DOUGLAS SLAIN SBN 48686

225 Bush Street

San Francisco, CA 94801

(415) 295-4468

lawyer@thedefenselawyer.com

Attorney for Petitioner

IN THE SUPERIOR COURT OF CALIFORNIA

COUNTY OF ALAMEDA

     1.  Petitioner _______ is a parolee, subject to parole supervision by the Board of Parole Hearings of the California Department of Corrections and Rehabilitation.  I am informed and believe that on February 20, 2008, Parole Officers _____________________ and _____________________ conducted a parole visit at Petitioner’s residence.  During this visit, the Parole Officers examined a laptop computer in possession of the Petitioner.  The Parole Officers saw what they believed to be pornographic images on the computer, possession of which would constitute a violation of the terms of Petitioner’s parole.  He was therefore arrested and incarcerated for a parole violation.

2.  Respondent Board of Parole Hearings of the California Department of Corrections and Rehabilitation intends to conduct a hearing for the purposed of revoking Petitioner’s parole and returning him to State Prison.  That hearing is currently scheduled for _____ _.m., Thursday, May 22, 2008.

3.  Both of the arresting parole officers claim to recall having seen pornography on Petitioner’s computer.  The recollection of what one of the parole officers saw with respect to the alleged pornography has grown more egregious each time Petitioner’s counsel speaks with him.

4. Initially, both parole officers stated that they remembered seeing what they characterized as pornographic images, but nothing was said about any of the images being of children.  Later, Parole Officer _______________ said he remembered seeing images of child pornography. A couple of weeks later, the same parole officer said he remembered seeing sexual penetration.

5.  Both of the parole officers expect and intend to testify at Petitioner’s parole revocation hearing.  Each has advised Petitioner’s counsel that he intends to testify to his recollection of what he saw on the laptop computer.

6.  For the reasons set for in the Declaration of Petitioner’s Counsel in support of this petition, adequate representation of Petitioner at the parole revocation hearing requires access to and forensic examination and analysis of the hard drive of the computer, for the purpose of determining what pornographic images, if any, are on the computer, and on what date they were saved to the hard drive.

7.  Respondent, however, has declined and refused to provide Petitioner or his counsel with access to the laptop computer for this or any other purpose. 

8.  Douglas Slain, counsel for Petitioner, cannot adequately represent him without an order of this Court providing access to the hard drive of the computer which is the subject of this petition.

9.  If Petitioner and his counsel are not provided access to the evidence which will be presented against him at the parole revocation hearing, Petitioner will be irreparably injured by the inability of his counsel to provide adequate representation at the hearing, and by the possible if not likely recommitment of Petitioner to State Prison as a result of his inability to properly prepare for the hearing.

10.  Petitioner’s only adequate remedy is an order of this Court that Respondent provide Petitioner and his counsel with access to the hard drive of the computer which is the subject of this petition. 

WHEREFORE, Petitioner prays that:

1.  This Court issue a peremptory writ of mandate ordering Respondent to grant access to the laptop computer seized from Petitioner for the purpose of having a forensic examination and analysis of the hard drive conducted by Petitioner’s attorney and/or his designated expert. 

 2.  This Court grant Petitioner such other and further relief as may be appropriate and just. 

Dated: ___________________            Respectfully submitted,

                                      _________________________________

                                      DOUGLAS SLAIN, Attorney at Law

                                      Counsel for Petitioner 

Verification

State of California County of Alameda:

I am the attorney for the petitioner in this action.  I hereby verify that all facts alleged in the above document are personally known to me, except those alleged on information and belief, and as to those I am informed and believe them to be true.  I declare under penalty of perjury that the foregoing is true and correct, and that this declaration was executed on May __, 2008, at ___________________, CA.

                                      _________________________________

                                      DOUGLAS SLAIN, Attorney at Law

                                      Counsel for Petitioner 

MEMORANDUM OF POINTS AND AUTHORITIES

The Petitioner in this matter has been in custody as a result of an alleged parole violation since February 20, 2008.  A parole revocation hearing is currently scheduled for May 22, 2008.

