Motion to Disqualify DA With All Facts

8/6/2019 Motion to Disqualify DA With All Facts

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

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LAW OFFICES OF ELAINE PROFANT-MACIELBY: ELAINE MACIELCALIFORNIA STATE BAR NUMBER 1185942380 G STREET, SUITE D1EUREKA, CALIFORNIA 95501TELEPHONE: (707) 269-2840

ATTORNEY FOR DEFENDANTWilliam Frank Whipple

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF HUMBOLDT

THE PEOPLE OF THE STATE OFCALIFORNIA,

Plaintiff,

vs

WILLIAM FRANK WHIPPLE, JR,

Defendant

))))))))))

Case No.: CR1001095

NOTICE OF MOTION & MOTION TODISQUALIFY THE OFFICE OF THEHUMBOLDT COUNTYDISTRICTATTORNEY FOR CONFLICT OFINTEREST

(Penal Code Section 1424(a)(1)+

NOTICE OF MOTION AND MOTION TO DISQUALIFY; APPLICATION FOR ORDER

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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

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

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 forDefendant 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

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

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. 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.

1A 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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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

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.

The defense was informed that no additional interviews with informant Kesselring existed;

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/ prosecutionand/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 lawenforcement and Kesselring IV consisted of 3 meetings.

a.

One being on July 18, 2009 when Kesselring was being fitted with a tape recordingdevice 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 tothe initialization of the recorded conversation on July 29, 2009. The beginning of thetape has recordings of Liles unless he was present when the recording device wasinstalled, as his voice was heard along with an unidentified woman ( who it isassumed is a Correctional Officer) and Liles advises the officer that he would like tomeet with Kesselring after his Medical visit the next day

c. The third and final meeting the defense was provided was an interview betweenDetective Liles and Kesselring IV on September 10, 2009 wherein Kesselring

disavows all conversations with Defendant Whipple occurred regarding the allegedConfession/admissions

Basis for belief of additional discovery regarding interviews:1. Information regarding the recording device & its installation2. The last discovery provided was a statement wherein Kesselring states he never

heard Defendant Whipple discuss any involvement in a homicide-The 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 IV1. Detective Liles accompanied Senior Probation Officer Andy McLaughlin to interview

Kesselring IV on June 11, 2009 meeting in interview room at HCCF- recorded andlogged 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 June12, 2009 recorded as CI-A-2 Notes, complete report or audio of interview NOTprovided. (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 Kesselringwas provided with written documentation regarding being an informant this case. Hewas to have initialed and signed this document, there is no indication this meetingwas 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. Theinterview was recorded and identified as C1-A-4. While defense was provided withA 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 fromDefendant Whipple, the recorded interview identified CI-A-4 is presumed to beseparate and distinct from recorded interview CI-A-4. It is unclear whether theformal 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.

5. Fifth interview between EPD Liles and Kesselring IV on July29, 2009 to discuss thewire recording device. The newly provided synopsis described the digital recordingdevice was dropped at HCCF by EPD Liles and that Liles met with Kesselring toexplain the plan to wire the cell. This interview was recorded and identified as CI-A-6. 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. Thesynopsis provided March 23, 2011 states Kesselring confirms the voices on the tapeA-6 are his and Defendant Whipples voices No indication whether this interviewwas recorded, howeverthe defense assumes is was recorded, No discovery otherthan the short synopsis that was provided on March 23, 2011.

7. Seventh interview between EPD Liles and Kesselring IV on August 19, 2009 todiscuss 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.

8. 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 IVDisavows that Defendant Whipple provided any admissions/confessions to


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Kesselring. The newly discovered synopsis provided information that theinterview 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 asubterfuge.

