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6416 My lsd brief in html part 1 of several parts.
This page is www.lawyerdude.s5.com/6416.html
File:Lsdbrief.58 Printed July 12, 2002.
See revision list near Index.
Attorney Douglas Palaschak, Box 23465, Ventura CA 93002
dlawyerdude@hotmail.com
www.lawyerdude.8m.com
(Actually no court has ever seen this brief. My lawyers each wrote a pathetic 15 page brief.)
CALIFORNIA SUPREME COURT
303 2nd St., South Tower, San Francisco CA 94107-1317. 213-897-5158
People
v
DOUGLAS PALASCHAK
Case SO 37601, 9 C4th 1236, 40 Cal Rptr 2d
722, 893 P2d 717.
Court of Appeal Case B 066 818
Superior Court #CR 28428
U.S. District Ct. Case #
Does not include Hab. Corpus issues.
BRIEF #1170 Version 5.8:
PALASCHAK'S OMNIBUS BRIEF.
"LSD is a powerful drug capable of causing irrational behavior in persons who do not take it."
- Timothy Leary
Table of Contents and List of the approximately 90 issues raised herein:
This fat brief of 86 pages is broken into 9 pieces on the internet.
www.lawyerdude.s5.com/6416.html Contains the list of approximately 90 issues.
www.lawyerdude.s5.com/6416pt2.html Contains the tables of cases and other authorities cited herein. Cases are in alphabetical order
www.lawyerdude.s5.com/6416pt3.html Contains the factual history of the case with verbal (not electronic) link to the transcript. Contains the chronology of the case.
www.lawyerdude.s5.com/6416pt4.html Begins the argument in my case. Goes to page 23 of the brief.
www.lawyerdude.s5.com/6416pt5.html Contains pages 24-31 of the argument.
www.lawyerdude.s5.com/6416pt6.html Pages 31 through 54 of the argument.
www.lawyerdude.s5.com/6416pt7.html Pages 55 through beginning of 76 of the argument
www.lawyerdude.s5.com/6416pt8.html Pages 76 through 84, the end of the argument
www.lawyerdude.s5.com/6416indx.html This last web page is a Topical Index of the brief.
Topical and Word Index appears at end of brief.
FIVE TABLES OF AUTHORITIES
. . . . ix
SUMMARY OF CONVICTION/SENTENCING FACTS . . . page 1
SUMMARY OF APPELLANT'S MAIN ARGUMENTS . . . . . page 1
STATEMENT OF FACTS - CHRONOLOGY OF FACTS . . . . . page 2
ARGUMENT . . . page 9
PROLOGUE - HISTORY OF JUDICIAL CONTROL OF INFORMANTS . . . . . page 9
Issue #1.0: Penal Code §1111. Accomplice testimony w/o sufficient corroboration. . . . 9
Issue #2.0: CONSENT IN SURRENDERING THE LSD - "We're going to tear this place apart if you do not give us the LSD" (Nov 4 5:23) and (RT 150:15) . . . page 11
Issue #3.0: WONG SUN ANALOGY. SIMILAR SITUATION. DETERMINATIVE. . . . . . page 15
Issue #4.0: CONSENT AT THE INNER OFFICE DOOR - Nueslein analogy . . 24
Issue #5.0: PALASCHAK HAS WONG SUN STANDING REGARDING JESSICA'S LSD . . page 26
Issue #6.0: Consent. __ cannot give consent. Palaschak and Jessica were under the influence of LSD - both a truth serum and a empathogen - a drug that makes you friendly and cooperative. . . . page 29
Issue #6.1: Accomplice Jessica's LSD ingestion precludes her ability to waive another's 4th amendment right . . 29
Issue #6.2: Presumed Legal Inalidity to consent to search by one in custody . . . 30
Issue #7.0: INTRUSION OF POLICE THROUGH THE OUTER OFFICE DOOR . 30
Issue #7.1: Warrant is required to enter private law office . . 30
Issue #7.2: Judge McNally erred reversibly (at Nov 4 30:2) in finding that police lawfully entered Palaschak's outer door . . 31
Issue #8.0: The gun or nightstick standard - (Nov 4 31:22) and (Nov 4 8:14) . 32
Even though probable cause would not have justified warrantless intrusion, even probable cause was clearly lacking in Palaschak's case. . . . 32
Issue #10.0: Officer Matz's tactic of WATER DEPRIVATION on Palaschak constitutes unlawful coercion . 32
Issue #10.1: Matz had no probable cause to give Palaschak a field sobriety test . . . . . page 33
Issue #11.0: Perception of subject - not police - determines coercion . 33
Issue #12.0: Standard of review: Probable cause is a mixed question of law and fact in which the
legal issues predominate and is therefore subject to DE NOVO REVIEW . . 33
