Oregon BSyitey Bar April 29, 2013 Mark J. Wilson #7449142 Oregon State Correctional Institution 3405 Deer Park Drive SE Salem, OR 97310-9385 Re: Subject: TJW 1000346 1000347 1000348 Ronald Brown/Michael T. Dugan/Joshua K. Marquis (Mark J. Wilson) Dear Mr. Wilson: U have reviewed the additional materials relating to your complaints against the above referenced district attorneys. While you have presented some new material, and alleged that different rules were violated, these do not create “new” complaints. ‘As you point out in your new material, it is for the bar to decide what rules are implicated by a set of facts. The bar considered all relevant rules in its prior investigation. Because a rule is not specifically listed or discussed in any prior opinion, does not mean that it was not considered. That you cite new rules as being violated by old facts does not make this a new complaint ‘As to the “new” facts stated in the provided material, the Client Assistance Office and General Counsel reviewed the facts stated in your complaint, the original materials, the replies of the accused attorneys and all other information it deemed relevant. In other words, all of the facts stated in your new materials have already been investigated, and the decisions made on that investigation are final. For example, you claim that Mr. Marquis gave false statements to the Bar in its prior investigation. However, the Bar already investigated those statements as part of its prior decision, and found those statements did not violate Oregon’s Rules of Professional Conduct. You included with your materials additional transcripts and statements that you believe corroborate your prior allegations against the accused attorneys. As was previously stated, all relevant information was considered prior to the Bar's final decision in these complaints. | reviewed all of the “new” material and concluded that if it were submitted with your original material it would not have changed the Bar's final decision as to these complaints. None of this material creates any “new” complaint. The additional material attempts to. have the Oregon State Bar look at a matter anew that has already been disposed of pursuant to 18) 620-0222 tolltree in Oregon (6 wrmosbarorgJanuary 12, 2015 Mark J. Wilson #7449142 Oregon State Correctional Insti 3405 Deer Park Drive SE Salem, OR 97310-9385 Re: — Subject: TIW 1000346 1000347 1000348 Ronald Brown/Michael T. Dugan/Joshua K. Marquis (Mark J. Wilson) Dear Mr. Wilson: We are in receipt of your correspondence dated January 5, 2015, wherein you ask us to compel or encourage Mr. Brown and Mr. Marquis to comply with RPC 3.3(a)(1) and/or 3.3(a)(3). Our disciplinary authority does not include the ability to compel either of these attorneys to take or refrain from any action, However, all attorneys are encouraged to comply with our ethical rules or face subsequent sanctions for non-compliance. Regardless of your requested relief, pursuant to Bar Rule 2.5(c), we will not look into your concerns any further. We have already addressed these concerns in the above referenced files. These issues have been completely disposed of on numerous previous occasions, the most recent of which was our April 29, 2013 letter to you. You may wish to re-review that letter to understand why these issues will not be addressed and why these matters will not be re-opened. ‘As we have stated before, these files remain permanently closed and this office will take no further action on these matters. Thank you. Sincerely, Troy J. Wood Assistant General Counsel Ext. 366 TuW/imm cew/encl:; Ronald Brown, Attorney at Law Michael T. Dugan, Attorney at Law Joshua K. Marquis, Attorney at Law Email submissions to: cao@osbar.org Use subject line: TJW 1000346 16037 SW Upper Boones Ferry Road, PO Box 231935, Tigard, Oregon 972611935 (503) 620-0222 _tollfree in Oregon (800) 452-8260 fax (503) 684-1866 wawosbarorgLORIGINAL January 5, 2015 Client Assistance Office Oregon State Bar PO Box 231935 Tigard, OR 97281-1935 RE: OSB Members’ non-compliance with continuing duties under ORPC 3.3(a)(1) & (3); Request that CAO Compel or Encourage Compliance Dear Client Assistance Office am writing to request that the Client Assistance Office (CAO) investigate whether Ronald L. Brown (OSB# 791726) and/or Joshua K. Marquis (OSB# 810189) have continuing duties under Oregon Rule of Professional Conduct (ORPC) 3.3(a)(1) and/or (3) that they are failing to comply with. In the event that the CAO agrees with my assessment that Mssrs. Brown and/or Marquis have failed, and continue to fail, to comply with their ongoing legal duties under ORPC 3.3(a)(1) and/or (3), I respectfully request that the CAO will issue an order compelling Mssrs. Brown and/or Marquis to immediately comply with their ongoing legal duties, in writing. 1 am not requesting that the CAO commence disciplinary proceedings against these lawyers, unless, of course, the CAO determines that discipline is appropriate and/or necessary.' Rather, merely request that Mssrs. Brown and Marquis be directed to comply with their ongoing duties under ORPC 3.3(a)(1) and (3), because their refusal to voluntarily comply with those duties i subjecting me to ongoing, irreparable harm, This request focuses upon the language of ORPC 3.3, quoted and highlighted below: (a) A lawyer shall not knowingly: On February 5, 2010, [ filed a formal complaint against Mssrs. Brown, Marquis and Michael T. Dugan (OSB# 761210) related to the false statements of material fact at issue here, in CAO Case Nos. 1000346, 1000347 and 1000348. The focus of those complaints was that the false statements of material fact were made, not that Mssrs. Brown and/or Marquis failed or refused