional denial of the admissions/confessions was intended to be Kesselring IV pretending to not cooperate. This is the first time the Defense was advised the statement outlined in the police report and provided in discovery was INTENTIONAL MISINFORMATION. There is no written report provided as to this being a subterfuge. 9. A Ninth interview between EPD Liles and Kesselring IV occurred in October 2010. The Defense is unclear whether this interview was recorded. Other than a brief synopsis that Kesselring IV expressed concern as to the delay in this matter preceding no information regarding this interview was provided. The defense assumes this interview was recorded however are not certain. 10. Based upon statements of law enforcement officers, is believed additional recorded interviews between law enforcement and Kesselring exist regarding his informant activities. Eureka Police Officer Liles indicated these recording would be redacted prior to being provided to the defense. In light of the intentional withholding of information that has occurred the Defense is concerned the redaction would involve information that would lead to additional relevant discovery. The defense would request all unredacted interviews with Kesselring IV be provided. Any restrictions regarding maintaining any confidentiality as to information utilized in the defense of this matter could be stipulated to by counsel. II Additional benefits provided to Kesselring IV after his agreement to be informant 1. The defense assumes that additional benefits have been conveyed to Kesselring IV in addition to the benefits testified to during the direct Examination of Kesselring IV. Prior to March 17, 2011 no additional benefits were disclosed in written discovery. a. Approximately 5 minutes prior to the Preliminary hearing the Defense was provided With a document indicating Kesselring was also offered approximately $132.00 `` Upon release from custody to assist him in obtaining housing. b. On March 23, 2011 at the morning break the Defense was provided a two page report authored by EPD Liles on 1/19/11 which states EPD :Liles placed $20.00 on Kesselring IVs HCCF 'books" on 9/10/09. c. On March 23, 2011, Counsel for the defense was advised EPD Liles was overheard advising a third party a $500.00 reward was discussed with Kesselring, however Kesselring was advised this reward would be provided upon the arrest & conviction of the individual responsible for the death of Trevor Davenport. However the recording provided in discovery is quoted in pleadings to the contrary, that Liles advised Kesselring the reward was payable after an arrest and intimated that he would receive thus monetary reward once he was released from jail. d. It has been implied that Kesselring has been provided additional benefits for providing information as to other offenses perpetrated by other defendants No discovery has been provided as to additional payments or whether the information provided has been reliable.
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e. The one tape recording provided that has conversation of Kesselring IV, there is discussion that special foods, and benefits including special work assignments and /or preferential housing was provided to Kesselring IV as a result of his informant status in this matter. There has been no written discovery as to these additional benefits. On March 23, 2011, at the morning break, a short synopsis authored by EPD Liles in a report dated 1/19/11 that on 8/18/09 Liles spoke with HCCF Lt. Dean Flint on Kesselrings behalf requesting he hold off on sending Kesselring to prison for one week. This request is not only discovered at an extremely late date, the ability of HCCF to accomplish this is questionable as the defense is aware once an individual is sentenced to CDC, they are considered property of CDC and any transportation of said individual is totally up to when CDC requests the individual be transported. d. Nature and extent of criminal charges pending, investigations involving Kesselring IV that have not been pursued and or arrests that have not resulted in criminal charges being filed subsequent to Kesselring IV agreeing to assisting law enforcement as an informant. ANSWER; To date not investigation reports involving Charles Kesselring IV have been provided in discovery. The defense is only aware of those items of public record (i.e. the cases pending and charges therein as well as newspaper and internet articles that discuss him m which may or may not be accurate. 2. The specific details and circumstances, discussions, email ect. including all communication from attorney Glenn Brown with law enforcement and/or Humboldt County District Attorneys office. ANSWER: Items believed to be not yet provided: The synopsis report dated 1/19/11 authored by EPD Liles states that on 6/16/09 Liles met with Assistant District Attorney Wes Keat to discuss what could be done for Kesselring if they were able to obtain a confession As the district attorneys office was involved with this jailhouse informant agreement, it is assumed, as the defense understands it is standard practice in the event the local district attorney becomes involved in the negotiation regarding benefits conveyed to a jailhouse informant, that the attorney for said informant is contacted and the issues are discussed prior to any further action. The fact the initial attempt to tape the statements of Defendant Whipple did not occur until approximately 4 weeks later validates this belief/ 3. All requests & results of any and all DNA testing and/or DNA review from any DNA accomplished in conjunction with this investigation or reviewed in attempts to identify any DNA not associated with the victim Davenport as well as any attempts to match DNA with that found on or near Mr. Davenport with Defendants DNA. ANSWER; After the defense subpoenaed documents from Eureka Department of Justice, on September 17, 2011 at approximately 2:20 pm the defense was provided with a memo authored by EPD Liles requesting the unidentified DNA found on Trevor Davenport be compared with Defendant Whipples DNA. Said memo authorized consuming the entire sample, however the results of this testing have not been provided. 4. The documentation regarding attempt to place the unidentified DNA samples on the national data base as well as the criteria necessary to enter it into the DNA into the
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National Database including, but not limited the documentation regarding the submission in the summer of 2006, for several weeks of the unidentified DNA to the national Data Base, the memo regarding the National Database removing the DNA samples from the National Data Base due to failure to follow proper protocols. The defense assumes this item was provided March 23, 2011 by the city attorney to defense or in camera to the court. As of the drafting of this document the defense has not had an opportunity to review said documents. 5. The specific proper protocols. required in processing in identified DNA samples on the National Database in 2006 as well as present proper protocols used by Eureka Police Department. ANSWER: The defense assumes this item was provided March 23, 2011 by the city attorney to defense or in camera to the court. As of the drafting of this document the defense has not had an opportunity to review said documents. 6. All notes, memos, emails and any documentation regarding the decision to reprocess the unidentified DNA using the proper protocols. ANSWER: As DOJ places items on the data base subsequent to a request by the investigating agency, in this matter Eureka Police Department, the defense assumes some documentation as to this discovery request and order does exist. 7. All information, documentation regarding Defendants DNA and the basis for law enforcements the failure to compare Defendants DNA with the unidentified DNA ANSWER: This request is withdrawn as on March 17, 2011 at approximately 2:20pm EPD Liles memo from July 1, 2009 requesting said DNA was provided. 8. All dispatch logs from 11 pm on April 29, 2006 until the discovery of the victim Trevor Davenport at approximately 6:00am April 30, 2006 the night before the incident up to the call when Mr. Davenports body was initially discovered ANSWER; The defense was advised due to a revamping of the communication system in 2007 While the dispatch tapes are no longer available due to a revamping of the system in 2007, It is assumed the written logs of calls are still available. 9. Any request to process payment of $500.00 and/or any all record regarding any monetary payments or other conferred to Charles Kesselring IV between the dates of June 2009 through the present. ANSWER Same as above.

