Lancaster v. Nevada Department of Corrections

Full title: DOYLE D. LANCASTER, Plaintiff, v. NEVADA DEPARTMENT OF CORRECTIONS, et…

Court: United States District Court, D. Nevada

Date published: Sep 1, 2010

3:06-cv-00284-JCM-RAM (D. Nev. Sep. 1, 2010)

Opinion

3:06-cv-00284-JCM-RAM.

September 1, 2010

ORDER

JAMES MAHAN, District Judge

This is a civil rights action filed pursuant to 42 U.S.C. § 1983 by a Nevada prisoner. By order filed December 4, 2006, the court dismissed the original complaint (Docket #1), the first amended complaint (Docket #4), and the second amended complaint (Docket #5) for failure to state a cognizable claim. (Docket #9). Plaintiff was granted leave to file a third amended complaint within 45 days of the December 4, 2006 order. (Docket #9).

On January 18, 2007, plaintiff filed a third amended complaint. (Docket #11). By order filed June 16, 2008, the third amended complaint was dismissed for failure to state a cognizable claim, and plaintiff was granted 30 days to file a fourth amended complaint. (Docket #13). Plaintiff requested and received several extensions of time to file the fourth amended complaint. (Docket #16, #18, #20, #22, #24). The final extension of time was granted on May 8, 2009. (Docket #24). Plaintiff filed the fourth amended complaint on July 23, 2009. (Docket #25). The fourth amended complaint is 126 pages in length, with exhibits consisting of 115 pages. (Docket #25, at Parts 1, 2, and 3). Plaintiff filed a motion to correct pages of the fourth amended complaint, and by order filed February 17, 2010, the court granted plaintiff's request to substitute page 26 of the fourth amended complaint with pages 26 and 26a, attached to his motion to correct. (Docket #26 and #27). On April 29, 2010, plaintiff filed a "notice," which was a submission of typewritten pages 17-23, 35-45, 85-122, and 125-126, as well as a typewritten appendix of exhibits to the fourth amended complaint. (Docket #28). The court now addresses the fourth amended complaint (FAC).

I. Screening Standard

Pursuant to the Prisoner Litigation Reform Act (PLRA), federal courts must dismiss a prisoner's claims, "if the allegation of poverty is untrue," or if the action "is frivolous or malicious," "fails to state a claim on which relief may be granted," or "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A. Dismissal of a complaint for failure to state a claim upon which relief may be granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and the court applies the same standard under Section 1915(e)(2) when reviewing the adequacy of a complaint or amended complaint.

Review under Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Laboratory Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure to state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in support of the claim that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). In making this determination, the court takes as true all allegations of material fact stated in the complaint, and the court construes them in the light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). Allegations in a pro se complaint are held to less stringent standards than formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520-21 (1972) ( per curiam); see also Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

All or part of a complaint filed by a prisoner may therefore be dismissed sua sponte if the prisoner's claims lack an arguable basis either in law or in fact. This includes claims based on legal conclusions that are untenable (e.g. claims against defendants who are immune from suit or claims of infringement of a legal interest which clearly does not exist), as well as claims based on fanciful factual allegations (e.g. fantastic or delusional scenarios). See Neitzke v. Williams, 490 U.S. 319, 327-28 (1989); see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991).

II. Fourth Amended Complaint

Plaintiff describes the fourth amended complaint as an action pursuant to 42 U.S.C. § 1983, 42 U.S.C. § 1985, 42 U.S.C. § 1986, and Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq. The fourth amended complaint contains five enumerated counts. Plaintiff names 35 defendants in the fourth amended complaint. Plaintiff seeks declaratory relief, injunctive relief, and monetary damages. (FAC, Docket #25).

A. Count I

Count I of the fourth amended complaint alleges that the City of Reno and its employees discriminated against plaintiff on the basis of disability during interrogation and arrest by failing to provide him with reasonable accommodations for his disabilities. (FAC, Docket #25, at p. 18). Plaintiff alleges that he suffers from "chronic sight, hearing, and mental impairments due to organic brain damage and other complicating medical factors." (Id., at p. 20). Plaintiff alleges that in 2003, he had a stroke and was diagnosed with carotid stenosis. Plaintiff underwent a carotid endarterectomy surgery in February 2003 to correct the carotid stenosis. ( Id., at p. 31). Plaintiff refers to a letter from his treating physician, Dr. Lovett, which states the following: "Mr. Lancaster had a carotid endarterectomy for critical carotid stenosis. He has MRI evidence of previous lacunar infarcts (mini-strokes). I believe these events have influenced Mr. Lancaster's thought processes and ability to make decisions." ( Id., at p. 31). In addition to mental disability, plaintiff also alleges that he has a serious hearing impairment. (Id., at p. 32). Plaintiff alleges that he has been legally deaf since the late 1980's. (Id., at p. 36). Plaintiff explains that he had hearing aids for both ears, but they provide little help, and that for him to effectively hear and communicate, the person speaking to him must be very close to him. (Id., at pp. 32-33). Plaintiff also alleges that he has a vision impairment caused by cataracts. (Id., at p. 33).

