Petition for Writ of Certiorari — Charles Chitat Ng, Petitioner v. California

*** CAPITAL CASE ***

No. _________

_______________________

In the Supreme Court of the United States

________________________________________________________

CHARLES CHITAT NG, Petitioner

vs.

THE STATE OF CALIFORNIA, Respondent

________________________________________________________

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF CALIFORNIA

________________________________________________________

PETITION FOR WRIT OF CERTIORARI

ERIC S. MULTHAUP

Counsel of Record for

Petitioner Ng

35 Miller Avenue, Suite 229

Mill Valley, CA 94941

415-381-9311

Fax 415-389-0865

Email: mullew@comcast.net

QUESTIONS PRESENTED

I.

WAS PETITIONER DEPRIVED OF DUE PROCESS AND

HIS RIGHT OF SELF REPRESENTATION UNDER THE

FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS BY

THE TRIAL COURT’S ERRONEOUS REVOCATION OF

HIS SELF REPRESENTATION WITHOUT

JUSTIFICATION WHERE THE RECORD SHOWED

PETITIONER’S DILIGENT PREPARATION FOR TRIAL

AS WELL AS HIS ASSURANCE TO THE COURT THAT

IF HE WAS NOT READY FOR TRIAL IN SIX MONTHS,

HE WOULD VOLUNTARILY ALLOW HIS ADVISORY

COUNSEL TO TAKE OVER.

II.

WAS PETITIONER DEPRIVED OF DUE PROCESS BY

THE TRIAL COURT’S INSISTENCE THAT HE WEAR A

STUN BELT THAT IMPAIRED HIS COGNITIVE

ABILITY TO PARTICIPATE IN THE TRIAL,

NOTWITHSTANDING THE LACK OF ANY RECORD OF

COURTROOM DISTURBANCE OR MISBEHAVIOR,

DEPRIVED HIM OF DUE PROCESS AND A FAIR TRIAL.

III.

WAS PETITIONER DEPRIVED OF DUE PROCESS, A

FAIR TRIAL, AND HIS RIGHT OF CONFRONTATION

BY THE ERRONEOUS ADMISSION OF THE

TESTIMONY OF DECEASED PROSECUTION WITNESS

MAURICE LABERGE GIVEN AT A CANADIAN

EXTRADITION HEARING AT WHICH THERE WAS NO

INCENTIVE TO CONDUCT CROSS-EXAMINATION IN A

MANNER COMPARABLE TO THE SIXTH AMENDMENT

RIGHT OF CONFRONTATION AT A CALIFORNIA

TRIAL.

LIST OF PARTIES

All parties appear in the caption of the case on the cover page.

RELATED CASES

There are no related cases.

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TABLE OF CONTENTS

PAGE NUMBER

OPINION BELOW ...........................................................................1

JURISDICTION ................................................................................1

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED .......................................................................................1

STATEMENT OF THE CASE ------------------------------------------------2

A.

The Circumstances of the Offense. -------------------------2

B.

The Proceedings Below. ----------------------------------------3

REASONS FOR GRANTING THE PETITION -------------------------4

INTRODUCTION AND OVERVIEW --------------------------------------4

ARGUMENT -----------------------------------------------------------------------4

I.

II.

APPELLANT WAS DEPRIVED OF DUE PROCESS---------- 4

AND HIS RIGHT OF SELF REPRESENTATION

UNDER THE FIFTH, SIXTH AND FOURTEENTH

AMENDMENTS BY THE TRIAL COURT’S

ERRONEOUS REVOCATION OF HIS SELF

REPRESENTATION WITHOUT JUSTIFICATION.

A.

Summary of Facts. -------------------------------------------- 4

B.

The Trial Court’s Erroneous Revocation of --------------- 5

Self-Representation.

APPELLANT WAS DEPRIVED OF DUE -----------------------7

PROCESS AND A FAIR TRIAL BY THE TRIAL

COURT’S ERRONEOUS RULINGS THAT

SUBJECTED APPELLANT TO ONEROUS

AND UNJUSTIFIED PHYSICAL

CONSTRAINTS, INCLUDING A CAGE AND

A STUN BELT.