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1. Information regarding obtain the enhancement of the audio tape from July 29, 2009. While the defense was informed no written information was submitted to FBI lab in conjunction with obtaining the enhanced version of this tape and there is no chain of custody regarding this tape, that written instructions and information was provided and the resulting enhanced tape was returned to EPD via the local FBI with some documentation. During the cross examination of EPD Detective Liles, the defense briefly reviewed the portion of his reports he took with him on the
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witness stand, and observed at least two forensic documents from the FBI that have not, as yet, been provided in discovery.

Subsequent to the submission of the above information, the defense was provided with an additional police report dated January 20, 2011 with contained information regarding the report served March 25, 2011(in the midst of the preliminary hearing) correcting errors contained in the January 19, 2011 report. (Both these reports contained notes of over 5 interviews with informant Kesselring, not previously provided despite a court order to do so.). Additional discovery regarding portions of the investigation in this case that had occurred over a

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year ago are being, piecemeal, provided in discovery during the still ongoing preliminary hearing, FACTS THAT FORM THE BASIS OF THE RECUSAL During the preliminary hearing defense cross- examination of the Eureka Police Detective Terry Liles, currently assigned to the case, he testified the actions he took in conjunction with this case was as a result of consultation with several Humboldt County District Attorney employees, including assistant District Attorney Wes Keat, senior deputy District

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Attorneys Maggie Fleming, Max Cardoza and Alan Dollison, as well as Humboldt County
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District Attorney Investigators Hislop, Cox and Honsall. Issue #1, attorney for Informant Kesselring At the time the agreement was arranged between the Humboldt County District Attorney and Jailhouse Informant Charles Albert Kesselring IV, he was represented by the same attorney. Glenn Brown as the Defendant William F. Whipple. As the Humboldt County District

Attorneys office was brought in to facilitate an agreement regarding the pending criminal prosecution of Kesselring, the California Rules of professional conduct mandate notification of