Plaintiff alleges that, in conducting the initial interview regarding the crimes for which he was ultimately convicted, the City of Reno police department failed to provide plaintiff with reasonable accommodation for his hearing impairment and mental disabilities. (Id., at p. 22). Plaintiff alleges that on September 19, 2002, he arrived at a Reno police station and was escorted to an interrogation room by police detective Tom Broom. During the interrogation, plaintiff informed detective Broom that he could not hear what the detective was saying. (Id., at p. 29). Plaintiff contends that because of the lack of reasonable accommodations for his disabilities, he could not understand and fully participate in the interrogation conducted by detective Broom. (Id.). Plaintiff alleges that the Reno Police Department have a policy and practice of denying individuals with disabilities reasonable accommodation when undergoing investigation, custodial interrogation, and arrest. (Id., at p. 36). Plaintiff asserts that Reno Chief of Police, Michael Poehlman, was responsible for the Reno Police Department's policy of failing to accommodate persons with disabilities.

The court finds that plaintiff has alleged sufficient facts to allow the count 1 to proceed under the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., against defendants City of Reno, Reno Chief of Police Michael Poehlman, and Reno police detective Tom Broom.

B. Count II

1. ADA Claim

In count II of the fourth amended complaint, plaintiff alleges that he was placed in custody at the Washoe County Detention Facility on September 20, 2002. (Id., at p. 39). Plaintiff alleges that the staff at the Washoe County Detention Facility failed to provide reasonable accommodations for his disabilities. For example, plaintiff could not hear orders given to him by jail staff members, and as a result, he "ended up getting shoved and physically knocked around" by staff. ( Id., at p. 40-41). Plaintiff also alleges that when his attorney, Lee Hotchkin, visited him in jail two days after his incarceration began, he was unable to hear what Hotchkin said over the phone. (Id., at p. 41).

Plaintiff alleges that the Washoe County Detention Facility failed to provide him with reasonable accommodations for his hearing impairment during his initial period of confinement following his arrest on September 20, 2002, until he was released on bail. (Id., at pp. 41-42). Plaintiff alleges that the Washoe County Detention Facility has a policy and practice of denying individuals with disabilities reasonable accommodations. (Id., at p. 42). Plaintiff asserts that Michael Haley, Washoe County Sheriff, is responsible for the Washoe County Detention Facility's policy of failing to accommodate persons with disabilities. The court finds that plaintiff has alleged sufficient facts to allow count 1 to proceed under the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., against defendants Washoe County and Washoe County Sheriff Michael Haley.

2. Deliberate Indifference to Medical Needs

Following sentencing on July 2, 2003, plaintiff's bail was revoked and he was again taken into the custody of the Washoe County Detention Facility to await transport to the Nevada Department of Corrections. (Id., at p. 43). In February 2003, when plaintiff was released on bail pending resolution of the criminal charges, plaintiff had carotid endarterectomy surgery to correct critical carotid stenosis. (Id.). After surgery, plaintiff's doctor prescribed him Plavix to aid in blood circulation. (Id.). Plaintiff was also prescribed Flomax to treat an enlarged prostate gland. (Id.). While incarcerated at the Washoe County Detention Facility beginning July 2, 2003, plaintiff did not receive either Plavix or Flomax. (Id., at pp. 43-44).

In addition, a week prior to sentencing, in June 2003, plaintiff had cataract surgery on his right eye and was scheduled for cataract surgery in left eye ten days after the first surgery. (Id., at p. 43). Plaintiff informed custody and medical staff at the Washoe County Detention Facility that he was scheduled for surgery on his left eye, but they made no arrangement for plaintiff to have second surgery. According to plaintiff, he had already paid for the second surgery. (Id., at p. 43). Plaintiff was also deprived of eye drops that his doctor had prescribed following cataract surgery on his right eye in June 2003. (Id., at p. 44). Plaintiff alleges that the doctor stressed the importance of using the prescription eye drops, so that the surgery recovery would be successful. (Id.), When plaintiff told jail staff about his need for the prescribed eye drops, staff denied the medical request, stating, "That's your problem, not ours." (Id., at p. 44). Plaintiff alleges permanent loss of partial vision. (Id., at pp. 44-45). Plaintiff alleges that the Washoe County Detention Facility has a policy and practice of denying and/or delaying treatment and medication. (Id., at p. 45).

The court finds that plaintiff's allegations of being denied medically necessary treatment and prescription medications, and plaintiff's allegations that the Washoe County Detention Facility engaged in a pattern and practice of denying treatment and medications, states a cognizable claim for deliberate indifference to serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Farmer v. Brennan, 511 U.S. 825, 834-837 (1994). The Eighth Amendment claim of deliberate indifference to medical needs in count II will be allowed to proceed against defendants Washoe County and Washoe County Sheriff Michael Haley.

C. Count III

In count III of the fourth amended complaint, plaintiff alleges:

Irrational disability discrimination and failure to provide reasonable accommodations for plaintiff's physical and mental disabilities by named defendants. This resulted in denial of plaintiff's right to adequate, effective, and meaningful court access during state court criminal proceedings initiated against plaintiff in violation of the First, Fourth, Fifth, Eighth, Ninth, and Fourteenth Amendments to the Constitution of the United States and corresponding provisions of the Constitution of the State of Nevada.

