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1230 Washington Avenue, Bay City MI 48708. Phone: District: 895-4232. Circuit: 895 4265

Unnamed prosecutor doing business under false color of law and oppressive legal fiction as the People of Michigan

Ex Parte Amended Marsden Motion to Fire appointed lawyer Kim Higgs for failure to write any motions and for failure to take any interest in my case.

Notice of Marsden Motion to Fire Kim Higgs for ineffectiveness and inaction and lack of interest.

At the venue designated in the caption or at such other time as the court shall designate, I, Ron Fox will ask the court to fire my appointed lawyer and hire one who will provide effective assistance of counsel.

I, Ron Fox, declare the following under penalty of perjury: Attorney Kim Higgs has neglected my case and has no strategy for my case. Kim Higgs told me that he will write no motions in this case. I believe that he has not even read the approximately 20 motions is this case. I think that he has not read the 220 page “appellate” record in my underlying case from 1997. I asked him by email and he indicated the foregoing by email. I could bring the emails to court, but why don’t we just ask him in court. He has taken an antagonistic attitude - just like all my other appointed lawyers. Although I don’t expect my lawyer to do everything designated in the Lawyerdude standard #5635 for effective assistance of counsel http://www.circuitlawyer.8m.com/5635.html ,but I do expect some interest, cooperation, and written motions.

I, Attorney Douglas Palaschak, declare the following under penalty of perjury: I have 21 years experience as a licensed lawyer. Two of my cases are on the books. The California bar illegally attempted to disbar me around 1996. A void act is void ab initio. Marbury v Madison. They kicked me out of the hearing and then held another hearing without inviting me.. They thwarted my attempt to appeal their opinion. The story is up on my website http://www.lawyerdude.8k.com The practice of law is a right for those with the requisite education and testing. See my brief #3789 if you choose. http://www.lawyerdude.8k.com/3789.html

I took an oath. California Business and Professions code section 6068-h commands that I take an oath promising

"Never to reject, for any consideration personal to himself or herself, the cause of the defenseless or the oppressed" - California business and professions code §6068-h

I took that oath. Every California lawyer took that oath. Obviously nobody follows the oath! The oath and the state bar act are overbroad and unconstitutional. I choose my own work; I am a free man. I choose to help such defenseless and oppressed as I choose.

The internet has made us free! I choose to go to every corner of this country. I can legally go where local counsel are ineffective. See Sanders v Russell for example: Sanders v Russell 401 F 2^nd 241(1968 5th circuit) http://www.lawyerdude.8k.com/sanders.html This case is cited in Gilbert Summary of Ethics at section 69.. If a suitable lawyer cannot be found within the local bar then an outsider obviously must be imported.

Ron Fox first telephoned me on December 10, 2003. I have known him for over a year. We are making great progress on exonerating Ron. On the day before Thanksgiving 2004 I finally received the 220 page file from St. Ignace. I spent 12 consecutive hours reading the entire file. The file is fascinating to me. Here is what I learned: Ron’s troubles are the product of shameful legal neglect by negligent public defenders and bad judges. Ron Fox is mentally disabled due to 3 closed head injuries. Ron’s toxic mom told me by telephone that Ron was run over by a car not once but twice as a child. Tests imposed on Ron show his IQ of “verbal 67, a performance score of 70". Dr. Stephen Cook’s report is the only credible report in the “appellate record”. He says that Ron “denies any and all criminal activity”. The report to the judge was different than the report to the lawyers. Both reports are in the file.

As to what Ron is alleged to have confessed to the police, they lost the tape and there is no transcript in the file. As to what the niece said, there is no record. As to what the nephew said, there is no record.

Ron Fox changed his name early in life to avoid being associated with his toxic abusive family, the Beavers. The “appellate record” shows testimony of a counselor on June 7 1996 that Ron has scapegoat syndrome from being the youngest of his siblings.

