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Transcript of my winning argument in 1999 in my free speech case

I have added links to the cases that I talked about in my argument.

It has been 4 years since my trial and I have not yet received the full transcript that I paid for!

Here is a transcript of my closing argument.

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF VENTURA

COURTROOM 34 HON. ALAN STEELE, JUDGE

THE PEOPLE OF THE STATE OF CALIFORNIA, No. CR43885

Plaintiff,

vs.

DOUGLAS A. PALASCHAK,

Defendant.

_______________________________________)

REPORTER'S PARTIAL TRANSCRIPT OF PROCEEDINGS

Friday, September 24, 1999

APPEARANCES:

For the People: ERIC BOND

Deputy District Attorney

For the Defendant: DOUGLAS A. PALASCHAK

In propria persona

Reported by: DENISE A. POTTS, CSR 3869

800 South Victoria Avenue

Ventura, California 93009

1

1 VENTURA, CALIFORNIA; FRIDAY, SEPTEMBER 24, 1999; P.M. SESSION

2

3 (Prior proceedings reported, not transcribed.)

4

5 THE COURT: Mr. Palaschak.

6 MR. PALASCHAK: Thank you. May it please the Court, Mr.

7 Bond, ladies and gentlemen of the jury. I never thought I would

8 be defending the right to free speech. I thought it was so well

9 known. This is really a surprise to me. That's one thing that

10 your collective consciousness will bring you in the jury room is

11 those things you all know today, we all would. So the lawyers

12 know, everybody knows about the First Amendment. We don't even

13 instruct you on it.

14 I think that without regard to the First Amendment,

15 I must receive an acquittal in this case, that is, not guilty on

16 the facts. In particular, the phrase "holding out" is too vague

17 to survive constitutional scrutiny to punish somebody for speech

18 because it in some way holds out.

19 Mr. Bond gave you several definitions. Throughout

20 the years, the organized bar has in various ways restricted

21 attorneys' speech as late as 1977. The Arizona state bar

22 prosecuted a man named Bates, an attorney who advertised the --

23 at that time it was a violation of Arizona law to advertise if

24 you are a lawyer.

25 Well, living in California today, in the land of

26 Larry Parker, you all know that's not against the law. But it

27 took somebody like attorney Bates to risk getting arrested to

28 surge ahead and go where no attorney had gone before and

2

1 advertise, in flagrant violation of the statute, you see,

2 because attorney Bates knew that the statute is not the end of

3 the law.

4 One time I had a conversation with a police officer

5 and he was taking the approach I know what the law is, before I

6 became a police officer, I read the entire California Penal

7 Code. And that's a big stack of paper. As much as I admired

8 his tenacity, I had to remind him, well, did you read all the

9 cases that interpret all those statutes? And he said no.

10 I said, well, you see, many of those statutes have

11 been declared unconstitutional. Once statutes are declared

12 unconstitutional law, the legislature is not required to go and

13 cut those out or change them. They stay in there, for several

14 reasons. Sometimes the court changes its mind and several years

15 later it's constitutional again or a lower court may decide or

16 the legislature may be waiting until a different Supreme Court

17 justice resigns, although the Supreme Court doesn't like to

18 change its mind.

19 But let me skip from the constitutional area and get

20 to the facts here. Remember we have this Melvin Loser, a person

21 who went to court, wanted an appointed lawyer, couldn't afford

22 one, and no lawyer was given to him. Gosh, remember there is a

23 constitutional right to a lawyer?

24 Well, what do you do in a situation like that?

25 MR. BOND: Objection; misstates the law.

26 MR. PALASCHAK: Constitutional right to an appointed

27 lawyer -- not appointed lawyer. There is a constitutional right

28 to counsel.

3

1 THE COURT: Wait, wait. I don't remember what the

2 comment was that was objected to. Go ahead. Go on.

3 MR. PALASCHAK: I will ask it be read back.

4 THE COURT: No, I will permit it, Mr. Palaschak. Go

5 ahead. Go ahead, Mr. Palaschak.

6 MR. PALASCHAK: You will notice I didn't interrupt

7 Mr. Bond when he gave his presentation, although I thought there

8 were a few things that misstate the evidence. But I've seen

9 argument where we go back and forth and it sounds like we are

10 taking evidence from a witness, so it's my policy generally to

11 let the person argue. And it is argument.

12 You know what the facts are, you have watched the

13 evidence. I am not going to tell you about the exact words of

14 the First Amendment. You know it protects the right to speak

15 and write freely and petition the government for redress of

16 grievances. Petition all three branches of government. You can

17 write a letter to the legislature. You can petition the

18 executive branch. You can write a letter to the president and

19 you can petition the judicial branch also.

20 This is Melvin Loser's petition. Think about this.

21 What if Melvin Loser, besides being not really articulate and

22 good with words, you heard him stutter in court. He was

23 embarrassed. He was scared as anybody would be. What if he

24 didn't have any hands and a nonlicensed lawyer was his friend?

25 Well, like me, unlicensed in the State of California, in the

26 California state courts. They said nothing about federal

27 courts.