(FAC, Docket #25, at p. 46). Plaintiff alleges that his defense attorneys, David Houston and Paul Quade, were aware of his mental disabilities and hearing impairment. Plaintiff alleges that his disabilities and impairments pre-dated his September 20, 2002 arrest and continued during all stages of his criminal prosecution, appeals, and post-conviction proceedings. ( Id., at p. 46). Plaintiff alleges that the letter written by Dr. Lovett¹ was provided to his defense attorneys, the prosecutor, and the state court judge. (Id., at pp. 46-47). Plaintiff alleges that the strokes affected his brain function and his competency during criminal proceedings. (Id., at p. 47). Plaintiff further alleges that his hearing impairment and visual impairment made him unable to understand what was happening and what was being communicated to him during criminal proceedings. (Id., at p. 47). Plaintiff alleges that: "This resulted in a denial of plaintiff's right to adequate, effective, and meaningful court access during state court criminal proceedings initiated against plaintiff. . . ." (Id.).

1 The letter stated: "Mr. Lancaster had a carotid endarterectomy for critical carotid stenosis. He has MRI evidence of previous lacunar infarcts (mini-strokes). I believe these events have influenced Mr. Lancaster's thought processes and ability to make decisions." (FAC, at p. 31 and p. 46).

In addition, plaintiff alleges that there was a conflict of interest with his defense attorney, David Houston. (Id., at p. 48). According to plaintiff, Houston was retained by members of plaintiff's family to represent him in criminal proceedings, conditioned on Houston not taking the case to trial and instead negotiating a plea bargain, in order to save the victim (the granddaughter of plaintiff) from having to testify in court. (Id., at pp. 48-89).

Plaintiff is alleging facts of the kind that could entitle him to habeas corpus relief. When a prisoner challenges the legality or duration of his custody, or raises a constitutional challenge which could entitle him to an earlier release, his sole federal remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475 (1973); Young v. Kenny, 907 F.2d 874 (9th Cir. 1990), cert. denied 11 S.Ct. 1090 (1991). Moreover, when seeking damages for an allegedly unconstitutional conviction or imprisonment, "a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254." Heck v. Humphrey, 512 U.S. 477, 487-88 (1994). "A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983." Id. at 488. Plaintiff has not, and indeed, cannot allege that his conviction has been reversed or otherwise invalidated. Plaintiff fails to state a cognizable civil rights claim in count III. Because plaintiff fails to state a cognizable claim and amendment would be futile, count III is dismissed with prejudice.

D. Count IV

Count IV of the fourth amended complaint reads as follows:

Plaintiff further alleges that a conspiracy existed as a matter of official unwritten policy and practice from the inception of the criminal investigation and prosecution initiated in Justice Court of Reno Township case number 02-5108 and Second Judicial District Court of the State of Nevada case number CR-03P0255, to overcharge plaintiff with crimes for which there existed no reliable direct or circumstantial evidentiary basis in either fact or law. They thereby obtained a false or fabricated conviction, which deprived plaintiff of equal protection of the laws and equal privileges under the laws. Other named defendants, having power to prevent or aid in preventing commission of the same, neglected to do so by indifference, an invidious animus, by acquiescence or giving tacit approval of the conspiracy to falsely convict, for self-serving reasons of insular self-interest and political expedience in disposing of an unwanted case, and for the appeasement of an irate and incensed public spirit existing in the community against such crimes, in violation of the First, Fourth, Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the Constitution of the United States and the corresponding provisions of the Constitution of the State of Nevada.

(FAC, Docket #25, at p. 89). Plaintiff alleges that a conspiracy existed between his defense counsel, the prosecution, and the judge to overcharge him with crimes and to obtain a false or fabricated conviction. (Id., at pp. 89-101). As explained above, plaintiff cannot sue civilly for an allegedly unconstitutional conviction or imprisonment unless the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. Heck v. Humphrey, 512 U.S. 477, 487-88 (1994). Because plaintiff fails to state a cognizable claim and amendment would be futile, count IV is dismissed with prejudice.

E. Count V

In count V of the fourth amended complaint, plaintiff alleges that the Nevada Department of Corrections and its employees have a policy and practice of denying treatment and medication for the serious medical needs of prisoners. (FAC, Docket #25, at p. 101). Plaintiff alleges that he has experienced the following instances of denial of medical treatment: (1) denial of specialist-recommended surgery for congestive heart failure (Id., at p. 106); (2) denial of specialistrecommended nuclear stress test, a diagnostic test to determine treatment for coronary artery disease (Id., at p. 107); (3) denial of cataract surgery for his left eye ( Id., at pp. 110-12); and (4) intentional delay and denial of prescribed medication and treatment, and abrupt discontinuation of prescribed medications, such as Plavix and blood pressure medication ( Id., at p. 114). Plaintiff alleges that the Northern Nevada Correctional Center lacks competent medical staff and lacks an adequate procedure for responding to medical emergencies. ( Id., at p. 102). Plaintiff further alleges that the Nevada Department of Corrections has a policy and practice of: failing to maintain an adequate system to provide prescription medication refills; failing to make timely referrals for speciality care; failing to provide specialist-recommended diagnostic and surgical procedures, particularly for prisoners over age 65; failing to keep professionally adequate, accurate, up-to-date medical records; failing to adequately monitor prisoners with chronic conditions; refusing to treat chronic pain; failing to ensure adequate coverage by qualified physicians; and failing to ensure that medical co-payment charges for medical visits are unrelated to illness or injury involving chronic care issues. (Id., at pp. 102-103). Plaintiff alleges that the warden of NNCC and director of corrections Howard Skolnik have personal knowledge of these policies and practices, yet have not acted to correct the problems. (Id.).