In 1995 Ron was falsely accused of a touching the underpants of his niece. Ron was sleeping at the time; That much is undisputed. The girl’s brother was in the bed; nobody has proven that it was not the brother. Sexual intent is an element of the crime. A sleeping person can have no intent. After 2.5 years and 3 lawyers Ron pleaded guilty to “attempted criminal sexual conduct in the 4^th degree”. This crime is impossible invented lunacy and not on the books. The alleged act was alleged to have been fully committed. How can it be attempted? If there was any element missing then:

1. It was the missing mental state; the statute specifies 4 possible mental statutes; this would not be attempted; it would be “no crime”

No witness signed a complaint against Ron. The case should have been thrown out for that reason!

Attorney Stuart Spencer was appointed on August 15, 1995. Prosecutor then was Dan Dowdell

They failed their duties miserably by failing to demur or otherwise dismiss the case on a legal basis before arraignment. Attorney Rasor waived arraignment and pleaded by mail.

The tape recording of the alleged confession was lost before the preliminary examination.

The “appellate record” by the clerk talks about a transcript of the alleged confession but there is no transcript in the record.

This case should not have survived the preliminary examination. At page 33, line 19 of the transcript of the preliminary examination of September 26 1995, Judge Steve Ford made this pregnant statement regarding the absence of the prosecution to produce any evidence that Ron was awake. Nobody testified that Ron was awake. (Keep in mind the following: this girl was assigned to another bed. In the middle of the night she jumped into bed between Ron and her brother. I recall no testimony that Ron even knew that this girl was in the bed. This girl could readily have rotated her body to avoid the contact. This girl did not report the incident for around 4 months.) The judge said this at page 33, line 19. In essence he says “well you won’t be able to prove at trial that he was awake, so let’s make up an excuse right now why we don’t need to prove that element”. Here is how he worded it:

Page 34, line 19 of the preliminary examination: “That’s an interesting question because even though the test here is only probable cause and then one could think that’s a relatively weak standard; one would have to think that the jury wouldn’t have a whole lot more to go on at a jury trial and here wouldn’t be a whole lot more reason to believe that this gentleman was. . . .asleep “

Judge Steven Ford was thinking aloud. He said that this is the best proof that they have. He should have said “It fails to prove the element of mental state” but he did not say that because nobody mentioned the specific mental state designated by the statute! Ron’s lawyer argued a similar concept - the absence of intent. The judge revealed his own breach of his oath by basing his decision on the fact that a jury would have no more evidence; let’s give it to the jury. The correct answer disregards the jury. The correct answer is “Mr. Prosecutor, you have failed to present one scintilla of evidence that this man was awake! Case dismissed!”

On page 34 line 2 Steve Ford plows on, again, ignorant of the 4 possible mental states designated by the statute. Steve Ford did not know the elements. Ron’s lawyer did not know. The judge’s ruling was in error. Had the judge known the law, he could not have blamed Ron for Ron’s answer. Here is what the ignorant judge said:

“But people do not, after being advised of their rights , pe Miranda, admit to doing things that they don’t remember doing while they were asleep. If somebody is alleged to have had done something and confesses to the doing of it, or says that they did it, then that implied a conscious act of an awake person.”

The judge’s logic is generally defective, but it is more defective in this case. The judge should have done some research if he was ignorant of the law. His ignorance of the law caused him to make a wrong ruling - which is an independent ground very closely related to the corpus delicti rule.

Nobody advised Ron of his rights! Ron’s rights include knowing what he is confessing to. Ron had no clue that the statute specified a mental state. The judge had no clue what were the elements of the crime. A plea of guilty is not a knowing plea where Ron does not know the elements of the crime. Ron pleaded essentially “I may have touched her because my wife says that I touch her in my sleep - so maybe I did touch my niece in my sleep” Ron’s purpose for making the statement was to prevent embarrassment to his niece. Ron was the abused youngest in the family. He often was the scapegoat. This comes from the report of the forensic psychologist as I recall.