to disclose and/or correct those false statements. In that action, I sought the commencement of disciplinary proceedings, not an order that Mssrs. Brown and Marquis comply with their ongoing legal duties to disclose and correct, under ORPC 3.3(a)(1) and/or (3). The CAO refused to consider disciplinary proceedings in those cases. The enclosed November 6, 2014 sworn “Formal Demand for Compliance with Continuing Legal Duty to Correct & Disclose to Tribunal False Statements of Material Fact” is based upon evidence establishing the falsity of the 2009 statements that was not previously available to me at the time I filed the 2010 OSB Complaint.January Page 2 of 4 (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if permitted, disclosure to the tribunal. (emphasis added). I read these rules as imposing upon all lawyers, ongoing legal duties “to correct a false statement of material fact . . . previously made to [a] tribunal” and to “take reasonable remedial measures, including . .. disclosure to the tribunall,]” of the falsity thereof. ‘On December 15, 2009, Mr. Brown testified telephonically at a hearing before the Oregon Board of Parole and Post-Prison Supervision (Board), a state administrative agency. The Board is a “tribunal” within the meaning of ORPC 3.3(a)(1) & (3), pursuant to ORPC 1.0(p), which provides in relevant part: ‘Tribunal’ denotes a... administrative agency or other body acting in an adjudicative capacity. A... administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a party’s interests in a particular matter. See also ORPC 3.9(“A lawyer representing a client before a. . . administrative agency in a nonadjudicative proceeding . . . shall conform to the provisions of Rule 3.3(a). . ..”) During Mr. Brown’s December 15, 2009 Board testimony, he made several “false statement{s] of material fact” and he and his client offered “material evidence” that was false, within the meaning of ORPC 3.3(a)(1) & (3), as discussed extensively in the enclosed sworn “Formal Demand for Compliance with Continuing Legal Duty to Correct & Disclose to Tribunal False Statements of Material Fact.” Mr. Marquis also made “false statement{s] of material fact” to rhis tribunal, as discussed in the enclosed demand. The false statements of fact/evidence have significantly harmed me, because they improperly influenced the Board to accept those statements as true, and to rule against me on the basis thereof, 1ce December 15, 2009 to the present, Mssrs. Brown and Marquis have failed and refused to comply with their ongoing legal duties under ORPC 3.3(a)(1) and/or (3), to correct and disclose the falsity of their previous false statements of material fact. Pursuant to Parks v. Board of County Commissioners of Tillamook County, 11 Or App 177, 212, 501 P.2d 85, 102 (1972), on November 6, 2014, I sent Mssrs. Brown and Marquis the enclosed swom “Formal Demand for Compliance with Continuing Legal Duty to Correct & Disclose to Tribunal False Statements of Material Fact,” detailing the false statements of fact made to thePage 3 of 4 tribunal that I take issue with and the evidence of the falsity thereof. I sent the demand to both Mssrs. Brown and Marquis by certified mail, return receipt requested. On November 10, 2014, Mr. Marquis signed for both his and Mr. Brown’s copy thereof. In my swom demand letter, I requested that Mssrs. Brown and Marquis make written corrections and disclosures pursuant to ORPC 3.3(a)(1) & (3), or inform me of their intention to do so within thirty (30) days of their receipt thereof (ie., on or before December 10, 2014). See (p. 5). 1 further informed them that their failure to do so would leave me no choice but to seek CAO assistance. /d. As of this date, I have not received any communication from Mssrs. Brown and/or Marquis in response to my demand letter. To the best of my knowledge and belief, neither of them have taken any substantive steps to comply with their legal duties under ORPC 3.3(a)(1) and/or (3). I now have no recourse but to request CAO assistance. I will be further prejudiced if I am forced to seek correction by injecting those false statements of fact into a future Board hearing. The relevant hearing was conducted, and will be conducted in the future, pursuant to ORS 163.105(2)(1985), which mandates: “The sole issue shall be whether or not the prisoner is likely to be rehabilitated within a reasonable period of time.” (emphasis added). The unanimous, En Bane Oregon Supreme Court has explained: “That determination pertains only to the personal characteristics of the prisoner, it does not focus on the offenses that the prisoner committed . Severy/Wilson v. Board of Parole, 349 Or 461, 477, 245 P.3d 119, 127 (2010)(En Banc) (emphasis in original). As the CAO can see from the enclosed sworn demand letter, the false statements of fact that Mr. Brown improperly injected into the December 15, 2009 Board hearing “focus. . .on the offenses that [I] committed” and not upon my likelihood of rehabilitation. Thus, that evidence is not relevant to “the sole issue” before the Board, and should not have been considered by the Board when Mr. Brown offered it. See OAR 255-032-0030(1)(“Irrelevant, immaterial, or unduly repetitious evidence will be excluded,. . . .”). That irrelevant, immaterial evidence would also be subject to exclusion if J attempted to offer it at a future hearing with the intention of refuting it, Even if the Board chose not to exclude that irrelevant, immaterial evidence ~ as it did when Mr. Brown introduced it in 2009 — I would be significantly prejudiced by being forced to put highly prejudicial evidence before the Board for the purpose of refuting it. Based upon these reasons, as well as those