28 If I wrote the same petition and the words came out

4

1 of Melvin Loser's mouth, or not, would you say that

2 Melvin Loser has to go to court with no petition at all simply

3 because he can't write one or is he required to go to somebody

4 who does have knowledge of the law just so that knowledge of the

5 law doesn't taint his petition? Well, that's not what the law

6 is in this country.

7 You are not obligated to be silent because you are a

8 lawyer. You are obligated not to misrepresent yourself. And

9 that's why I went through scrupulous pains to make sure there

10 was no mistake. Less courageous people would have said just

11 write the dang brief, leave the footnote off, nobody will ever

12 have a clue.

13 Another interesting thing in this case is you may

14 remember the testimony of Commissioner Covarrubias. Mr. Bond

15 asked him did you write a letter to Judge O'Neill? I wondered

16 where he was going with that. But we don't hear anything about

17 that letter and we don't hear anything about

18 Judge O'Neill.

19 There is a lot of witnesses who are not here. What

20 happened to Melvin Loser? It's not my obligation to bring Mr.

21 Loser here, it's the prosecution's. And we are not going to

22 speculate about what he would have said, but I must remind you

23 that he is not here.

24 Now, I am going to go backwards in rebutting so I

25 will try to get the things that Mr. Bond said last. But before

26 I do this, sometimes you hear in a court, well, if you don't

27 like it, take it up on appeal. However, the Supreme Court ruled

28 something like this: A person has a right to due process at

5

1 every level, that is to say, a litigant has the right to justice

2 at the trial level. I need not take this up to the Court of

3 Appeal to get justice. The writers of the constitution had this

4 in mind.

5 And in the 1974 case, Justice Brennan quotes from

6 the Annals of Congress written in 1834 -- I am just going to

7 give you two or three sentences here -- "If they, meaning the

8 Bill of Rights, are incorporated into the constitution, then

9 independent tribunals of justice will consider themselves in a

10 particular manner the guardian of those rights. They will be an

11 impenetrable bulwark against every assumption of power in the

12 legislative or executive."

13 The state bar was not here when California was

14 created. The assumption of power that was envisioned in 1834

15 happened over a hundred years later. Before the state bar,

16 lawyers were free to call themselves or represent themselves to

17 be licensed. Well, there was no licensure to be able to be

18 entitled to practice law in California without the permission of

19 the state bar. They could call themselves astronauts if they

20 wanted to. It was only in the late 1800s that the bar became

21 organized, ironically, and this comes from a book by Stanford

22 Professor Lawrence Friedman called History of American Law.

23 The New York bar was organized because of corruption

24 in the United States Supreme Court. This was in the days of the

25 Tweed Ring and Tammany Hall thing like that when bribery was the

26 way it was done. Also, in that same book, in the early days of

27 New York City there was a monopoly of only seven lawyers, seven

28 handling all the cases in New York City. Of course, New York

6

1 City was much smaller then.

2 The organized bar has two purposes. One, to ensure

3 some competence, and Professor Lawrence Friedman says in his

4 book the only societal justification for the organized bar is

5 the technical expertise required to be an attorney.

6 If a person is suspended or disbarred and it has

7 nothing to do with technical expertise, then you have got to

8 really question why is the prosecution going after that person.

9 What is the danger to the public? Danger is an important word.

10 About 1946, a newspaper published an account of a court

11 proceeding about which there was a gag order, that is to say,

12 this newspaper violated the gag order. And it was prosecuted.

13 It went all the way to the United States Supreme Court. The

14 case is Bridges versus California. www.lawyerdude.netfirms.com/bridges.html You don't need to know that.

15 But the Supreme Court said, "Their truthful utterances will not

16 be punished." And that came up again recently.

17 As I told you in my testimony, I began my practice

18 as a civil rights lawyer and I admire civil rights lawyers. You

19 may have heard -- and some of you probably haven't because you

20 are too young -- of William Kunstler, famous attorney. He

21 passed away a few years ago. And he wrote an interesting

22 biography, My Life as a Radical Lawyer.

23 I remember when I was young, I saw

24 William Kunstler on television, and my first opinion of him was

25 not very good because of what was said about him. I didn't know

26 all the truth about him. The press kind of gave him a bad time

27 in that he defended the Chicago Seven. These were demonstrators

28 at the 1968 Democratic National Convention. The police and the

7

1 demonstrators got into an altercation, Ramsey Clark -- and I am

2 going to tie back in with one of my heros from 1995 -- Ramsey

3 Clark was Attorney General of the United States then. He wanted

4 to prosecute the police officers, but the local United States

5 attorney said no, we are going to prosecute the hippies. In

6 came William Kunstler to defend the hippies and he pretty much

7 did. Some of them may have got off with some small punishment,

8 but by and large they were free.

9 At the end of the trial, the Judge Julius Hoffman

10 sentenced William Kunstler, the attorney, to four years in

11 prison.

(Here is where the Federal court of appeal absolved Attorney Kunstler and reversed the lower court opinion http://www.law.umkc.edu/faculty/projects/ftrials/Chicago7/InReDellinger.htm )

 (Here is where Judge Hoffman sentenced Hoffman: http://www.law.umkc.edu/faculty/projects/ftrials/Chicago7/kunstler.html )

Fortunately, he had a lawyer friend help him out and he

12 won on appeal. Those who stand up for freedom often pay the

13 price. Thankfully, I do not have to face the penalties that

14 people in the past have done. Thankfully, we don't have a civil

15 war, we don't have the revolutionary war, we don't have any wars

16 today.