Also, we have the corpus delicti rule: the elements of the crime must be proven without resort to the confession!

Well why didn’t Ron’s lawyer think of this? Answer: Ron’s lawyer at the plea was the 3^rd lawyer in this case. There is a good chance that he did not even spent the 12 hours necessary to read the record. There is a real good chance that he did not talk with Ron for 8 hours to understand the things about this case that are not on the record.

Now on March 4, 1996 Stuart Spencer is back in the case replacing Ron’s lawyer Rasor.

Now on July 30, 1996 Prentiss Brown is appointed to represent Ron. This is Ron’s 3^rd lawyer in this case.

At page 10 of the record, the title says “felony” but this was no felony. Also on this same page, the 2^nd count is attempted, but the act “touching the panties” was alleged to be fully completed. The only way that you can say attempt is if you think that the crime is actual penetration, but that is not what was alleged, not is it what was charged. Actual penetration is a different code section. Furthermore the prosecutor alleged 2 counts in order to throw one out. This practice of “overcharging” is unethical, and when foisted upon a mentally challenged defendant is reprehensible and, well, it oughta be illegal - and maybe it is. In the beginning there was one count. On June 16, 1997, FIVE DAYS AFTER the plea the prosecution illegally added a bogus count in order to have a bargaining chip. Ron had a new lawyer this day, his 3^rd lawyer in 2.5 years. This lawyer apparently knew little about the case. Nobody told Ron that there can be no attempt if the act is completed.

Item #10 in the record is the amended complaint now listed as a felony! It is file stamped and signed 5 and 4 days after the plea, respectively.

This reminds me of a current case in Texas where the affidavit for the search warrant was written after the search was completed.

Ron served no time in jail after the plea. He was given credit for the one day when he was arrested. The 90 days was suspended. Ron successfully completed his 2 year probation and all obligations were suspended. That’s on page 1 of the record. We contend that the registration obligation was terminated at this time. In the alternative we ask that the plea be vacated for fraud by the court and failure to explain the registration law to this man with an IQ of 67.

I have sat through many early morning plea bargain agreements; I suspect that this impossible plea the product of the desire to close a 2.5 year old case. This bargain saved face for the prosecution and covered up the fact that the alleged confession tape recording was lost and the transcript is not in the file. Also, the complaint contains no allegations from any victim.

I have nearly completed motion #6655 to re-open and dismiss Ron’s underlying illegal conviction in St. Ignace. Here is a link to that motion: http://www.lawyerdude.s5.com/ignace.html Ron is innocent of the alleged crimes that your bad legal system has thrust at him. Last spring your blind judge put Ron in jail to ensure that Ron would take his mental tests. The blind judge did part of this off the record with the tape recorder turned off. When I applied to the higher court, a newbie clerk told me that she had intercepted my papers after having been alerted by the vindictive woman clerk for the blind judge. This constitutes obstruction of justice. After Ron finished his tests the judge kept him in jail for no reason. Ron was falsely imprisoned by blind judge Alston for 90 days. Alston has no jurisdiction to so imprison Ron.

Signed under penalty of perjury _______________________ Douglas Palaschak. Signed by Ron with permission of Douglas Palaschak. Thursday, January 6, 2005

Broadly speaking a defendant enjoys the right to control his case. Ron’s motions must be heard and the refusal of his lawyer to write a motion or to even read the approximately 16 motions already written constitutes antagonistic neglect. Faretta v California (1975) 422 U.S. 806. Here is a link to the Faretta case: http://www.lawyerdude.netfirms.com/faretta.html

I, Ron Fox, declare the following under penalty of perjury: On Thursday January 6^th 2005 I served this motion in person upon the receptionist at the office of Attorney Kim Higgs. Signed ______________________ Ron Fox. Thursday 6 Jan 2005.