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 briefsynopsis that Kesselring IV expressed concern as to the delay in this matter precedingno 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 wouldbe 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 inaddition to the benefits testified to during the direct Examination of Kesselring IV. Priorto 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 pagereport authored by EPD Liles on 1/19/11 which states EPD :Liles placed $20.00on Kesselring IVs HCCF 'books" on 9/10/09.

c. On March 23, 2011, Counsel for the defense was advised EPD Liles was overheardadvising a third party a $500.00 reward was discussed with Kesselring, howeverKesselring was advised this reward would be provided upon the arrest & convictionof the individual responsible for the death of Trevor Davenport. However therecording provided in discovery is quoted in pleadings to the contrary, that Lilesadvised Kesselring the reward was payable after an arrest and intimated that he wouldreceive thus monetary reward once he was released from jail.

d. It has been implied that Kesselring has been provided additional benefits forproviding 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 isdiscussion that special foods, and benefits including special work assignments and /orpreferential housing was provided to Kesselring IV as a result of his informant statusin this matter. There has been no written discovery as to these additional benefits. OnMarch 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 onKesselrings behalf requesting he hold off on sending Kesselring to prison for oneweek. 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 KesselringIV that have not been pursued and or arrests that have not resulted in criminalcharges being filed subsequent to Kesselring IV agreeing to assisting lawenforcement as an informant.

ANSWER; To date not investigation reports involving Charles Kesselring IVhave been provided in discovery. The defense is only aware of those items of publicrecord (i.e. the cases pending and charges therein as well as newspaper and internetarticles that discuss him m which may or may not be accurate.

2. The specific details and circumstances, discussions, email ect. including allcommunication from attorney Glenn Brown with law enforcement and/or HumboldtCounty District Attorneys office.ANSWER: Items believed to be not yet provided: The synopsis report dated 1/19/11authored by EPD Liles states that on 6/16/09 Liles met with Assistant District AttorneyWes Keat to discuss what could be done for Kesselring if they were able to obtain aconfession As the district attorneys office was involved with this jailhouse informantagreement, it is assumed, as the defense understands it is standard practice in the eventthe local district attorney becomes involved in the negotiation regarding benefitsconveyed to a jailhouse informant, that the attorney for said informant is contacted andthe issues are discussed prior to any further action. The fact the initial attempt to tapethe statements of Defendant Whipple did not occur until approximately 4 weeks latervalidates this belief/3. All requests & results of any and all DNA testing and/or DNA review from anyDNA accomplished in conjunction with this investigation or reviewed in attempts toidentify any DNA not associated with the victim Davenport as well as any attempts tomatch 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 memoauthored by EPD Liles requesting the unidentified DNA found on Trevor Davenport becompared with Defendant Whipples DNA. Said memo authorized consuming the entiresample, howeverthe results of this testing have not been provided.

4. The documentation regarding attempt to place the unidentified DNA samples on thenational 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 submissionin the summer of 2006, for several weeks of the unidentified DNA to the national DataBase, the memo regarding the National Database removing the DNA samples from theNational 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 anopportunity to review said documents.

5. The specific proper protocols. required in processing in identified DNA samples onthe National Database in 2006 as well as present proper protocols used by EurekaPolice 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 theinvestigating agency, in this matter Eureka Police Department, the defense assumes somedocumentation as to this discovery request and order does exist.

7. All information, documentation regarding Defendants DNA and the basis for lawenforcements the failure to compare Defendants DNA with the unidentified DNAANSWER: This request is withdrawn as on March 17, 2011 at approximately 2:20pmEPD 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 incidentup to the call when Mr. Davenports body was initially discoveredANSWER; The defense was advised due to a revamping of the communication system in2007 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 anymonetary payments or other conferred to Charles Kesselring IV between the dates ofJune 2009 through the present.

ANSWER Same as above.

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 FBIlab in conjunction with obtaining the enhanced version of this tape and there is nochain of custody regarding this tape, that written instructions and information wasprovided and the resulting enhanced tape was returned to EPD via the local FBIwith 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

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

Attorneys Maggie Fleming, Max Cardoza and Alan Dollison, as well as Humboldt County

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

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

was privy to this agreement. During this time Defendant Whipple was awaiting sentencing for a

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 Iam 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 allthat 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 knowwhat I mean, and ,like hes (unintelligible) common trust, yeah know and like he saidyeah 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

information n he was providing and the assistance the District Attorneys Office would do in

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

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

by drafting a Ruse Police Report and setting up a ruse audio recording of an interview with

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 ofPenal 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

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

position.

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

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.

