THE COURT: "You are declined. You set forth -- it's
not permitted, and you've made your motion, and it's been
granted with the qualifications that I already said. Mr. Nicolaysen no longer is your attorney. Before I get to the question of the earlier
transcript, did you want to be heard, Ms. Duarte?"
Ms. Duarte: "I just had a procedural point, while Mr. Nicolaysen was still up here."
A Procedural Crucible
He was still up there alright in fact, but under the law he was gone, and did no longer exist, after having been "removed" as Killercop's "assistance" of counsel by Hizzzzonor, A. Howard Matz. And the prosecutor knew that fact, as well as this fact, too!
He was at that moment "no longer my attorney."
We all stood, alone. Each representing themself. But none represented me. A first year Harvard student knows that!
Would she cross the line? Would they both cross it and break the law? You bet!! They were all on a roll. See AUGUST 27, 2003. See article on the right.
The Supreme
Court has indicated that a defendant's right to present a
defense stems both from the right to due process provided by
the Fifth Amendment, and from the right "to have compulsory
process for obtaining witnesses in his favor" provided by the
Sixth Amendment, see Washington v. Texas, 388 U.S. 14, 23
(1967) (explaining that the right to compulsory process would
be meaningless if the defendant lacked the right to use the
witnesses whose presence he compelled).
According to the Bible, Acts 25:16, the Roman Governor Festus, discussing the proper treatment of his prisoner, Paul, stated: "It is not the manner of the Romans to deliver any man up to die before the accused has met his accusers face-to-face, and has been given a chance to defend himself against the charges." Many decisions of the Supreme Court of the United States have affirmed the right of the accused under the Confrontation Clause to have a face-to-face confrontation with the accuser, and an opportunity to cross-examine the accuser.
"Michael Nighan Statutory_ID 11640772X, couldn't believe his eyes. As Global Crossing's North America director of regulatory affairs, one of Nighan's tasks was to review all of the startup telco's marketing and sales material. But what confused him in late 1999 was a map of Global Crossing's network that showed a fiber-optic loop around the continent of Africa. "What's this?" asked Nighan. He was told it was Africa One, an undersea broadband cable that Global Crossing planned to build for a group of telecom carriers. "But I said it didn't belong on a map of our network because one, it doesn't exist, and two, even if it did exist, it wouldn't belong to us," says Nighan, who left Global Crossing last November. The response Nighan got was, "Gary (CEO Gary Winnick) wants it there." So it stayed on the map." - Fortune Magazine,"Global Crossing: The Emperor of Greed" - June 24, 2002
The
Supreme Court has explained that the right of confrontation
“means more than being allowed to confront the witness
physically.” Davis v. Alaska, 415 U.S. 308, 315 (1974).
Rather, “[t]he main and essential purpose of confrontation is
to secure for the opponent the opportunity of cross examination.”
Id. at 315-16
“[The Confrontation Clause] guaranteed a defendant’s right
to confront those ‘who bear testimony’ against him.” (quoting
Crawford v. Washington, 541 U.S. 36, 51 (2004)
Held:
Under Crawford, a witness’s testimony against a defendant is inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination. 541 U. S., at 54.
The Confrontation Clause has its roots in both English common law, protecting the right of cross-examination, and Roman law, which guaranteed persons accused of a crime the right to look their accusers in the eye.
Gary, did you know that the Federal statute that gives the FBI jurisdiction in kidnapping cases is called the “Lindbergh law”, which arose from the highly publicized kidnapping of Charles and Anne Lindbergh’s son by Bruno Richard Hauptmann?
The Lindberghs were wealthy, but Charles may have been the most famous and beloved person in America at the time. Not like you.
Gary Winnick is Chairman and Chief Executive Officer of Pacific Capital Group, a diversified private investment firm founded in 1985. He is also Chairman and Founder of advanced concrete technology company iCrete, LLC.
Education: BA, C.W. Post campus of Long Island University, 1969
Personal: Gary Winnick was born in 1947 and grew up in Roslyn, New York.
"I want you to communicate to the lawyer or
to Mr. Winnick," or the Company Leadership, that Killercop is actively seeking to exercise his right to confront Gary, face to face, in 2010. And all the money in the world won't be able to protect him. Killercop will enforce, and protect, this right, at all costs.
Gary Winnick, the Global Crossing chairman, has
no such problems, yet. In California, he was renovating his
$94 million palatial estate. You can't see much from the ground, but
an aerial view offers the full majesty of a home with 15 bedrooms and
17 bathrooms is overlooking the Bel Air Country Club.
And if it was and there was a
lack of prosecution on this record I think we have made out our
burden. If discovery shows that Schmoe was Winnick for example,
I mean the decision, it would be political dynamite to prosecute
Winnick in this case.
In addition to the strategic problems of
having what that would do to this case. It's clear to me that a
decision to prosecute --"
PUBLIC DEFENDER BILL HARRIS: "So if this trial is going to be continued, one
of the things that I'll want to do is somehow withdraw that in a
manner that we can get Mr. Winnick again, if and when.
JUDGE MATZ: I can arrange that. He's not listed as a
witness for the government. There are 24 people.
MR. HARRIS: Is he on the government's list?
JUDGE MATZ: No. I'm telling you that he's not, not the
list I was just handed today. Now I want to know what happened
with respect to these stipulations.
JUDGE MATZ: There's one other thing, before you ask
your question, before I forget. There is a subpoena that
apparently has been served on Gary Winnick. I notice that Gary
Winnick is not identified on the government's witness list. And
I assume, correct me if I'm wrong, that the government has the
ability to communicate with Mr. Winnick or with his lawyer; is
that correct?
JUDGE MATZ: I want you to communicate to the lawyer or
to Mr. Winnick or to both, that although he doesn't have to respond to the subpoena on the date or under the terms that it
may have contained, he remains responsible to respond on
whatever date he is later notified.
In effect, what I'm saying is that the subpoena,
although it was issued and served through the auspices of Mr. Harris, it's like a court subpoena. I don't want anybody to
have to go through any protracted or new ground of efforts to
subpoena him anew. So the subpoena remains outstanding, although the trial
date has been continued. Please communicate that to Mr. Winnick
and his lawyer.
DUARTE: I will, Your Honor.
"Crawford required for testimonial statements,'under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,'” id., at 52,
AUGUST 27, 2003
THE COURT: You are declined. You set forth -- it's
not permitted, and you've made your motion, and it's been
granted with the qualifications that I already said. Mr. Nicolaysen no longer is your attorney. Before I get to the question of the earlier
transcript, did you want to be heard, Ms. Duarte?
Forget the fact that Gary's not listed as a
witness for the U.S. government, and that Greg is no longer attorney of record, or has any authority to speak...Deep breath!!
A criminal defendant's constitutional rights may be
violated when "witnesses are made unavailable through the
suggestion, procurement, or negligence of the government."
United States v. Hernandez-Gonzalez, 608 F.2d 1240, 1243
(9th Cir. 1979) (internal quotation marks and brackets omitted).
For instance, "[u]ndue prosecutorial interference in a
defense witness's decision to testify arises when the prosecution
intimidates or harasses the witness to discourage the witness
from testifying." Williams v. Woodford, 384 F.3d 567,
601 (9th Cir. 2004).
