MOTION TO SUPPRESS

Defendant.

_______________________________________

Defendant, Eric Ashley moves to suppress the statement made by him on January 9, 1997 as well as the fruits of such statement (Wong Sun) which includes but is not limited to the items set forth in the paragraph below titled "Items to be Suppressed". This motion is made on the grounds that defendant’s rights under Miranda and Edwards were violated, that the statement was obtained in violation of the Fifth Amendment and Sixth Amendment and was coerced. Therefore, pursuant to Wong Sun et al., defendant seeks to bar any use of such statement and to suppress the fruits of such statement.

1. The Interview and statements of January 9, 1997. (Exhibit 1)

2. The taped telephone calls of January 11, 1997 which refer to or arise out of the January 9, 1997 interview and statements and all other such calls (perhaps 20 in number). (Exhibit 2)

Note: There are several hundred pages of transcripts. We cite some portions in this brief to show how they are related. Exhibit 1 is the entire set of calls. An index to the relevant sections is attached.

3. All items and statements obtained from the Search Warrant of May 7, 1997 (Judge Berger) which relied in part upon the above two items. [The returns from the warrant service indicate that the following items were recovered.] (Exhibit 3)

A. Cell of Eric Ashley

I. Letters to Eric Ashley from Minnie Ashley, (Lakeisha) Keisha Daniels, Denise Ashley

ii. Indicia for Eric Ashley

B. 43^rd Street, Richmond, California

I. Numerous letters addressed to Minnie Ashley from Eric Ashley

ii. Telephone bills for 510-234-8881

C. West Nevin Avenue, Richmond, California

I. Letter addressed to Aaron Ashley from Eric Ashley

ii. Indicia of Aaron Ashley

This motion is based upon the documents and filings herewith, the court file in this case and upon such other and further evidence as may be presented in support of this motion.

Defendant seeks an evidentiary hearing on this motion unless the papers are deemed sufficient for the motion to be granted.

Dated: April 17, 2003

_________________________________________

James Giller

Dated: April 17, 2003

_________________________________________

Daniel Horowitz

As the United States Supreme Court made clear in Dickerson v. U.S., 530 U.S. 428, 120 S.Ct. 2326, (U.S.Va., Jun 26, 2000), Miranda v. Arizona, 384 U.S. 436, (U.S.Ariz., Jun 13, 1966) has a constitutional basis. In Edwards v. Arizona, 451 U.S. 477, (U.S.Ariz., May 18, 1981) the United States Supreme Court focused on Miranda's instruction that when the accused invokes his right to counsel, "the interrogation must cease until an attorney is present," 384 U.S., at 474, agreeing with Edwards' contention that he had not waived his right "to have counsel present during custodial interrogation." 451 U.S., at 482.

These basic rules were repeated violated in the present case and in other cases by Detectives Harrison and Creekmore. The statement of Eric Ashley at Calipatria prison is a particularly egregious example of repeated constitutional violations.

On January 9, 1997 Detectives Creekmore and Harrison went to the California State Prison in Calipatria, California and interviewed Eric Ashley. The detectives commenced questioning without a Miranda admonition, gave an admonition (but received no express waiver) after Ashley said he did not want to talk and ignored 15 requests for counsel. In addition, Ashley had previously invoked his right to counsel when originally arrested on this charge and no break in custody existed which might (at least as to Miranda but not Edwards¹) have allowed a new attempt to question.

Eric Ashley was incarcerated in the prison after entering a no contest plea to a violation of Penal Code § 12021(a)(1) (felon in possession of a firearm) arising out of the search of his home on November 8, 1995. (Exhibit 6, Change of Plea Transcript)

The arrest for the violation of Penal Code § 12021(a)(1) was an unexpected consequence of the investigation of the Henderson homicide which is the subject of this present case. A search of Eric Ashley’s residence pursuant to a search warrant designed to uncover evidence relating to the homicide led to a search of a safe of a home in Ashley’s house and the discovery of a the firearm. (Affidavit in Support of Warrant of November 21, 1995, Exhibit 7)

At the time of that search, Eric Ashley was in already custody having been arrested on the homicide case. And as detailed more fully herein, Eric Ashley had already invoked his right to counsel on this homicide charge.

The previously filed defense "Notice of Motion and Motion to Dismiss the Indictment Because of Unreasonable Delay in Prosecution" (hereinafter referred to as the "Speedy Trial Motion") the defense detailed the facts regarding Eric Ashley’s arrest on the homicide, the search, the arrest and conviction on the 12021 charges and the lengthy delay in the homicide investigation, are detailed. The defense incorporates pages 3-7 (Statement of Facts) of that motion and the exhibits attached thereto. The Speedy Trial Motion pages 3-7 are Exhibit 8 to this motion.

The police reports are vague on the issue of Ashley’s invocation of his right to counsel at the time of his arrest on the homicide charge. Fortunately, two of Detective Harrison’s search warrant affidavits describe how Eric Ashley invoked his right to counsel at the time of his arrest.

On 11-08-95 at 0500 hours, Eric Ashley was arrested on probable cause for murder. An interview with Eric Ashley was attempted, however Ashley invoked his right to counsel.

(May 9, 1997 Affidavit, Page 3, next to last paragraph, Exhibit 9)

and

On 11-08-95, affiant's fellow detective Tom Coke met with Eric Ashley in attempt to interview him regarding this homicide. Ashley requested an attorney before any questioning continued. This interview was discontinued.

(May 9, 1997 Affidavit, Page 7 (last two sentences) - page 8 Exhibit 10)

 

There could be no attempt to reinitiate questioning. (See: In re Bonnie H. 56 Cal.App.4th 563, 580 (Cal.App. 4 Dist., Jul 16, 1997)) A year and half later when Detectives Harrison and Creekmore went to California State Prison in Calipatria and spoke to Eric Ashley about this case they violated his rights under Edwards² and Miranda. If there had been no prior invocation of right to counsel, the questioning violated Miranda as no admonition was given for the first portion of the interview (pages 1-8). (Ashley’s early invocation was also ignored.)

"If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, [or if he] states that he wants an attorney, the interrogation must cease." Miranda, id., at 473-474, 86 S.Ct., at 1627. See also Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)."³

(Moran v. Burbine, (1986) 106 S.Ct. 1135, 1140; 475 U.S. 412)

HARRISON’S POLICE REPORT IS

As Ashley had invoked his right to counsel when arrested in Contra Costa County there should have been no visit at all. Once there, Harrison began the interview without any Miranda warnings and only gave them when Ashley again invoked. Then, Ashley again stated that he did not want to talk and then demanded counsel fifteen times during the interview.

Here is how Harrison described the Calipatria visit.

On 01-09-97 at 1230 hours, Det. CREEKMORE and I met with ERIC LEON ASHLEY at Calipatria State Prison, Calipatria, CA. ASHLEY was a sentenced inmate on Contra County Superior Court docket #05-9606070-0.