The court finds that plaintiff's allegations of being denied medically necessary treatment, and plaintiff's allegations that the Nevada Department of Corrections engaged in a pattern and practice of denying treatment and medications, states a cognizable claim for deliberate indifference to serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Farmer v. Brennan, 511 U.S. 825, 834-837 (1994). The Eighth Amendment claim of deliberate indifference to medical needs in count V will be allowed to proceed against defendants Howard Skolnik, Donald Helling, and James Benedetti.

III. Conclusion

IT IS THEREFORE ORDERED that counts III and IV of the fourth amended complaint are DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that count I of the fourth amended complaint MAY PROCEED as to defendants City of Reno, Reno Police Chief Michael Poehlman, and Reno police detective Tom Broom.

IT IS FURTHER ORDERED that count II of the fourth amended complaint MAY PROCEED as to defendants Washoe County and Washoe County Sheriff Michael Haley.

IT IS FURTHER ORDERED that count V of the fourth amended complaint MAY PROCEED as to defendants Howard Skolnik, Donald Helling, and James Benedetti.

IT IS FURTHER ORDERED that the following defendants are DISMISSED FROM THIS ACTION WITH PREJUDICE: Kenny Guinn, Catherine Cortez Masto, Frankie Sue Del Papa, George Togliatti, Jerald Hafen, Amy Wright, Bernard W. Curtis, James W. Roundtree, Howard Rigdon, Richard Gammick, Kelli Anne Viloria, David Clifton, Joseph Plater, Lee Hotchkin, David Houston, Paul Quade, Judge Jerome Palaha, Jim Gibbons, Ross Miller, Jackie Crawford, Ted De'Amico, Robert Bannister, Tony Corda, John Perry, Robert P. Stuyvesant, State of Nevada, and the Nevada Department of Corrections.

IT IS FURTHER ORDERED that the clerk of court shall issue summons for defendants City of Reno, Reno Police Chief Michael Poehlman, Reno police detective Tom Broom, Washoe County, and Washoe County Sheriff Michael Haley, and deliver same, along with a copy of the fourth amended complaint, the instant order, and the attached "Notice of Intent to Proceed with Mediation" form, to the U.S. Marshal for service. Plaintiff shall have twenty (20) days in which to furnish to the U.S. Marshal the required Forms USM-285. Within twenty (20) days after receiving from the U.S. Marshal a copy of the Form USM-285 showing whether service has been accomplished, plaintiff must file a notice with the court identifying which defendants were served and which were not served, if any. If plaintiff wishes to have service again attempted on an unserved defendant(s), then a motion must be filed with the court identifying the unserved defendant(s) and specifying a more detailed name and/or address for said defendant(s), or whether some other manner of service should be attempted.

IT IS FURTHER ORDERED that the clerk shall electronically serve a copy of this order, including the attached "Notice of Intent to Proceed with Mediation" form, along with a copy of plaintiff's fourth amended complaint, on the Office of the Attorney General of the State of Nevada, attention Pamela Sharp. The Attorney General SHALL FILE AND SERVE an answer or other response to the complaint within thirty (45) days of the date of entry of this order.

IT IS FURTHER ORDERED that the parties SHALL DETACH, COMPLETE, AND FILE the attached "Notice of Intent to Proceed with Mediation" form on or before thirty (30) days from the date of entry of this order.

IT IS FURTHER ORDERED that henceforth, plaintiff shall serve upon defendants, or, if an appearance has been made by counsel, upon their attorney(s), a copy of every pleading, motion, or other document submitted for consideration by the court. Plaintiff shall include with the original paper submitted for filing a certificate stating the date that a true and correct copy of the document was mailed to the defendants or counsel for defendants. If counsel has entered a notice of appearance, the plaintiff shall direct service to the individual attorney named in the notice of appearance, at the address stated therein. The court may disregard any paper received by a district judge or a magistrate judge that has not been filed with the clerk, and any paper which fails to include a certificate showing proper service.

Dated this 1st day of September, 2010. NOTICE OF INTENT TO PROCEED WITH MEDIATION

__________________ Name __________________ Prison Number __________________ Address __________________ __________________ UNITED STATES DISTRICT COURT DISTRICT OF NEVADA _______________________, ) Case No.________________ Plaintiff, ) v. ) ) ) _______________________ ) ) _______________________ ) Defendants. ) ________________________ ) This case may be referred to the District of Nevada's early inmate mediation program. The purpose of this notice is to assess the suitability of this case for mediation. Mediation is a process by which the parties meet with an impartial court-appointed mediator in an effort to bring about an expedient resolution that is satisfactory to all parties. 1. Do you wish to proceed to early mediation in this case? ___ Yes ___ No 2. If no, please state the reason(s) you do not wish to proceed with mediation? ________ _____________________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ 3. List any and all cases, including the case number, that plaintiff has filed in federal or state court in the last five years and the nature of each case. (Attach additional pages if needed). _____________________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ 4. List any and all cases, including the case number, that are currently pending or any pending grievances concerning issues or claims raised in this case. (Attach additional pages if needed). _____________________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ 5. Are there any other comments you would like to express to the court about whether this case is suitable for mediation. You may include a brief statement as to why you believe this case is suitable for mediation. (Attach additional pages if needed). _____________________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ This form shall be filed with the Clerk of the Court on or before thirty (30) days from the date of this order. Counsel for defendants: By signing this form you are certifying to the court that you have consulted with a representative of the Nevada Department of Corrections concerning participation in mediation.