17 In prior days -- well, let me just skip forward to

18 1995, about the time I was having my problems with the

19 California state bar. There was another civil rights attorney,

20 a hero of mine, Steven Yagman of Santa Monica. You may have

21 heard him in the news. Steven Yagman got crosswise with a

22 couple of judges in federal court. He was sentenced to pay a

23 fine of a quarter of a million dollars for contempt of court.

24 He thought that was unreasonable. And on appeal, the courts

25 backed him up and he wasn't ordered to pay that.

26 But Judge Real's personal lawyer was on the standing

27 committee for discipline for the United States District Court

28 for the Central District of California. He persuaded the

8

1 disciplinary committee to discipline

2 Steven Yagman because Steven Yagman had published some criticism

3 of the judge -- of several of the judges. He said one of the

4 judges was routinely drunk on the bench and the other one ruled

5 against Jews routinely. As a result of that, using a local

6 rule, the standing committee suspended Steven Yagman's license

7 for two years.

8 Well, Steven Yagman had some powerful friends,

9 including the former United States Attorney General Ramsey

10 Clark. Ramsey Clark came riding in on his white horse and 120

11 lawyers in Los Angeles signed an amicus brief -- that is a

12 friend-of-the-court brief -- saying that attorney Yagman should

13 not be disciplined for this rule.

14 The Ninth Federal Circuit Court of Appeal, which

15 sits in Pasadena, California, overturned the decision of the

16 disciplinary committee and said Mr. Yagman was free to practice

17 again. http://www.circuitlawyer.8m.com/yagman.html And in overturning that decision, they relied on the

18 Bridges case . www.lawyerdude.netfirms.com/bridges.html that I mentioned and they said truthful utterances

19 cannot be punished under the constitution. And they quoted from

20 another case in this same paragraph. They said -- they talked

21 about the clear and present danger test http://www.lawyerdude.8k.com/5802.html and how to apply it to

22 lawyers. The clear and present danger test came up during World

23 War I -- well, it was before that, but it is -- really the best

24 example is World War I. Those of you who are historians may

25 remember the name Eugene Debs. He ran as a socialist candidate

26 for president four times. In 1917, we were in the midst of

27 World War I, and if you read history you will see that that was

28 a war we really didn't need to be in. It was the war between

9

1 the last of the strong monarchs of the Balkan states in Europe

2 and it's very complicated. I remember taking history, the way

3 they chopped up all the Balkan states, the map changed from year

4 to year. Eugene Debs went around the country telling people

5 don't become cannon fodder, this is a useless war much like

6 Eugene McCarthy did with the Vietnamese war, the war in Vietnam,

7 when he was running for president, except the difference is when

8 Eugene McCarthy did this thirty years later, the clear and

9 present danger test http://www.lawyerdude.8k.com/5802.html stood to protect him from prosecution.

10 In the case of Eugene Debs, the United States

11 Supreme Court said you cannot punish speech unless there is a

12 clear and present danger. And let me give you some example of

13 what that means. In the case of Eugene Debs, he was actually

14 punished. The United States Supreme Court said we are at war

15 now and you're telling people not to participate in the war on

16 your side. That's a clear and present danger.

17 But later, in 1969, a man named Brandenburg, http://www.circuitlawyer.8m.com/Brandenburg.html who was

18 a member of the Klu Klux Klan, was conducting a demonstration

19 and was arrested for violation of Ohio criminal syndicalism act,

20 and that says something to the effect if you get together with a

21 bunch of people to promote hatred and organize, you can be

22 punished. He was giving a speech and he was condemning Jews and

23 Blacks.

24 But the United States Supreme Court said something

25 to the effect, well, they didn't have anybody right there to

26 lynch, and he didn't advocate lynching any particular person, it

27 was more or less an abstract concept of hatred; nonetheless,

28 it's protected. The Supreme Court said that same applied, that

10

1 same theory to lawyers.

2 And I wonder if I could have a copy of those 1

3 through 25 things that I propose. There is some text in there.

4 I had the quotation. I want to get the words exactly right.

5 Bear with me one moment, I have the quotation here.

6 MR. BOND: May we approach, your Honor?

7 THE COURT: Yes. Excuse me, please, ladies and

8 gentlemen.

9 (Discussion at the bench, not reported.)

10 MR. PALASCHAK: Well, I can't find the exact quote. But

11 the danger must be not merely possible or even probable, it must

12 be imminent and a great danger. http://www.lawyerdude.8k.com/5802.html And the publication of that

13 newspaper article wasn't it and Yagman's criticism of the judges

14 wasn't it, either. And this isn't it, either. This is free

15 speech. And it's not holding oneself out, either. A phrase

16 like that cannot be used to inhibit speech.

17 Now, there is another thing I want to point out.

18 This is pure speech. What else could the practice of law be?

19 It's speaking, listening, writing and reading. But there is

20 something else. Mr. Bond was talking about a carpenter. You

21 see the difference? He used a bad analogy. The constitution

22 doesn't say all persons are free to build things with wood and

23 administer anesthetics at the hospital. No, that's why the

24 regulation of carpenters and doctors and anesthesiologists is

25 different. He is trying to confuse you.