Appendix #1:Palaschak’s Performance standard #5635 for effective assistance of counsel and Defendant’s Bill of Rights

The Strickland test is inadequate and provides no protection. The key is to use the state constitution and give the state a chance to give you your rights under independent state grounds! In fact there may be cases on point in your state. Check your annotated state constitution. In the mean time, be creative and demand the Lawyerdude Standard which I have printed below. In the alternative suggest to the court some variation of the Lawyerdude Standard . For example, Lawyerdude recommends weekly visits by counsel. Maybe the court will order monthly visits.

The test of Strickland v Washington (1984) www.circuitlawyer.8m.com/5699.html is not adequate. The Harrison Cronic www.circuitlawyer.8m.com/5698.html case is inadequate. It was a small step in the right direction. There is no other standard available at our law libraries. I, Attorney Douglas Palaschak, set this as the minimal standard for effective performance. It is based on 18 years of practice including being represented by public defenders, some effective and some not. I have been in jail due to excess bail and I have listened to the complaints of inmates from several states. I have been in jails in 3 states.

Public defenders guarantee to do “all the cases” for a fixed fee. The fee cannot be changed; it is in the county budget; the salary of the public defender is fixed. The caseload cannot be changed; it is “all the cases”. Something has to give. The solution is always to make more deals. That frees up more time. There is also a cumulative effect: cases argued by public defenders before the court of appeal are lost due to ineffective assistance. The cumulative effect is erosion of our rights. By stealthy encroachment we lose our rights. The public defender is an instrument of oppression. One remedy would be the appointment of counsel from the larger pool of defense lawyers - but that is not as good a remedy as the remedy of a standard. One such standard is the following standard:

1. This standard is based on a written Case Summary and on performing specific work items designated in this case summary. This standard envisions written 2 way communication and weekly half hour meetings.

2. Counsel shall disclose to the client how many cases he has handled in the past 365 days; Counsel shall disclose how many cases settled and how many went to trial. Counsel disclose that the ABA recommends no more than 150 cases per year. Counsel shall account (using standard accounting and timekeeping standards and software) to defendant for his hours spent on defendant’s case. Timekeeping date shall be audited. The purpose of this requirement is to assure that counsel spends adequate time on defendant’s case.

3. Counsel shall advise defendant that defendant may propose a plea bargain at any time.

4. Counsel shall meet with defendant at least once a week, whether defendant is incarcerated or not, for at least 30 minutes unless defendant deems that he requires less time. At that meeting counsel shall present to defendant the current updated Case Summary in writing.

c. A recommendation that all letters to counsel be sequentially numbered and dated and time marked.

d. a packet containing a blank motion of every type pertinent for this case - or, in the alternative, a standard book of motions. This menu of motions shall include the following motions:

ii. PC 1045.5b Motion for dismissal or other remedy for failure to provide discovery items.

f. Instructions on how to obtain stationery, stamps, envelopes, and other supplies to communicate with counsel.

6. On the day of this first meeting with incarcerated defendant, or within a week, Counsel shall make a written contract with the jail to ensure that defendant has access 2 hours per day at the law library with a working typewriter or word processor. Counsel shall deliver the contract to the inmate so that he knows what to expect. Counsel shall litigate to see an effective remedy if the jail will not so agree.

7. If defendant is in jail, then counsel shall visit defendant once a week unless defendant waives the visit in writing.

b. shall include the list of concurrent demands such as jury, court reporter, daily transcripts (or 3 days late or whatever), O.R., Judge and not commissioner, etc. These concurrent demands are specified in the standard entitled “Motions 101" which is on the internet at http://www.lawyerdude.netfirms.com/6025.html ;

i. If client is free then the motions shall be set 30 days hence or longer if needed.

ii. If the client is in jail, the motions shall be set on weekly intervals which means that an order shortening time may be needed in some cases.

ii. Pertinent excerpts from cases, statutes, and constitutional provisions, etc. Don’t make the judge go to the books;

i. (Counsel shall revise the motion before hearing if defendant so demands in writing specifying the changes to me made - unless counsel declares the changes trivial in writing immediately upon receipt of the demand.)

i. Shall contain that concise statement of the case that is in the case summary; (There is a need to include it on every motion because the judge sees so many cases. Don’t make him search.)