Dated this ____ day of _______________________, 20___.

____________________________________ Signature ____________________________________ Name of person who prepared or helped prepare this document Fourth Amended Civil Rights Complaint pursuant to 42 U.S.C. § 1983, 42 U.S.C. §§ 1985, 1986, and Title II of the Americans with Disabilities Act of 1990, § 201, et.seq., 42 U.S.C. § 12131 et.seq., and section 504 of the Rehabilitation Act of 1973, 29 U.S.C.S. § 794. Jury Trial Demand Seeking for Relief 1) A Declaratory Judgment; 2) A Temporary Restraining Order Preliminary to a permanent injunction; 3) A Permanent injunction; 4) An Award of Compensatory and Punitive Monetary Damages in an amount to be determined by a Jury in Accordance with Guiding Principles of Law. Comes now the plaintiff Doyle Dolan Lancaster^1a, pro se, with voluntary assistance from a fellow prisoner paralegal, Kevin Donald Pope, NDOC # 71628, and files this complaint for monetary damages, a temporary restraining order, injunctive and declaratory relief as aforesaid.

NATURE OF CAUSE OF ACTION

As alleged more fully in detailed particularity below, this is an action by a state prisoner under 42 U.S.C. § 1983, 1985, 1986, and Title II of the Americans With Disabilities Act of 1990 (ADA), 104 Stat. 337, as amended 42 U.S.C. § 12131, et seq., (2000) ed. And Supp. II, alleging inter alia:

1) Irrational disability discrimination as a matter of official unwritten policy during a wrongful arrest. Attributable, as a direct or proximate cause, to a lack of adequate police training and therefore a failure to recognize and provide reasonable accommodations for plaintiff's apparent severe disabilities in the course of conducting a criminal investigation, interrogation, and arrest, causing plaintiff to suffer greater injury or degradation in that process than other arrestees, in violation of the First, Fourth, Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the Constitution of the United States and corresponding provisions of the Constitution of the State of Nevada.

2) Irrational disability discrimination due to a failure of defendant jail officials to adequately screen in hiring, train, supervise, and discipline subordinate jail personnel. This resulted in failure to recognize and provide reasonable accommodations for plaintiff's severe disabilities while housed in pretrial and post trial detentive custody for 47 days in the Washoe County Detention Center (jail) Parr Boulevard. Plaintiff was excluded from participating in and receiving the benefit of services, programs, and activities to which he would otherwise benefit as an entitlement, but for his disabilities including, but not limited to: Denial of necessary medical care and/or deliberate indifference exhibited by named jail officials and employees towards plaintiff's serious medical needs and intentional delay or denial of important prescribed treatment and medication, as well as denial of effective communication with immediate family members, friends, bondsmen, and attorneys in violation of the First, Fourth, Fifth, Sixth, Eighth, Ninth, and Fourteenth amendments to the Constitution of the United States and corresponding provisions of the Constitution of the State of Nevada, Art. 1, §§ 1, 4, 6, and 8.

3) Irrational disability discrimination and failure to provide reasonable accommodations for plaintiff's physical and mental disabilities by named defendants. This resulted in denial of plaintiff's right to adequate, effective, and meaningful court access during state court criminal proceedings initiated against plaintiff in violation of the First, Fourth, Fifth, Sixth, Eighth, Ninth, and Fourteenth amendments to the Constitution of the United States and corresponding provisions of the Constitution of the State of Nevada, Art. 1, §§ 1, 4, 6, and 8.

4) Plaintiff further alleges that a conspiracy existed as a matter of official unwritten policy and practice from the inception of the criminal investigation and prosecution initiated in Justice Court of Reno Township case number 02-5108 and Second Judicial District Court of the State of Nevada case number CR 03P0255, to overcharge plaintiff with crimes for which there existed no reliable direct or circumstantial evidentiary basis in either fact or law. They thereby obtained a false or fabricated conviction, which deprived plaintiff of equal protection of the laws and equal privileges under the laws. Other named defendants, having power to prevent or aid in preventing commission of the same, neglected to do so by indifference, an invidious animus, by acquiescence or giving tacit approval of the conspiracy to falsely convict, for self-serving reasons of insular self-interest and political expedience in disposing of an unwanted case, and for the appeasement of an irate and incensed public spirit existing in the community against such crimes, in violation of the First, Fourth, Fifth, Sixth, Eighth, Ninth, and Fourteenth amendments to the Constitution of the United States and the corresponding provisions of the Constitution of the state of Nevada.

5) Finally, alleging that named defendant state government officials and prison authorities within the Nevada Department of Corrections have put in place and enforce an official unwritten policy, as a matter of practice, of condoning the routine denial of necessary medical care, as well as engage in an ongoing pattern of practice of exhibiting deliberate and callous indifference to serious medical needs of the plaintiff. This includes, but is not limited to, the intentional delay and denial of important prescribed diagnostic attention, (medical specialist recommended heart related surgical procedures, medications, and other treatments (rehabilitative physical therapy), in violation of the Fifth, Sixth, Eighth, Ninth, and Fourteenth amendments to the Constitution of the United States and the corresponding provisions of the Constitution of the State of Nevada, Art. 1, § 4, 6, and 8.