detailed in the enclosed sworn formal demand letter, I respectfully request that the CAO order Mssrs. Brown and/or Marquis to immediately comply with their ongoing legal duties under ORPC 3.3(a)(1) & (3), by issuing a written communication, with a service copy to me: 1. disclosing the falsity of evidence previously offered by Mssrs. Brown, Marquis and their client to the Board and/or CAO, as detailed in the November 6, 2014 sworn “Formal Demand for Compliance with Continuing Legal Duty to Correct & Disclose to Tribunal False Statements of Material Fact;” and 2. correcting the falsity of evidence previously offered by Mssrs. Brown, Marquis and their client to the Board and/or CAO, as detailed in the November 6, 2014 swornClient Assistance Office January 5, 2015 Page 4 of 4 “Formal Demand for Compliance with Continuing Legal Duty to Correct & Disclose to Tribunal False Statements of Material Fact.” Thank you for your hopeful consideration and assistance. I am happy to provide any further information or evidence that the CAO may be interested in reviewing. Please let me know if you have any questions or concems. I look forward to hearing from you at your earliest convenience. Sincerely, Mark J “ SID #7449142 Oregon State Correctional Institution 3405 Deer Park Drive SE Salem, OR 97310 Telephone: None Email: None (enclosure) cc. Joshua K. Marquis (without enclosure); Ronald L, Brown (without enclosure); and fileFormal Demand for Compliance With Continuing Legal Duty to Correct & Disclose to Tribunal False Statements of Material FactIl. TABLE OF CONTENTS Continuing Legal Duty to Correct & Take Other Remedial Measures, Including Disclosure to the Tribunal Undisputed Material Facts Both of You Knew Before December 15, 2009.6 False Statements of Material Fact, Evidence Known to Be False and Requested Corrections, Disclosures & Other Remedial Measures .. A. False Statements of Material Fact Regarding My 1988 Guzek Testimony and the Purported Motive of the Houser Homicides .........24 B. False Statements of Material Fact Regarding My 1997 “Refusal” To Testify ol C. False Statements of Material Fact Regarding Memory of the Offenses. eee 37 D. False Statements of Material Fact Regarding The Actual Number of Burglaries eset a eeeeenetenees E. False Statements of Material Fact Regarding Bragging .... F. False Statement of Material Fact Regarding Joining a Church to Find Burglary Targets . . eves 45 G. False Statements of Material Fact by Omission Regarding Drug Abuse... sen Conclusion. Verification ..November 6, 2014 JOSHUA K. MARQUIS Clatsop County District Attomey RONALD L. BROWN Clatsop County Chief Deputy District Attorney 749 Commercial PO Box 149 Astoria, OR 97103 RE: Formal Demand for Compliance With Ongoing Legal Duty to Correet False Statements of Material Fact and False Evidence to Tribunal Gentlemen: ‘As you are both aware, Mr. Brown appeared and testified telephonically at my December 15, 2009 hearing before the Board of Parole and Post-Prison Supervision (Board), at the direction, and under the supervision, of Mr. Marquis. That hearing was conducted pursuant to ORS 163.105(2)(1985). “The sole issue [at that hearing] shall be whether or not the prisoner is likely to be rehabilitated within a reasonable period of time.” Jd, “That determination pertains only to the personal characteristics of the prisoner; it does not focus on the offenses that the prisoner committed{.]” Severy/Wilson v. Board of Parole, 349 Or 461, 477, 245 P.3d 119, 127 (2010)(En Banc)(emphasis in original). The Board is a tribunal within the meaning of the Oregon Rules of Professional Conduct (ORPC). See ORPC 1.0(p)(‘*“Tribunal’ denotes a court, . .. a administrative agency or other body acting in an adjudicative capacity. A. . . administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a party’s interests in a particular matter.”). See also ORPC 3.9. ‘As you are both undoubtedly aware, and as discussed extensively herein, Mr. Brown made several false statements! of material’ fact and offered evidence that you know to be false, during his December 15, 2009 Board testimony, in violation of ORPC 3.3(a)(1) & (3) & ORPC 4.1 : False statements of fact include affirmative false statements, half-truths, omissions and silence (non-disclosure). See e.g., In re Huffman, 331 Or 209, 215, 13 P34 994, 998 (2000)(En Banc)(citing Jn re Hiller, 298 Or 526, 532-33, 694 P2d 540 (1985) and In re Greene, 290 Or 291, 298, 620 P2d 1379 (1980)). See also In re Gatti, 330 Or 517, 8 P3d 966 (2000)(En Banc); Inrre Ositis, 333 Or 366, 371, 40 P3d $00, 501 (2002); In re Kumley, 335 Or 639, 644, 75 P3d 432, 435 (2003); and In re Fitzhenry, 343 Or. 86, 101, 162 P3d 260, 269 (2007). ? “A misrepresentation is material if it involves information that would or could. significantly influence the hearer’ decision making process.” Jn re Kluge, 332 Or 251, 255, 66 P3d 492, 501 (2003)(citing Jn re Gustafson, 327 Or 636, 649, 968 P.2d 367 (1998)). See also In re Huffman, 331 Or. 209, 218, 13 P.3d 994, 999 (2000); & In re Gatti, 330 Or 517, 528, 8 P.3d 966, 973 (2000)(En Banc). (Centfied Mai Article No. 70010360 0003 1819 2058 Brown) (Gertfed Mii Article No, 700] 0360 0003 1819 2104 (Margus)Marquis & Brown Demand Letter November 6, 2014 Page 2 of 51 Mr. Brown, you have known since your December 15, 2009 Board testimony that you made false statements of material fact and offered evidence that you knew to be false. Mr. Marquis, you have known of Mr, Brown’s December 15, 2009 false statements of material fact and false evidence since no Jater than June 3, 2010, when you called me as a witness in State of Oregon v. Randy Lee Guzek, Deschutes County Circuit Court No. 87CRO373TM. See also February 5, 2010 