9. Defendant shall make work requests of counsel in writing or at the weekly meeting. Such requests may include any of the items in the case summary, including

b. Defendant may demand that counsel investigate and answer questions within 7 day.

d. Contact Information so that everybody has the telephone numbers handy and so that papers can be served at the correct address. Dossier of Information on all players in the case. The players include: Defendant, All counsel, prosecutors, Judges, Jail, Defendant’s family and support members, witnesses (subject to redaction), and any other person pertinent to the case. The dossier information includes: List of Name, address, telephone number, what the witness is expected to say, and all other pertinent information.

g. List of issues. Defendants have ideas about the issues. Sometimes they cannot articulate them. In law school we call this “issue spotting”. It is the heart of effective legislation. Issue spotting is an ongoing process. Counsel shall list the issues in order of significance.

h. List of Legal Questions to be answered. The answer must include case authority, statutory authority, constitutional authority, or rule authority.

i. List of factual questions to be answered by discovery or investigation. Answers to those questions.

j. A chronology of the events leading up to the alleged crime, the events of the alleged crime and the case progress.

k. List of Motions that will be used in this case. Counsel shall number the motions sequentially, beginning with any 1,2,3, or 4 digit number to permit easy identification in discussion.

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL JOHN MARSDEN, Defendant and Appellant.

(Opinion by Mosk, J., with Tobriner, Acting C. J., Peters, Burke, Sullivan, JJ., and Molinari, J., concurring. Separate dissenting opinion by McComb, J.)

Stephen H. Silver, under appointment by the Supreme Court, and Long & Levit for Defendant and Appellant.

Thomas C. Lynch, Attorney General, Jerome C. Utz and Joyce P. Nedde, Deputy Attorneys General, for Plaintiff and Respondent.

On August 22, 1968, the District Attorney of Monterey County filed an information charging defendant and Laura Catheryn Repine with five counts of forgery, a violation of section 476 of the Penal Code. It was asserted that defendant and Miss Repine fraudulently cashed $100 money orders at five different motels in Monterey County on August 3 and 4. The money orders had been stolen from a grocery store and were cashed by means of fictitious identification. Defendant was arraigned on August 30, and the court appointed Michael Antoncich as defense counsel. Defendant pleaded not guilty, but was convicted on all five counts after a two-day jury trial. He was sentenced to the state penitentiary.

Defendant's only contention on this appeal is that he was deprived of his constitutional right to the effective assistance of counsel because the trial court denied his motion to substitute new counsel without giving him an opportunity to state the reasons for his request.

After the People completed the presentation of their case to the jury, the following colloquy occurred in the judge's chambers:

"THE DEFENDANT MARSDEN: I don't know how to go about making the motion, Your Honor, but I don't feel that I am being competently or adequately represented by counsel.

"THE COURT: All right. Any comment wished to be made by anyone else on this point? All right. Well, the comment has been made for the court so it's noted, it's on the record.

The next day at the instigation of the prosecutor the problem relating to defendant and his counsel was again raised in the judge's chambers and this colloquy ensued:

"THE COURT: The Court doesn't recall hearing a motion made or asking [2 Cal.3d 121] any relief from the Court on the part of the defendant Marsden, that's why when he made his statement, the Court said your statement is noted in the record, however, in the interests of caution, the Court will consider it a motion that according to the defendant Mardsen he claims his attorney is not representing him properly and therefore the Court will infer that he wishes another attorney or wishes to represent himself, I don't know which. What do you say on that, Mr. Marsden?

"THE DEFENDANT MARSDEN: Yes, sir, I don't feel that I am getting adequately represented or competently represented, I'd like to make a motion.

"THE DEFENDANT MARSDEN: For proper counsel. I'm not adequate to give it myself and I don't feel I'm being adequately represented. I think the transcript, court's transcript prior to this meeting here can reveal that fact."