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Kesselrings attorney. The communication between the Humboldt County District Attorney and Glenn Brown from June 1009 thru September 2009 was ordered to be provided in discovery. It was only after the preliminary hearing began, that emails generated almost one year later beginning in May 2010 were finally provided. The communication requested in June, 2009, July 2009 , August 2009 and September 2009. in the custody of the Humboldt County District Attorneys office .not only provides a basis for a sixth amendment violation of Defendant Whipple, the fact that this plea agreement was with an informant was obtained when Attorney Brown was also actively representing the person that was the subject of the investigation. The

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plea agreement, apparently was contingent on the fact the informant was to obtain specific information. In light of their refusal to provide the discovery pursuant to the court order this also places the Humboldt County District Attorneys office as a witness.. A portion of one audio tape provided at the end of the second week of the preliminary hearing establishes good cause for the belief that the actions of the prosecution in conjunction with defense attorney Glenn Brown violate Defendant Whipples constitutional rights. assuming the informant was being truthful, that Defendant Whipples attorney, Glenn Brown

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was privy to this agreement. During this time Defendant Whipple was awaiting sentencing for a
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felony probation violation and was also being represented by the same attorney, Glenn Brown. On July 18, 2009, in an interview provided to the defense at the end of the second week of the preliminary hearing, the informant discussed his attorney as follows: July 16, 2009 Interview between Eureka Police Detective Liles, hereinafter referred to as EPD and Jailhouse Informant Charles Albert Kesselring IV, hereinafter referred to as JI, Found in EPD evidence A-3 at approximately 3 minutes 16 seconds into the audio evidence JI: Then you are pretty, you are positive that Andy is in our, is in my corner, thats what I am saying. EPD: I know that factually, yes
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JI: Ok cool then cause--EPD: Now, though, the deal with that is though , ya know, you are gonna half ta do all that probation stuff if you are not gonna work with us, and everything if you dont work with us. Ok JI: Uh EPD: The deal is that you workin with us JI:If I dont; work with you guys, then I am goin ta prison for three years if I (unintelligible) causey lawyer is tellin me .I told my lawyer about it cause, I said (unintelligible), like I said ya know what, cause hes, like hes my lawyer yeah know what I mean, and ,like hes (unintelligible) common trust, yeah know and like he said yeah know, dude During the preliminary hearing Detective Liles testified on June 11 and/or 12, 2009 he meet with assistant Humboldt County Attorney Wes Keat, regarding Kesselring. They discussed the information Kesselring indicated he has, and any deal that could be worked out with the prosecution regarding Kesselring. The actions taken by Liles during June thru September 2009 were taken in the direction and guidance of the Humboldt County District Attorney. Liles further testified that numerous discussions occurred in June, July and August 2009 with the office of the Humboldt County District Attorney regarding Kesselring, the

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information n he was providing and the assistance the District Attorneys Office would do in
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conjunction with Kesselrings activities as an informant in this matter. The Court ordered discovery regarding all such communications as well as all communications with Kesselrings attorney Glenn Brown (as the California rules of ethics require the attorney of any informant be advised once the attorney for the prosecution in involved.) This is especially significant in this case attorney for Kesselring is the same attorney that Defendant Whipple has at this time.

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At the end of the second week of this, still ongoing preliminary hearing, and the defense was provided two audio tapes from July and August 2009. These audio tapes reveal are two at least occasions that the jailhouse informant discussed meeting with his attorney, Glenn Brown to discuss his acting as a jailhouse informant in this matter. These discussions occurred at the same time as Mr. Glenn Brown was also representing Defendant William Whipple on a pending felony probation violation matter. The investigating detective testified the Humboldt County District Attorneys Office was kept appraised of this investigation and provided him direction in conjunction with the

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arrangement with the informant. The communication between attorney Glenn Brown and the Humboldt County District Attorneys office regarding Charles Albert Kesselring IVs pending matters, between June 2009 thru September 2009 have not been provided. This was this area the subject of stipulation and order for discovery. Issue #2. The writing and submission by the Humboldt County District Attorney to the defense of a false police report as a valid report of the facts of the case, knowing the information contained therein was false The following facts establish t the Prosecution intentionally misleading the defense

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by drafting a Ruse Police Report and setting up a ruse audio recording of an interview with
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Informant Kesselring on September 10, 2009. The information contained in the report as well as the interview itself being set up to mislead the state of the evidence are criminal offenses perpetrated by the prosecution. They include an apparent violations of Penal Code section 118.1 as well as an arguable Penal Code section 127 on the part of the Humboldt County District Attorney. The state of the evidence regarding informant Kesselring that was provided to the defense until five minutes prior to the beginning of the preliminary hearing was that Kesselring had