A.

Summary of Facts. ----------------------------------------------7

B.

The Court’s Erroneous Insistence on ----------------------9

Petitioner Wearing the Stun Belt.

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PAGE NUMBER

III.

APPELLANT WAS DEPRIVED OF DUE ---------------------- 11

PROCESS, A FAIR TRIAL, AND HIS RIGHT

OF CONFRONTATION BY THE ERRONEOUS

ADMISSION OF THE TESTIMONY OF

DECEASED PROSECUTION WITNESS

MAURICE LABERGE GIVEN AT A

CANADIAN EXTRADITION HEARING.

A.

Summary of Facts.--------------------------------------------- 11

B.

The Court’s Constitutional Error in---------------------- 12

Rejecting Petitioner’s Sixth Amendment

Claim.

CONCLUSION

--------------------------------------------------------------- 14

INDEX TO APPENDIX

APPENDIX A – Opinion of the Supreme Court of California…..

iii

TABLE OF AUTHORITIES CITED

CASES

PAGE NUMBER

California v. Green ------------------------------------------------------------- 13

399 U.S. 149 (1970)

Crawford v. Washington------------------------------------------------- 12, 13

541 U.S. 36 (2004)

Deck v. Missouri ---------------------------------------------------------------- 10

544 U.S. 622 (2005)

Faretta v. California ---------------------------------------------------------- 6

422 U.S. 806 (1975)

Gonzalez v. Pliler --------------------------------------------------------------- 11

341 F.3d 897 (9th Cir. 2003)

Illinois v. Allen ------------------------------------------------------------------ 11

397 U.S. 337 (1970)

Stephenson v. Neal ------------------------------------------------------------- 11

865 F.3d 956 (7th Cir. 2017)

United States v. Durham ---------------------------------------------------- 11

287 F.3d 1297 (11th Cir. 2002)

STATUTES

California Evidence Code Section 1291 (a) (2) ------------------------- 12

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IN THE SUPREME COURT OF THE UNITED STATES

Petitioner Charles Ng respectfully petitions for a writ of certiorari

issue to review the judgment of the Supreme Court of California affirming

his convictions and sentence of death.

OPINION BELOW

The opinion below is People v. Charles Ng, 13 Cal.5th 448 (2022);

2022 Cal.Lexis 4400, attached as Appendix A.

JURISDICTION

The Supreme Court of California issued its decision on July 28,

2002. The jurisdiction of this Court is invoked under 28 U.S.C. §1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Petitioner’s rights were violated under Sixth, and Fourteenth

Amendments to the United States Constitution. The Fourteenth

Amendment provides that no state shall “deny to any person within its

jurisdiction the equal protection of the laws.” The Sixth Amendment to

the United States Constitution provides:

In all criminal prosecutions the accused shall enjoy the right

to a speedy and public trial, by an impartial jury of the state

and district wherein the crime may have been committed,

which district shall have been previously ascertained by law,

and to be informed of the nature and cause of accusation; to be

confronted with the witnesses against him; to have

compulsory process for obtaining witnesses in his favor, and to

have the assistance of counsel for his defense.

STATEMENT OF THE CASE

A.

The Circumstances of the Offense.

Regarding the circumstances of the offense, the following summary

is taken from the Opinion of the California Supreme Court.

1

Between July 1984 and April 1985, 12 people went missing from

Northern California. In July 1984, Harvey Dubs, his wife Deborah, and

their 16-month-old son Sean disappeared from their San Francisco

apartment. In November 1984, Paul Cosner disappeared from San

Francisco; he tried to sell his car on his way home from work and was

never seen again. In January 1985, Clifford Peranteau failed to show up

for work in San Francisco and was never seen again. One month later, in

February, Jeffrey Gerald disappeared from San Francisco after telling his

roommate he was going to do a “side job” of helping someone move. In

April 1985, Kathleen Allen disappeared from Milpitas after getting into a

car with a stranger who was supposed to take her to see her boyfriend,

Michael Carroll, in Lake Tahoe. Carroll also disappeared. Later that

month, Lonnie Bond, Sr. (Bond), his fiancée Brenda O’Connor, and their

infant son Lonnie Bond, Jr. (Lonnie), disappeared from the house they

rented in Wilseyville. Their friend Scott Stapley, who often visited, also

disappeared.