ASHLEY was informed as to why we were at Calipatria State Prison. I read ASHLEY his Constitutional Rights per Miranda, which he understood and gave a an implied⁴ waiver. ASHLEY was confronted on the fact that he was responsible for the fire that killed IRVIN HENDERSON. ASHLEY denied involvement and subsequently invoked his right to a lawyer. We continued to interview him, at which point he stated, "The bottom line, I ain't did if and I know no one has told you I did it. I can pass a lie defector test," This interview continued on for approximately 35 minutes, at which time the interview was terminated. This interview was tape recorded and the tape later placed into evidence at SPPD.

(Exhibit 11, Harrison Supplemental Report, 11/7/97, relevant page only, emphasis added)

The first nine pages of the transcript of the interview (Exhibit 2) show two Miranda violations. First, Miranda isn’t brought up but Eric Ashley reminds the officers of his lack of an attorney.

DETECTIVE CREEKMORE: Well, we'd like to talk to you. You don't have to answer questions or anything. We'd just like to talk to you, at least hear us out.

DETECTIVE HARRISON: We're from San Pablo.

DETECTIVE CREEKMORE: You willing to listen?

MR. ASHLEY: Well, you know, I mean I don't have no

lawyer here.

(Exhibit 2, RT 2:18-23)

This is ignored and the interview simply commences.

This pattern of ignoring an invocation by saying "You willing to listen?" has been done before by Harrison.

In People v. Williams, Contra Costa County Superior Court No. 971571-5 a juvenile was interviewed by Harrison was similarly ignored when he invoked with the "are you willing to listen to me" routine.

MR. HILL: So you going to take me back to the

hall?

DETECTIVE HARRISON: You don't want to talk to me

no more?

MR. HILL: I ain't got nothin to talk about.

DETECTIVE HARRISON: I mean does that mean you just don't want to talk or do you want - - I mean I have stuff to talk about. Are you willing to listen to me or not?

(Exhibit 24 Excerpt from Interview in People v. Hill 86:5-13, Emphasis added)

The interview with the juvenile then continued.]

Harrison claimed that the purpose was to correct prior hasty conclusions and clear Mr. Ashley.

In order for us to proceed on our other three, we need to clear your-- your involvement or your allegations, I should say, on the first case.

(Exhibit 2, RT 3:19-20)

And in case there is any doubt that Mr. Ashley is now helping the police solve a crime:

DETECTIVE HARRISON: Okay. You've never been out of custody, right? So you didn't do this one, or probably the very first one, okay? In order for us to make it clean on the guy that we're looking at, to get our case tight, you are a loose end down here. There was a lot of allegations that were made by the San Pablo Police Department about you. Now what we're going and try to do is fix those allegations so that we can bring all four cases in line and take

care of this other individual.

(Exhibit 2, RT 7:16-25)

In People v. Boyde (1988) 46 Cal.3d 212, 238, 250 Cal.Rptr. 83, 758 P.2d 25, the Supreme Court said that "where a person in authority makes an express or clearly implied promise of leniency or advantage for the accused which is a motivating cause of the decision to confess, the confession is involuntary and inadmissible as a matter of law." Telling Eric Ashley that he should speak because someone else is guilty and the police want to "fix those allegations" is certainly a promise that is intended to improperly induce a statement. The interview continued for six pages of custodial but unMirandized discussion. Eric Ashley then reminded Harrison and Creekmore that he previously hadn’t wanted to talk to them.

DETECTIVE HARRISON: Well, we never got a chance to even talk to you at all, if you recall.

MR. ASHLEY: Yeah, I didn't want to talk.

(Exhibit 2, RT 6:25-7:1)

Mr. Ashley also told Detective Harrison and Creekmore that at the time of the interview he didn’t want to talk to them.

MR . ASHLEY: No, I still don't -- I still don't understand why you all down here talking to me in the first place. I don't have nothing to say.

(Exhibit 2, RT 8:1-3)

Harrison then acknowledges that previously, Eric Ashley had not wanted to speak with

them.

DETECTIVE HARRISON: Here's what we can do. We'll tell you why the allegations were made against you at that time.

MR. ASHLEY: (Unintelligible.)

DETECTIVE HARRISON: We couldn't even get into that --

MR. ASHLEY: Yeah.

DETECTIVE HARRISON: -- 'cause you didn't want to tell us. You know, we'll tell you why we thought it was you at the time.

MR. ASHLEY: Okay.

(RT 8:15-24)

Remembering the prior invocation and being told that Ashley did not want to talk with them, Harrison violated Miranda by ignoring his duty to immediately cease questioning and instead he makes a mockery of Miranda by giving the warnings as part of his ignoring the rule of Miranda and the invocation of Ashley’s Miranda rights. As Harrison termed it, we have to "go through the legal deal." Adding the coercive aspect is the statement by Creekmore that "We just got to talk to you".

DETECTIVE HARRISON: Well, we've got to go through

this legal deal. You know --

DETECTIVE CREEKMORE: We just got to talk to you. Before we do so, you've had your rights read to you, right? You have the right to remain silent. You do not have to talk to me or answer any questions. Anything you say can be used against you.

MR. ASHLEY: Yeah.

DETECTIVE CREEKMORE: Hear me out. You're in custody down here. We have to do it, regardless, okay?

MR. ASHLEY: Yeah.

DETECTIVE CREEKMORE: You have the right to have a lawyer and have the lawyer present during any questioning if you wish. If you cannot afford to hire one, one will be appointed to represent you. Do you understand that?

MR. ASHLEY: Yeah.

DETECTIVE CREEKMORE: One of the issues, Eric – can you -- you can just relax, if you can, you don't have to look back –

MR. ASHLEY: Yeah.

DETECTIVE CREEKMORE: -- is the reason we wanted to --

MR. ASHLEY: You got that camera on over there.

DETECTIVE CREEKMORE: Well, because obviously for documentation, Eric. You want me to turn it off or what ?

MR . ASHLEY: Yeah, it would be, you know, (unintelligible).

DETECTIVE CREEKMORE: Okay.

(9:3-10:10, Emphasis added to the word "got")

So, this concept of "implied waiver" as used by Harrison and Creekmore involves violating the United States Constitution serially. Then after talking to the incarcerated defendant rolling through his rights without an affirmative waiver.

This is not the first time the recitation of Miranda without any attempt to obtain an actual waiver was not an accident. Harrison did this in People v. Williams, Superior Court, County of Contra Costa Case No. 971571-5. Here is what was said.

...If you can’t afford to hire a lawyer, one will be appointed to represent you free of charge.

Do you understand those rights?

MR. WILLIAMS: (Nodding head. Inaudible.)

DETECTIVE HARRISON: Okay. Let me explain to you what’s going on, okay? Do you understand why you‘re here?

MR. WILLIAMS: (Nodding head. Inaudible.)

DETECTIVE HARRISON: Do you want me to give you - an idea?

(Transcript of Interview, July 3, 1997, People v. Williams page 6:11-15

Exhibit 12)

In Williams the statement was suppressed as coerced.

People v. Burris and Keola, Contra Costa County Superior Court Case No.

981441-9 is another example of Harrison’s violation of the constitution.

The following is from Exhibit 3 to Keola’s "Response to Prosecution’s Motion Against

Discovery". The questioner is identified by the transcriptionist as Harrison.