26 The constitution says all persons shall be able to

27 speak freely and petition the government. You see that is a

28 preferred right in the area of preferred rights. The Supreme

11

1 Court says the constitution needs room to breathe. That means

2 give people latitude. If you want to regulate speech, it better

3 be a very tightly drawn statute. And after Eugene Debs'

4 imprisonment, there just haven't been any. And you know that's

5 in the California constitution to the free speech thing.

6 I cannot even presume everybody knew that. Not only

7 that, but after the Civil War, that issue came up again, and the

8 United States went through its long process of amending the

9 constitution, and they wrote another one, another amendment that

10 says, no state shall make or enforce any law which will abridge

11 the privileges or immunities of the citizens of the United

12 States.

13 One of those privileges is the privilege to

14 criticize the government and one of those immunities is immunity

15 from prosecution. And the way that's effected is by that

16 insulation called the jury. That insulates citizens from the

17 government. You use that common sense that Judge Steele told

18 you to use and prosecutor Bond told you to use, and you decide

19 for yourself what's right and what's wrong, but you can't decide

20 the law. The law is the purview of the judge. And in some

21 states it's different, but in this state that's the way we do

22 it. The judge tells you the law.

23 Nonetheless, your collective wisdom includes the

24 constitution in this day and age. Maybe in an earlier day and

25 age where people didn't watch television and people are so

26 well-read today, but today that's in the jury's collective

27 wisdom.

28 But let's go on. As I promised you, the specific

12

1 things that Mr. Bond talked about. I thought it was good that

2 Mr. Bond said that it was okay for me to represent myself

3 because everybody can represent themselves and be their own

4 attorney. Well, what about Melvin Loser? He could represent

5 himself and be his own attorney, but then Mr. Bond said, well,

6 see, Mr. Palaschak's petition that he wrote was not approved by

7 an attorney. Well, it was approved by Melvin Loser acting as

8 his own attorney. He signed it. And -- Oh, your Honor, may I

9 have the jury have each a copy of the People's 3? I think the

10 bailiff has those copies.

11 THE COURT: Certainly.

12 MR. PALASCHAK: Deputy Potter, do you have those copies?

13 THE COURT: Ladies and gentlemen, we are passing these

14 out because it's been represented to me Mr. Palaschak intends to

15 refer to portions of them during his final comments and asks for

16 permission for you to have a copy so you can follow along with

17 his comments. That's the only reason that's being passed out.

18 And at the conclusion of his comments, I will ask that you

19 return them.

20 MR. BOND: Can I have one of those copies?

21 THE COURT: Actually, if you wish to, you can have

22 Exhibit 3.

23 MR. BOND: I don't know who made the copies.

24 THE CLERK: I made the copies.

25 MR. BOND: No problem. Thank you.

26 THE COURT: All right, Mr. Palaschak.

27 MR. PALASCHAK: I have asked that you have this because

28 we were talking about in direct and cross-examination and

13

1 perhaps then you couldn't read the thing on the law or talk

2 about a page you didn't have. So just want to make you see that

3 on page 9 near the back it's Melvin Loser's signature who is on

4 there. And you will have a copy of this in the jury room, but

5 you will have to share it. You will only have one copy. All

6 these will be gathered later. It's People's 3. And you see on

7 the front page that is page i, Melvin Loser's name is at the

8 top.

9 You have heard several witnesses say that if an

10 attorney were representing Mr. Loser, his name would be on the

11 top. Joel Steinfeld told you that. I don't know who else did,

12 but you can remember.

13 I didn't understand Mr. Bond's comments about train

14 engineers. I hope he wasn't disparaging my being an engineer or

15 anybody else's. I was never a train engineer. I was a real

16 engineer.

17 As far as the e-mail address, I think that's

18 completely irrelevant. I could call myself Astronaut, Astronaut

19 dot com, if I wanted to. But the fact is I am a lawyer. I am

20 an attorney. I am licensed, just not in California state

21 courts. And the California bar sometimes --

22 MR. BOND: Objection.

23 MR. PALASCHAK: Withdrawn. I am -- this is all testified

24 and --

25 THE COURT: Well, I don't know where Mr. Palaschak is

26 going with it, and I am not going to preclude him without

27 knowing the direction that it's going in.

28 Go ahead, Mr. Palaschak.

14

1 MR. PALASCHAK: Thank you.

2 Mr. Bond brought out the example if the president,

3 who is a lawyer, came to California, could he be arrested for

4 holding himself out as a lawyer. Well, that's not really a good

5 example. The better example of something we all saw if we

6 watched the O.J. trial, Barry Schenk came and he did hold

7 himself out to be a lawyer. He is not licensed in California.

8 He didn't get arrested.

9 There were other lawyers, Jerry Spence came down.

10 How about Geraldo Rivera? We are turning now to Geraldo Rivera.

11 He had his own show. Is he a lawyer? Well, I don't know if he

12 is licensed in California or not. But surely there were some

13 people who said they were lawyers who weren't licensed in

14 California who were on television.

15 You see, the statute covers some people who are not

16 arrested. It gives the prosecutor discretion, maybe too much

17 discretion. One of the theories of law that I have observed

18 through the years is if a statute is too broad, then the

19 enforcement agencies have complete discretion and they can use

20 their own agenda, maybe to punish an outspoken attorney, maybe

21 to stomp down on that person who criticizes the judges.