and April 8, 2013 Complaints against you both, in Oregon State Bar (OSB) Client Assistance Office (CAO) Nos. 1000346, 1000347 & 1000348. Additionally, as you are undoubtedly aware, Mr. Marquis, you knowingly made false statements of material fact and offered evidence you knew to be false to the OSB CAO — also a “tribunal” under ORPC 1.0(p) ~ on or about March 31, 2010. I. Continuing Legal Duty to Correct & Take Other Remedial Measures, Including Disclosure to the Tribunal Both of you have a continuing legal duty to take reasonable remedial measures to correct the December 15, 2009 false statements of material fact and false evidence Mr. Brown offered to the Board. Mr. Marquis, you also have a continuing legal duty to take reasonable remedial measures to correct the March 31, 2010 false statements of material fact and false evidence you offered to the OSB CAO. “The rules of professional conduct are ‘binding upon all members of the bar’ and have the status of law in Oregon.” Vavrosky Maccoll Olson Busch & Pfeiffer PC v. Employment Department, 212 Or App 174, 186, 157 P3d 312, 319 (2007)(citing ORS 9.490(1) and State ex rel Bryant v. Eillis, 301 Or 633, 636, 724 P2d 811 (1986). See also PGE v. Duncan, Weinberg, Miller & Pembroke, 162 Or App 265, 276, 986 P.2d 35, 42 (1999). “[A]ttorneys have a continuing obligation to comply with the rules of professional conduct.” 212 Or App at 185, 157 P.3d at 319. “[O]utside the context of disciplinary proceedings . . . disciplinary rules may define the scope of duties” owed by a lawyer. Frost v, Lotspeich, 175 Or App 163, 187-88, 30 P.3d 1185, 1198 (2001). See also Welsh v. Case, 180 Or App 370, 382, 43 P.3d 445, 452 (2002)(*[T]he disciplinary rules may illuminate a court’s inquiry into whether a breach of duty .. . has occurred.” (citing Kidney Assn of Oregon v. Ferguson, 315 Or 135, 142, 843 P.2d 442 (1992)).. “The community has a right to expect lawyers to live up to the highest standards of honesty and integrity. Lawyers fail in their duty to the public when they engage in dishonest conduct and their duties to the public and the legal system when they engage in conduct prejudicial to the administration of justice.” In re Jaffee, 331 Or 398, 409, 15 P.3d 533, 539 (2000)(En Banc). “Lawyers must be honest. Truth-speaking is requisite in this profession.” In re Parker, 314 Or 143, 154-55, 838 P.2d $4, 60 (1992)(In Bane). “A prosecutor may not knowingly introduce false testimony.” United States v. Inzunza, 580 F3d 894, 907 (9" Cir, 2009). “Deliberate false statements by those privileged to represent the [government] harm the trial process and the integrity of our prosecutorial system.” United States ¥. Reyes, 577 F3d 1069, 1077 (9" Cir. 2009). For this reason, courts do “not lightly tolerate @ prosecutor asserting as fact to the [trier of fact] something known to be untrue, or at the very CCeniied Mail Artite No, 7001 0360 0003 1819 2098 (Brown) Certified Mal Arile No, 7001 0360 0003 1819 2108 (Margus)Marquis & Brown Demand Letter November 6, 2014 Page 3 of SI least, that the prosecution had very strong reason to doubt.” /d. (citing United States v. Blueford, 312 F3d 962, 968 o Cir. 2002)). The Reyes Court explained that: In representing the [government], a... . prosecutor has a special duty not to impede the truth There is good reason for such a high standard, A ‘prosecutor's opinion carries with it the imprimatur of the Government and may induce the [trier of fact] to trust the Government's judgment rather than its own view of the evidence.” United States v. Young, 470 US 1, 18-19, 105 SCt 1038, .. . (1985)(citing Berger v. United States, 295 US 78, 88-89, 55 SCt 629, .. . (1935). For this reason, it is improper for the government to present to the [trier of fact] statements or inferences it knows to be false or has very strong reason to doubt. United States v. Blueford, 312 F3d 962, 968 (9" Cir, 2002)(citing United States v. Kojayan, 8 F3d 1318-19 (9 Cir. 1993)). Id., 577 F3d at 1069. The ORPC’s recognize this “special duty not to impede the truth.” ORPC 3.3(a)(1) commands: (a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer (emphasis added). ORPC 3.3(a)(3) mandates: (a) A lawyer shall not knowingly: (3) offer evidence that the lawyer knows to be false. If the lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if permitted, disclosure to the tribunal; (emphasis added). ORPC 5.1(b) also imposes an implied legal duty upon you, Mr. Marquis, “to take reasonable remedial action” comparable to that expressly mandated in ORPC 3.3(a)(3),, providing ‘A lawyer shall be responsible for another lawyer’s violation of {the] Rules of Professional Conduct if (Cenified Mai Atiele No, 7001 0360 0003 1819 2058 Brown) ‘Cerfed Mail Atle No, 7001 0360 0003 1819 2104 (Marquis)Marquis & Brown Demand Letter November 6, 2014 Page 4 of 51 (b) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. (emphasis added). These duties are also implicitly imposed upon both of you by ORS 9.460, which mandates in relevant part: An attorney shall: (1) Support the... laws... of this state; [and] (2) Employ, for the purposes of maintaining the causes confided to the attorney, such means only as are consistent with truth, and never seek to mislead the court or a jury by any artifice or false statement of fact.) The use of the word “shall” in each of the afore-quoted statutes and rules expresses a mandatory duty upon each of you to act in the manner prescribed by these provisions. Preble v. Dept of Rey., 331 Or 320, 324, 14 P.3d 613, 615 (2000)(**Shall’ is a command: it is ‘used in laws, regulations, or directives to express what is mandatory.””). See also Doyle v. City of Medford, 347 Or 564, 570-71, 227 P.3d 683, 687 (2010)(En Banc)(“Ordinarily, use of the word ‘shall’ implies that the legislature intended to create an obligation{.