You have the right to have a lawyer, and have a lawyer present during questioning, if you wish. If you cannot afford to hire a lawyer, one will be appointed to represent you free of charge. Have you ever had those read to you?

Do you just understand what I just said to you? Those rights that I just read to you?

Q: Okay. Well, what part don’t you understand?

A: I- -

Q: You know, when you’re in custody we have to read you your nights.

A: Oh.

Q: Okay. They call them Miranda. You understand what I just read to you then?

Huh? But nobody else -- like nobody else said earlier, though. I read it to them.

Q: And I read it to your other friend, Vette. I read it to the other guy, Mike. And

they understood it. So. I’m the last one? Yeah. And they talked, and they told us their side and they -- they feel bad. Do you understand what I just read to you though? Okay. What I really want to do is, I don’t want to make small talk here, okay? I don’t want to sit around and say hey. this is what it’s all about, ‘cause I know what happened. And what I have is -- is an incident that occurred and it’s a pretty serious incident, okay?

Q. Well, I mean -- you want me -- and you play games with me on that? This ain’t a

chess game here, okay. There’s certain things I know. I have certain facts, and

one of the things that’s really important to understand is, you know, Mike had to

take a big lump you know. He understands that he’s in serious trouble and that he

other guy -- I can’t remember his name -- Sam -- I mean, they definitely

corroborated what he said, meaning that they agreed on what he said or that what

there who identified you guys. In fact, they came out into the scene and picked

A. I don’t know about that.

(Interview of Keola, Case No: 981441-9, Transcript Exhibit 13)

In Keola, the court dismissed Counts Six and Seven as predicated on defendant’s statements taken in violation of Miranda. Furthermore, the court found the defendant’s statement to be involuntary.

It is of importance that Detective Harrison has testified inaccurately and perhaps perjurously with respect to the above alleged waiver. The following (as was the transcript Exhibit 13 above) is from Keola’s "NOTICE OF MOTION AND MOTION TO DISMISS PURSUANT TO PENAL CODE SECTION 995 AND COMMON LAW"

Keola‘s alleged comprehension of his Miranda rights before the interview:

A: . . . And I asked him if he understood his rights.

Q: What did he say?

A: He said he did.

Q: Did you ask him if he wished to speak to you?

A: Yes.

Q: What, if anything, did he say?

A: He agreed to speak with me. [RT 194: 12-19, as cited in Exhibit 14, Motion page 11]

Later in his testimony, when a grand juror queried Harrison whether Keola chose to lave a lawyer present when questioned, Harrison not only answered that question in the negative, but volunteered his latest version of the waiver itself . He was given the Miranda, and he waived his right to counsel and to silence, and at that point, once he gave an affirmative waiver we continued to interview him, or began interviewing him regarding these three particular incidents." (emphasis added). [RT 205: 10-161 as cited in Motion (Exhibit 14)

The Court dismissed Counts Six and Seven in the above case as:

"[P]redicated on defendant’s statements taken in violation of Miranda. In addition [the court ruled] the defendant’s statement is found to be involuntary. It is suppressed because he was deprived of free the choice to admit, deny or refuse to answer questions." (Order June, 9, 2001, Honorable Richard E. Arnason) (Exhibit 15)

There was coercion in the Ashley Calipatria interview and that makes the concept of an implied waiver simply impossible. After ignoring Ashley’s two expressed desires not to talk and the alleged "implied Miranda" waiver which is really a coercive forced continuation of the interview, the transcript reflects 13 pages of interview on issues on the periphery of the incident. At transcript page 23, Harrison makes his direct move to the heart of the case and starts talking about whether Ashley has an alibi for the incident. Ashley immediately asks for counsel before he speaks.

DETECTIVE HARRISON: And you clarified that. Okay. Well, the other issue that we have to deal with here is what they call an alibi issue. You know what that means? That means like were you someplace other than where this crime occurred. That's the other issue that we wanted to clear up, okay? So the reason I'm asking you this question is trying to take your mind back in time so that you can remember.

MR. ASHLEY: Well, I don't choose to take my mind back in time. I'm locked up here now and, you know, I don't really want to talk about my mind or nothing else, you know, unless I get my lawyer present.

(Exhibit 2, RT 22:15-23:1, Emphasis added)

Harrison says "okay" and Creekmore also acknowledges the assertion but as he acknowledges the assertion he makes a provocative statement "...if your lawyer can be your alibi".

DETECTIVE HARRISON: Oh, okay.

DETECTIVE CREEKMORE: Well, that's fine. I mean you have that right. And all I can tell you, Eric, is that, you know, you make that decision. And if your lawyer can be your alibi for you, then that's up to you.'

MR. ASHLEY: Well, that don't make no difference, you know.

DETECTIVE CREEKMORE: Well --

MR. ASHLEY: If the lawyer choose for me to talk (unintelligible) everything, you know.

DETECTIVE HARRISON: You're absolutely right.

MR. ASHLEY: (Unintelligible) my lawyer.

(Exhibit 2, RT 22:2-13, Emphasis added)

This belittling of the role of a lawyer is not new to Harrison. Consider the following

quotations and arguments in People v. Oliver, Case No. 951582-6.

After sitting through well over an hour of this kind of interrogation, Mr. Oliver invoked his Miranda right to counsel, saying, I f I really need to consult a lawyer or something . . , Can you send someone up?" (See IT 61: 24-25; 62:2 ) Ignoring Mr. Oliver's invocation, Detective Harrison said, "If you need an attorney to help you tell the truth, that's fine. Let me ask you one thing. . .'I (IT 62: 6-8). That "one thing" turned into another hour of interrogation, replete with the same types of inducements offered during the first hour. Even after Mr. Oliver

invoked his right to counsel, Detective Harrison continued to discuss the law with Mr. Oliver, saying: "The issue is if you hit the guy to commit a robbery, a strong arm robber, that's one thing. But if you hit the guy to kill him, that's murder, okay? We can't paint ...

(People v. Oliver, Contra Costa County Superior Court, No. 951582-6, "Motion to Suppress Statements ... " Pages 5-6, Exhibit 16)

The Judge in Oliver ultimately suppressed the statements stating in part:

The journey through the evidence in this case is a desultory

review of rampant disregard by the police of the Defendant’s

constitutional and due process rights. His Miranda rights were

repeatedly ignored. Miranda v. Arizona (1966) 384 U.S. 436. But even

more disturbing is the blatant coercive pressure and over reaching that

was repeatedly engaged in by the police in its desire to extract a

confession from the Defendant, no matter what means.

(Decision of Honorable Richard Arnason, People v. Oliver, Contra Costa County Superior Court, No. 951582-6, Exhibit 17)

Ignoring requests for a lawyer is standard practice. In the Williams interview, cited above, Hughes and Harrison did the same thing. In addition to the Miranda violation, the additional violations occurred. The following shows Williams complaining about his invocation being ignored.

MR. WILLIAMS: I have been roughed up. When I told you - - when I tell you that I wanted to talk to my lawyer, right?

DETECTIVE HUGHES: Yeah.