Issue #12.1: Standard of Review re: Consent: Upheld if supported by substantial evidence. . . 34
Issue #13.0: Watson voluntary drug surrender . . 34
Issue #14.0: Chadwick issue. Regardless of reasonable grounds or probable cause, a search warrant
was needed . . . 34
Issue #15.0: Privacy. Penumbra Doctrine. Inalienable Rights. California Constitution. Article 1.1. Rights include the private harmless use proscribed drugs such as birth control pills (Griswold v Connecticut http://www.circuitlawyer.8m.com/griswold.html ) and other widely used pills such as LSD.. . page 35
Issue #15.2: Palaschak and Jobin had the same quasi procreational and privacy rights as a married couple in their bedroom (the 4th amendment protects people - not places) - and we would not think of permitting the police to knock on the bedroom door to see if everything is all right when there is a reasonable alternative (the phone) if there is really a doubt - and we would not permit the police to stay in the couple's bedroom after they had indicated that they did not need police protection. Eisendstadt v Baird
. . . . 36
Issue #15.3: The right UNDER THE PRIVACY CLAUSE OF A SIMILAR STATE CONSTITUTION to private use of harmless drugs in the home has already been vindicated in Ravin v State (Alaska, 1975) 537 P2d 494 . . . page 36
Issue #16.0: The Age of Aquarius. Societal recognition of the legitimacy of the pursuit of pleasue. Pleasure is what the LSD statute seeks to proscribe - because the dominant religion in American condemns pleasure - and enforcement of an LSD proscription founded on this religious principle is a violation of the ESTABLISHMENT CLAUSE . . . 37
Issue #16.1: LSD becomes an active albeit transient part of the central nervous system - and thus a statute portending to regulate its ingestion is a statute regulating the right to determine WHAT WE SHALL BE - and also, what we shall perceive - and thus the intrusion is fundamental in many respects. . . . . . page 37
Issue # Freedom to leave your own house is irrelevant - and besides, they were not free to leave . . . . . page 37
Issue #17.0: KNOCK AND NOTICE VIOLATION . . . . . page 38
Issue #18.0: Pretext vitiates any exigency excuse for no warrant - and police took a half hour to get
there from 2 miles away - not an emergency response . . 38
Issue #19.0: Police intrusion was disproportional to exigency . . 39
Issue #20.0: What is the remedy for failure to honor a subpena if the defense does not immediately seek a contempt order? Is the right waived? . 40
Issue #20.1: Remers issue - Desk Officer Cindy Turner failed to appear and prosecution failed to carry the burden of proof of probable cause for entry through the outer door, Schwentner having failed to testify that she used the word "rape" which Officer Matz used as a basis for exigency . 40
Issue #21.0: Testimony of Newspaper Reporters . 41
Issue #22.0: Bumper proof of voluntariness. . . . . . page 41
Issue # Was the office secured by police? . 41
Issue #23.0: Suppression. Judge McNally should not have read the grand jury transcript . . 42
Issue #24.0: Miranda. Officer Matz admitted (Oct 31 43:13) that Jobin (and necessarily by implication, Palaschak also) was a drug target; therefore all incriminating statements (and evidence resulting therefrom including the LSD) must be suppressed because Jobin was not Mirandized until on her way to the police station (RT 140:10). Miranda . . . . . page 42
Issue #25.0: Palachak has Wong Sun standing to contest seizure of Jessica's purse and Judge McNally erred reversibly in finding that he did not have standing. . . 43
The SPANN USE/POSSESSION TRANSMUTATION issue . . . . . page 43
Issue #26.1: The court erred in not offering a Spann instruction sua sponte. . . . . . page 47
Issue #26.2: Jury Instruction Caljic 3.12 at CT 114 is not strong enough in connection with a Spann issue and requires special instruction that Palaschak's possession must be proven by more than Jessica's testimony . 48