The court then questioned Mr. Antoncich and established that he had represented defendant since his arraignment in municipal court, and that he had also represented Miss Repine until the time of arraignment in the superior court when separate counsel was appointed for her to avoid a possible conflict of interest between the two defendants. The judge proceeded to interrogate defendant as to his background and learned that defendant had served time for burglary and escape in the state prison, that he had never completed high school, that he received a certificate of completion of a high school equivalency course in the Marine Corps, and that he was working before his arrest as a mathematician operating and programming digital computers. Then this discussion occurred between the court and defendant:

"THE COURT: You seem to be [an] intelligent sort of a person. In the times you have been before the court have you been represented by an attorney?

THE COURT: And during these previous occasions when you have been represented by an attorney, have you ever discharged your attorney?

"THE COURT: Have you ever represented yourself without an attorney in any of these prior proceedings?

"THE COURT: Well, the Court denies the defendant's motion. The Court [2 Cal.3d 122] feels Mr. Antoncich is alert and has raised questions during the course of this hearing that have been good questions to raise. The Court feels he has taken good care of his client to the present time, at least.

"THE COURT: I don't want you to say anything that might prejudice you before me as to the case, you see.

"There are lots of times when a person--lots of times, and I emphasize that, where a defendant is represented by an attorney where he has just sufficient knowledge to be ignorant and lots of times people want to tell their attorneys how to run a case, which they are not qualified to do. I think possibly you are a bright person and who thinks a case should be conducted in a certain way, which you are not qualified to determine.

"THE COURT: Therefore the Court denies the motion. The Court is not going to have a case that has--where the prosecution has been completed and then a person raises this sort of thing where the Court doesn't feel it's appropriate. If this were done, and the Court has this type of thing come up from time to time, you never could complete a case, you'd get in the middle of the case, a defendant, particularly a bright one, raises some question and you never could come to the completion of a trial.

"THE DEFENDANT MARSDEN: Your Honor, I believe I can show cause. Would the Court show me how I could go about doing this?

"THE COURT: That's right, that's why you have lawyers. Mr. Marsden, the Court is prohibited from giving legal advice to people, so I can't advise you as to legal procedures. I commit a misdemeanor, a criminal offense, if I give legal advice to anybody, whether defendant or anyone else. That's all for this matter, the jury is waiting."

[1a] Defendant now contends that the denial of the motion for substitution of attorneys, without giving him an opportunity to enumerate specific examples of inadequate representation, deprived him of a fair trial. [2 Cal.3d 123]

[2] We start with the proposition in Gideon v. Wainwright (1963) 372 U.S. 335 [9 L.Ed.2d 799, 83 S.Ct. 792, 93 A.L.R.2d 733] that criminal defendants are entitled under the Constitution to the assistance of court-appointed counsel if they are unable to employ private counsel. However, the decision whether to permit a defendant to discharge his appointed counsel and substitute another attorney during the trial is within the discretion of the trial court, and a defendant has no absolute right to more than one appointed attorney. [3] "A defendant's right to a court-appointed counsel does not include the right to require the court to appoint more than one counsel, except in a situation where the record clearly shows that the first appointed counsel is not adequately representing the accused.... [4] `The right of a defendant in a criminal case to have the assistance of counsel for his defense ... may include the right to have counsel appointed by the court ... discharged or other counsel substituted, if it is shown ... that failure to do so would substantially impair or deny the right ..., but the right to such discharge or substitution is not absolute, in the sense that the court is bound to accede to its assertion without a sufficient showing ... that the right to the assistance of counsel would be substantially impaired ... in case the request is not granted, and within these limits there is a field of discretion for the court.'" (People v. Mitchell (1960) 185 Cal.App.2d 507, 512 [8 Cal.Rptr. 319], quoting 157 A.L.R. 1225, 1226; see People v. Foust (1968) 267 Cal.App.2d 222, 228 [72 Cal. Rptr. 675]; In re Bunker (1967) 252 Cal.App.2d 297, 311 [60 Cal.Rptr. 344]; People v. Bourland (1966) 247 Cal.App.2d 76, 84-85 [55 Cal.Rptr. 357]; People v. Jackson (1960) 186 Cal.App.2d 307, 315 [8 Cal.Rptr. 849].)

