1 Stephen A.

Munkelt, SBN 80449

MUNKELT LAW OFFICE
2 356 Providence Mine Road, Suite E
Nevada City, CA 95959
3 Tel: (530) 265-8508
Fax: (530) 265-0881
4 stephen@munkeltlaw.com
5 Attorneys for Joel Franks
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF NEVADA
10 People of the State of California, Case No. F15-0101
11 Plaintiff,
v. NOTICE AND MOTION TO DISMISS FOR
12 VIOLATION OF DUE PROCESS
JOEL FRANKS, (OUTRAGEOUS GOVERNMENT
13 Defendant. CONDUCT)
DATE: 3/27/2017
14 TIME: 9:00
DEPT: 4
15
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17 TO: Plaintiff above named, and their attorney Clifford Newell, District Attorney:

18 PLEASE TAKE NOTICE that at the time and place stated above, or as soon thereafter as the

19 matter may be heard, Defendant will move the court for an order dismissing some or all of the charges,

20 or other appropriate sanctions, for employing tactics which violate a sense of justice. This motion is

21 made in the interest of justice, and to enforce the restraints on lawless behavior by officers of the law.

22 The motion will be based on this Notice and Motion, the attached Points and Authorities, the

23 transcripts of the preliminary hearing, the records in the court file, and any other evidence and argument

24 properly before the court at the time of hearing.

25
26 Respectfully Submitted,

27
28 Stephen A. Munkelt

Notice and Motion to Dismiss

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 1 OUTLINE OF DEFENSE THEORIES
2 Defendant Joel Franks was arrested three times, in April and September of 2015 and March of
3 2016. Each arrest was preceded by an application for a search warrant prepared by Sergeant Justin
4 Martin or other members of his Narcotic Task Force (NTF) squad. Each of the affidavits relied primarily
5 on information from confidential informants, and each had the facts establishing probable cause sealed.
6 Defendant believes that he was targeted for arrest and prosecution by the Nevada County Sheriff
7 and the NTF. In order to secure his arrest and conviction agents of law enforcement were employed to
8 monitor defendants actions, and to promote or create situations where he would be in possession of
9 controlled substances, specifically methamphetamine. These agents were then used to establish precise
10 times when defendant would be in possession, and the searches conducted when the information was
11 provided to law enforcement.
12 In order to carry out this specific scheme officers have withheld information from the court about
13 significant actions of their agents in setting up Mr. Franks. The omissions or misrepresentations
14 contributed to the issuance of the search warrants, the sealing of informant information, and have
15 prevented Mr. Franks from establishing that there are one or more confidential informants involved in
16 each arrest who are in fact material witnesses. Since the identity of a material witness is subject to
17 disclosure, the officers have so far succeeded in depriving defendant of relevant evidence which could be
18 used in his defense.
19 During the same time period, 2015 - 2016, Jason Mackey has been one of the officers assigned to
20 NTF. Through persistent work of several criminal defense attorneys it has come to light that there are
21 specific questions about the veracity and reliability of Deputy Mackey, in particular. The currently
22 available public information includes reports of dishonesty and misconduct of Mackey by other officers.
23 This information was originally obtained through an investigation conducted by then-Assistant District
24 Attorney Glenn Jennings, with District Attorney Investigator Randall Billingsley in June 2015. That
25 investigation was cut short when District Attorney Newell informed Jennings the Sheriffs Department
26 would take it over.
27 Although information impeaching the honesty of an officer is potentially favorable to the defense
28 in cases where the officer plays a significant role, this investigation was not initially disclosed by the

Notice and Motion to Dismiss

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 1 District Attorney in Mackeys cases. A memorandum from District Attorney Newell to Sheriff Royal
2 and Deputy Mackey on October 28, 2015, suggests that the failure to disclose was based on a
3 misunderstanding about the scope of the prosecution duty to disclose potentially favorable evidence to
4 the defense.
5 At about the same time as the memorandum ADA Jennings was told by District Attorney Newell
6 that the Sheriff was not pleased with his work. He was given the choice to resign or be terminated. When
7 Jennings agreed to resign he was given less than an hour to remove himself and his belongings from the
8 office.
9 These circumstances suggest that the Sheriffs Department is protecting officers from the
10 consequences of misconduct, and withholding evidence of dishonesty and other misconduct from the
11 District Attorney. It also appears that the District Attorneys office is acting at the direction of the Sheriff
12 in important respects, rather than advising law enforcement on the legal standards and seeking to ensure
13 those standards are followed. Officers who reported misconduct by Mackey have been subjected to
14 adverse employment consequences, and ADA Jennings was effectively fired for looking into concerns
15 about one deputy.
16 These circumstances also suggest that there is no effective supervision of the NTF which would
17 limit or correct the misuse of informants, the use of false information in warrant affidavits, and/or the
18 withholding of material information from the court, the District Attorney, and the defense. It is one thing
19 if there were missteps in the Joel Franks cases, and quite another if those missteps are part of a pattern or
20 practice allowing dishonesty and misconduct in the course of arresting and prosecuting persons
21 generally.
22
23 ISSUES AND ARGUMENT
24 I.
CONVICTIONS WHICH ARE BASED UPON CONDUCT WHICH
25 OFFEND THE SENSE OF JUSTICE VIOLATE DUE PROCESS.
26 It has been recognized in both Federal and State decisions that when the conduct of government
27 authorities is so outrageous as to interfere with an accuseds right of due process of law, further
28 proceedings against the accused are rendered improper. (Rochin v. California (1952) 342 US 165, 172,