These disappearances remained unsolved and seemingly unrelated

until defendant, along with accomplice Leonard Lake, attempted to

shoplift a vise from a lumber store in June 1985. While Lake spoke with

police officers, defendant walked away from the scene. After officers

searched his vehicle, Lake was arrested for possession of a firearm and

subsequently committed suicide while in police custody. Officers then

began searching for defendant. This search led officers to Lake’s property

in Wilseyville, where they uncovered evidence that connected defendant

and Lake to the missing persons.

Shortly after Lake’s arrest, defendant fled to Canada. He was arrested in

a shoplifting incident a few weeks later.

2

The defense presented evidence of Lake’s involvement in several

uncharged murders, including his brother, Donald, and his best friend,

Charles Gunnar. Several witnesses, including defendant, testified that

Lake frequently went by the name Charles Gunnar.

The defense presented evidence of Lake’s controlling and abusive

relationships with women. Witnesses also testified about Lake’s interest

in photographing women nude and in sexually provocative positions,

including girls as young as 10 years old. Some women testified about their

personal experiences being photographed by Lake, including one who was

coerced into being photographed and was subsequently raped by Lake

when she was 16 years old.

Lake carried cyanide in his pocket and told several witnesses that

he would take it if he were ever captured. Lake also told witnesses about

wanting to build a bunker to use in a nuclear war. Lake had fantasies of

keeping women hostage in the bunker.

B.

The Proceedings Below.

Petitioner was ultimately extradited from Canada in 1991, at which

time proceedings in the present case began. At the time of his return,

petitioner was represented by the San Francisco Public Defender on one of

the charges. However, most of the charges had been filed in Calaveras

County where the body remains had been found on Lake’s property. The

Calaveras County Justice Court refused petitioner’s request that the San

Francisco Public Defender be appointed on all charges, and instead

appointed two local lawyers. VII CT CAL J 2252. After extensive

litigation regarding representation issues, vicinage issues, and venue

issues, the case was transferred over petitioner’s objection to Orange

County, XVI CT CAL S 5704, and the Orange County Public Defender was

3

appointed. I CT 143-44. Petitioner and the Public Defender had

significant differences of opinion as to how the case should be defended,

and eventually petitioner was granted self-representation. 19 CT 6713.

Petitioner worked diligently to prepare for trial, but that was not fast

enough for the Orange County Court, and his self-representation was

revoked. 22 CT 7509. The Orange County Public Defender represented

petitioner at trial, which began in September 1998. The jury returned

guilty verdicts on February 24, 1999. 36 CT 12225-36 The penalty phase

began on March 8, 1999; the jury returned a sentence of death on April 30,

1999. 40 CT 13235. The sentence was affirmed by the Supreme Court of

California on July 28, 2022.

REASONS FOR GRANTING THE PETITION

INTRODUCTION AND OVERVIEW

Many of the rulings of the trial court and of the California Supreme

Court violated petitioner’s federal constitutional rights, as guaranteed by

the Fifth, Sixth, and Fourteenth Amendments to the Constitution. A grant

of certiorari is necessary to address the important constitutional questions

presented and to bring uniformity to the adjudication of these issues

across the country.

ARGUMENT

I.

APPELLANT WAS DEPRIVED OF DUE PROCESS AND HIS RIGHT

OF SELF REPRESENTATION UNDER THE FIFTH, SIXTH AND

FOURTEENTH AMENDMENTS BY THE TRIAL COURT’S

ERRONEOUS REVOCATION OF HIS SELF REPRESENTATION

WITHOUT JUSTIFICATION.