Defendant properly contends that the trial court cannot thoughtfully exercise its discretion in this matter without listening to his reasons for requesting a change of attorneys. A trial judge is unable to intelligently deal with a defendant's request for substitution of attorneys unless he is cognizant of the grounds which prompted the request. The defendant may have knowledge of conduct and events relevant to the diligence and competence of his attorney which are not apparent to the trial judge from observations within the four corners of the courtroom. Indeed, "[w]hen inadequate representation is alleged, the critical factual inquiry ordinarily relates to matters outside the trial record: whether the defendant had a defense which was not presented; whether trial counsel consulted sufficiently with the accused, and adequately investigated the facts and the law; whether the omissions charged to trial counsel resulted from inadequate preparation [2 Cal.3d 124] rather than from unwise choice of trial tactics and strategy." (Brubaker v. Dickson (9th Cir. 1962) 310 F.2d 30, 32.) [5] Thus, a judge who denies a motion for substitution of attorneys solely on the basis of his courtroom observations, despite a defendant's offer to relate specific instances of misconduct, abuses the exercise of his discretion to determine the competency of the attorney. A judicial decision made without giving a party an opportunity to present argument or evidence in support of his contention "is lacking in all the attributes of a judicial determination." (Spector v. Superior Court (1961) 55 Cal.2d 839, 843 [13 Cal.Rptr. 189, 361 P.2d 909].)

[1b] The People contend that there was no need to hear the defendant's examples of misconduct because he had limited the scope of his motion to the record before the court when he stated, "I think the transcript, court's transcript prior to this meeting here can reveal that fact." The People thus presume the defendant was referring to the reporter's transcript and was concerned only with occurrences within the trial judge's presence. However, such deduction disregards the defendant's lay status and his admitted ignorance of the law. His reference to the "transcript" may have been his fumbling method of describing the totality of occurrences in the course of his trial, and not a specific use of a term of art. The semantics employed by a lay person in asserting a constitutional right should not be given undue weight in determining the protection to be accorded that right. Indeed, the very reason we are compelled to resort to speculation as to the defendant's understanding of the word "transcript" is that he was not permitted to explain his meaning and to proceed with enumeration of asserted instances of inadequate representation. Such an explanation would have enabled the trial court to determine the extent to which defendant's claims were reflected in the "court's transcript." As it stands, we are unable to determine the basis for the defendant's motion or whether the defendant's showing could have been sufficient to justify ordering a substitution of attorneys.

Moreover, it is possible that defendant's reference to the transcript was designed to indicate significant omissions, such as failure to call percipient witnesses or to adequately cross-examine witnesses concerning bias or details not previously related. The trial judge would be no better equipped to determine the validity of such claim of inadequate representation than he would be to review any other out-of-court events, unless the defendant were permitted to explain the reasons for asserting his attorney's incompetence.

Further support for the defendant's contention that it was error to deny his motion without an opportunity for explanation comes from the line of authority beginning with People v. Youders (1950) 96 Cal.App.2d 562, 569 [215 P.2d 743]. (See, e.g., People v. Monk (1961) 56 Cal.2d 288, 299 [14 Cal.Rptr. 633, 363 P.2d 865]; People v. Prado (1961) 190 Cal.App.2d [2 Cal.3d 125] 374, 377 [12 Cal.Rptr. 141]; People v. Hood (1956) 141 Cal.App.2d 585, 589 [297 P.2d 52].) These cases hold that claims of incompetency of trial counsel must be raised by defendant at trial and generally may not be raised for the first time on appeal. "If defendant felt his counsel did not adequately represent him he should have complained to the trial court and given that court an opportunity to correct the situation. In the absence of such complaint the acts of defendant's counsel are imputed to him." (People v. Youders (1950) supra, 96 Cal.App.2d 562, 569.) If a defendant is required to complain of error at trial so that the error can be corrected at that level, he should be given ample opportunity to explain and if possible to document the basis of his contention. A right is vacuous indeed if it must be asserted at trial but may not be supported before the trial judge by more than the bare complaint.