}"); Williams v. Philip Morris Inc., 344 Or 45, 59, 176 P.3d 1255, 1262-63 (2008)(use of word “shall” “generally dictates that something is mandatory.”); and Bacote v. Johnson, 333 Or 28, 34, 35 P.3d 1019, 1022 (2001) (“The term ‘shall’ is a command expressing what is mandatory.”). Finally, “When a public official has acted in a way that violates some statute, rule, or ordinance, he has an implied legal duty to correct his error,... ° Parks v. Board of County Commissioners of Tillamook County, 11 Or App 177, 204, 501 P2d 85, 98 (1972). See also id, 11 Or App at 206, 501 P2d at 99 (“[O}fficials have an implied duty to undo any actions they have taken in violation of a statute or ordinance.) As you are both undoubtedly aware, and as discussed extensively in Section IIL, infra, you both have acted, and continued to act, in violation of ORS 9.460(1) & (2), ORPC 3.3(a)(1) & (3), and ORPC 5.1(b). Therefore, Parks imposes an implied continuing legal duty upon both of you to (1) correct Mr. Brown’s December 15, 2009 false statements of material fact to the Board; (2) correct Mr. Marquis’ March 31, 2010 false statements of material fact to the OSB CAO; and (3) take reasonable remedial measures, including but not limited to disclosure to the Board and the OSB CAO of the falsity of evidence previously offered by both of you, and your client. * As you will surely recall, on March 31, 2010, you, Mr. Marquis, informed the OSB CAO: . .. [eared that Mr. Wilson had an upcoming parole hearing and that the victims’ family properly expected a representative of the Deschutes County District Attorney to appear in support of their position. I contacted District Attorney Mike Dugan and we sified Mal Article No. 7001 0360 0003 18192098 (Brown) fed Mail Article No, 700} 0860 0003 1819 2104 (Marquis)Marquis & Brown Demand Letter November 6, 2014 Page 5 of 51 From December 15, 2009 10 the present, each of you have refused, and continued to refuse, to comply with your ongoing legal duties to correct and disclose under ORPC 3.3(a)(1) &(3), ORPC 5.1(b) and Parks. This communication constitutes my sworn formal demand, pursuant to Parks, 11 Or App at 212, 501 P.2d at 102, that within thirty (30) days of your receipt of this demand, each of you immediately comply with your continuing legal duties to: (1) correct, in writing, each of the false statements of material fact previously made by you and/or your client to the Board and the OSB CAO, in the manner and to the extent discussed in Section II, infra; and (2) take reasonable remedial measures, including but not limited to, written disclosure to the Board and the OSB CAO of the falsity of evidence previously offered to those tribunals by you and/or your client, in the manner and to the extent discussed in Section III, infra. Please provide me with a service copy of any written corrections and/or disclosures either of you may elect to make to the Board and/or OSB CAO. Should either of you persist in refusing to comply with these ongoing legal duties, “mandamus is an appropriate remedy to compel [you] to do so.” Parks, 11 Or App at 204 & 206, 501 P.2d at 98 & 99. If either of you need more than thirty (30) days to investigate my claims and make the requested corrections and disclosures, I am happy to cooperate with you in that respect. If, however, either of you persist in refusing to comply with your continuing legal duties to correct and disclose, or you ignore this letter, you will leave me no choice but to: 1, file a petition for a writ of mandamus, seeking a court order compelling you to immediately comply with your continuing legal duties under ORPC 3.3(a)(1) & (3), ORPC 5.1(b), and Parks; 2. request that the OSB CAO compel you to immediately comply with your continuing legal duties under ORPC 3.3(a)(1) & (3), ORPC 5.1(b), and Paris; and 3. subpoena both of you to appear before the Board, pursuant to ORS 163.105(2\(c), ORS 183.440 and OAR 255-032-0029 to testify under oath (ORS 183.417(6)) concerning discussed the matter and agreed that . .. Mr. Brown . . . would be the appropriate person to appear on behalf of the District Attomey. In furtherance of that agreement, Deschutes County District Attorney Michael T. Dugan sent a December 11, 2009 letter to the Board stating: Please be advised that J have appointed Ron Brown, deputy district attomey in Clatsop County, fo appear on my behalf and represent Deschutes County and the victims of the crimes committed by the above referenced inmate. (emphasis added). Hence, “the victims of the crimes” were Mr. Brown’s clients, for purposes of ORPC 3.3(a)(3). He is, therefore, responsible for any false evidence offered by the victims during the December 15, 2009 Board hearing, CCeniied Mail Anite No. 7001 0360 0003 1819 2098 Brown) CCentied Mail Article No. 7001 C360 0003 1818 2108 (argu)Marquis & Brown Demand Letter November 6, 2014 Page 6 of 51 your false statements of material fact detailed herein and your persistent refusal to comply with your continuing legal duties to correct and disclose as required by ORPC 3.3(@)(1) & (3), ORPC 5.1(b) and Parks. 