A.

Summary of Facts.

Following the grant of self-representation on May 15, 1998, appellant

actively and diligently pursued his self-representation during the next three

months, and effectuated numerous steps toward trial preparation. The

4

transcripts of the applications for investigation and expert fees during the period

of self-representation provide a clear demonstration that appellant was engaged

in down-to-earth, nuts-and-bolts trial preparation, not in any fanciful or

irrelevant directions, nor in any dilatory efforts, nor in any other misuse of selfrepresentation.

B.

The Trial Court’s Erroneous Revocation of Self-Representation.

Petitioner calendared a hearing on a motion to continue the trial for

August 21, 1998. The trial court questioned petitioner as to how he had selected

the period of six months as the length of time requested. Petitioner responded

that it was based on the estimate of his advisory counsel from the Public

Defender’s Office. The Court then unilaterally broached the subject of revoking

petitioner’s self-representation – “You know, I want to take a little break, and I

want you to think about me revoking your Faretta status because I think that is

about where we are at”.

After the break, petitioner asked the court to permit his advisory counsel

to argue and revocation, and counsel offered a robust attestation to petitioner’s

diligence since the grant of self-representation three months earlier:

The record is from security personnel at the jail is that Mr. Ng has

been working hard on his case sun up to sunset since the court

appointed him, and the court’s appointment was made because as

the court explained it felt as a matter of law it had to grant that

request. Not that it was discretionary. And it did not condition that

grant on Mr. Ng’s saying he would be ready.

As the court read from the previous transcripts, he said would he

[sic] try to be ready. And it seems to me from the effort he has put

in and not just the fact that he is working morning to night on this

according to the jailers, but for the motions that have been filed,

albeit not written by Mr. Ng but approved by Mr. Ng, he is making

progress. 5 RT 1061.

5

The trial court expressed dubiousness as to petitioner’s ability to prepare

for trial in six months, and petitioner offered the court an unqualified assurance

that the case would go to trial in six months:

The defendant: The suggestion is to have six months as the target

date for my pro per trial date and if it is—if I couldn’t be ready by

then, that counsel would take over.

The Court: Is that your request? Continue it for six months. If you

are not ready, then counsel will take over; is that what you are

saying?

The defendant: That is my understanding, to eliminate any concern

you may have about delay. That will, you know, ensure that I try to

be – if I couldn't be ready by then, my status will be revoked. 5 RT

1062.

Notwithstanding advisory counsel’s testimonial as to petitioner’s

diligence in preparation, and notwithstanding petitioner’s assurance that he

would be ready to try the case prop per in six months or voluntarily give up his

self-representation, the court revoked it on the spot, commenting that petitioner

was “just trying to delay and that is not allowed.” 5 RT 1068.

Faretta v. California, 422 U.S. 806 (1975) noted that self-representation

could be terminated in a manner consistent with the Sixth Amendment if the

defendant was deliberately and repeatedly obstructionist in Court:

We are told that many criminal defendants representing

themselves may use the courtroom for deliberate disruption of

their trials. But the right of self-representation has been

recognized from our beginnings by federal law and by most of

the States, and no such result has thereby occurred. Moreover,

the trial judge may terminate self-representation by a

defendant who deliberately engages in serious and

obstructionist misconduct. See Illinois v. Allen, 397 U.S. 337.

422 U.S. at 834, fn. 46.

Nothing in the record remotely reaches the threshold for revocation

enunciated in Faretta. The court’s unilateral revocation of self-

6

representation without constitutionally adequate cause warrants a grant

of certiorari so that this Court can provide guidance regarding the

permissible grounds for revocation of self-representation.

II.

APPELLANT WAS DEPRIVED OF DUE PROCESS AND A FAIR

TRIAL BY THE TRIAL COURT’S ERRONEOUS RULINGS THAT

SUBJECTED APPELLANT TO ONEROUS AND UNJUSTIFIED

PHYSICAL CONSTRAINTS, INCLUDING A CAGE AND A STUN

BELT.