Plaintiff challenges the named defendants failure by act or omission to uphold the laws and protected rights and privileges of the plaintiff as given, and requests this honorable court declare the unlawful acts or failures to act on the part of the named defendants, as alleged in the instant complaint, to be in violation of the Constitution and laws of the United States and the State of Nevada and enjoin the defendants from any further or other such acts and/or omissions, which run afoul of the respective federal and state constitutional provisions, laws, and protected rights and privileges retained by the plaintiff.

Jurisdiction Venue

1. This is a civil action authorized by 42 U.S.C. Sections 1983, 1985, 1986, and the Americans with Disabilities act of 1990, § 201, et. Seq., 42 U.S.C. § 12131, et. Seq., to redress the deprevation, under color of state law, or rights secured by the Constitution of the United States. The court has jurisdiction under 28 U.S.C. §§ 1331 and 1343(a)(3). Plaintiff seeks declaratory relief pursuant to 28 U.S.C. Sections 2201 and 2202. Plantiff's claims for injunctive relief are authorized by 28 U.S.C. Sections 2283 2284 and Rule 65 of the Federal Rules of Civil Procedure.

2. The court has supplemental jurisdiction over the Plantiff's state law tort claims under 28 U.S.C. § 1367.

3. The United States District Court for the district of Nevada is an appropriate venue under 28 U.S.C. section 1391(b)(2) because it is where the events giving rise to the claims stated herein occurred.

II. Parties

4. Plantiff, Doyle Dolen Lancaster, is and has at all times mentioned herein, been either held under custodial constraint during an interrogation and subsequent arrest by the Reno police department, held in detentive custody of the Washoe County Sheriffs Office at the Washoe County detention Center (jail) Parr Boulevard, while awaiting bail and further proceedings on a criminal complaint in the aforementioned cases, or a prisoner of the State of Nevada in the custody of the Nevada Department of Corrections. He is currently confined in the Northern Nevada Correctional Center, in Carson City Nevada.

5. Defendant, Governor Kenny Guin, and his successors in office and those persons acting under his direction or their successors in their respective official capacities, is and was at all times mentioned herein the Governor of the State of Nevada. As Governor and chief executive of the State, he is responsible for the overall operation of the various departments of t State Government under his direct authority and control as well as authority deligated to subordinate heads o those departments including the Nevada Department of Public Safety and the Nevada Department of Corrections. Defendant Kenny Guinn is being sued in his official capacity.

6. Defendant, Frankie Sue Del Papa, and her successor Catherine Cortez Masto, at al times mentioned herein are or were Attorney Generals of the State of Nevada. As the Attorney General and chief-law-enforcement officer of the State Government, as such, she is responsible for carrying out and enforcing the respective Federal and State Constitutions and laws as well as upholding and enforcing the laws governing and respecting the soverign rights retained by all citizens of the United States and the State of Nevada. Defendant Del Papa and her successors in office and agents are sued in their official capacity.

7. Defendant, George Togliatti, and his successor in office Jerald Hafen are or were at all times mentioned herein the director of the Nevada department of Public Safety. The Nevada department of Public Safety is vested with authority to implement and enforce the laws governing Presentence Investigation Reports requested, and produced at the behest of the district courts in criminal cases. Defendant Togliatti and his successor in office and agents are sued in their official capacity.

8. Defendant, Amy Wright, and her successor in office Bernard W. Curtis, are and were at all times mentioned herein: The Chief of te Parole and Probation Division of the Nevada Department of Public Safety; The Parole and Probation Division is vested with authority to carry out and enforce the laws governing Presentence Investigation Reports generated at the behest of the District courts in criminal cases. Defendant Wright and her successor in office are sued in their official capacities.

9. Defendant, James W. Roundtree, is employed by the Division of Parole and Probation of the department of Public Safety who is at all times mentioned herein, held the position of Parole and Probation Officer II. Defendant Roundtree is vested with legal powers and duties to investigate all case refered to him by the chief Parole and Probation officer, or by any court including but not limited to the 2^nd. Judicial District Court, Department III, in which he is authorized to serve, and to make such reports in writing as the court or the chief Parole and Probation Officer may require including the Presentence Report (PSI #124420), dated February 28, 2003, produced at the behest of the Honorable Jerome Polaha, Dept. III, 2^nd. Judicial District Court, in case No. CR03-0255. Defendant, Roundtree is sued in both his individual and official capacity.

10. Defendant, Howard Rigdon, is a unit manager of the Carson City District Office of t Division of Parole and Probation of the Department of Public Safety who, at all times mentioned herein, held a supervisory position within the Division of Parole and Probation of the Department of Public Safety. Defendant Rigdon is vested with the legal powers and duties to supervise all Probation and Parole Officers under his direct delegated authority in the investigation of all cases refered to him by the chief Parole and Probation Officer, or by any court in which he is authorized to serve and to review and approve such reports in writing as t court or the chief Parole and Probation Officer may require including the Presentence Report (PSI #124420), dated February 28, 2003, produced at the behest of the Honorable Jerome Palaha, Dept III, 2^nd. Judicial district Court, in case number CR03-0225. Defendant Rigdon is sued in both his individual and official capacity.

11. Defendant, Michael Haley, is the Sheriff of Washoe County and custodian of Washoe County Detention Center (Jail). He is legally responsible for the operation of Washoe County Detention Center and for the welfare of all inmates, pretrial detainees, and sentenced prisoners awaiting transport to state prisons. Defendant Haley is sued in his individual and official capacity.