Notice and Motion to Dismiss

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 1 96 L.Ed. 183, 190, 72 S.Ct. 205; United States v. Bogart (9th Cir. 1985) 783 Fed.2d 1428, 1423; People
2 v. McIntire (1979) 23 Cal.3d 742, 748, fn. 1; Boulas v. Superior Court (1986) 187 Cal.App.3d 356, 364.)
3 Dismissal of all charges has been recognized, on occasion, as the appropriate remedy to discourage
4 flagrant and shocking misconduct by governmental officials. (See Barber v. Municipal Court (1979) 24
5 Cal.3d 742, 759-760; People v. Moore (1976) 57 Cal.App.3d 437, 442.)
6 The cases where a violation has been found serious enough to dismiss charges seem to fall into
7 three categories: 1) police violated the defendant's bodily integrity (Rochin v. California, supra, 342
8 U.S. 165 [police forcibly pumped suspect's stomach to obtain evidence]; 2) police or their agents
9 entrapped the defendant into committing a crime (Greene v. United States (9th Cir. 1971) 454 F.2d 783
10 [government agents engineered and directed the defendant's alleged criminal activity from start to
11 finish]; or 3) intentionally interfered with the defendant's right to counsel (People v. Velasco-Palacios
12 (2015) 235 Cal.App.4th 439 [prosecutor provided defense counsel with false evidence to gain a tactical
13 advantage in plea negotiations]) This case falls most closely into the second category, using informants
14 or agents to promote or create the criminal activity.
15 In People v. Wesley (1990) 224 Cal. App. 3d 1130, the Court of Appeal identified four factors a
16 court should consider in determining whether due process principles had been violated by outrageous
17 police conduct, citing People v. Isaacson (1978) 44 N.Y.2d 511 [406 N.Y.S.2d 714, 378 N.E.2d 78,
18 83].).
19 They are: (1) whether the police manufactured a crime that otherwise would not likely have occurred, or
20 merely involved themselves in an ongoing criminal activity; (2) whether the police themselves engaged
21 in criminal or improper conduct repugnant to a sense of justice; (3) whether the defendants reluctance to
22 commit the crime is overcome by appeals to humanitarian instincts such as sympathy or past friendship,
23 by temptation of exorbitant gain, or by persistent solicitation in the face of unwillingness; and (4)
24 whether the record reveals simply a desire to obtain a conviction with no reading that the police motive
25 is to prevent further crime or protect the populace. ( Id. at p. 1144.) These factors, the Wesley court said,
26 are only illustrative and no one is, in itself, determinative. Each factor should be viewed in context with
27 all pertinent aspects of the case and proper law enforcement objectives. (Ibid.)
28 ///

Notice and Motion to Dismiss

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 1 II.
WHERE LAW ENFORCEMENT LOSES SIGHT OF THE RULE
2 OF LAW AND BRINGS UNJUST CHARGES, THE COURT HAS A
DUTY TO RESTRAIN AND REFORM ILLEGAL CONDUCT.
3
4 At the beginning of the twentieth century municipal police and career law enforcement positions
5 were almost nonexistent. Today, still early in the twenty-first century, There is hardly a state, county or
6 town which does not have career law enforcement personnel on duty around the clock. Over the
7 intervening years we have loaded more and more tasks, standards and laws onto the police, with the
8 expectation they would keep up and perform ably and lawfully.
9 Regrettably, we are occasionally reminded that police work offers temptations to which fallible
10 humans sometimes succumb. There was the Ramparts Division in L.A. where false testimony, planted
11 evidence, perjured affidavits and other corrupt tools were used to get bad guys off the streets. The
12 conspiracy persisted for years before finally coming to light. Or The Riders in Oakland, a smaller but no
13 less corrupt, violent and dishonest group finally outed and brought to justice. Or the more recent reports
14 of Bay Area officers engaging in sexual conduct with prostitutes or minors. Or the FBI investigation into
15 the L.A. County jail where former Sheriff Baca was tried last December after more than twenty officers
16 had been convicted of brutality, and outrageous efforts to interfere with the civil rights investigation.
17 In sum, we ask a lot of our officers and they rise to the challenge a great deal of the time. But
18 when an officer or a unit or a division strays it may be years, if ever, before it can be brought to light.
19 Confidentiality of investigations and personnel records puts a significant hurdle in the path of
20 investigators. Fear of retaliation by supervisors discourages disclosures.
21 Defendant believes that where there is the appearance of lapses in law enforcement, with credible
22 evidence raising a reasonable suspicion, it is the duty of the court to allow development of the evidence
23 so that an informed decision can be made in the individual case. An example of the propriety and
24 potential value of this approach to the issues raised here can be found in the recent decision of People v.
25 Dekraai (2016) 5 Cal. App. 5th 1110. On this appeal from the trial courts disqualification of the Orange
26 County District Attorneys office under Penal Code 1424 the court gives us some idea of the extensive
27 hearings conducted to explore the conduct of officers, District Attorneys and inmates. And it all began
28 with a motion to dismiss for due process violations, and recuse the D.A.

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 1 CONCLUSION
2 Defendant will offer testimony at the hearing which he believes will show that at least some
3 members of the Sheriffs Department engage in dishonesty and other misconduct, while the
4 administration looks the other way, and discourages investigation or oversite by the District Attorney.
5 Defendant further believes the evidence will show that in this environment he was set up for arrest by
6 manipulation of informants and destruction of evidence. If these points are proven, the integrity of the
7 court requires that charges be dismissed or that there be other sanction imposed.
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9 Respectfully Submitted,
10 March 14, 2017
11 Stephen A. Munkelt
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Notice and Motion to Dismiss

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