A.

Summary of Facts.

At appellant’s first appearance in Orange County Superior Court on

September 30, 1994, the Orange County Sheriff unilaterally required

appellant to wear a stun belt along with other physical restraints. 1 RT 9.

Prior to arriving in Orange County, appellant had been held in

administrative segregation in Folsom, and ferried to Calaveras County

Superior Court for court proceedings, where armed guards had been

stationed in the courtroom but appellant had not worn a stun belt. 1 RT

15. At the September 30 hearing, appellant’s counsel expressed concern

that “we have a situation of an escalating security here.” 1 RT 11. The

district attorney, however, argued that appellant was “now restrained a

lot less securely than in Calaveras County.” 1 RT 15. Additionally, the

prosecution stated that there had been “at least two prior findings by

courts in this case that there is a manifest need to restrain the defendant.”

1 RT 9.

In response to appellant’s objection to the use of the belt, the court

replied that it did not “want to second guess the sheriff and everything at

this particular stage” and would therefore allow the belt to remain. 1 RT

12. The court ordered appellant’s leg irons and leg cuff to be removed,

however, and noted that the use of the belt was “probably overkill.” 1 RT

11-12. At a subsequent hearing, held on October 21, 1994, appellant was

7

not forced to wear the stun belt, although he was shackled at his arms,

and legs.

In April 1997, the Public Defender filed a motion to have the

shackles removed during court hearings. 7 CT 2294. At the hearing on

May 9, 1997, 1 RT 43, the court reconsidered whether to require appellant

to wear a stun belt. Appellant’s attorneys argued that the evidence

supporting the use of restraints was “incredibly remote,” and in many

cases relied on “double and triple hearsay.” 2 RT 279. At the same time,

appellant’s attorneys emphasized that appellant “has been in court for 12

years in the courtroom and never had one incident.” 2 RT 280. Appellant’s

attorneys also submitted a declaration provided by the lawyer who

represented appellant in Canada and had experienced no outbursts or

violent incidents during the six years he had spent with appellant. 2 RT

281. Additionally, they emphasized that the use of the stun belt was

likely to create a “very serious” impediment to appellant’s concentration

because it would make appellant constantly aware that “some law

enforcement officer had the ability to zap me.” 2 RT 283-284.

The court concluded that there was “a manifest need” for appellant

to wear the stun belt. 2 RT 291. The basis for this ruling, the court said,

was that appellant “has been found with contraband relevant to a possible

escape.” 2 RT 291. The court did not explain what contraband it was

referring to, but presumably was alluding to the metal clasp of an

envelope that had been found six years earlier in the wall of a visiting

booth used by many prisoners. 2 RT 289-290. Additionally, the court

added, “all of the problems with [other types of] restraints are addressed

by the use of that belt.” 2 RT 291. The use of the belt, the court

explained, would mean that appellant “won’t have people looking at him

8

like he is in chains.” The court told appellant that “I think you prevailed

at the hearing” on the use of restraints. 2 RT 359. After all, the court

noted, the belt “is a painless thing and it is not observant to anybody. So

you are free at counsel table, and you have full movement and it is not

uncomfortable like the chains.” 2 RT 359. The court did not address the

evidence of adverse psychological impact from the stun belt.

On October 14, 1998, shortly before trial, the Orange County Public

Defender filed a Motion to Remove Stun Belt, accompanied by numerous

exhibits. 31 CT 10213. A hearing was held on October 23, 1998, and

counsel for appellant presented, inter alia, expert testimony from Dr.

Stuart Grassian. Dr. Grassian explained that because of appellant’s

psychological background, the use of a stun belt was likely to create a

“very, very, very substantial cognitive impairment in [appellant’s] ability

to participate meaningfully in trial.” 12 RT 2895. Dr. Grassian explained

that appellant was an individual who exhibited a tendency toward

“obsessional thinking,” meaning that “once he gets a thought in his mind,

it become extremely difficult for him to get it out of his mind.” 12 RT 2893.