1 will be submitting this sworn demand letter into evidence in all three of the above-referenced proceedings. I. Undisputed Material Facts Both of You Knew Before December 15, 2009 Prior to Mr. Brown's December 15, 2009 Board testimony each of you knew, or reasonably should have known (ORPC 1.0(h)), each of the following undisputed material facts: (1) The evidence in the case established that Randy Guzek joined the Jehovah's Witness church when he was sixteen years old; (2) [did not know Randy Guzek when he was sixteen years old; (3) Randy Guzek tuned sixteen years old on May 29, 1985; (4) Idid not move to Central Oregon until November of 1986; (5) The first burglary I committed with Randy Guzek was the March 26, 1987 Graham residence burglary; (©) Ronald L. Brown was employed as the Chief Deputy District Attomey for Deschutes County at the time of the June 29, 1987 homicides of Rod and Lois Houser, and the 1987 and 1988 criminal prosecutions of my co-defendants and me for those offenses; (7) Mr. Brown was responsible for the 1987 and 1988 prosecutions of my co- defendants and me for the Houser homicides; (8) Mr, Brown had unlimited access to, and control of, all police reports, other investigative materials and evidence developed in relation to the June 29, 1987 Houser homicides and the prosecution thereof; (9) _ No police reports, other investigative materials or evidence indicate, or even suggest, that I, or any of my co-defendants reported that the motive of the Houser homicides was a “revenge killing” to avenge Randy Guzek for some dispute with Rod Houser; (10) No police reports, other investigative materials or evidence indicate, or even suggest, that “[tJhe reason why this all occurred was because you never crossed Randy Guzek . . Everybody that said anything or looked cross ways at Randy Guzek had something bad happen to them. And unfortunately, uh, Rod Houser had told his niece that he didn’t want Randy Guzek back out at his residence, and that was enough of a motive for Guzek, Wilson and Cathey to commit cold-blooded murder.” Je No. 7001 0360 0003 1819 2008 Brown) le No. 7001 03600003 1819 2104 (Marquis) Ccetified Mal Centfied MalMarquis & Brown Demand Letter November 6, 2014 Page 7 of 51 (11) No police reports, other investigative materials or evidence indicate, or even suggest, that the Houser homicides were a “thrill killing;” (12) No police reports, other investigative materials or evidence developed in relation to the June 29, 1987 Houser homicides and the prosecution thereof allege, or even suggest, that I have ever had independent recall of the number of times I fired the weapon at Rod Houser, or ever said that I had such recall; (13) No police reports, investigative materials or evidence exist, alleging or even suggesting, that I have ever bragged about the Houser homicides; (14) No police reports, investigative materials or evidence exist, alleging or even suggesting, that I have ever “joined a church” to identify potential burglary victims; (15) A July 10, 1987 police report indicates that on that date, I stated that I went to the Houser residence on June 29, 1987 “under the impression that there was going to be a burglary and no one was going to be home;” (16) A November 6, 1987 police report written by Oregon State Police Detective Lynn M. Fredrickson reported that on February 10, 1987, I was caught snorting methamphetamine in class at Redmond High School and was suspended from school on that date as a result; (17) Other 1988 police reports document the abuse of methamphetamine by my co- defendants and me on the night of the Houser homicides and during the burglaries that we committed between March 26, 1987 and May 26, 1987; (18) On July 14, 1987, Mr. Brown signed an Indictment, charging me with five counts of Aggravated Murder, two counts of Robbery in the First Degree, and one count of Burglary in the First Degree in State of Oregon v. Mark James Wilson, Deschutes County Circuit Court No 87CR0382WE; (19) The July 14, 1987 Indictment alleges a theft of property motive for the charged offenses; (20) The July 14, 1987 Indictment does not allege a “revenge killing” motive for the criminal offenses; (21) On November 6, 1987, Mr. Brown signed an Amended Indictment, charging me with five counts of Aggravated Murder, two counts of Robbery in the First Degree, one count of Burglary in the First Degree and one count of Theft in the First Degree in State v. Wilson, Deschutes County Circuit Court No. 87CRO382WE;, (22) The November 6, 1987 Amended Indictment alleges a theft of property motive for the charged offenses; CCetfied Mal Article No, 700 0360 0008 1819 2098 (Brown) CCetifed Mail Artile No, 70010360 0003 18192104 (Marquis)Marquis & Brown Demand Letter ‘November 6, 2014 Page 8 of 51 (23) The November 6, 1987 Amended Indictment does not allege a “revenge killing” motive for the criminal offenses; (24) On January 25, 1988, I was permitted to plead guilty in State v. Wilson, Deschutes County Circuit Court No. 87CR0382WE, to Count 3 of the Amended Indictment, which alleges the commission of Aggravated Murder during the course of a burglary, in relation to the death of Rod Houser; (25) Paragraph 13 of the January 25, 1988 plea petition that I signed in State v. Wilson, Deschutes County Circuit Court No. 87CR0382WE, provides: I plead guilty and respectfully request the Court to accept my plea of guilty and to have the clerk enter my plea of guilty on the factual basis of: On June 29, 1987, in Deschutes County, Oregon, while in the process of committing a burglary of the residence of Rod and Lois Houser, I personally and intentionally caused the death of Rod Houser by shooting him with a .22 caliber rifle. (26) On January 25, 1988, Mr. Brown signed a District Attorney's Information, charging me with Felony Murder in State v. Wilson, Deschutes County Circuit Court No. 88CRO049W! (27) The January 25, 1988 District Attorney's Information in State v. Wilson, Deschutes County Circuit Court No. 88CR0049WE alleges: The above-named defendant is accused by the District Attorney of Deschutes County Oregon by this Information of the offense of Felony Murder. Said defendant on or about the 29" day of June, 1987, in said County of