MR. WILLIAMS: What did you all do? I don't trip off that way.

DETECTIVE HUGHES: NO.

MR. WILLIAMS: You didn't care what I say, you

DETECTIVE HUGHES: I didn't hear you say anything just kept going on. till you said something about a meeting about you said it's now - - no, when he said that then, I said, "I didn't hear that." You said (unintelligible).

MR. WILLIAMS: I been saying that when I said I want my lawyer (unintelligible).

(People v. Williams, Contra Costa County Case No. 971571-5, Transcript of interview of July 3, 1997 RT 164:2-16, Exhibit 18)

And later in the same Hughes, Harrison interview.

MR. WILLIAMS: What about when I told you all at first when I needed a lawyer or something,

I 'm saying? When I told you that at first, I - - you know what

DETECTIVE HUGHES: That's fine, you'll get a lawyer.

MR. WILLIAMS: You all didn't take no heed to it.

DETECTIVE HUGHES: But see here, you saying. "I want a lawyer" does not mean that I have to stop everything I ' m doing and - - you know what I ' m saying? All it means is, is that you want to talk to an attorney. You've said it three times.

(People v. Williams, Contra Costa County Case No. 971571-5, Transcript of interview of July 3, 1997 RT 209:18-26, Exhibit 19)

The Williams case and Keola cases cited above are eerily similar to the Ashley case. Compare the above to the Ashley Calipatria interview. In the following section, Harrison then acts as a mock supporter of the Constitution and perversely uses his acknowledgment of Constitution as a way to violate it.

DETECTIVE HARRISON: You are absolutely right, 'cause you know what's really important is that your rights are preserved. And, by gosh, we wouldn't want to trounce upon your rights. You know what I mean?

MR. ASHLEY: Well --

DETECTIVE HARRISON: We would not want to do that.

MR. ASHLEY: I don't got nothing else to say, then.

(Exhibit 2, RT 23:14-20)

Harrison continues the discussion.

DETECTIVE HARRISON: You don't want to talk about anything else other than -- what if we want to talk about something besides this case?

MR. ASHLEY: What case?

DETECTIVE HARRISON: The case we've just been talking about. You don't even want to talk about that? I mean talk about something besides the case.

MR. ASHLEY: What -- what -- why should I want to talk about anything to you all? I don't know you all.

(Exhibit 2, RT 23:22-24:3)

This is the fourth assertion arising out of wanting counsel and the fifth time that Ashley

has stated that he did not want to talk. The small talk continues and Ashley invokes his right to

counsel for the fifth time.

MR. ASHLEY: Well, why you even jamming me up without my lawyer, you're asking me do I understand what's happening and this and that. I mean if my lawyer ain't present, I mean my lawyer should be present if you're asking me about what's happening.

(Exhibit 2, RT 25:22-26)

The moves then made to ignore these four assertions is so egregious that it can only be

presented in its unedited entirety.

DETECTIVE HARRISON: You know, you're right.

Did you bring me that paper that you got from the DA’s office? Did any of that get faxed over about the court proceedings?

DETECTIVE CREEKMORE: The grand jury?

DETECTIVE HARRISON: Yeah. Do we have any of that.

DETECTIVE CREEKMORE: (Unintelligible.)

DETECTIVE HARRISON: Okay.

DETECTIVE CREEKMORE: Well, one of the things you

have to understand --

ASHLEY: Yeah.

DETECTIVE CREEKMORE:. -- is that this is a pretty

serious situation that you're in. You understand the

seriousness of it or not?

ASHLEY: Yeah. That's why I asked for my lawyer. [6^th x]

DETECTIVE CREEKMORE: Okay. You understand the

seriousness of it?

ASHLEY: Yeah.

DETECTIVE CREEKMORE: Okay. So what are you going

to do for yourself to come up on out of this?

ASHLEY: What you mean?

DETECTIVE CREEKMORE: You've been charged.

ASHLEY: Well, I still -- I still need a lawyer. [7^th x]

DETECTIVE CREEKMORE: Okay.

(Exhibit 2, RT 26)

MR. ASHLEY: If I been charged, I mean the bottom line about it, I need a lawyer.

DETECTIVE CREEKMORE: All right. And you'll have that opportunity 'cause you're going to be transported back to Contra Costa County Jail.

MR. ASHLEY: Okay.

DETECTIVE CREEKMORE: And you'll be arraigned in Superior Court, okay?

MR. ASHLEY: Okay.

DETECTIVE CREEKMORE: Is there anybody you'd like to talk to, whatever else about this today?

MR. ASHLEY: Yeah. My lawyer. [9^th x]

DETECTIVE CREEKMORE: Who's your lawyer?

MR. ASHLEY: Well, I might as well get a good one.

DETECTIVE CREEKMORE: Or two or three.

MR. ASHLEY: Yeah.

DETECTIVE CREEKMORE: Because the problem you have is your son and daughter apparently see this story a little differently than you do. And their -- their

feeling about this is they don't want to be put up in the middle of this situation, which you put them up in the middle.

(Exhibit 2, RT 27:14-22)

The questioning then resumes!

Creekmore and Harrison question Mr. Ashley from 27:22 through page 32 where

Ashley again attempts to cut off questioning but this time Creekmore barks back at him with yet

another coercive statement.

DETECTIVE HARRISON: Homicide.

DETECTIVE CREEKMORE: The case is shut.

DETECTIVE HARRISON: That's right.

DETECTIVE CREEKMORE: Fire bomb.

ASHLEY: We ain't got nothing else to talk about then. [10^th x]

DETECTIVE CREEKMORE: Well, we'll talk plenty.

(Exhibit 2, RT 32:2-8, Emphasis added)

Harrison has an alternative.

DETECTIVE HARRISON: You can listen. You don't have to talk.

(Exhibit 2, RT 32:10-11)

And the questioning continues and after 19 more pages of transcript, Ashley again

asserts his rights.

ASHLEY: Now, that's it. I ain't got nothing else to say.

(Exhibit 2, RT 51:24-25) [11^th x plus the initial refusal.]

The questioning continues. Harrison then decides to point out to Ashley that his request

for counsel was because he was becoming defensive.

DETECTIVE HARRISON: That happened before this last fire. So my question to you is, which is where we left off here and you got all hinky, you got all defensive, was where were you when this fire took place, the one that we're here about today. Where were you during that time frame?

MR. ASHLEY: Where was I at?

DETECTIVE HARRISON: Uh-huh. That was a question that you wanted an attorney on, remember?

MR. ASHLEY: Well, like I said, I don't even know when it started. I mean the bottom line --

DETECTIVE HARRISON: Well, I was going to tell you when it started.

MR. ASHLEY: That's when you -- you --

DETECTIVE HARRISON: But that's when you got all defensive and said, "I want an attorney."

(Exhibit 2, RT 52:11-26)

Ashley had a simple reply.

MR. ASHLEY: Yeah, I still do want an attorney.

(Exhibit 2, RT 53:1) [12^th x]

The questioning continues. [12^th x plus the original] until at page 61 where Ashley says:

"I ain't got nothing to talk about." (RT 62:19) [13^th x]

Questioning continues until page 67 when Ashley again invokes and Creekmore again

coerces Ashley.