Issue #26.3: Jury Instruction CalJic 3.13 should have been more clear in that one cannot legally infer Spann possession from Palaschak's admission of use of LSD - and reversal is required because of the jury's invitation to infer possession by use by the reference to People v Ruscoe . . 48
Issue #27.0: The more specific statute prevails over general . . . . . page 48
Issue #28.0: Proof of Lesser offense cannot be sole proof of greater offense . . . 48
Issue #30.0: Proof of non-commission of lesser included offense cannot constitute proof of the greater offense . . 49
Issue #31.0: Consumption vitiates the crime of possession . . 49
Issue #31.1: Dominion and control is not the sole determinant. Illustrative hypothetical: What does one do when one receives the gift of LSD? If one exercises dominion and control to flush it down the toilet, the one has nonetheless demonstrated dominion and control of a drug yet we would hardly find a mens rea. Aha! . . . 49
Issue #31.2: Palaschak's Mens Rea was that of use and therefore possession is an inappropriate conviction. . . . 49
Issue #32.0: Certain Mens Rea can obviously be a defense; therefore 11377 is a specific intent crime and the court erred in failing to inform the jury sua sponte that possession of LSD is a specific intent crime. . . 49
Issue #33.0: Lack of Notice - LSD listed by chemical name . 50
Issue #34.0: Leal Usable Quantity Doctrine - LSD consumed by Palaschak . . . 50
Issue #35.0: Leal Usable Quantity Doctrine - Jobin's LSD . . . . . page 51
Issue #36.0: "An ambiguity concerning the ambit of a criminal statute should be resolved in favor of lenity." - Headnote #9 in Huddleston v US. . . . 51
Issue #37.0: Reporters testimony as extrajudicial confession . . . . . page 51
Issue #38.0: Escobedo issue by separate questioning . . . . . page 52
Issue #39.0: Defendant was denied his constitutional right to employ an investigator from jail. . . 52
Issue #40.0: Irrebuttable presumption that adults cannot safely enjoy LSD is a denial of due processs. Cleveland Board of Education v La Fleur http://www.lawyerdude.netfirms.com/5877.html . 52
Issue #41.0: Mapp v Ohio issue. http://www.lawyerdude.s5.com/mappohio.html . State statute making criminal the mere possession of LSD incidental to its use is invalid because inconsistent with the rights of free thought and expression assured against state action by the 14th amendment. . 52
Issue #42.0: "If we would be guided by the light of reason, we must let our minds be bold." 1st amendment right to chemical acceleration of learning of emotions and experience. . . . . . page 53
Issue #43.0: 1st amendment right to chemical amplification of signals. LSD is a neurotransmitter. Part of the effect of LSD is mere amplification of light, smell, touch, hearing, and other signals. Conceptually the LSD proscription is equivalent to a proscription against amplified music. The LSD proscription is promoted by the same people who would like to proscribe amplified music . . . . 53
Issue #44.0: Equal protection paradox in laws that protect us from ourselves. Theoretical law. Natural
law. Tort theory of crimes . . . . . page 53
Issue #45.0: We don't need protection from ourselves . . . . . page 54
Issue #46.0: Excessive punishment is prohibited by the 8th amendment and the California constitution and 90 days in jail is excessive punishment for simply trying LSD - a rite of passage in California. . . . . 54
Issue #47.0: The crime/tort distinction is an arbitrary classification. No harm, no foul. Every crime is a tort. Natural law theory proves that since there is no damage in drug use then there is no crime. . . . 54
Issue #48.0: Libertarian Manifesto - The 1st rule of Natural Law . . 54
Issue #50.0: GENETIC AUTONOMY - INALIENABLE RIGHT UNDER NATURAL LAW and the California Constitution to recognize evolutionary symbiosis and to select, associate with and procreate with like-minded people to genetically ensure propagation of empathetic progeny. . . . . . page 54
Issue #50.1: Some humans react to some drugs because of receptors to these drugs in their nervous system . . 54