We are unmoved by the rationale of the trial judge for his unwillingness to hear the defendant's basis for dissatisfaction with counsel. An expressed concern that defendant's evidence might "prejudice you before me as to the case," lacks substance. In a jury trial it is difficult to comprehend how a defendant's statement made out of the presence of the jury to support his claim that his counsel is inadequate could adversely affect a judgment on the merits of the case. During most trials, judges hear numerous motions and argument in chambers dealing with prior convictions, the voluntariness of confessions, the admissibility of evidence, and other procedural matters, without permitting such proceedings to jaundice their views on ultimate conclusions. Furthermore, if there were some remote prejudicial effect, it would be outweighed by the importance of replacing an incompetent attorney.

The trial judge also indicated that he was precluded by law from advising defendant how he might successfully show cause to justify the replacement of trial counsel. "[T]he Court is prohibited from giving legal advice to people, so I can't advise you as to legal procedures. I commit a misdemeanor, a criminal offense, if I give legal advice to anybody, whether defendant or anyone else." We are referred to no statute or authority which precludes a judge from advising a defendant as to the procedures for effectively challenging the competence of his attorney, and research has disclosed none. To the contrary, in People v. Redmond (1969) 71 Cal.2d 745, 758 [79 Cal.Rptr. 529, 457 P.2d 321], this court commended judges who consider it part of the judicial function to aid and advise defendants appearing before them without counsel. "Although a trial judge may not be required to aid a defendant who represents himself, it is a common practice in both civil and criminal cases for trial judges, by advice and suggestion, to assist persons who represent themselves.... It is in the highest tradition of [2 Cal.3d 126] American jurisprudence for the trial judge to assist a person who represents himself as to the presentation of evidence, the rules of substantive law, and legal procedure, and judges who undertake to assist, in order to assure that there is no miscarriage of justice due to litigants' shortcomings in representing themselves, are to be highly commended."

In the case at bar, although defendant was represented by counsel, he was groping for the proper manner in which to demonstrate the alleged lack of competence of his attorney, and the trial judge would have been well within the bounds of judicial propriety in giving any helpful suggestion which might have aided defendant in the presentation of his complaint. Furthermore, the judge was not being called upon to offer advice, but only to listen to defendant's reasons for requesting different counsel.

Finally, we reach the question whether the error in the trial court was prejudicial to defendant. There can be no doubt it was. On this record we cannot ascertain that defendant had a meritorious claim, but that is not the test. Because the defendant might have catalogued acts and events beyond the observations of the trial judge to establish the incompetence of his counsel, the trial judge's denial of the motion without giving defendant an opportunity to do so denied him a fair trial. We cannot conclude beyond a reasonable doubt that this denial of the effective assistance of counsel did not contribute to the defendant's conviction. (Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065].)

Tobriner, Acting C. J., Peters, J., Burke, J., Sullivan, J., and Molinari, J., concurred.

I dissent. I would affirm the judgment for the reasons expressed by Mr. Justice Caldecott in the opinion prepared by him for the Court of Appeal, First District, Division Three (People v. Marsden, 1 Crim. 7601, filed October 10, 1969, certified for nonpublication).

I spent 6 hours writing this motion. I was paid nothing for this motion. Kim Higgs should have obtained the 220 page record and analyzed it. He should have made this court aware that the underlying conviction in St. Ignace is the product of legal malpractice, corruption, and fraud. - Douglas Palaschak