IN THE SUPERIOR COURT OF WASHINGTON

IN AND FOR THE COUNTY OF SNOHOMISH

STATE OF WASHINGTON, and ) No. 03-3-00444-5

Jane Lunchbucket, )

Plaintiff, )

) DEFENDANT’S DEMAND FOR

vs. ) competent counsel; Public defender

) terminated for cause.

Joe Lunchbucket, )

Defendant. ) MANDATORY JUDICIAL NOTICE.

______

I. INTRODUCTION.

1.1 COMES NOW, Defendant hereto, seeking specific relief in the form of replacement of court appointed counsel, Mr. Michael Cohen. The Court will find that Defendant’s right to a diligent and competent public defender are far from secure under the work ethic of court appointed counsel. This Court and its policy makers are hereby on mandatory judicial notice of the authorities cited herein. (See Fairley v. Luman, #99-56483 (CA9 2002), citing Pembaur v. City of Cincinnati, 475 U.S. 469, 481-82 (1986)).

1.2 Defendant was refused in his request that his constitutional rights be defended, and even supplied authorities in support of his argument. It is abundantly clear that said counsel harbors precious little concern for the rights of the Defendant as they pertain to avoiding a criminal record, imprisonment, and a fair hearing. With his very liberty at stake, Defendant requires a defender with a stronger appreciation for the detriments of being wrongfully imprisoned. Any and all emphasis employed herein may be construed to have been added.

II. AUTHORITIES.

Ineffective Assistance of Counsel – Fair Hearing

2.1 Mr. Michael Cohen was appointed at public expense to satisfy Defendant’s right to counsel under U.S. Constitution Amendment Six, and Washington state Constitution Article I, § 22, and under RCW 10.101.

2.2 Defendant stands under the threat of imprisonment due solely to his property status (poverty, hardship). The Court is using contempt statutes applicable only to instances where the act to be so coerced is one within the powers of the detainee to perform; this excludes the Defendant, but his defender has passed on defending him over these issues.

“Since the Sixth Amendment constitutionally entitles one charged with crime to the assistance of counsel, compliance with this constitutional mandate is an essential jurisdictional prerequisite to a federal court’s authority to deprive an accused of his life or liberty. When this right is properly waived, the assistance of counsel is no longer a necessary element of the court’s jurisdiction to proceed to conviction and sentence. If the accused, however, is not represented by counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty. A court’s jurisdiction at the beginning of trial may be lost “in the course of the proceedings” due to failure to complete the court -- as the Sixth Amendment requires -- by providing counsel for an accused who is unable to obtain counsel, who has not intelligently waived this constitutional guaranty, and whose life or liberty is at stake. If this requirement of the Sixth Amendment is not complied with, the court no longer has jurisdiction to proceed. The judgment of conviction pronounced by a court without jurisdiction is void, and one imprisoned thereunder may obtain release by habeas corpus. A judge of the United States -- to whom a petition for habeas corpus is addressed -- should be alert to examine “the facts for himself when if true as alleged they make the trial absolutely void.”

See Johnson v. Zerbst, 304 US 458, 467-68 (1938).

2.3 The standard for rights to counsel under the Sixth Amendment set forth in Johnson v. Zerbst, Id., are the benchmark for determining claims of deprivations of such right. [1] Considering the certain sustained loss of liberty, the lackadaisical approach to the Defendant’s defense simply cannot stand as RCW 42.52.900 compliant, and is plainly in violation of RPC 1.1, 1.2(a), 1.3, and 1.4(a) and (b). In Tacoma v. Heater, 67 Wn.2d 733 (1966):

“[l, 2] We have followed the rule that where the language of the state constitution is similar to that of the federal constitution, the language of the state constitutional provision should receive the same definition and interpretation as that which has been given to a like provision in the federal constitution by the United States Supreme Court. State v. Schoel, 54 Wn.2d 388, 341 P.2d 481. Consequently, the Gideon case, supra, means that every defendant has a constitutional right to counsel in all criminal prosecutions. The court made no distinction between misdemeanors and felonies insofar as the applicability of this provision is concerned.

“A defendant’s right to be heard through his own counsel is unqualified. Chandler v. Fretag, 348 U.S. 3, 99 L.Ed. 4, 75 Sup.Ct. 1.

“Prior to the Gideon case, supra, the Sixth Amendment was not considered a part of the Fourteenth Amendment. The Supreme Court applied the “fundamental fair trial” test to ascertain whether a conviction should be set aside where the defendant was deprived of counsel. In Betts v. Brady, 316 U.S. 455, 86 L.Ed. 1595, 62 Sup.Ct. 1252, the court stated:

The Fourteenth Amendment prohibits the conviction and incarceration of one whose trial is offensive to the common and fundamental ideas of fairness and right, and while want of counsel in a particular case may result in a conviction lacking in such fundamental fairness, we cannot say that the Amendment embodies an inexorable command that no trial for any offense, or in any court, can be fairly conducted and justice accorded a defendant who is not represented by counsel.

“[3] In Hamilton v. Alabama, 368 U.S. 52, 7 L.Ed.2d 114, 82 Sup.Ct. 157, a new test was devised to ascertain when the right to counsel attaches. The right arises “at any critical stage in a criminal proceeding.” In White v. Maryland, 373 U.S. 59, 10 L.Ed.2d 193, 83 Sup.Ct. 1050, the Supreme Court held that a preliminary hearing was a “critical stage” in the Maryland proceeding. The reason for the court’s holding appeared to be that a defendant’s plea of guilty entered in a preliminary hearing without counsel, could later in the trial on the merits be introduced in evidence against him. Thus, the court found that the preliminary hearing was a “critical stage” and required counsel to be appointed for the accused for a preliminary hearing.