Issue #50.2: The presence of these receptors gives these people a biological advantage - or the receptors would not have survived the evolutionary process . . 55
Issue #50.4: Psychotropic plants therefore (and by logical extension psychotropic chemicals) have a symbiotic relationship with people who capable of enjoying these plants (and chemicals) . . . . . page 55
Certain unquestionably desirable traits such as empathy, compassion, and passion are "selected for" (using genetic parlance) in high correlation with a propensity to enjoy empathogens such as ecstasy, LSD, and marijuana . 55
Issue #51.0: Our inalienable rights include procreational rights which include the right to select a mate on the basis of genetic traits (as manifested in the phenotype) including ability to enjoy psychotropic substances - a trait that might well be called "mystic" - even if the majority of society does not agree that we should have "mystic" babies or non-catholic babies. This is a fundamental choice and a personal right. . . . . . page 55
Issue #52.0: . The California Constitution recognizes such evolving rights, specifically, Article 1, Section 1 states in part:
"All people are by nature free and independent and have inalienable rights [including] enjoying life . . . and pursuing . . . happiness and privacy." . . . 55
#Issue #52.1: The US Supreme Court has recognized multitude of similar rights. They are collected at 47 L Ed 2d 975 . . . . . page 55
Issue #52.2: One cannot truly know how a person reacts while using psychotropic drugs unless one shares the experience . . . 55
Issue #54.0: Conclusion: Whether or not Palaschak was attempting to exercise procreative rights, Palaschak has an inalienable right to deference for his privacy. . . 55
Issue #55.0: Ectomorphs, a discreet and insular minority, tend, by virtue of their relatively predominant neural tissue and sensory organs, to enjoy and perceive psychotropic drugs and deserve special
protection by the judicial branch from majoritarian oppression - like laws against LSD. . . 56
Issue #56.0: Believers in Timothy Leary's theory of rejuvenalization are entitled to equal protection under the law. . 57
Issue #57.0: Invidious gender-based discrimination . . . 57
Issue #58.0: The suppressed 1st amendment religious rights of natural recurring Pharmacological cults58
Issue #Issue #58.1: Furthermore, users of LSD are more harmed by H&S code §11377 than Catholics would be harmed by alcohol prohibition. The water and wine in the Mass are merely symbolic, the words of Jesus Christ to the contrary notwithstanding. By comparison the LSD is more than symbolism. It is the real deal - the most potent of the recreational drugs - and yet one of the safest in terms of therapeutic ratio. In the words of Marshal McLuhan, the medium is the message . 59
Issue #59.0: The hypocrisy of outlawing drugs used by young people today while continuing to permit alcohol and continuing to subsidize tobacco - a manifestation of majoritarian oppression of discreet and insular minorities who depend upon the judicial branch of government for relief and parity in treatment. "Reason...is the life of the law" . 60
Issue #60.0: Automatic suspension by the state bar chills appellant's right to appeal this case since appellant extends his suspension by appealing . . . . . page 60
Palaschak's 1.5 years of automatic state bar interim suspension upon this conviction with no hearing constitutes Double Jeopardy violates due process mandates in violation of California Constitution Article 1 section 15 and US Constitution, 5th amendment . . . . 60
Issue #63.0: Business and Professions Code §6102 b is unconstitutional in that it permits the
prosecution to usurp judicial authority and thwart Judge Henson's intent in deeming Palaschak's
crime a misdemeanor (at RT 478) for the purpose of saving Palaschak's bar license (RT 464:12).
Authority: People v Treadwell (1885) 66 C 400, 5 P 686 ; In Re Riccardi (1920) 182 C 675, 189 P
694; Humboldt v Exxon 532 FS 899 (DC Nevada 1982) A LEADING CASE FOR MING LOGIC.