22 And you will see if you read this document carefully

23 in chambers, it has some criticism of this municipal court and

24 what it does to traffic offenders, and what

25 Melvin Loser is speaking or speaking through my mouthpiece and

26 through my fingers at the keyboard is what he feels about the

27 courts.

28 There is another theory that's important.

15

1 Mr. Bond talked about Mr. Vito's emotion. We all have emotion.

2 Animals have emotions. The thing that distinguishes animal --

3 or people from animals, at least some people think, is that we

4 can, better than animals, articulate our emotions, bring them

5 from our subconscious into our conscience and share those ideas

6 with other people. Animals can't do that as well. Some higher

7 apes have been signing and things like that.

8 That's what the First Amendment is about. We

9 recognize the power of communication and how much it usually

10 does for society. But law follows the emotion and sometimes

11 people who haven't studied the law, like Melvin Loser, they

12 feel -- often hear people say, "Oh, that's not right," but they

13 can't go beyond that.

14 That's what I did for Melvin Loser. He said that

15 isn't right. And as I explained in my footnote, I empathize

16 with Melvin Loser because I have been down that same road with

17 traffic court so I know -- I mean, at the beginning, years ago I

18 felt that wasn't right also, and through the years I have

19 articulated some of these things. So I put them down for Melvin

20 Loser's case the things that pertained to him.

21 It's interesting that there is another vague term,

22 the practice of law. And it only creeps in in Part A, but one

23 of the things I am talking now about page 2 on this petition

24 that you have, this bears upon the subject of discretion abused

25 in statutes that are overbroadly written.

26 I have noticed, and Melvin Loser noticed also, that

27 the bailiff in traffic court often tells people what they should

28 do. They walk up and say, what's going to happen today? Well,

16

1 you can plead guilty and the judge will give you a fine. Or

2 they say, well, can I plead guilty with an explanation? Yeah,

3 you can do that but you have to plead guilty first or no

4 contest. They will tell you what to do. Gosh, that sounds a

5 lot like advising people of their rights.

6 Now, those bailiffs are not lawyers. Now, why

7 aren't they prosecuted under 6126(a), www.lawyedude.netfirms.com/6125.html which would permit the

8 prosecution from somebody practicing law. Well, that's

9 prosecutorial discretion. I don't know how many of you have got

10 traffic tickets. If you're like most people, got at least one

11 in your life. Maybe some of you haven't.

12 Melvin Loser noticed when he went in there that the

13 judge was both the prosecutor and the judge. Well, gosh, that

14 doesn't seem fair. And that's what he said. Well, that's not 

15 fair. Well, I articulated that for him. But the thing that he

16 felt most badly about was the thing on page 3 where he couldn't

17 pay the fine. And because he didn't have -- didn't have the

18 money to pay the fine, the judge wanted him to do something that

19 would not be required of wealthy people, that is, either go to

20 jail or go in the work program, or do something else. And

21 Melvin's thought was that's not fair, I'm being punished for

22 being poor.

23 Well, Melvin didn't know it because he didn't study

24 constitutional law under Professor Dave Harrell, who was there,

25 but I did. I dug out the book. I mean, this was on my mind. I

26 went to bed, I got up, you heard that in my testimony. I got

27 out the book and I found this case which I heard about before.

28 It was in my subconscious.

17

1 There is more than one case. One of them is

2 Williams versus Illinois, and I cited it for Melvin and I had

3 hoped that Commissioner Covarrubias that day might open up and

4 say something like, well, Mr. Loser, I see you feel this is

5 unconstitutional. Well, you heard the entire tape.

6 Commissioner Covarrubias didn't give this any consideration at

7 all.

8 Mr. Bond said how nice Mr. Covarrubias was. He

9 wasn't nice at all. His message was the fist in the velvet

10 glove. His message was quietly, Hi, Mr. Loser, but bottom line

11 is you're going to have to pay or you're going to have to do

12 this jail or jail substitute or work furlough. Something. They

13 have all kinds of different names, but what it boils down to is

14 something that you wouldn't have to do if you had $104.

15 I have become aware that each generation, each age,

16 has different instruments of oppression. Monty Python or was it

17 Mel Brooks? Mel Brooks showed us what happened in the age of

18 the inquisition and with the autos-da-fe and other instruments

19 of torture. We continue to have instruments of oppression, and

20 one of those instruments of oppression is the traffic court.

21 They channel all kinds of people in there. There is

22 no prosecutor and basically you don't have any choice. A large

23 percentage of the people just pay the fine or large percent of

24 the people pay the fine so they don't even have to go to court.

25 Anyway, I have offered everything that I wanted to add that Mr.

26 Bond said.

27 Now, I'd like to talk just for a while about what

28 we saw from the witnesses. The first witness we had was Julie

18

1 Childs from the court. I don't know what you are going to get

2 from her. She didn't remember what day this happened. She

3 didn't remember if I actually gave her the papers. And she

4 said, of course, it's not a crime for me to be outside the

5 window. Anybody, even if I had submitted a paper, anybody can

6 submit a paper. And, actually, she looked at the proof of

7 service and told you actually it had been submitted by mail,

8 which inference can be drawn by you, obviously. I didn't give

9 it to her there, it came in by the mail if you're going by the

10 proof of service. And if you are not going by the proof of

11 service, well, you see where we are going with this.