MR. ASHLEY: We ain't got nothing else to say then, nothing. 'Cause you know, like I say, I --

DETECTIVE CREEKMORE: You can't speak for us. We got a lot to say.

(Exhibit 2, RT 67:12-15) [14^th x plus the original invocation]

By the next page, Harrison is finished talking.

DETECTIVE HARRISON: Well, we sure appreciate your time. I don't have anything more, Mark.

(Exhibit 2, RT 67:16)

Creekmore has more to say but since he decides when and if there is an interview, he lets

Ashley knows that he has more to say but is going to save it "for penalty phase".

DETECTIVE CREEKMORE: Well, no, I mean I have a lot to say, but we'll save it for later, penalty phase.

(Exhibit 2, RT 67:17)

The interview then ends but not before Det. Creekmore shares some of Creekmore’s

personal wisdom with Eric Ashley.

Do you have any questions of us? If there's anything you learned from this -- if there's anything you learned from this situation, Eric, is that you think about your kids, man. At least get them up on out of this.

(Exhibit 2, RT 68:21-24)

POINTS AND AUTHORITIES

The above statement of facts and transcript establish six facts which are indisputable.

1. Eric Ashley invoked his right to counsel upon arrest on the homicide charge. (11/8/95)

2. Eric Ashley was continuously in custody from the time of that arrest.

3. Eric Ashley’s Miranda rights were violated when the interview was initiated without any advisement and waiver.

4. Eric Ashley invoked his right to counsel at the inception of the Calipatria interview.

5. During the interview Eric Ashley told the police that he had not wanted to talk to them in the past or at Calipatria.

6. Eric Ashley invoked his right to counsel fifteen times during the interview.

7. There is a pattern of constitutional violations by Harrison and Creekmore.

Ashley invoked at the time of his arrest on the homicide. The Calipatria interview was

on the same topic - the homicide.

... California cases uniformly have held or assumed that the rule barring police recontact after a Miranda request for counsel applies only during continuous custody. [citations]

(People v. Storm, 28 Cal.4th 1007, 1023 (Cal., Aug 15, 2002))

Ashley had been continuously in custody so there was no exception applicable in his case. The same prohibition applies whether the invocation was the right to remain silent or the request for counsel.

"[A] fair reading of Edwards and subsequent cases demonstrates that we have interpreted the rule to bar police-initiated interrogation unless the accused has counsel with him at the time of questioning.... [O]n this point, we now hold that when counsel is requested, interrogation must cease, and officials may not reinitiate interrogation without counsel present, whether or not the accused has consulted with his attorney." (Minnick v. Mississippi, supra, 498 U.S. at p. 153, 111 S.Ct. at p. 491.)

(In re Bonnie H. 56 Cal.App.4th 563, 580 (Cal.App. 4 Dist., Jul 16, 1997)

In Edwards v. Arizona, supra, 451 U.S. 477, the United States Supreme Court added a second tier to the prophylaxis for the Miranda right to counsel: " [Once] an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.... [A]n accused, ... having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police. " (Edwards v. Arizona, supra, 451 U.S. at pp. 484-485 [101 S.Ct. at p. 1633], fn. omitted.) This bright-line "Edwards rule" prohibits all police overreaching, be it "deliberate or unintentional[,]" (Smith v. Illinois (1984) 469 U.S. 91, 98 [105 S.Ct. 490, 494, 83 L.Ed.2d 488]), and was specifically "designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights." (Michigan v. Harvey (1990) 494 U.S. 344, 350 [110 S.Ct. 1176, 1180, 108 L.Ed.2d 293].)

(In re Bonnie H. 56 Cal.App.4th 563, 580-581 (Cal.App. 4 Dist., Jul 16, 1997, emphasis added)

From the above only one conclusion is possible. Harrison and Creekmore violated Miranda and Edwards by even going to Calipatria. They again violated Miranda once at Calipatria by initiating questioning without an advisement. They violated Edwards 15 more times by ignoring Ashley’s repeated invocations.

They made the three statements cited above that communicated to Ashley that the officers would talk whether or not Ashley invoked. The atmosphere was coercive under a totality of the circumstances analysis and the facts in the Ashley case are very similar to but more egregious than those described in Pollard v. Galaza, 290 F.3d 1030 (9th Cir.(Cal.), May 14, 2002) and Henry v. Kernan, 197 F.3d 1021, 1026-28 (9th Cir. 1999).

Harrison and Creekmore did more than simply ignore the United States Constitution (which as shown above can be coercion). Harrison and Creekmore expressed themselves in terms that in context established a complete lack of choice by Ashley.

DETECTIVE CREEKMORE: We just got to talk to you. (RT 9)

and

DETECTIVE CREEKMORE: The case is shut.

DETECTIVE HARRISON: That's right.

DETECTIVE CREEKMORE: Fire bomb.

MR. ASHLEY: We ain't got nothing else to talk

about then.

DETECTIVE CREEKMORE: Well, we'll talk plenty.

(RT 38:3-8)

and

MR. ASHLEY: We ain't got nothing else to say then, nothing. 'Cause you know, like I say, I –

DETECTIVE CREEKMORE: You can't speak for us. We got a lot to say.

(RT 67:12-15)

In a criminal case citing a civil case as authority (in a 42 USC 1983 action), the Ninth Circuit condemned tactics almost exactly like those in the present case.

Similarly, in Cooper v. Dupnik, we found in a § 1983 action that a suspect's Fifth Amendment rights were violated when police detectives engaged in a "plan" to compel the suspect to confess even after exercising his right to remain silent and requesting the assistance of an attorney. 963 F.2d 1220 (9th Cir.1992)(en banc). We noted that the interrogators intentionally ignored the suspect's repeated requests for counsel as a "tactic[ ] designed to generate a feeling of helplessness[.]" Id. at 1243. We considered this type of questioning where interrogators "continuously badgered [the suspect] for four hours in an attempt to avulse a confession," to be of the exact nature that Miranda sought to prohibit. Id.

(Pollard v. Galaza, 290 F.3d 1030, 1033 (9th Cir.(Cal.), May 14, 2002), Emphasis added)

The statement arising out of repeated questioning after invocation in above cited Cooper v. Dupnik was found not to be a technical Miranda violation but an involuntary statement.

We stress again that this case does not deal with a product of police interrogation that is just technically involuntary, or presumptively involuntary, as those terms are used in Miranda jurisprudence, but with a product that was involuntary because it was actively compelled and coerced by law-enforcement officers during in-custody questioning, as those terms are used in Miranda, Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959), Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963), and Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978).

(Cooper v. Dupnik, 963 F.2d 1220, 1243 9^th Cir.(Ariz.), May 05, 1992))

In Henry v. Kernan, 197 F.3d 1021, 1026-28 (9th Cir. 1999) the Ninth Circuit ruled that a statement elicited from the defendant was inadmissible when the police officers deliberately violated the defendant’s Fifth Amendment rights by continuing with their interrogation for one hour after the defendant unequivocally requested the assistance of an attorney.