Injunction issued to prohibit Termination of franchise upon conviction of felony before conviction
is final. Termination is prohibited because conviction is not final a conviction until it has
finished the appeal process . 60
Issue #64.0: Reality is in the eye of the beholder. Use of LSD is a religious experience: US
Supreme Court's treatment of Free Exercise arguments. Theory: LSD use is merely the
re-emergence of pharmacological cults which were suppressed when Catholicism
became the dominant religion of the Roman Empire in the 4th century. Palaschak's
experiment constitutes religion and Jessica Jobin functioned as a Shaman - and they are
entitled to the same protection as any other religion. . . . . . page 61
(From Timothy Leary's successful brief in Leary v US 23 L Ed 2d 57 found at Hastings Law Journal
19:667 1967/68 Psychedelics and Religious Freedom.) The court erred in denying Palaschak an
opportunity to demur to a charge of possession of LSD on the basis that LSD use in his case
constituted an experience entitled to religious protection, that LSD is very effective and
predictable but relatively safe, and that the 1st amendment protection is not outweighed by
compelling state interests. . . . . . page 63
Whether we consider Palaschak's LSD experience to be a delayed rite of passage, an educational experience, a bonding ritual, or simply a ceremony, it was important to him and use of LSD in a religious ceremony, quasi-religious ceremony, rite of passage, or personal celebration may not be infringed by generally applicable statue unless it amounts to a grave abuse endangering paramount interest or there is a compelling government interest in denying a religious exemption 63
Issue #66.1: Religious protection is a preferred right - and this triggers strict scrutiny analysis . . 63
Issue #66.2: The rationale of religious freedom . 64
Issue #67.0: To the extent that drug laws regulate private harmless activity they exist merely to
enforce the Bible. Palaschak in biblical terms "ate the fruit from the forbidden tree of the
knowledge of good and evil" . . 65
Issue #67.1: The polygamy cases . . . 65
Issue #68.0: The constitutional right to religious use of similar hallucinogens has been enunciated by
the California Supreme Court in People v Woody and People v Grady 61 C2d 887 . . . . . page 65
Issue #69.0: The ingestion of LSD, a relatively harmless substance cannot reasonably be deemed a
grave abuse endangering paramount government interest . . . 65
Issue # LSD is not a narcotic, nor is LSD addictive. LSD is much safer than gasoline, matches,
automobiles, alcohol and most other drugs. LSD does not cause chromosome damage (source:
Acid Dreams) and it was clinically administered to children for over a year to treat autism.
Source: 1974 Ency. Brit . 65
Issue #70.0: LSD does not cause crime - indeed Timothy Leary succeeded in reducing recidivism by
treating prisoners with LSD . . . 65
Issue #70.1: LSD does not lead to heroin addiction; indeed, like ecstasy, it loses its effect after
approximately 3 consecutive days of use
. . . . 65
Issue #70.2: LSD does not cause physiological or psychological harm - the therapeutic ratio is very high
- overdose is practically impossible
. . . . 65
Issue #70.3: Since alcohol, being almost certain to cause heart stoppage upon consumption of only 40
ounces, is much more dangerous than LSD, and since society does not find the former
sufficiently dangerous to warrant general prohibition even of its frivolous uses, there is o sound
logical basis for finding that LSD creates a grave abuse justifying infringement of religious
exercise or that there is a compelling governmental interest in prohibiting its use. . 66
Issue #71.0: Since the transcript (if and when available) will show that appellant was denied a
reasonable opportunity to demur to his complaint and to bring forth witnesses to support his
contention that LSD is potent but safe, and since the record will show that appellant was scoffed
at when requesting time to prepare the demur, appellant is entitled to a rehearing upon his
demur unless that issue becomes moot . 66
Issue #72.0: Appellant is being punished for heresy - like William Penn and like the victims of the Alien
and Sedition acts . . 66
Issue #73.0: Under Seeger and Woody and the California Constitution's Equal Protection Clauses, it
would be invidious discrimination not to permit Palaschak to use LSD while permitting persons of
other races and religions similar rights to similar rites. . . 66
Issue #74.0: Health and Safety Code §11213 is unconstitutional as applied in that it . . 67
Issue #75.0: If we permit only established factions to experiment and write about drugs, then we have
destroyed the free marketplace of ideas. Dr. Solomon Snyder, author of "Drugs and the Brain"