12 Mr. Bond made much of the fact that Joel Steinfeld

13 said that the one letter with my photo on it in his opinion

14 would have indicated that I was entitled to practice law. Now,

15 that, in itself, given the other evidence, cannot merit a

16 conviction. Reasonable legal minds differ on that.

17 You see, you can't be convicted just because one

18 lawyer has that opinion. Has to be beyond a reasonable doubt.

19 Gee, there is going to be lawyers -- if you could get a roomful

20 of lawyers to agree on anything, you would be working a miracle.

21 There were four lawyers who testified about that including, of

22 course, Commissioner Covarrubias, who is a lawyer, and, by the

23 way, not a judge. And there is a difference. When you go

24 before a commissioner, I believe it's still the case, you must

25 sign a piece of paper giving him the right to act as a judge and

26 authenticating your procedure up to the level had a judge been

27 there, but he is not a judge.

28 One, the difference is a commissioner is a lawyer

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1 and disciplined by the state bar. A judge may not practice law

2 and is disciplined by the Commission on Judicial Performance.

3 And I am glad Mr. Bond said I didn't ask those three witnesses

4 who I called what they were going to say in advance or tell him,

5 although I did chat with them a little when they came in. Some

6 I haven't seen in a while. I was not looking for a rigged

7 answer. I wanted their honest opinion and Joel surprised me.

8 Had I known Joel was going to say that the letter looked like I

9 was holding myself out, I would have tried to get somebody else.

10 But, hey, that's reality. But I am not worried about that

11 because reasonable minds can differ.

12 Now, let's consider for a moment what could be

13 encompassed in the statute. If this were a really good case,

14 what would you see? I have heard of cases of people who never

15 did pass the bar, although they did go to law school, who were

16 really good, and fooled the public for maybe -- I remember one

17 case, this guy had been going to court. Now, suppose you had a

18 person like that who is not licensed by the bar and had an ad in

19 the paper, divorces $300 or something. That would be

20 advertising. And the bar might well be justified saying, well,

21 you didn't pass the bar, maybe you are not competent. That's

22 what could be -- that's what's encompassed in the statute. And

23 Mr. Bond speculated as to what the legislature meant when they

24 said advertising or holding oneself out.

25 Well, maybe we can all speculate. Maybe they meant

26 they envision somebody came into court and said, well, I wasn't

27 advertising because -- oh, because I didn't pay for it.

28 Advertisements cost money. Holding yourself out, maybe that's

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1 to qualify that -- I don't know what it is, but I do know that

2 that section was added. Well, it was amended in 1988. So it's

3 fairly new.

4 The State Bar Act, the main part of it was passed in

5 1939 and the drafting in 1988 obviously leaves something to be

6 desired, especially considering that it is a statute that

7 purports to restrict speech rights.

8 Getting back to that, there was the subject of

9 speech and speech plus. Now, I asked you -- and I got

10 distracted and I apologize for that -- what could a lawyer do

11 besides speak, listen, read and write? Here's what he can do.

12 Here's what he can do. He can make some decision for him.

13 That's what I didn't do for Melvin Loser. You see? Had I been

14 Melvin Loser's attorney, first of all, he wouldn't have been

15 talking. You would have heard my voice. And I would have had

16 the authority to plead guilty or not guilty for him, to make his

17 decisions. Lawyers do that all the time. Oftentimes you must

18 get the consent in writing, but, for example, had I been Melvin

19 Loser's attorney, say in a car crash case, I could have

20 negotiated with the other side how much money is this worth.

21 Had I been his lawyer, I could have done certain legal things

22 with regard to wills, contracts, things like that.

23 You see, speaking for another person is an activity

24 that is not exactly the same as pure speech. It's affecting

25 someone else's life by making -- by substituting for that

26 person. Not just speaking, but substituting. There is another

27 thing, I wasn't his attorney. I couldn't manage his money.

28 Attorneys in car crash cases, for example, have a fiduciary

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1 duty, that is, a duty to manage money. Give so much to the

2 doctor, so much to the person who served the papers, any court

3 reporter, things like that. Those are things that an attorney

4 does that are not pure speech. And to that extent, perhaps a

5 law regulating that would be more enforceable, but I stayed

6 completely away from that. And I made it clear I am not his

7 lawyer, because the First Amendment needs breathing room.

8 The Supreme Court didn't want us and Congress did

9 not want us intimidated into saying nothing. It's better that

10 people speak out about government. That's the thing that

11 distinguishes this country from other countries. The right of

12 one individual to say, whoa, stop, you can't do this to me and I

13 have a right to tell you why. And in Melvin Loser's case -- and

14 if I can't tell you, I will get somebody to write this for me.

15 I have friends.

16 Under the constitution, you have a right to

17 associate even if that violates the State Bar Act and this came

18 to court.

