1. Appellant's current attorney, David Lane, filed a Notice of Appeal in this case in
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1 Colorado Court of Appeals 2 E. 14 th Avenue Denver CO Denver District Court 2011CR10091 Plaintiff-Appellee: The People of the State of Colorado v. Defendant-Appellant: Douglas Bruce Douglas Bruce Appellant Box Colo. Spgs. CO (719) MOTION TO REPLACE ATTORNEY COURT USE ONLY Case No. 2012CA747 Appellant moves to change his attorney for the following reasons: 1. Appellant's current attorney, David Lane, filed a Notice of Appeal in this case in February It is now December, Almost 22 months have elapsed and Mr. Lane has not even filed the opening brief. He has abandoned appellant, his client, as a matter of law and a matter of indisputable fact. 1
2 2. Appellant prepaid Mr. Lane in full and will now seek a full refund. Mr. Lane has violated his ethical, legal, and contractual duty to appellant. Appellant will file a complaint with the state bar for this client abandonment and abuse of the courts. 3. In the written retainer agreement, Mr. Lane pledged his personal attention and best efforts throughout the appeal. He has failed in all material respects. Appellant read the full transcript line by line and identified by to Mr. Lane dozens of harmful, gross, and highly prejudicial errors. Here are 12 from this trial travesty: a. Repeated denials of a right to subpoena witnesses and call volunteer witnesses; b. Denial of re-direct testimony in appellant's own testimony on the stand; c. Denial of discovery from the state, and then demanding $5,000+ to provide it. The trial judge also ordered appellant to pay for the three discs, over objection, and to drive to Denver the following day to take custody rather than delivering it that day or mailing it (appellant had even offered in court to pay the postage); d. Denial of two well-researched 13-page change-of-venue motions. The AG's twopage reply flippantly quoted a lyric from a Simon and Garfunkel song of the '70s. e. Denials without a hearing of motions to suppress illegal searches and seizures; f. Voir dire error, like denying peremptory challenges to a prospective juror who said he was personal friends with John Suthers but often disputed a former state senate president who was named to the panel as a witness (for appellant), and to another who insisted repeatedly anyone who is arrested is probably guilty. g. Denial of adequate time to get defense counsel. Appellant had still not seen the indictment or the grand jury transcript when his motion to continue was denied, 2
3 he was arraigned, and the trial date set five weeks before the speedy trial date, all over his objection. Right after that, the court tape mysteriously stopped, as it has done twice before in other political prosecutions of appellant in Denver and Colorado Springs; h. Burying the alleged evidence in about 21,000 pages of duplicated and irrelevant papers, including over 9,500 pages from another case the prosecutor admitted had nothing to do with this case. The prosecutor certified in open court and to appellant in a tape-recorded phone call all documents were personally reviewed by him, relevant, complete, and not superfluous. That was a lie. About 1,000 pages of discovery were later delivered the prosecution forgot or later created close to the trial, in violation of C.R.Cr.P. Rule 16 requirements and deadlines; i. Indictment by a state grand jury so the case could be tried in Denver. The state met none of the three statutory conditions for a state, not local, grand jury. A motion to quash the indictment on many grounds was also summarily denied. Discovery requests concerning the grand jury procedures were also ignored; j. Changing the indictment's venue just before closing argument, which deprived appellant of one of his major defenses and ended the Denver judge's jurisdiction to try the case! Jury instructions were changed to read that an element of each charge was that it occurred in Colorado, not in Denver. There was no evidence of any act in Denver, as alleged in the indictment. The state's motion conceded that gross falsity. Appellant was tried on the indictment but convicted of four charges revised after the evidence was in. An issued indictment cannot be changed in any material manner; alteration makes it void. Jury instructions stated venue was an element; that is clearly material. When appellant tried to expose this switch to the jury in closing argument, he was shouted down by BOTH prosecutor and judge; k. Appellant was denied the due process of law of an audit provided in the state income tax statutes, and the statutory protection that a return is filed when and where it was mailed, echoed by the supreme court case cited by appellant; and l. The state's chief witness admitted appellant was targeted for investigation in 2004 by John Vechiarelli, head of the tax division, because appellant had been elected county commissioner with a public promise he would donate his salary 3