tells about his own LSD experience at page 179 of his book
. . . . 67
Issue #76.0: Stay of Search terms pending appeal . . . 68
Issue #76.1: Lack of Nexus for search terms for legal drug use . . 68
Issue #77.0: The election to give up a dealer to obtain a conviction upon a user was invidious
discrimination tending to chill Palaschak's 1st amendment rights of speech and press and
class discrimination on age and gender basis . . 68
Issue #78.0: Probation search terms are unconstitutional. Palaschak should not be required to relinquish
his 4th amendment rights to utilize the benefits of probation. Our civil rights are inalienable . 68
Issue #78.1: Palaschak must be granted diversion because prosecutor's purpose is electing to utilized a
grand jury on the eve of the preliminary examination was to ensure that: 1) Palaschak would
continued to remain ineligible for diversion (the preliminary hearing would have revealed the
fatal deficiencies in the allegations of nondivertible offenses; and 2) that unconstitutional
Business and Professions Code 6102 c would trigger interim suspension (because the
determination by a magistrate that the crime is a misdemeanor pursuant to Penal Code section
17 b 5 would be precluded) . . . 68
Issue #80.0: Palaschak was entitled to a preliminary examination because his prosecution was started
with a criminal information or complaint - not a grand jury indictment . . . 69
Issue #81.0: Penal Code section 1000 is unconstitutional to the extent that it deprives Palaschak of
the opportunity to participate in drug diversion despite being acquitted of the allegation that
prevented him from being eligible for drug diversion . . . . . page 69
Issue #82.0: De Minimus crimes. . . . . . page 69
Issue #83.0: Even if he is not granted diversion, Palaschak's punishment should not exceed that of drug
diversion. Authority: Continuum theory of natural law . . . 75
Issue #84.0: Grand Jury Problems - mainly failure to instruct on exculpatory points of law . 75
Issue #84.1: Prosecutor Gibbons failed to adequately describe the severity of witness Schwentner's
crimes describing them only as "theft"
. . . . 75
Issue #84.2: At Grand Jury transcript page 100 Gibbons's instruction regarding the use of the
conjunctive which supposedly means the disjunctive is wrong - and prejudicial - and not moot
despite the acquittal on this count. Had the grand jury been properly instructed it would not have
returned an indictment on 11380 - and Palaschak would have then been eligible for diversion
. . . . 75
Issue #84.3: At Grand Jury transcript page 96, line 9, Gibbons improperly instructs the jury that
solicitation constitutes conspiracy in violation of Wharton's rule. Moot? Not if we find that the
entire indictment was obtained by improper instruction. Then it would tend to support our
contention of chilling of Palaschak's rights of free speech. . . . 75
Issue #84.4: Improper jury instruction. No PC 1111 instruction. At Grand Jury transcript page 94,
line 19 Gibbons invites the jury to find a true bill regarding possession without giving the jury a
PC 1111 instruction - nor a Spann instruction. This is prejudicial error . . 75
Issue #84.5: Improper jury instruction. Grand Jury transcript page 93 Prosecutor Gibbons improperly
instructs the grand jury that use of drugs is corroboration of possession but neglects to inform the
jury of the subtle distinction between use and possession and the heightened corroboration
requirement where the corroboration must corroborate who possessed the drug and the
corroboration in that regard only comes from accomplice Jobin - and thus precludes conviction
because of PC 1111 . . . . . page 75
Issue #84.6: Improper Jury instruction to grand jury . . . . . page 75
Issue #85.0: Prosecutorial Misconduct by improper argument at sentencing that Palaschak should
be punished more because he told his employees that drugs should be legalized. . 75
Issue #85.1: Prosecutorial Misconduct. Improper argument that Palaschak is "a lousy lawyer"
[___]when no evidence was presented and the issue is irrelevant - and the attempt to imply that
the DA had witnesses who complained of Palaschak's work. . . 75
Issue #86.0: Palaschak has been denied effective assistance of counsel on appeal by the neglect
and deceit of appointed counsel Dolge, and by the failure of the court of appeal to appoint
competent counsel upon request of Palaschak . . . . . page 75
Issue #86.1: The court of appeal cited Fein - a case that deals exclusively with search and seizure -
and thereby sent a signal that this was an issue Dolge missed . . . . . page 76
Appendix A - Bus and Prof Code 6102 - Interim Suspension . . . . . page 77
INDEX . 78
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