19 In 1956, the civil rights movement was just starting

20 to roll and people were demonstrating. One of those people was

21 Reverend Shuttlesworth. Reverend Shuttlesworth

22 conducted a march out of Birmingham --

23 MR. BOND: Objection.

24 THE COURT: Sustained.

25 MR. BOND: -- far from Ventura --

26 THE COURT: Comments are stricken. How much longer do

27 you intend to be, Mr. Palaschak?

28 MR. PALASCHAK: Your Honor, I'd like to go until I am

22

1 finished and I think I am halfway there. If the Court had given

2 me notice in advance that my comments should be limited to a

3 particular time, I would have done that. We have accelerated

4 this trial. This trial is way ahead of schedule. I'd think

5 closing arguments, I should be entitled to two hours. I think I

6 will be done before noon.

7 THE COURT: No, Mr. Palaschak, you can have another 15

8 minutes.

9 MR. PALASCHAK: Thank you.

10 Now, let's talk about the jury instruction about

11 failure to make a denial. Commissioner Covarrubias remembered

12 that I raised my hand, but he didn't remember why. That's

13 because he didn't know why. Because I didn't shout or anything,

14 I just raised my hand and I wasn't called on. And Deputy Vito,

15 well, he remembered I raised my hand. But he didn't remember

16 when or why. But you heard my testimony, I remembered because I

17 was frustrated because Melvin Loser was implying that I was his

18 lawyer. But if you heard Commissioner Covarubbias, he said,

19 well, I understood it as Palaschak is my counsel and Fred Roger

20 as my lawyer, implying not that they were now because Fred Roger

21 wasn't then and I wasn't then, but that we would be if

22 appointed.

23 Now, you say, well, you are holding yourself out to

24 practice law by asking for appointment. That's where the clear

25 and present danger test came in. http://www.lawyerdude.8k.com/5802.html It is not present. That would

26 be something in the future. Maybe if I were appointed to write

27 for somebody or something, I would be holding myself out as

28 entitled to practice law. If I did. That's too far remote.

23

1 That's not clear and present.

2 And what is the danger, by the way? What's the

3 danger if Melvin Loser has somebody write for him who is not a

4 member of the bar? He has nobody to write for him. Now there

5 is no danger. You see, that's what makes this case interesting.

6 And that's not by accident.

7 In 1968, as it's mentioned in here, California

8 created the infraction just to take away your right to a lawyer

9 in traffic court. That's why Melvin Loser didn't have a lawyer,

10 it was taken away. You see, the Supreme Court through the years

11 have made all these cases where you have got a right to a

12 lawyer, started out just as a capital case and then the

13 Scottsboro boys came down in the middle of the Depression, and I

14 don't remember. No, it was Gideon versus Wainwright. Gideon is

15 portrayed by Henry Fonda in the movie. It wasn't a capital

16 case, but still he had to go to jail for a long time.

17 The Supreme Court ruled in Gideon versus Wainwright,

18 not just capital cases, and there were serious jail. And there

19 was another case. And it got to if you are going to send a

20 person to jail, generally speaking, you better give them a

21 lawyer. And that's why in 1968 California passed Penal Code 16.

22 And I will say if the crime is an infraction, you can't go to

23 jail, but you don't have a right to a lawyer, either. But

24 here's the capper. And here's what they did to Melvin Loser,

25 but if you don't pay the fine, we are going to put you in jail.

26 And my opinion is that's not right either, that violates

27 Williams versus Illinois. That's what this is all about.

28 MR. BOND: Objection.

24

1 THE COURT: Yes, Mr. Palaschak. In addition to what you

2 have misstated as the law, you have a right to a lawyer. You

3 don't have a right to an appointed lawyer.

4 MR. PALASCHAK: The Court is absolutely correct. I

5 apologize for that.

6 THE COURT: Please speak to the matters of this case.

7 MR. PALASCHAK: That's spelled out clearly in the brief

8 and that's why it's important to go to court with something in

9 writing. If Mr. Melvin Loser had gone to court, you saw how Mr.

10 Covarrubias ripped him to pieces. Melvin Loser was stuttering.

11 I felt really bad for him. I was outraged. It was like an

12 inquisition. In fact, I called it an inquisition. He was

13 browbeating Melvin Loser and he didn't pay any attention to

14 Melvin Loser's papers, either. But had Melvin Loser gone up and

15 appealed, this thing would have been hanging in there.

16 Sometimes you need somebody to speak for you. That's the whole

17 concept of having a lawyer. And when your lawyer is punished,

18 it chills your right.

19 What if this would happen to you someday and you had

20 a situation like Melvin Loser. Geez, I remember that guy.

21 What's his name that wrote that brief? Whoa, I can't get him,

22 he's in jail now. You see, it's important, government works

23 better if people have lawyers. It could happen to you. Could

24 you be Melvin Loser? Who knows what could happen to any of you?

25 You might all be comfortable now, but someday you could get in a

26 car crash, have a serious accident, and you would just be like

27 Melvin Loser existing on $700 a month.

28 You heard him on the tape there and you can see it

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1 in here. He runs out of money before the end of the month. And

2 how would you feel to have some court, Commissioner Covarrubias,

3 say, hey, you are not going to be able to buy that last week of

4 groceries for next week. We need that $25 in fines. Bring it

5 in here or you are going to go to jail.