“In Winston v. Commonwealth, 188 Va. 386. 49 S.E.2d 611, where the defendant was arrested and jailed for driving while intoxicated, and was not brought before the committing authority for 4 ½ hours, and where the statute directed that the arresting officer produce the defendant “forthwith” before a committing authority, the charge had to be dismissed, the court stating at 395:

It is perfectly apparent, too, from what has been said, that as a result of his illegal detention the defendant has been forever deprived of material evidence which might have supported his claim that he was innocent of the charge under which he was held. According to the undisputed medical testimony, after the lapse of the time during which he was held in jail, a physical examination would have been useless and ineffectual.

“And, also, at 397:

Since the opportunity denied the defendant of producing such evidence cannot be remedied at a new trial, we are of opinion that the judgment should be reversed and the prosecution dismissed. In State v. Johnson, 87 N.J.Super. 195, 208 A.2d 444, the court held that detention of a suspected addict for 26 hours and refusal of his request to be examined by his own physician vitiates his conviction on a charge of being under the influence of narcotics. The court stated that: the denial of an opportunity to be examined by a physician of his own choice, coupled with the 26-hour detention, constituted a deprivation of the right to defend his own liberty guaranteed by Article I, paragraph 1, of the New Jersey Constitution,. . . .

“[4] At what time was a “critical stage” reached in the defendant’s case? It was no later than the moment when, immediately after the police officers had conducted their tests for sobriety and had interrogated the defendant, they charged him with the offense.

“The denial of counsel at this point prevented the defendant’s effective preparation for his defense to the charge against him. It was necessary for him to present evidence showing that he was not under the influence of intoxicating liquor at the time of his arrest. A most effective way to present such evidence would be through disinterested witnesses who could observe his condition soon after his arrest or after he had been booked for the crime, and by a blood test administered by a doctor. The evidence of intoxication dissipates with the passage of time. The 4-hour rule imposed by the police regulation recognizes that after 4 hours a person under the influence of intoxicating liquor will have reached a state of sobriety so that he is safe to be released, and may use a telephone.

“The defendant had virtually no other way to obtain the necessary proof of his innocence.”

Heater, Id. at pg. 741:

“Under the “critical stage” rule, the denial to the defendant of the assistance of his attorney after the officers had conducted their tests and questioning, violated his constitutional right to have counsel and due process, and any conviction obtained thereafter was void.

“Applying the former “fair trial” test, the same result would be achieved because here the defendant was prevented from obtaining evidence which might tend to prove his innocence, and which evidence would have disappeared within 4 hours while he was held incommunicado. It clearly demonstrates prejudice. The judgment is reversed and the action dismissed.”

2.4 The right to counsel is the right to effective counsel. Incompetent counsel defeats the appointment of counsel at public expense. (See Powell v. Alabama, 287 U.S. 45, 71 (1932); McMann v. Richardson, 397 U.S. 759, 771 (1970); Avery v. Alabama, 308 U.S. 444, 446 (1940); Glasser v. United States, 315 U.S. 60, 69-70 (1942); Reece v. Georgia, 350 U.S. 85, 90 (1955); United States v. Cronic, 466 U.S. 648, 654 (1984); Strickland v. Washington, 466 U.S. 668, 686 (1984); United States v. Decoster, 624 F.2d 196, 219 (D.C.Cir.), cert. den. 444 U.S. 944 (1979)).

“We have recognized repeatedly the central role of the defendant’s right to counsel in our criminal justice system. See, e.g., Holloway v. Arkansas, 435 U.S. 475 (1978); Geders v. United States, 425 U.S. 80 (1976); Herring v. New York, 422 U.S. 853 (1975); Argersinger v. Hamlin, 407 U.S. 25 (1972); Gideon v. Wainwright, 372 U.S. 335 (1963); Chandler v. Fretag, 348 U.S. 3 (1954); Glasser v. United States, 315 U.S. 60 (1942); Powell v. Alabama, 287 U.S. 45 (1932). We have described this right as “fundamental,” Gideon v. Wainwright, supra, at 344, and have stated that “[t]he assistance of counsel is often a requisite to the very existence of a fair trial.” Argersinger v. Hamlin, supra, at 31. In Powell v. Alabama, supra, the Court stated:

The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel, he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. Id. at 68-69.” [2]

“The essential elements of due process of law are…Notice and the opportunity to defend.” [3]

2.5 “Procedural due process imposes constraints on governmental decisions which deprive individuals of “liberty” or “property” interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment. . . . This Court consistently has held that some form of hearing is required before an individual is finally deprived of a property interest. Wolff v. McDonnell, 418 U.S. 539, 557-558 (1974). See, e.g., Phillips v. Commissioner, 283 U.S. 589, 596-597 (1931). See also Dent v. West Virginia, 129 U.S. 114, 124-125 (1889). The right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society. Joint Anti-Fascist Comm. v. McGrath, 341 U.S. 123, 168 (1951)(Frankfurter, J., concurring). The fundamental requirement of due process is the opportunity to be heard “at a meaningful time and in a meaningful manner.” Armstrong v. Manzo, 380 U.S. 545, 552 (1965). See Grannis v. Ordean, 234 U.S. 385, 394 (1914); Mathews v. Eldridge, 424 U.S. 319, 332-333 (1976); Goss v. Lopez, 419 U.S. 565 (1975); Perry v. Sindermann, 408 U.S. 593 (1972); Fuentes v. Shevin, 407 U.S. 67 (1972); Stanley v. Illinois, 405 U.S. 645 (1972); Connell v. Higginbotham, 403 U.S. 207 (1971) (per curiam); Wisconsin v. Constantineau, 400 U.S. 433 (1971); Goldberg v. Kelly, 397 U.S. 254 (1970); Sniadach v. Family Finance Corp., 395 U.S. 337 (1969).” [4]