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recanted information regarding an alleged jailhouse confession that was told to Kesselring. The original tape recording was inaudible of the alleged jailhouse confession was inaudible. A enhanced tape the nature, extent, method, instructions provided and location of the enhancement (except the FBI lab) was not provided to the defense, and the Prosecution had informed the Defense in writing that there did not exist any chain of custody as it relates to this audio tape. (This enhanced tape was also not audible in most areas and not allowed to be admitted into evidence at the preliminary hearing ). As the only additional information provided to the defense at that time of the preliminary hearing was the statement and tape recording of

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Kesselring denying any knowledge of this alleged confession, the defense was led to believe the witness had recanted his earlier statements, allowing speculation that Kesselring had changed his tune due to perhaps not receiving the reward that had been discussed in a audio interview that was originally provided in discovery. When this issue was submitted to the District Attorney in portion of a motion for discovery sanctions, on March 17, 2011, five minutes prior to the beginning of the preliminary hearing, the defense was then given a two paragraph statement of an interview conducted by DA investigator on March 16, 2011 which contradicted this earlier

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position.
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The Humboldt County District Attorney was aware, not only of the additional interviews between law enforcement and Kesselring that the existence of not disclosed until the middle of the preliminary hearing, (and the content of all still not provided to the defense) but were also aware the Eureka Police Department had authored a false report regarding an interview with informant Kesselring on September 10, 2009, setting up a previously arranged false statement by informant Kesselring wherein he is pretending to no longer cooperate and denied Defendant Whipple ever made any incriminating statements regarding this case. This interview and the

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accompanying audio tape of the interview was submitted to the defense as a true fact until the preliminary hearing had begun. The EPD detective testified he wrote the false report knowing it was a ruse and was not aware of any other police officer who had written such an intentional false report, however decided to do so in order to protect the identity of the informant. Detective Liles further testified this false report was done with the knowledge and consent of the Humboldt County District Attorneys office, both in the setting up of the ruse interview as a true interview, but also in maintaining this falsity to the defense until the midst of the preliminary hearing. The defense had been precluded from interviewing Kesselring prior to the preliminary

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hearing by defense attorney Glenn Brown. Therefore, the Defense was intentionally misled by this false law enforcement report until the actual preliminary hearing had begun. Detective Liles further testified he made no other written report or documentation of this intentional significant information being false. The defense points out the identify of Kesselring was known to the defense in March 2010. Yet, for approximately one year, until the testimony of the officer at the preliminary hearing the defense was not informed of this significant false information contained in EPD Liles report was an intentional falsehood.

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Detective Liles testified the Humboldt County District Attorney , not only was privy to
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this false information, both prior to the setting up of the false audio recorded interview, they were actively involved in maintaining the false report as fact to the defense until after the preliminary hearing had begun. Liles further testified was never advised by the Humboldt County District Attorney to criminal liability that results from authoring an intentional false report. MEMORANDUM OF POINTS AND AUTHORITIES Penal Code Section 1424(a) (1) permits the Defendant to move the Court to disqualify the District Attorneys Office for conflict of interest. The standard for disqualification of the
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District Attorneys office consists of two parts: 1) is there a conflict of interest and 2) is it so severe as to render it unlikely that the defendant will receive fair treatment during all portions of the proceeding. (e.g. People v. Choi (2000) Cal. App. 4th 476, 480-481, citing People v. Connor (1983) Cal. App.3rd 141.) A conflict of interest exists whenever the circumstances of the case evince a reasonable possibility that the district attorneys office may not exercise its discretionary functions in an even-handed manner. (Connor, supra at 148). In determining whether or not a conflict exists, no one factor will compel disqualification. Rather, the totality of facts must be considered by the Court to determine whether or not it is unlikely that the Defendant will receive fair and impartial treatment. Hambarian v. Superior Court (2002) 27 Cal. 4th 826, 834, People v. Eubanks (1996) 14 Cal. 4th 5809, 599. Here, the Defendant has not received fair treatment by the District Attorneys office evinced by the knowing participation of the District Attorneys office in fraudulent discovery materials being given to the defense counsel in preparation for the preliminary hearing. The extent of the knowledge and