Detective Liles testified the Humboldt County District Attorney , not only was privy to

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 informativeand states as follows:

In addition, the a prosecutor is entitled to absolute immunity under1983 for conductthat 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 asan advocate for the State,"Buckley v. Fitzsimmons (1993) 509 U.S.259, 261. Whetherthe 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. at273, . However, conduct is notshielded by absolute immunity simply because it is performed by a prosecutor.Id. To thecontrary, a prosecutor is entitled only to qualified immunity "if he or she is performinginvestigatory or administrative functions, or is essentially functioning as a police officeror detective."Broam v. Bogan, (9th Cir.2003) 320 F.3d 1023, 1028 (citingBuckley, 509

U.S.

at27

3. Thus, when determining whether absolute immunity applies, courts mustexamine "the nature of the function performed, not the identity of the actor whoperformed it." Forrester v. White, (1988) 484 U.S.219,

Applying this functional analysis, the Supreme Court has held that prosecutors areabsolutely 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 toprosecute particular cases,Roe v. City & County of San Francisco, (9th Cir.1997), 109F.3d 578, 583-84 and for gathering evidence to present to the trier of fact, as opposed togathering evidence to determine whether probable cause exists to arrest, Broam, 320

F.3d at 1

033

.

On the other hand, prosecutors do not have absoluteimmunity" for advising police officers during the investigativephase of a criminal case, performing acts which are generallyconsidered functions of the police, acting prior to havingprobable cause to arrest, or making statements to the publicconcerning criminal proceedings."Botello, 413F.3d at 976-77(citing Burns, and Buckley, 509 U.S. at274-78,

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.

If, indeed, they did notify him, the Humboldt County District Attorney had refused to comply

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 Conduct2-100 (A)provide

(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 ofCalifornia Penal Code section 118.1

California Penal Code section 118.1 -- Peace officers; false report "Every peace officerwho files any report with the agency which employs him or her regarding the commissionof any crime or any investigation of any crime, if he or she knowingly and intentionallymakes any statement regarding any material matter in the report which the officer knowsto be false, whether or not the statement is certified or otherwise expressly reported astrue, 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 underCalifornia Penal Code section 127 which states-

Subornation of perjury; definition; punishment ("Every person who willfully procuresanother person to commit perjury is guilty of subornation of perjury, and is punishable inthe 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-MACIELBY: ELAINE MACIELCALIFORNIA STATE BAR NUMBER 118594917 THIRD STREETEUREKA, CALIFORNIA 95501TELEPHONE: (707) 269-2840

ATTORNEY FOR DEFENDANTWilliam Frank Whipple

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF HUMBOLDT

THE PEOPLE OF THE STATE OFCALIFORNIA,

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 Date

Judge, Superior Court


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PROOF OF SERVICE

The undersigned declares:

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

to the within action.

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

NOTICE OF MOTION & MOTION TODISQUALIFY THE OFFICE OF THEHUMBOLDT COUNTY DISTRICTATTORNEY FOR CONFLICT OFINTEREST;APPLICATION FOR ORDER SHORTENING TIME AND ORDERSHORTENING TIME

to be served on the following parties in the following manner:

Mail ___ Federal Express ___ Personal service __x__

Court Box ____ Fax ___

DISTRICT ATTORNEY, COUNTY OF HUMBOLDT

Mail __x_ Federal Express ___ Personal service ____


Office of the Attorney General

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

I declare under penalty of perjury that the foregoing is true and correct, and that this declaration i

executed on Sunday, June 12, 2011, at Eureka, California.

MICHAEL P. ACOSTA


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PROOF OF SERVICE

The undersigned declares:

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

to the within action.

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

NOTICE OF MOTION & MOTION TODISQUALIFY THE OFFICE OF THEHUMBOLDT COUNTY DISTRICTATTORNEY FOR CONFLICT OFINTEREST;APPLICATION FOR ORDER SHORTENING TIME AND ORDERSHORTENING TIME

to be served on the following parties in the following manner:

Mail ___ Federal Express ___ Personal service ____


DISTRICT ATTORNEY, COUNTY OF HUMBOLDT

Mail __x_ Federal Express ___ Personal service ____


Office of the Attorney General

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

I declare under penalty of perjury that the foregoing is true and correct, and that this declaration i

executed on Sunday, June 12, 2011, at Eureka, California.

MICHAEL P. ACOSTA

Motion to Disqualify DA With All Facts

Documents

Transcript of Motion to Disqualify DA With All Facts