The stun belt would likely have some adverse impact on any detainee, but

the adverse impact on appellant would be significantly worse, to the point

that “he cannot pay attention adequately.” 12 RT 2893. Instead of having

an awareness of the trial, appellant would be like to develop “a kind of

tunnel vision,” fixating on the threat created by the belt. 12 RT 2893.

The court denied the motion by minute order dated October

26, 1998. 33 CT 11118-11119

B.

The Court’s Erroneous Insistence on Petitioner Wearing the

Stun Belt.

This Court has not directly addressed the constitutional limitations

on forcing a stun belt on a defendant during the course of his trial. The

9

stun belt device inflicts a great psychological distress on a defendant far

beyond the distress that accompanies physical shackles. This Court

decision regarding the limitations on the use of shackles in Deck v.

Missouri, 544 U.S. 622 (2005) provides a reference point for promulgating

constitutional standards for the use of stun belts.

Deck noted that “[j]udicial hostility to shackling may once primarily

have reflected concern for the suffering – the “tortures” and “torments” –

that "very painful" chains could cause.” However, “[m]ore recently, this

Court's opinions have not stressed the need to prevent physical suffering

(for not all modern physical restraints are painful),” but “[i]nstead they

have emphasized the importance of giving effect to three fundamental

legal principles.” The principles involved were (1) the presumption of

innocence; (2) avoidance of impairments of the defendant’s ability to

communicate in the courtroom; and (3) avoidance of affronts to the dignity

of the court – “the use of shackles at trial “affronts” the “dignity and

decorum of judicial proceedings that the judge is seeking to uphold.” 544

U.S. at 632.

Each of these fundamental principles militates against the use of

stun belts except in the most egregious of circumstances. The stun belt

certainly brands the defendant as a dangerous and uncontrollable beast

who need to be handled like a vicious animal even before the first witness

has been called. The imminent threat of getting zapped with 50,000 volts

of electricity is certain to inhibit the defendant’s willingness to speak out

for himself in the course of self-representation. Finally, the use of a stun

belt is an affront to the dignity of the court in that it constitutes a 20th

century version of the repressive shackles that were eventually outlawed

in post-medieval England. See Deck, supra, 544 U.S. at 626.

10

The federal appellate courts that have addressed the constitutional

limits on the use of stun belts have applied standards drawn from inter

alia Illinois v. Allen, 397 U.S. 337 (1970), and have reached conclusions

incompatible with that of the California Supreme Court in this case.

Gonzalez v. Pliler, 341 F.3d 897 (9th Cir. 2003) found constitutional error

in the imposition of a stun belt on a California defendant where the record

contained no evidence of any serious disturbance by the defendant. In

fact, the Ninth Circuit’s description of defendant Gonzalez applies equally

to petitioner – “Gonzalez did not create any disturbance at trial. He did

not try to escape. He made no threats. Despite this, the trial court did not

even hold an evidentiary hearing before ordering the use of the belt. This

procedure did not satisfy the safeguards required by the Constitution.” 341

U.S. at 902. Accord: Stephenson v. Neal, 865 F.3d 956 (7th Cir. 2017);

United States v. Durham, 287 F.3d 1297 (11th Cir. 2002).

For these reasons, petitioner request that this Court grant certiorari

and set the constitutional standard for determining whether a stun belt is

a permissible restraint at trial.

III.

APPELLANT WAS DEPRIVED OF DUE PROCESS, A FAIR

TRIAL, AND HIS RIGHT OF CONFRONTATION BY THE

ERRONEOUS ADMISSION OF THE TESTIMONY OF DECEASED

PROSECUTION WITNESS MAURICE LABERGE GIVEN AT A

CANADIAN EXTRADITION HEARING.

A.

Summary of Facts.

On September 24, 1998, the Public Defender filed a Motion to

exclude the prior testimony of Canadian jailhouse informant, Maurice

LaBerge, which had been given in a Canadian extradition hearing in 1988.