Petitioner denies that the computer in his possession on February 20, 2008, contained pornographic images or, in the alternative, if pornographic images were present and accessible on the computer, Petitioner denies that he was aware of their presence or that he ever looked at such images. Petitioner in fact was unaware of any such images.

A forensic examination and analysis of the hard drive of the computer can determine whether or not any such images are present on the computer and, if so, on what date they were saved to the computer hard drive.

Counsel for Petitioner has requested access by an expert to the hard disk of the computer, but such access has been denied by Respondent.  Exhibit A to this petition is a copy of a letter to the office of the district attorney with an attachment that sets forth in some detail Petitioner’s counsel’s attempts to gain access to the evidence.

California Code of Civil Procedure section 1085 establishes jurisdiction of this Court to order a writ of mandate directed to Respondent.

“The writ must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law. It must be issued upon the verified petition of the party beneficially interested”.  Cal. Code Civ. Proc. § 1086.

      In this matter Petitioner has been denied access to the evidence that is alleged to be basis for his parole violation and which will be presented against him at the parole revocation hearing.  Without access to this evidence, Petitioner’s counsel will be unable to adequately defend him at the hearing.

      California law requires that a criminal defendant be provided access to discovery of the evidence against him when it is central to his case.  In Griffin vs. Municipal Court (1977) 20 Cal.3d 300,306, 142 Cal.Rptr. 286, the court held that a defendant must be provided access to evidence that essential to his defense, if he makes a prima facie case for the need of such evidence.  

      The United States Supreme Court, in the landmark case of Morrissey v. Brewer (1972) 408 U.S. 471, held that while a defendant in a parole violation proceeding may not be entitled to “the full panoply of rights” normally afforded a criminal defendant, he is nevertheless entitled to minimum due process.  In doing so, the court stated:

“We see, therefore, that the liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty and its termination inflicts a ‘grievous loss’ on the parolee and often on others.  It is hardly useful any longer to try to deal with this problem in terms of whether the parolee's liberty is a "right" or a "privilege." By whatever name, the liberty is valuable and must be seen as within the protection of the Fourteenth Amendment. Its termination calls for some orderly process, however informal.”  (Morrissey v. Brewer, supra, 408 U.S. at p. 482.)

      The Supreme Court also described the nature of the hearing which must be granted prior to revocation of parole:

         “This hearing must be the basis for more than determining probable cause; it must lead to a final evaluation of any contested relevant facts and consideration of whether the facts as determined warrant revocation. The parolee must have an opportunity to be heard and to show, if he can, that he did not violate the conditions ….”  (Morrissey v. Brewer, supra, 408 U.S. at p. 488. (emphasis added))

      Petitioner submits that in this case he anticipates that the evidence to be presented against him will consist of the laptop computer itself and/or the recollections of the parole officers as to what they remember seeing on the computer on February 20, 2008.

      In light of the obvious difficulty of Parole Officer ___________________ in remembering what he saw, examination of the computer itself is essential in determining exactly what images, if any, are on the computer.

      Furthermore, the observations of the officers regarding the presence of any pornographic images on the computer cannot, standing alone, establish whether Petitioner placed the images on the computer, or whether he even knew they were there.  Petitioner denies placing them on the computer, knowing they were there or even ever having seen them.  Inasmuch as a forensic examination and analysis can establish the date on which the images were placed on the computer, only such an examination and analysis can provide Petitioner with the ability to refute the allegations that he violated the terms of his parole.

      Therefore, providing Petitioner with access to the laptop hard drive is essential to providing him with the minimal due process mandated by the U.S. Supreme Court in Morrissey and with the “opportunity … to show, if he can, that he did not violate the conditions” of his parole.  In no other way can Petitioner avoid the “grievous loss” associated with the unjustified termination of his parole.

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      For the reasons set forth above the writ of mandate should be issued.  

                                      Respectfully submitted,

                                      _________________________________

                                      DOUGLAS SLAIN, Attorney at Law

                                      Counsel for Petitioner 

Declaration of Douglas Slain

I, Douglas Slain, attorney for the Petitioner, declare the following:

        1.  Petitioner has advised me that:

               a.  The computer which is the subject of this petition is owned by his employer, ______________________________.

               b.  The computer was provided to him by his employer, on or about _________________, for use in his employment.

               c.  Prior to being provided to Petitioner, the computer was in the possession of other employees of _____________________________.

               d.  Petitioner had possession of the computer for only two months and during that time he did not have internet access with the computer.

               e.  Petitioner did not download to or otherwise save onto the computer any pornographic images.

               f.  If there are pornographic images on the computer, Petitioner was not aware that they were there at the time it was provided to him, or any time thereafter until the computer was seized by his Parole Officers.