Deschutes in the State of Oregon, did unlawfully and knowingly commit the crime of Burglary in the First Degree, and in the course and in the furtherance of said crime which the said defendant was committing, a participant in said crime, Randy Lee Guzek did cause the death of another human being, to-wit: Lois Houser, not a participant in the crime, by shooting her, contrary to the statutes in such cases, made and provided against the peace and dignity of the State of Oregon; (28) On January 25, 1988, I was allowed to plead guilty to Felony Murder as alleged in the District Attorney's Information that Mr. Brown prepared in State v, Wilson, Deschutes County Circuit Court No. 88CR0049WE; (29) Paragraph 13 of the plea petition I signed in State v. Wilson, Deschutes County Circuit Court No, 88CRO049WE, provides: I plead guilty and respectfully request the Court to accept my plea of guilty and to have the clerk enter my plea of guilty on the factual basis of: On June 29, 1987, in Deschutes County, Oregon, while I was participating in a burglary of the residence of Rod and Certified Mail Article No. 7001 0360 0003 1819 2098 Brown) CCntfied Mail Article No, 7001 0360 00031819 2104 (Marquis)Marquis & Brown Demand Letter November 6, 2014 Page 9 of 51 Lois Houser with Randy Lee Guzek and Donald Ross Cathey, Randy Lee Guzek caused the death of Lois Houser by shooting her with a pistol; (30) During the January 25, 1988 change of plea hearing, Mr. Brown informed the Honorable Walter I. Edmonds, Jr, that the facts quoted in paragraphs 25 and 29, supra, accurately state the basis of my guilty pleas and that the victims family had been consulted and was in agreement therewith; (31) In 1988, law enforcement personnel questioned me about the number of burglaries that co-defendant Randy Lee Guzek and I had committed prior to the June 2! Houser homicide; 1987 (32) Istated that I did not know how many burglaries I had committed with co- defendant Randy Lee Guzek; (33) In 1988, law enforcement personnel pressed me to give them an “estimate” of the number of burglaries I had committed with co-defendant Randy Lee Guzek, proposing ranges 10-20, 20-30, 30-40, 50-100; (34) In 1988, I guessed 50-100 burglaric (35) After interviewing me in 1988, law enforcement personnel investigated the number of burglaries that co-defendant Randy Lee Guzek and I had actually committed; (36) In 1988, law enforcement personnel identified eighteen burglaries that co- defendant Randy Lee Guzek and I had actually committed between March 26, 1987 and May 26, 1987; (37) In 1988, law enforcement personnel determined that I was not involved in the eighteenth burglary that Randy Lee Guzek committed on May 26, 1987; (38) _ In 1988, law enforcement personnel determined that co-defendant Randy Lee Guzek and I did not commit any burglaries between May 26, 1987 and the June 29, 1987 Houser homicides; (39) In 1988, law enforcement personnel determined that the March 26, 1987 burglary of the Graham residence was the first burglary I committed; (40) A February 26, 1988 Presentence Investigation Report (PSI) was prepared by Department of Corrections (DOC) Presentence Writer Becky Jackson, in State v. Wilson, Deschutes County Circuit Court Nos. 87CR0382WE and 88CRO049WE; (41) The February 26, 1988 PSI reports: CCetid Mail Article No, 7001 0360 0003 1819 2098 (Brown) CCetfied Mal Article No, 7001 0360 0003 1819 2104 (Marquis)Marquis & Brown Demand Letter November 6, 2014 Page 10 of 51 The theory behind Guzek’s choice of the Houser residence, according to police reports, was that the home was isolated, secluded and ‘looked good and expensive.” (PSI, p.2); (42) The February 26, 1988 PSI does not allege, or even suggest, a “revenge killing” motive to avenge Randy Guzek for some dispute with Rod Houser, for the criminal offenses: (43) The February 26, 1988 PSI does not allege, or even suggest, that “[t}he reason why this all occurred was because you never crossed Randy Guzek ... . Everybody that said anything or looked cross ways at Randy Guzek had something bad happen to them. And unfortunately, uh, Rod Houser had told his niece that he didn’t want Randy Guzek back out at his residence, and that was enough of a motive for Guzek, Wilson and Cathey to commit cold- blooded murder(:]” (44) The February 26, 1988 PSI does not allege, or even suggest, that the Houser homicides were a “thrill killing;” (45) The February 26, 1988 PSI does not allege, or even suggest, that I have ever had independent recall of the number of times I fired the weapon at Rod Houser, or ever said that I had such recall; (46) The February 26, 1988 PSI does not allege, or even suggest, that I ever about the killings” “enjoyed it and . .. bragged about it{;]” ragged (47) The February 26, 1988 PSI does not allege, or even suggest, that I ever “joined a church” to identify potential burglary victims; (48) The February 26, 1988 PSI declares: “Deschutes County authorities report that Wilson has been ‘very cooperative’ since accepting the State’s plea agreement.” (PSI, p. 8); (49) The February 26, 1988 PSI documents my drug use on the night of the Houser homicides and during the months leading up to it; (50) Mr. Brown personally appeared on behalf of the State of Oregon during the 1988 trial and sentencing of my co-defendant, Randy Lee Guzek in State v. Guzek, Deschutes County Circuit Court No. 87CRO373TM (Guzek); (51) During his February 25, 1988 Opening Statement to the Jury in Guzek, Mr. Brown. did not claim, or suggest, that I, or any of my co-defendants, had informed law enforcement that the motive of the crime was a “revenge killing” to avenge Randy Guzek for some dispute with Rod Houser; Certo Mail Antile No. 7001 0360 003 