26 CT 8668. The Public Defender noted that LaBerge had been named as a

prosecution witness, but that LaBerge had been killed in an automobile

accident in Alberta, Canada in May 1998. Notwithstanding his death, the

11

prosecution had announced an intent to introduce portions of his

testimony from the Ng extradition hearing held ten years earlier in

November 1988 in Canada. 26 CT 8670. The motion argued for exclusion

on the grounds that 1) the extradition testimony was not admissible under

California Evidence Code Section 1291 (a) (2); 2) that LaBerge was so

inherently incredible as a witness that the admission of his prior

testimony would undermine the truth seeking function of the trial process

and deprive appellant of due process; and 3) appellant’s federal

constitutional right to confront and cross-examine LaBerge would be

violated by the admission of the prior testimony. 26 CT 8691.

Counsel argued that since the Canadian government attorney in the

extradition proceedings had only to establish a prima facie of appellant’s

involvement in the charges to sustain the government’s burden of proof,

defense counsel had little incentive to significantly challenge the

credibility of the government witnesses, including LaBerge 7 RT 1614.

In addition, defense counsel pointed out that the strategy of appellant’s

Canadian attorney in the extradition proceedings was primarily to resist

extradition on the grounds that appellant would certainly be prosecuted

for and likely receive a death penalty in California, which was a sufficient

reason for Canada to refuse extradition regardless of the strength of the

evidence of guilt. There was no incentive to conduct cross-examination at

the Canadian extradition hearing in a manner that comports with the

Sixth Amendment right of confrontation.

B.

The Court’s Constitutional Error in Rejecting Petitioner’s

Sixth Amendment Claim.

Crawford v. Washington, 541 U.S. 36 (2004) held that actual

confrontation on cross-examination is guaranteed by the Sixth

Amendment as a pre-condition for the admission of testimonial

12

statements. “That incriminating statements are given in a testimonial

setting is not an antidote to the confrontation problem, but rather the

trigger that makes Clause’s demand most urgent.” Id. at 66.

Thus, the fact that LaBerge incriminated appellant in the

testimonial setting of a Canadian extradition proceeding increases the

urgency of the cross-examination requirement. Crawford held that the

Sixth Amendment Confrontation Clause barred “admission of testimonial

statements of a witness who did not appear at trial unless he was

unavailable to testify, and the defendant had a prior opportunity for crossexamination.” Id 53-54. The “opportunity” contemplated by Crawford was

an opportunity that carried a comparable incentive and interest to cross

examine, which did not occur here for the reasons set forth in part two

above. Cal v. Green, 399 U.S. 149 (1970) affirmed the admission of

preliminary hearing testimony at a subsequent jury trial on the same

charges, and this type of evidence was approved in Crawford with the

following proviso – “prior trial or preliminary hearing testimony is

admissible only if the defendant had an adequate opportunity to crossexamine.” 541 U.S. at 58. The focus of petitioner’s attorney at the

Canadian extradition hearing was to argue that if petitioner was returned

to California and convicted of one or more of the murder charges, the

prosecution might seek the death penalty. Petitioner’s attorney attempted

to convince the extradition judges that assuming that petitioner would be

found guilty in California, the accompanying possibility of the death

penalty was a sufficient ground to deny extradition. Counsel made no

effort to defend against the merits of the charges because of the distinct

nature of the issues at the extradition, such that the nominal crossexamination at the extradition hearing is not the constitutional equivalent

13

of cross-examination at a preliminary hearing. For this reason, petitioner

urges the Court to grant certiorari and address the issue of whether

testimony given at an extradition in a foreign country constitutes an

“adequate opportunity” for cross-examination as to satisfy the Sixth

Amendment right of confrontation.

CONCLUSION

Wherefore, for the foregoing reasons, petitioner requests that this

Court grant certiorari, and after full consideration, vacate the judgment of

the Supreme Court of California.

Dated: October 23, 2022

Respectfully submitted,

eric s. multhaup

_______________________

ERIC S. MULTHAUP

14