6 I am working to wrap it up. But there is an

7 interesting story and it's very pertinent. Printing presses

8 used to be licensed. In 1650 in England -- they're not licensed

9 anymore -- John Milton wrote some good stuff about it. I am not

10 going to tell you, I can't remember the quotations, but the

11 point is our First Amendment, coming as it did shortly after

12 1650 when the memory of printing press licenses was still in

13 people's minds, at least those scholars who wrote the

14 constitution, our First Amendement embodied that collective

15 memory of a bad time, and it says that the right to speak and

16 publish is not going to be abridged and the Fourteenth Amendment

17 says no state shall enforce that right -- or that abridgement of

18 a person's rights. No state shall enforce a law such as that

19 law that abridges people's rights, the right to free speech.

20 The Supreme Court also ruled there are several kinds

21 of speech. Pornography is speech. Political speech is at a

22 higher level. Pure speech is higher than speech plus. Burning

23 a flag is speech plus something else. Political speech is

24 higher, but advocacy of rights is very high speech. That's what

25 makes government be good for the people rather than oppressive.

26 I am almost near the end. Peter Zenger, a German

27 immigrant, came to this country, and when he was a young man he

28 started publishing a newspaper critical of the government.

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1 1734 -- I could look it up in the enclycopedia. Peter Zenger

2 was prosecuted for criticizing the government. He had a jury

3 just like you, they said not guilty. But you know what

4 happened? The judge put the jurors in jail. That's not going

5 to happen to you. That's not going to happen to you. So don't

6 let it happen to me. Okay?

7 The case stands for the proposition that truthful

8 utterances will not be punished. That's where that concept came

9 from. And Zenger's trial was in 1734, before we were even a

10 country. The constitution was, what, 1789 or something like

11 that. It embodied all of that. People who wrote that

12 constitution were like 200 years closer to the printing press

13 and to licensing of printing presses. If you tell me I can't

14 print that, you are talking to me, telling me what I can't do

15 with my laser printer. Laser printer is a printing press. We

16 do not license printing presses. We do have good reason to

17 license who can handle a person's money. Who can tell a person

18 speak up to a person in court, say is guilty or not guilty.

19 As you see in my footnote, if you read it carefully,

20 the reason my bar license was taken has nothing to do with my

21 competence as an attorney. Had to do with, oh, an instrument of

22 oppression, the traffic court.

23 We are just about done here. I am just going to

24 look over -- I had some items that I wanted to be sure I

25 covered.

26 Oh. Deputy Vito. I certainly hope you are not

27 going to consider his testimony at all. He was angry and you

28 heard him say he was just as sure of that one thing as he was

27

1 sure of anything else. I learned from F. Lee Bailey what

2 happened to him on the O.J. trial, so use that little trick. He

3 should have listened to the tape, and I bet you had Judge

4 Covarrubias not reviewed the --

5 MR. BOND: Commissioner Covarrubias.

6 MR. PALASCHAK: That's right, he is not a judge. Thank

7 you.

8 MR. BOND: You're welcome.

9 MR. PALASCHAK: And I do appreciate when Mr. Bond refers

10 to me as an attorney. It's a Freudian slip. He told me several

11 times when I called him on it and he said, no, he didn't

12 Freudian slip, his subconscious knows that I am. If you look

13 like a duck and smell like a duck and you walk like a duck,

14 there is a good possibility there is a duck. And I don't want

15 to say I am the best attorney in the world. But when I was a

16 child, my dad always said, how come you always got to talk back?

17 You argue too much. And I am trying to think, geez, I could

18 probably make some money on that. So I always wanted to be a

19 lawyer. And now I am not one again.

20 But I am still an attorney, I am just not licensed

21 in California, California state courts. And that's the thing,

22 you know, they would have you think that you have to have a

23 license from the California state bar to practice in federal

24 court. Absolutely untrue. And how many people come to California on

25 vacation and they maybe go through customs, they're standing in

26 California. What do you do for a living? I am an attorney. If

27 Eric Bond were standing right there by customs, he could scoop

28 them in. That's why they don't have a customs office in Ventura

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1 County. All right. That's it. This is not really a funny

2 matter for me. But if I have to go to jail for standing up for

3 the First Amendment, I go proudly. Thank you.

4 (End of partial transcript)

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1 SUPERIOR COURT OF THE STATE OF CALIFORNIA

2 FOR THE COUNTY OF VENTURA

3 COURTROOM 34 HON. ALAN STEELE, JUDGE

4

5 THE PEOPLE OF THE STATE OF CALIFORNIA, No. CR43885

6 Plaintiff,

7 vs.

8 DOUGLAS A. PALASCHAK,

9 Defendant. )

_______________________________________)

10

11

12 I, Denise A. Potts, CSR 3869, Certified Shorthand

13 Reporter, Official Reporter of the State of California, for the

14 County of Ventura, do hereby certify that the foregoing pages

15 1 through 28 comprise a true and correct partial transcript of

16 the proceedings held on September 24, 1999 in the matter of the

17 above-entitled cause.

18 Dated at Ventura, California, this 14th day of June

19 2002.

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___________________________

22 DENISE A. POTTS, CSR 3869

Official Court Reporter

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