12. Defendants, John Doe County Jain Officials, were/are, at all times mentioned herein, line staff, supervisory, or administrative personel employed at the Washoe County Detention Center (Jail) and vested with the authority and duty in their respective capacities, to enforce the laws and policies governing the care, custody, control treatment and welfare of all inmates in their charge. Defendants John Doe County jail officials are sued in their individual and official capacities. The official identities and names of said John Doe County Jail officials will be provided based upon anticipated-accellerated-discovery and inspection.

13. Defendant, John Doe and Jane Doe County Government Officials, were/was, at all times mentioned herein, members of the Board of County Commissioners of Washoe County who are responsible for building, inspecting, repairing and maintenance of the Washoe County detention center (Jail), Parr Boulevard, and the treatment and condition of prisoners housed in the county jail. Defendant John Doe and Jane Doe County Government Officials are sued jointly and severally in their official and individual capacities. The official identities and names of said John Doe and Jane Doe County government officials will be provided based upon anticipated accelerated-discovery and inspection.

14. Defendant, John Doe County Comptroller, is a public officer employed by the Board of County Commissioners of Washoe County who, at all times mentioned herein, was charged with duties in relation to the fiscal affairs of same, including but not limited to making budgetary request and disbursement of county revenues. Defendant, John Doe County Comptroller is sued in his official capacity. The official identity and name of said John Doe County Comptroller will be provided based upon anticipated-accelerated — discovery and inspection.

15. Defendant, Michael Poehlman is chief of the Reno Police Department. The Reno Police Department is vested with authority to enforce the law, including but not limited to, upholding and respecting the fundamental rights of a criminally accused during the investigation of allegations that a crime has been committed, under the Constitution and laws of the United States and corresponding provisions of the Constitution of the State of Nevada. Defendant Poehlman is sued in his official capacity.

16. Defendant Tom Broom is a Detective of the Reno Police Department who, at all times mentioned herein, was vested with authority to enforce the laws of the State of Nevada, investigate crimes and detect criminals, and to uphold and respect the fundamental rights of all citizens within his jurisdiction under the Constitution and the laws of the United States and corresponding provisions of te constitution of the State of Nevada. Detective Broom is sued in his official and individual capacity.

17. Defendant John Doe Detective is a police officer holding the rank of detective with the Reno Police Department who, at all times mentioned herein, was vested with the authority to enforce the laws of the State of Nevada, investigate crimes and detect criminals, and to uphold and respect the fundamental rights of all citizens within his jurisdiction under the Constitution of the United States and corresponding provisions of the Constitution of the State of Nevada. Defendant John Doe Detective is sued in his official and individual capacity. The official identity and name of said John Doe Detective will be provided upon anticipated-accelerated — discovery and inspection.

18. Defendant John Doe Patrol Officer is a police officer with the Reno Police Department who, at all times mentioned herein, was a patrolman and law enforcement officer sworn to enforce the laws of the State of Nevada, and to uphold and respect the fundamental rights of all citizens within his jurisdiction under the Constitution and laws of the United States and corresponding provisions of the Constitution of the State of Nevada. Defendant John Doe Patrol Officer is sued in his official and individual capacity. The official identity and name of said John Doe Patrol Officer will be provided based upon anticipated-accelerated — discovery and inspection.

19. Defendant Richard A. Gammick, is the District Attorney of Washoe County who at all times mentioned herein, was the chief law-enforcement officer prosecuting crimes for the State of Nevada in and for Washoe County, as well as charged with the legal responsibility to perform such other duties as may be required of him by law, including an overriding duty in a criminal case to seek justice. Defendant Gammick is sued in his individual and official capacity.

20. Defendant Kelli Anne Viloria is or was at all times mentioned herein a Deputy District Attorney of Washoe County, who was authorized to transact all official business relating to her duties of office to the same extent as her principles and perform such other duties as the District Attorney may from time to time direct and to carry out the official policies of the office of the District Attorney of Washoe County by which the deputy district attorney is employed. Defendant Viloria is sued in her official and individual capacities.

21. Defendant David Clifton is or was a Deputy District Attorney of Washoe County who, at all times mentioned herein was authorized to transact all official business relating to his duties of office, to the same extent as his principles and to perform such duties as the District Attorney may from time to time direct and to carry out the official policies of the office of the District Attorney of Washoe County by which the Deputy District Attorney is employed. Defendant Clifton is sued in his official and individual capacities.

22. Defendant Joseph Plater is or was a Deputy District Attorney of Washoe County who, at all times mentioned herein, was authorized to transact all official business relating to his duties of office, to the same extent as his principles and to perform such other duties as the District Attorney may from time to time direct and to carry out the official policies of the office of the District Attorney of Washoe County by which the Deputy District Attorney is employed, Defendant Plater is sued in his official and individual capacity.

23. Defendant Lee Hotchkin is an Attorney at law, who, at all times mentioned herein, was the defense counsel of record for the Plaintiff and a sworn officer of the court, and as such had a professional responsibility and owed a legal duty to vigorously assert, protect and preserve the lawful rights and interest of his client, while the plaintiff was undergoing criminal prosecution, in an effort to win the case. Defendant Lee Hotchkin is sued in his individual capacity.

24. Defendant David Houston an Attorney at law, who, at all times mentioned herein, was the defense counsel of record for the Plaintiff and a sworn officer of the court, and as such had a professional responsibility and owed a legal duty to vigorously assert, protect and preserve the lawful rights and interest of his client, while the plaintiff was undergoing criminal prosecution, in an effort to win the case. Defendant David Houston is sued in his individual capacity.