Harrison and Creekmore went far beyond the above. If Guinness were contacted they would likely verify that Harrison and Creekmore set the world record for ignored invocations. The interview starting ignominiously with the subterfuge by Harrison that the meeting was taking place to correct past errors, clear Ashley and allow Ashley to help them catch the real perpetrator.

Ignoring invocations was not the end of the coercion. The officers let Ashley know that this was a "got to" interview and they expressly stated that whether or not Ashley had something to say, they (the officers) did speak and would speak. Harrison and Creekmore’s conduct is a gross abuse of the rule that a defendant’s right to cut off questioning must be scrupulously honored.

The courts have long recognized that ignoring invocations can be coercion.

Repeated interrogation despite the defendant's refusal to give a statement can violate Miranda, even where new warnings are given each time. As the Fifth Circuit Court of Appeals recognized in United States v. Hernandez, The more times police inform a suspect of his rights in the face of his repeated invocation of one of these rights--the right to remain silent--the clearer it becomes that the police must not mean what they say. This is exactly the type of subtle coercive pressure which the Miranda opinion condemned.

(Jackson v. Wyrick, 730 F.2d 1177, 1179 (8th Cir.(Mo.), Mar 29, 1984,

Emphasis added)

California’s First District distinguishes between technical violations and a situation

(such as with Harrison and Creekmore) where the defendant has seen his prior invocations

repeatedly ignored.

The importance of Miranda warnings appears to depend on the nature of the underlying violation. If what Elstad termed a "technical" or "procedural" Miranda violation is all that is involved, the curative powers of the warnings are potent. (See Oregon v. Elstad, supra, 470 U.S. 298 at pp. 310-311, 314, 105 S.Ct. 1285 at pp. 1293-1294, 1296.) But the same "coercive police tactics ... that render the initial admission involuntary [also] undermine the suspect's will to invoke his rights once they are read to him" (id. at p. 317, 105 S.Ct. at p. 1297) at a subsequent interrogation. The second set of Miranda warnings administered to defendant would thus have minimal effect. Having already seen that his earlier attempts to invoke one of the rights that the warnings told him he had were repeatedly ignored, there would be no basis for defendant to believe the same interrogators would act any differently the second time around.

(People v. Montano, 226 Cal.App.3d 914, 938 (Cal.App. 1 Dist., Jan 09, 1991), Emphasis added)

This coercive conduct requires suppression of the fruits of the statement under Wong

Sun.

It thus appears that of the attenuation factors identified in Brown v. Illinois, all support application of the Wong Sun exclusionary rule. The additional considerations of producing trustworthy evidence and promoting deterrence also call for exclusion of a confession obtained as the direct result of "coercion [and] ... other deliberate means calculated to break the suspect's will." (Oregon v. Elstad, supra, 470 U.S. 298 at p. 312, 105 S.Ct. 1285 at p. 1294.)

(People v. Montano, 226 Cal.App.3d 914, 940-941 (Cal.App. 1 Dist., Jan 09, 1991), Emphasis added)

A series of telephone calls were made by Eric Ashley following his "interview" with Creekmore and Harrison.⁵ Harrison seems to have anticipated and perhaps even intended that this would happen as Harrison instructed prison officers to "record all telephone conversations initiated by Ashley to (510) 234-8881." Harrison’s report indicates that "[t]his particular number is the phone number for his mother, MINNIE ASHLEY, located at 576 43rd Street, Richmond." (Eric Ashley Box 1 of page 257) Harrison’s instructions bore "fruit" as Ashley did react to and reference the jail interview.

The transcripts (as far as the defense has them) are attached in their entirety as Exhibit 1 but the direct relationship between the calls and the interview is made for us by Harrison himself.

On 01-16-98 I received one ( I ) cassette tape of three (3) telephone conversations to (510) 234-8887. The first conversation occurred on 1-10-98 at 7900 hours. An unidentified inmate initiated a collect call to the above number. The caller spoke with MINNIE ASHLEY and read a prepared statement by ERIC ASHLEY that SPPD had visited him at Calipatria State Prison. This inmate also advised MINNIE ASHLEY that ERIC would be sending a letter to them using a false name with instructions for AARON ASHLEY. This prepared statement also indicated that "they" (SPPD) wanted to talk with him about the other thing (the arson). The inmate called on behalf of ASHLEY because ASHLEY was in lock down and did not have access to a telephone.

(Harrison Report, Emphasis added, Exhibit 20)

Call of January 11, 1997 at 1334

Harrison makes similar observations regarding the subject matter of another of the calls.

This call was made on January 11, 1997 at 1334 and Harrison’s report describes it as follows:

ASHLEY stated, "I don't need no lawyer unless they do say something. They're the ones that need a lawyer tight now to make sure they don't say nothing. " ASHLEY was obviously stressed as a result of our interview on 01-09-97. MINNIE told ASHLEY she believed BRENDA ASHLEY may have gone to the police and gave a statement. MINNIE assured ASHLEY she would contact AARON and LAKISHA and take them to an attorney.

(Harrison Report, Exhibit 20, Emphasis added)

A call made just 20 minutes later clearly arose from Calipatria interview.

At 1354 hours ASHLEY made a collect call to (510) 234-8881. ASHLEY spoke with MINNIE who completed a 3-way call to AARON ASHLEY. ERIC asked AARON if he had said anything to the police and AARON told him no. AARON said he was waiting for San Pablo Police to come and arrest him. ERIC told AARON not to talk to the police. AARON told ERIC he would go and talk with LAKISHA regarding this matter.

(Harrison Report, Exhibit 20)

The transcript of the telephone shows that it was triggered by the Calipatria visit.

MR. ASHLEY: Yeah

AARON: Hello.

MR. ASHLEY: Hello.

AARON: What's up?

MR. ASHLEY: Hey, what's up.

AARON: Hey.

MR. ASHLEY: You know, them San Pablo cops came

down here.

MINNIE (sic): Mama told me.

MR. ASHLEY: Yeah, come down there telling me that

you and whatchacallit went to a Grand Jury and said this

and that and all this here and they was going to press

charges on me and talking about did I want to

(unintelligible) my side of the story. I told them I

didn't have no side of the story there, you know.

AARON: Oh, man.

MR. ASHLEY: And this and that, you know. So you

know, (unintelligible) still around investigating and

this and that, you know.

(Exhibit 1, Telephone Calls by Eric Ashley 307:1-19, Emphasis added)

Note: There are separate Fourth Amendment grounds to suppress the searches conducted pursuant to this warrant. At this time the defense seeks suppression on a Wong Sun theory only. A separate suppression motion will be filed if needed.

Harrison as affiant cited the Ashley interview of January 9, 1997 as well as the telephone calls arising from that visit. The use of the tainted information was part of a broader course of conduct where Det. Harrison was less than accurate throughout the affidavit. Adding the fruits of a coerced statement presented with the statement presented as voluntary further clouds the affidavit and misleads the judge.