1819 2098 (Brown) (Crt Mast Amite No, 7001 03600003 1819 2108 (Marquis)Marquis & Brown Demand Letter November 6, 2014 Page 11 of 51 (52) During his February 25, 1988 Opening Statement to the Jury in Guzek, Mr. Brown did not claim, or suggest, that I would testify that the motive of the crime was a “revenge killing” to avenge Randy Guzek for some dispute with Rod Houser; (53) During his February 25, 1988 Opening Statement to the Jury in Guzek, Mr. Brown did not claim, or suggest, that I, or any of my co-defendants, had informed law enforcement that “(he reason why this all occurred was because you never crossed Randy Guzek . . . . Everybody that said anything or looked cross ways at Randy Guzek had something bad happen to them. And unfortunately, uh, Rod Houser had told his niece that he didn’t want Randy Guzek back out at his residence, and that was enough of a motive for Guzek, Wilson and Cathey to commit cold- blooded murderf;)” (54) During his February 25, 1988 Opening Statement to the Jury in Guzek, Mr. Brown did not claim, or suggest, that I would testify that “[t]he reason why this all occurred was because you never crossed Randy Guzek .. .. Everybody that said anything or looked cross ways at Randy Guzek had something bad happen to them. And unfortunately, uh, Rod Houser had told his niece that he didn’t want Randy Guzek back out at his residence, and that was enough of a motive for Guzek, Wilson and Cathey to commit cold-blooded murder(;]” (55) During his February 25, 1988 Opening Statement to the Jury in Guzek, Mr. Brown did not claim, or suggest, that the Houser homicides were some kind of “thrill killin (56) During his February 25, 1988 Opening Statement, Mr. Brown informed the Jury at least three times that prior to the Houser homicides “[we] had some drugs [we] snorted, what is known as crank, methamphetamine, speed, [we] each had one line of methf;]” (57) _ Mr. Brown subpoenaed me to testify as a prosecution witness in the 1988 guilt and penalty phase proceedings in Guzek; (58) I testified in the Guzek guilt phase on February 26, 1988 and February 29, 1988; (59) Mr. Brown questioned me on direct and redirect examination on February 26, 1988 and February 29, 1988; (60) The transcript of my February 26, 1988 and February 29, 1988 guilt phase testimony in Guzek consists of 164 pages, (61) There is nota single question by Mr. Brown, anywhere in the 164 page transcript of my February 26, 1988 and February 29, 1988 guilt phase testimony in Guzek about the motive of the crime being a “revenge killing” to avenge Randy Guzek for some dispute with Rod Houser; (62) I did not testify anywhere in the 164 page transcript of my February 26, 1988 and February 29, 1988 Guzek guilt phase testimony that the motive of the crime was a “revenge Killing” to avenge Randy Guzek for some dispute with Rod Houser; Cried Mail Artiste No, 7001 0360 0003 1819 2098 (Brown) erifed Mail Article No, 70010360 0003 18192104 (Marquis)Marquis & Brown Demand Letter November 6, 2014 Page 12 of 31 (63) There is not a single question by Mr. Brown, anywhere in the 164 page transcript of my February 26, 1988 and February 29, 1988 guilt phase testimony in Guzek about “[tJhe reason why this all occurred was because you never crossed Randy Guzek . .. . Everybody that said anything or looked cross ways at Randy Guzek had something bad happen to them. And unfortunately, uh, Rod Houser had told his niece that he didn’t want Randy Guzek back out at his residence, and that was enough of a motive for Guzek, Wilson and Cathey to commit cold- blooded murder(:]” (64) I did not testify anywhere in the 164 page transcript of my February 26, 1988 and February 29, 1988 Guzek guilt phase testimony that “[tJhe reason why this all occurred was because you never crossed Randy Guzek . ... Everybody that said anything or looked cross ways at Randy Guzek had something bad happen to them. And unfortunately, uh, Rod Houser had told his niece that he didn't want Randy Guzek back out at his residence, and that was enough of a motive for Guzek, Wilson and Cathey to commit cold-blooded murder{;}” (65) There is not a single question by Mr. Brown, anywhere in the 164 page transcript of my February 26, 1988 and February 29, 1988 guilt phase testimony in Guzek about the Houser homicides being some kind of “thrill killing;” (65) I did not testify anywhere in the 164 page transcript of my February 26, 1988 and February 29, 1988 Guzek guilt phase testimony about the Houser homicides being some kind of “thrill Killing: (67) On February 26, 1988, Mr. Brown elicited testimony from me at least six times that the motive of the crime was a burglary; (68) On February 26, 1988, Mr. Brown elicited testimony from me that I believed “that {the victims] would not be home and it was a simple burglary[;]” (69) During his February 26, 1988 direct examination, Mr. Brown elicited testimony from me that the day after the Houser homicides, Randy Guzek “was bragging to me” about shooting Mrs. Houser and “I then told him to shut up[;]” (70) During his February 26, 1988 direct examination, Mr. Brown elicited testimony from me that [ had no independent memory of the number of times I pulled the trigger when shooting Rod Houser; (71) _ During his February 26, 1988 direct examination, Mr. Brown elicited testimony from me that I did not have any knowledge of the number of rounds the weapon I was armed with held at the time of the crime; (72) During his February 26, 1988 direct examination, Mr. Brown elicited testimony from me that my co-defendants and I split a quarter gram of “crank” prior to the Houser homicides; Cceifies Mil Certified Mal ‘No, 7001 0360 0003 18192098 (Brown) ‘No. 70010360 0003 1819 2104 (Marquis)