4 to charity, which donation Mr. Vechiarelli thought a criminal act. Appellant was targeted from and finally arrested on stale evidence because the sixyear statute of limitations was approaching. Appellant listed dozens of such issues for appeal; Mr. Lane acted on only one of them, with a dilatory motion about the alleged tape malfunction of the July 2011 arraignment, but on no other issues appellant has raised for 22 months. Appellant cannot be denied his constitutional right to appeal and to effective counsel because his current advocate is extremely lazy, dilatory, and indifferent to his client. 4. Appellant sent many s to Mr. Lane to speed the appeal, and repeatedly asked Mr. Lane to a draft opening brief. See samples as Exhibit 1. Mr. Lane agreed in writing he would do so soon, but never did. The last exchange was his written promise to submit to appellant a draft brief for review by mid-september He did not keep that promise. Appellant waited until mid-october to remind Mr. Lane by of that promise and to tell him appellant would be forced to take other action on the appeal if Mr. Lane did not respond in a week or so. No excuse was given. This motion is received by this court in early December. 5. Mr. Lane was told there would be no further extensions. He then filed a June 3, 2013 motion to settle the record, when he had received transcripts months before. 4
5 He told appellant this summer that part of his reason for such a motion was to stall for time. Appellant objected but, at Mr. Lane's request, wrote and signed an affidavit of his recollection of unrecorded courtroom events on July 11, The order granting the motion to settle the record with the trial court also stated no further extensions. It said the appeal would be recertified after the district court finding. The district court is grossly hostile to appellant and has no interest in aiding the appeal. The chief judge also required a status report be filed by Mr. Lane every 35 days. Mr. Lane never furnished me any such status report, though he had agreed to keep me informed of the proceedings. There should have been four or five reports since this court's June order. Appellant does not know if any were filed with this court or whether Mr. Lane also violated this court's order. 7. Appellant is still on felony probation. He is deprived of his liberty by being in constructive custody; denied his constitutional right to possess a firearm or other weapon to defend himself in his own home; denied his constitutional right to travel out of state without prior approval of his probation officers; subject to random home searches, urinalysis tests, and interviews with psychiatrists; suffering from chronic insomnia; and damaged in many ways. Appellant explained this to Mr. 5
6 Lane often. Appellant was also ordered to pay c. $53,000 to appellee, which he did promptly. Had Mr. Lane handled the appeal in a timely and diligent way, appellant would have been exonerated by now and had the use of his money. This appeal will show not only myriad procedural errors compelling reversal, but conclusive proof there was no crime, which will force dismissal with prejudice and public vindication. It is not a crime to donate money to a 501 (c)(3) charity recognized by the IRS, and to take a deduction. The state income tax return begins with federal taxable income on line 1. The IRS has audited each tax return since 2004 and ruled in writing the tax deduction for giving away one's salary was legal, there was no fraud, and appellant owed no money. That offered exhibit was suppressed at trial. Since appellant was denied the subpoena power guaranteed in the state and federal constitutions, he could not even subpoena the IRS agent to verify his innocence. (The trial judge had also announced in open court that federal law did not apply because this was a Colorado case.) 8. If this court has the power to order Mr. Lane to refund his entire retainer fee, or to hold a hearing on that matter or for contempt of court, I would add such requests to this motion. Otherwise, I will make those related motions in another forum. 6
7 9. Appellant has not yet found a criminal appeal specialist to replace Mr. Lane. Appellant has made inquiries and sought referrals, but he is a controversial figure with a radioactive political image. Many people have a virulent antipathy to me. Appellant requests that Mr. Lane be removed from the case and that appellant be granted 90 days to find a qualified attorney to take on the appeal. If a compatible attorney can be found sooner, appellant will surely do so. Appellant does not like this appeal to last longer, but the current course is a perpetual delay. Ironically, the request for 90 days is to speed up the case by finding a capable attorney who will do his job expeditiously. No one wants more than this former Deputy District Attorney the promptest correction of my legal status and a vindication of my honor and my good name. 10. Apart from Exhibit 1, appellant kept numerous other s begging Mr. Lane to send me a draft opening brief to review. Appellant will them if necessary for this motion to be granted, but they also discuss privileged case strategy and he should be allowed to redact them if they are also requested by this court. 7
8 WHEREFORE, appellant requests that David Lane be removed as counsel of record; ordered to refund all money paid him as a retainer; sanctioned for wrongly prolonging the felony probation of appellant and wasting the time of appellant and this court; and that appellant be granted 90 days after the order of Mr. Lane's removal as appellant's counsel to secure a replacement counsel for this appeal. Respectfully submitted, CERTIFICATE OF SERVICE I hereby certify on November 29, 2013, I mailed a copy of this MOTION TO REPLACE ATTORNEY, first-class postage paid, to: David Lane 1543 Champa Street #400 Denver CO Cathy Adkisson Office of the Attorney General 1300 Broadway 9 th floor Denver CO
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