Harrision failed to provide numerous material facts to Judge Berger including the criminal record and extensive record of lies by persons cited as sources in the affidavit (e.g. Aaron Ashley and Lakisha Daniels) Instead, he presented Aaron Ashley as a working man whose account of the homicide was supported by Eric Ashley’s Calipatria statements and telephone calls. Harrison was less than honest with Judge Berger when he described the January 9, 1997 Calipatria interview which he did as follows:

Ashley was read his Constitutional right‘s per Miranda which he understood and

agreed to talk.

(Affidavit in Support of Search Warrant, Exhibit 7, page 8 of the affidavit)

He was also less than honest in describing Ashley’s invocation of his right to counsel.⁶

Ashley was read his Constitutional right’s per Miranda which he understood and

agreed to talk. Ashley denied involvement in this the death of lrvin Henderson and shortly thereafter invoked his right to counsel.

(Affidavit in Support of Search Warrant, Exhibit 7, page 8 of the affidavit)

As shown in Exhibit 4, Aaron Ashley was dishonest at times during this investigation. This dishonesty was not disclosed to Judge Berger⁷ nor was Aaron Ashley’s extensive criminal record. The errors are not merely ones of omission. Aaron Ashley was portrayed as a solid citizen.

Furthermore, affiant learned from Aaron Ashley that he is employed by the United States Postal Service at the Bulk Mail Center in Richmond. Aaron was not looking for employment at the time of the homicide, and as of the writing of this affidavit, Aaron still is employed by U.S. Postal Service, therefore had no motive to avenge lrvin Henderson Sr..

(Affidavit in Support of Search Warrant, Exhibit 7, page 9 of the affidavit)

In this context, the Calipatria telephone calls are used to support the proffered story of Aaron Ashley as set forth in the affidavit.

What would Judge Berger have done if he had known of Aaron Ashley’s prior lies and criminal history? One can consider U.S. v. Reeves, 210 F.3d 1041, 1044 (9th Cir.(Or.), May 01, 2000) holding:

"If an informant's history of criminal acts involving dishonesty renders his/her statements unworthy of belief, probable cause must be analyzed without those statements. See United States v. Hall, 113 F.3d 157, 159 (9th Cir.1997)."

Aaron Ashley is portrayed as a hardworking U.S. Post Office worker whose story is corroborated by Eric Ashley’s phone calls.

Furthermore, Eric stated that Lakeisha "especially needs an attorney." This statement is consistent with a statement given to affiant by Aaron Ashley that he was not present during the homicide and Lakeisha was.

(Affidavit in Support of Search Warrant, Exhibit 7, page 9 of the affidavit)

The theory that Harrison is trying to sell is of an uninvolved Aaron Ashley who works at the United States Post Office and who has provided truthful information.

As stated previously, Aaron Ashley denies being present at the time of the fire-bombing, but does admit that Eric, (his father) was upset with Henderson and stated that he was going to get back at him. Aaron also submitted to and passed a polygraph examination administered by an agent of this department.

Furthermore, affiant learned from Aaron Ashley that he is employed by the United States Postal Service at the Bulk Mail Center in Richmond. Aaron was not looking for employment at the time of the homicide, and as of the writing of this affidavit, Aaron still is employed by U.S. Postal Service, therefore had no motive to avenge lrvin Henderson Sr..

(Affidavit in Support of Search Warrant, Exhibit 7, page 9 of the affidavit)

The above contrasts with the Harrison’s statements in his Ramey warrant affidavit with

respect to Terry Lee.

"It should be noted that Aaron Ashley had given false statements to police regarding this homicide."

(Ramey Warrant, Exhibit 4)

Detective Harrison is not the only investigating officer who has personal knowledge of

lies. Officer Ontiveros knows that Aaron Ashley lied to the police.

OFFICER ONTIVEROS: Okay. That's what I'm looking for in that question. Prior to 1994, did you ever lie to the police? And you can safely say no, is that

correct?

MR. ASHLEY: I say, "Yeah, I lied to the police,

but I -- you know, (unintelligible) .

(Interview of Aaron Ashley November 10, 1995 page 207, Exhibit 21)

Detective Harrison documents Aaron Ashley’s lying in his investigative report.

ASHLEY began by telling me that he had lied to me on both occasions I interviewed him. He also recanted his prior statement that he was present in ERIC ASHLEY's vehicle when the HENDERSON bombing occurred.

ASHLEY then stated that there was not a person named "BANGEE" present at the time of the fire bombing and reverted back to his 11-10-95 account of what occurred (not present at the scene).

(Harrison Narrative Report 8/12/95, Exhibit 22)

Aaron Ashley admitted lying on video!

DETECTIVE: You lied from the get-go, all right?

We want to start all over from day one with this

incident --

MR. ASHLEY: All right.

(Interview Aaron, November 29, 1995, pages 49-50, Exhibit 23)

Now that Aaron Ashley has transformed via Harrison from a brutal lying thug

participant to a citizen witness Aaron now allegedly needs protection from Eric Ashley.

Furthermore, affiant believes that Eric Ashley has made threat and/or

is attempting to dissuade the testimony of Aaron Ashley and Lakeisha Daniels because they have made statement to police that he, (Eric Ashley) committed the murder of Irvin Henderson Sr..

(Exhibit 3, page 13 of Affidavit)

and

It is affiant's opinion that person who are incarcerated will commonly conduct their business through writing. It had been affiant experience that threat or intimidation of witnesses’s commonly done indirectly. Eric Ashley stated on a taped telephone conversation that he would send a letter using a different name.

(Exhibit 3, page 13 of Affidavit)

The affidavit then relies upon one of the telephone conversations to support the

contention that letters relating to the telephone conversations (which themselves arose out of the

Calipatria interview) in order to get the search warrants.

It is affiant’s opinion that person who are incarcerated will commonly conduct their business through writing. It had been affiant experience that threat or intimidation of witnesses is commonly done indirectly. Eric Ashley stated on a taped telephone conversation that he would send a letter using a different name. This type of behavior is not associated with a person who is innocent of a crime, but that of a person who attempting to conceal his identity to further this conspiracy in preventing prosecution. Eric Ashley has the ability to threaten and/or intimidate a witnesses in this case to include former co-worker and family members who have cooperated with law enforcement. Due to his current custodial status, this is facilitated through writing letter’s sent to parties assisting in the furtherance of this conspiracy.

(Exhibit 3, page 14 of Affidavit)

Furthermore it is affiant’s opinion that Eric Ashley will have received letter‘s in response to the telephone conversation and letter‘s he has sent to the said individuals. Affiant further request the search of Eric Ashley’s cell at Calipatria State Prison, or any other prison facility for letter‘s with information regarding material facts of this investigation.

(Exhibit 3, Affidavit page 14, Emphasis added)

The above is supported by another quotation from the interview triggered telephone

calls.

"Keisha and Aaron they need to talk to a lawyer especially Keisha in case they do jam her up." "You need to go take care of it...l ain’t said nothing ... 1 ain‘t going to need no lawyer. I don’t need no lawyer unless they[Aaron and Lakeisha] do say something." "They I don’t need no lawyer..they are the ones that need a lawyer to make sure they don’t say nothing." "I don’t want Aaron and Keisha [Lakeisha] talkin’ to those jokers no more."⁸

(Exhibit 3, page 9 of Affidavit, Emphasis in original)

The affidavit also references Eric Ashley’s comments to his mother about the

Harrison/Creekmore Calipatria interview.