encouragement by the District Attorneys office would only be examinable by calling involved the District Attorney and his involved deputies as witnesses, which would additionally put the assigned deputy DA in the position of having to cross-examine an attorney within his own office. Ethical considerations should have prevented the District Attorneys office from knowingly forwarding such false information to defense counsel, thus avoiding the result of putting at issue the extent to which the District Attorneys office participated in discovering fraudulent reports to defense counsel. The Attorney Generals office is in a better position at this point to handle potential testimony by District Attorney personnel and further discovery in this case. The case of Goldstein vs. City of Long Beach (2007) 481 F.3d 1170 is also informative and states as follows: In addition, the a prosecutor is entitled to absolute immunity under 1983 for conduct that is "intimately associated with the judicial phase of the criminal process," Imbler v. Pachtman (1976), 424 U.S. 409, 430, and "occur[s] in the course of his [or her] role as an advocate for the State," Buckley v. Fitzsimmons (1993) 509 U.S. 259, 261. Whether the alleged conduct is sufficient to state a claim for liability under 1983 is therefore not
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before the Court at this time. Buckley, 509 U.S. at 273, . However, conduct is not shielded by absolute immunity simply because it is performed by a prosecutor. Id. To the contrary, a prosecutor is entitled only to qualified immunity "if he or she is performing investigatory or administrative functions, or is essentially functioning as a police officer or detective." Broam v. Bogan, (9th Cir.2003) 320 F.3d 1023, 1028 (citing Buckley, 509 U.S. at 273. Thus, when determining whether absolute immunity applies, courts must examine "the nature of the function performed, not the identity of the actor who performed it." Forrester v. White, (1988) 484 U.S. 219, Applying this functional analysis, the Supreme Court has held that prosecutors are absolutely immune from 1983 liability for decisions to initiate a particular prosecution, to present knowingly false testimony at trial, and to suppress exculpatory evidence. Imbler, 424 U.S. at 431 Prosecutors also enjoy absolute immunity for decisions not to prosecute particular cases, Roe v. City & County of San Francisco, (9th Cir.1997), 109 F.3d 578, 583-84 and for gathering evidence to present to the trier of fact, as opposed to gathering evidence to determine whether probable cause exists to arrest, Broam, 320 F.3d at 1033. On the other hand, prosecutors do not have absolute immunity" for advising police officers during the investigative phase of a criminal case, performing acts which are generally considered functions of the police, acting prior to having probable cause to arrest, or making statements to the public concerning criminal proceedings." Botello, 413 F.3d at 976-77 (citing Burns, and Buckley, 509 U.S. at 274-78, The Humboldt County District Attorney violated the above ethics if, indeed they failed to notify attorney Glenn Brown of the negotiations between the prosecutors office with his client.

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If, indeed, they did notify him, the Humboldt County District Attorney had refused to comply
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With the Court ordered discovery on this issue, providing said information to the defense (along with numerous other clear ethical discovery) violations.

California Rules of Professional Conduct 2-100 (A) provide


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NOTICE OF MOTION & MOTION TO DISQUALIFY DISTRICTATTORNEY; APPLICATION FOR ORDER AND ORDER SHORTENING TIME

(A) While representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer.

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In compliance with the rules of Professional conduct cited above, the Defense was precluded from interviewing the jail house informant prior to the preliminary hearing, thus precluding the ability to discover the intentional subterfuge by the prosecution. This same rule of professional conduct would mandate the prosecutor to contact the jailhouse informants attorney in June, July and August 2009. The fact that the communication during this time frame has not been provided to the defense, despite both a Court order as well as the waiver of confidentiality in open court by the Jailhouse informant, leads the evidence of this nature be available only via subpoena of the office of the district attorney. The defense alleges the Humboldt County

District attorney also violated the California law in encouraging the Eureka Police Detective To author a police report in this case in violation of California Penal Code section 118.1

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California Penal Code section 118.1 -- Peace officers; false report "Every peace officer who files any report with the agency which employs him or her regarding the commission of any crime or any investigation of any crime, if he or she knowingly and intentionally makes any statement regarding any material matter in the report which the officer knows to be false, whether or not the statement is certified or otherwise expressly reported as true, is guilty of filing a false report." The Humboldt County District attorney in encouraging the submission of this false information in a police report, and submitting it to the defense as a true fact, knowing the fact to be false fact results in their criminal liability under California Penal Code section 127 which states-

Subornation of perjury; definition; punishment ("Every person who willfully procures another person to commit perjury is guilty of subornation of perjury, and is punishable in the same manner as he would be if personally guilty of the perjury so procured.") The Humboldt County District Attorney knowingly encouraged the Eureka Police Department to draft false information, and conduct an audio recorded interview with the jailhouse informant that was intended to provide false information as the truth. There was no written documentation to document the falsity of this interview, and the information was submitted to the defense as a true statement. This action subjects the Humboldt County District
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attorney to criminal prosecution as well. As such, this office should clearly be precluded from prosecution of this case and their actions should be reviewed by the California State attorney General for criminal prosecution of both the Humboldt County District Attorney and the Eureka Police Department for their actions.