        2.  I have personally spoken with both of the Parole Officers who arrested Petitioner.  On or about _______________, 2008, Parole Officer ______________________ told me that he recalled seeing pornographic images on the computer in Petitioner’s possession at the time of his arrest.

        3.  On that same date, Parole Officer ______________________ also told me that he recalled seeing pornographic images on the computer in Petitioner’s possession at the time of his arrest.  However, Parole Officer ________________________ later told me that he recalled seeing pornographic images of minors on the computer.  Finally, on or about __________________, 2008, Parole Officer ______________________ told me that he recalled seeing pornographic images which included sexual penetration.

        4.  It is apparent that the recollections of these Parole Officers, which will be offered in evidence against Petitioner at the Parole Revocation Hearing, have changed over time, becoming more detrimental to Petitioner with each telling.

        5.  I am informed and believe that a forensic examination and analysis of the computer’s hard drive can determine whether or not there are pornographic images on the computer, whether or not any such images show individuals who appear to be minors, and whether or not any such images show sexual penetration.

        6.  I am also informed and believe that a forensic examination and analysis of the computer’s hard drive can determine the date on which any such image(s) were saved to the computer, which would show that they were not saved during the time that Petitioner was in possession of the computer and, therefore, that their presence on the computer was not the result of use by the Petitioner.

        7.  I have requested access to the computer for the purpose of having a forensic examination and analysis performed, but the Board of Parole Hearings of the California Department of Corrections and Rehabilitation has declined to provide access to the computer.

        8.  Exhibit A to this declaration is a letter to the Office of the District Attorney of the County of Alameda setting forth the extensive attempts I have made to gain access to the evidence which is the subject of this Petition.

        9.  Respondent has provided no reason for refusing to provide access to the evidence other than the statement by Parole Officer __________________ that there was no point to our examining the evidence because his testimony of what he saw was all the evidence needed for the parole revocation hearing.    

        10.  Petitioner has no adequate remedy at law except an order of this court requiring Respondent to provide Petitioner with access to the computer for the purpose of having a forensic analysis conducted. 

I declare under penalty of perjury that the forgoing is true and correct.

Dated: ___________________            _________________________________

                                      DOUGLAS SLAIN, Attorney at Law

                                      Counsel for Petitioner 

Declaration of Petitioner 

I, _____________, Petitioner, declare the following:

        1.  The computer which is the subject of this petition is owned by my employer, ______________________________.

        2.  The computer was provided to me by my employer, on or about _________________, for use in my employment.

        3.  Prior to being provided to me, the computer was in the possession of other employees of _____________________________.

        4.  I had possession of the computer for only two months and during that time I did not have internet access with the computer.

        5.  I did not download to or otherwise save onto the computer any pornographic images.

        6.  If there are pornographic images on the computer, I was not aware that they were there at the time it was provided to me, or any time thereafter until the computer was seized by my Parole Officers.

I declare under penalty of perjury that the forgoing is true and correct.

Dated: ___________________            _________________________________

                                      _______,  Petitioner

DOUGLAS SLAIN SBN 48686

405 Marine Street

Pt. Richmond, CA 94801

(510) 778-8049

Attorney for Petitioner

IN THE SUPERIOR COURT OF CALIFORNIA

COUNTY OF ALAMEDA  

To Respondent Board of Parole Hearings of the California Department of Corrections and Rehabilitation:

      The verified petition for writ of mandate by Petitioner Marc Jones having been filed and considered by the court, and good cause appearing therefore, it is hereby ordered that:

      Respondent is directed to grant access to the laptop computer seized from Petitioner for the purpose of having a forensic examination and analysis of the hard drive conducted by Petitioner’s attorney and/or his designated expert. 

      IT IS SO ORDERED.

Dated: ________________