Affiant reviewed the audio taped and learned the following summation of the facts of that conversation. Eric related that San Pablo Police detectives had contacted him at Calipatria State Prison regarding "that other thing." That "other thing" is the arson-homicide of lrvin Henderson. Eric further related that he would be sending a letter in a different name to his mother Minnie Ashley, Aaron Ashley and Lakeisha Daniels. On 01-10-97 a call initiated by Eric Ashley to (510)234-8881. Eric informed his family that San Pablo Police came to Calipatria State Prison to interview him and search his cell.

Eric stated the he did not want Aaron and Lakeisha to talk with them [Police]. Eric also asked his mother if she had talked with "Keisha" [Lakeisha] and she replied "not yet"and that she had not delivered the letter that Eric sent. This letter was as a direct result of affiant‘s January 9th interview at Calipatria State Prison. The following are excerpt of audio taped conversations Eric had with his family. "Keisha and Aaron they need to talk to a lawyer especially

Keisha in case they do jam her up." "You need to go take care of it. ..I ain’t said nothing ...I ain’t going to need no lawyer. I don’t need no lawyer unless they[Aaron and Lakeisha] do say something." "They don’t need no lawyer..they are the ones that need a lawyer to make sure they don’t say nothing.’’ "I don’t want Aaron and Keisha [Lakeisha] talkin‘ to those jokers no more." [Emphasis in original]

During these conversations, Eric was aware that his telephone conversation were

being recorded, therefore he was careful to not talk specific in fear of incriminating himself. Furthermore, Eric stated that Lakeisha "especially needs an attorney." This statement is consistent with a statement given to affiant by Aaron Ashley that he was not present during the homicide and Lakeisha was. Lakeisha also admitted that she was present when Eric conspired to commit the fire-bombing of lrvin Henderson’s residence. She also admitted to being present when Eric left the vehicle with the "Carlo Rossi" bottles filled with gasoline.

(Exhibit 3, Affidavit 7:8-8:13)

In his concluding section, to this affidavit, Harrison states:

Based on facts contained in this affidavit, affiant has formed the opinion that Eric Ashley completed telephone calls and has written letters to witnesses and/or suspects in this case with the specific intent to conspire in providing law enforcement with false information regarding this homicide. Furthermore, affiant believes that Eric Ashley has made threats and/or is attempting to dissuade the testimony of Aaron Ashley and Lakeisha Daniels because they have made statement to police that he, (Eric Ashley) committed the murder of lrvin Henderson Sr..

(Exhibit 3, Affidavit page 13)

If there is any remaining question as to whether the alleged threats arose in response to

the Calipatria interview, the following paragraph from the affidavit resolves this issue.

Based on fact’s contained in this affidavit, it is affiant’s opinion that this conspiracy and or overt acts to alter and prevent cooperation with law enforcement is ongoing. Since 01-10-97, more than twenty (20) telephone call have been initiated by Eric Ashley from Calipatria State Prison to 510-234-8881,

the home of Minnie Ashley.

(Exhibit 3, Affidavit 14:12)

As admitted by Det. Mark Harrison, three key witnesses have already lied in this case.

"It should be noted that Aaron Ashley had given false statements to police regarding this homicide."

(Exhibit 4, Harrison Ramey Warrant Affidavit of May 26, 1999 for Terry Lee)

"Lee was submitted to a polygraph examination and was determined to be untruthful regarding knowledge and involvement in the firebombing/homicide of Irvin Henderson, thus failing the polygraph."

(Exhibit 4, Harrison Ramey Warrant Affidavit of May 26, 1999 for Terry Lee)

"Daniels was confronted on the fact she was not being truthful regarding Terry Lee's involvement. Daniel subsequently admitted that Terry Lee was in fact involved in the murder of lrvin Henderson. She stated Terry Lee was a friend of the family and she had been pressured by her mother, Delores Graves, not to reveal Terry Lee was involved."

(Exhibit 4, Harrison Ramey Warrant Affidavit of May 26, 1999 for Terry Lee)

Added to these lies are the unconscionable coerced statements and related evidence addressed in this and in motions to be filed later. To the extent that this is known to the Contra Costa County District Attorney or made known, there is an obligation of the office to act and to remedy these violations which are constitutional in nature.

The authentic majesty in our Constitution derives in large measure from the rule of law--principle and process instead of person. Conceived in the shadow of an abusive and unanswerable tyrant who rejected all authority save his own, our ancestors wisely birthed a government not of leaders, but of servants of the law. Nowhere in the Constitution or in the Declaration of Independence, nor for that matter in the Federalist or in any other writing of the Founding Fathers, can one find a single utterance that could justify a decision by any oath-beholden servant of the law to look the other way when confronted by the real possibility of being complicit in the wrongful use of false evidence to secure a conviction in court." (Commonwealth of the Northern Mariana Islands vs. Bowie 236 F.3d 1083, 1096 (9th Cir. 2001).

This motion is part of the series of motions which will culminate in a motion to dismiss this prosecution. The responsibility for curing these continuing abuses ultimately falls on the District Attorneys office. That office can and should choose to act and remedy the wrongs. If it does not the courts must intervene.

It is a crime to knowingly violate a persons’ civil rights and it appears likely that Harrison / Creekmore & Coke have repeatedly done just that.

The Ashley case has been tainted by perjury and coercion. The contradictory indictments of Terry Lee and Eric Ashley are a travesty to any concept of justice which is based upon truth.

Harrison (as above) has admitted that the Indictment of Eric Ashley was based upon perjury and yet this prosecution continues based upon known perjury before the Grand Jury.

The perjury did not arise by pure chance. It arose at least in part from the conduct of these three notorious serial violators of the Constitution. Consider for example, the interrogation of Lakisha Daniels just a few days prior to her perjury before the Grand Jury.

"You got sucked into this. You got sucked into this by Eric. Whatever crap he was

talking to you, you got sucked into this. He made you a victim in this. Blame him."

(Exhibit 5 Lakisha Interview by Det. Creekmore RT 37: 16-19, Emphasis added)

Just days later, Lakisha Daniels perjured herself before the Grand Jury as she implicated Eric Ashley in a role in the offense later refuted by her own admissions and statements of other witnesses.

The interview at Calipatria which is the subject of this motion is an outrage in own right and a candidate for the most Edwards violations per minute, as shown below.

Defendant Eric Ashley respectfully submits that the violations at Calipatria were part of a broader pattern of gratuitous constitutional violations which permeate this case and which appear to permeate the work of Harrison, Creekmore, Coke and others. This motion and the motions to be filed in this case will establish a continuing series of violations which have so corrupted this Indictment that Due Process will require its dismissal. Presently, Eric Ashley seeks the suppression of the Calipatria statement and fruits herein.

Dated: April 21, 2003

_____________________________________

James Giller

Dated: April 21, 2003

_______________________________________

Daniel Horowitz