CONCLUSION Defense counsel understands that a motion to disqualify the Office of the District Attorney should not be granted for trivial reasons, but should only be granted in situations where the conflict of interest is grave. Here, the conflict exists, it is grave, and the District Attorneys office should be disqualified as the Defendant has not been treated with an even-handed by the District Attorneys office with respect to material discovery received late and/or based on fraud or misrepresentation by law enforcement officers in the case. Wherefore, the Defendant prays that this Court grant the motion disqualifying the District Attorneys office, thus allowing the Attorney General of the State of California to handle this matter.

Dated : April 4, 2011

Respectfully submitted,

ELAINE MACIEL, Attorney for Defendant

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LAW OFFICES OF ELAINE PROFANT-MACIEL BY: ELAINE MACIEL CALIFORNIA STATE BAR NUMBER 118594 917 THIRD STREET EUREKA, CALIFORNIA 95501 TELEPHONE: (707) 269-2840 ATTORNEY FOR DEFENDANT William Frank Whipple

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF HUMBOLDT

THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff, vs WILLIAM FRANK WHIPPLE, JR, Defendant

Case No.: CR1001095 ) ) ) ) ) ORDER SHORTENING TIME ) ) ) ) )

IT IS ORDERED that time on the Defendants Motion to Disqualify the District Attorneys office is hereby shortened to allow the motion to be heard prior to the conclusion of the preliminary hearing. Said hearing to be set on___________ at _______.

________________________________ Honorable Timothy Cissna Judge, Superior Court

_____________ Date

NOTICE OF MOTION & MOTION TO DISQUALIFY DISTRICTATTORNEY; APPLICATION FOR ORDER AND ORDER SHORTENING TIME

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PROOF OF SERVICE

The undersigned declares:


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I am a citizen of the United States. I am over the age of eighteen years and not a party
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to the within action.


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On June 12, 2011, I caused a true copy of the Defendants:


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NOTICE OF MOTION & MOTION TO DISQUALIFY THE OFFICE OF THE HUMBOLDT COUNTY DISTRICTATTORNEY FOR CONFLICT OF INTEREST;APPLICATION FOR ORDER SHORTENING TIME AND ORDER SHORTENING TIME to be served on the following parties in the following manner:

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Mail ___
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Federal Express ___ Personal service __x__

Court Box ____ Fax ___ DISTRICT ATTORNEY, COUNTY OF HUMBOLDT


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Mail __x_
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Federal Express ___ Personal service ____

Court Box ____ Fax ___ Office of the Attorney General


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P.O. Box 944255 Sacramento, CA 94244-2550


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I declare under penalty of perjury that the foregoing is true and correct, and that this declaration is
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executed on Sunday, June 12, 2011, at Eureka, California.


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MICHAEL P. ACOSTA
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NOTICE OF MOTION & MOTION TO DISQUALIFY DISTRICTATTORNEY; APPLICATION FOR ORDER AND ORDER SHORTENING TIME

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PROOF OF SERVICE

The undersigned declares:


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I am a citizen of the United States. I am over the age of eighteen years and not a party
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to the within action.


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On June 12, 2011, I caused a true copy of the Defendants:


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NOTICE OF MOTION & MOTION TO DISQUALIFY THE OFFICE OF THE HUMBOLDT COUNTY DISTRICTATTORNEY FOR CONFLICT OF INTEREST;APPLICATION FOR ORDER SHORTENING TIME AND ORDER SHORTENING TIME to be served on the following parties in the following manner:

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Mail ___
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Federal Express ___ Personal service ____

Court Box ____ Fax ___ DISTRICT ATTORNEY, COUNTY OF HUMBOLDT


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Mail __x_
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Federal Express ___ Personal service ____

Court Box ____ Fax ___ Office of the Attorney General


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P.O. Box 944255 Sacramento, CA 94244-2550


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I declare under penalty of perjury that the foregoing is true and correct, and that this declaration is
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executed on Sunday, June 12, 2011, at Eureka, California.


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MICHAEL P. ACOSTA
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NOTICE OF MOTION & MOTION TO DISQUALIFY DISTRICTATTORNEY; APPLICATION FOR ORDER AND ORDER SHORTENING TIME

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