25. Defendant Paul Quade an Attorney at law, who, at all times mentioned herein, was the defense counsel of record for the Plaintiff and a sworn officer of the court, and as such had a professional responsibility and owed a legal duty to vigorously assert, protect and preserve the lawful rights and interest of his client, while the plaintiff was undergoing criminal prosecution, in an effort to win the case. Defendant Paul Quade is sued in his individual capacity.

26. Defendant Jerome Palaha is a District Court Judge of the 2^nd Judicial District Court of the State of Nevada, in and for the County of Washoe who, at all times mentioned herein, was the presiding Judge in Department III, charged with administering and deciding questions of the law or exercising discretion as the arbiter of justice in each cause properly before the court and sworn to uphold the respective Federal and State constitutional provisions and rights of the parties over which the court has obtained competent jurisdiction, including case number CR-03-0255 in which the plaintiff underwent criminal prosecution. Defendant Palaha is sued in his individual and official capacities.

27. Defendant Kenny Guinn and his successor in office Jim Gibbons, respectively, past and present President of the Board of State Prison Commissioners who, at all times mentioned herein, were vested with legal powers and duties, inter alia, to prescribe regulations for carrying on the business of the Board and Department, to review and pass on rules and regulations I light of their experience, and knowledge of public affairs, social conscience and expertise in accordance with guiding principles of law, and to delegate t duties of the Board of the State Prison Commissioners to subordinate authorities. Defendants Guinn and Gibbons are sued in their individual and official capacity.

28. Defendant Ross Miller is the Secretary of State and Secretary of the Board of State Prison Commissioners who, at all times mentioned herein, was vested with the legal duty and responsibility to keep full and correct records of all the transactions and proceedings of the Board and to act as a voting member of the Board for determination and disposition. Ross Miller is sued in his individual and official capacity.

29. Defendants Frankie Sue Del Papa and Catherine Cortez Masto, past and present members of the Board of State Prison Commissioners who, at all times mentioned herein, were vested with legal powers and duties, inter alia to prescribe regulations for carrying on the business of the Board and Department, to review and pass on rules and regulations in light of their expertise, in accordance with guiding principles of law, and to delegate the duties of the Board of the State Prison commissioners to subordinate authorities. Defendants Del Papa and Masto are sued in their individual and official capacities.

30. Defendants Jackie Crawford and her successor in office Howard Skolnick, respectively, the past and present Director of the Nevada Department of Corrections who, at all times mentioned herein, were vested with the legal duties and responsibilities for the supervision, custody, treatment, care, security and discipline of all offenders under their jurisdiction; the establishment of regulations with the approval of the Board and to enforce all laws governing the administration of the Department and the custody, care, and training of offenders; and to take proper measures to protect the health and safety of the staff and offenders in the institutions and facilities of the Department. Defendants Crawford and Skolnick are sued in their individual and official capacity.

31. Defendants Ted De'Amico and Robert Bannister, past and present designated Medical Directors of the Nevada Department of Corrections, respectively, who, at all times mentioned herein, were vested with legal authority to act in the name of the Director and by his authority to carry out such administrative and other duties as assigned to them, such as granting or withholding approval of an offender being taken outside of an institution or facility, when necessary for medical evaluation or treatment and whether an offender will receive a course of treatment indicated by a contract or other health care professional in a specialized area of medical practice, as well as a legal duty to provide for necessary medical care and humane treatment of offenders within the Department. Defendants De'Amico and Bannister are sued in their individual and official capacities.

32. Defendant Donald Helling is a former Warden of the Northern Nevada Correctional Center (NNCC), and presently serves as Assistant Director of the Department of Corrections who, at all times mentioned herein, while serving in the capacity of warden was responsible to the Director for the administration of NNCC, including the execution of all policies and the enforcement of all regulations of the Department pertaining to custody, care and training of offenders under his jurisdiction, as well as the screening in hiring, training and discipline of subordinate administrative, supervisory, and line staff correctional personnel. Defendant Helling is sued in his individual and official capacity.

33. Defendant James Benedetti is the Warden and former Associate Warden of Programs (AWP) at NNCC, who at all times mentioned herein, while serving in the capacity of AWP at NNCC was responsible for administering all programs including the provision of health care programs, and the execution of all policies and the enforcement of all regulations of the Department pertaining to custody, care and training of all offenders housed by the Department at NNCC. Defendant Benedetti is sued in his individual and official capacity.

34. Defendant Tony Corda is the Associate warden of Programs at NNCC who, at all times mentioned herein, is responsible for administering all programs including the provision of health care programs, and the execution of all policies and the enforcement of all regulations of the Department pertaining to custody, care, and training of all offenders housed by the Department at NNCC. Defendant Corda is sued in his individual and official capacity.

35. Defendant John Doe Members of the NDOC Medical Utilization Review Committee who, at all times mentioned herein, are responsible for determining which offenders will or will not receive diagnostic attention and treatment in response to serious medical needs and for implementing an unwritten policy as a matter of practice of denying necessary medical care. Plaintiff will identify and name said John Doe Members of the NDOC Medical Utilization Review Committee based upon anticipated accelerated discovery and inspection.

36. Defendant John Perry is the Director of Nursing at the Regional Medical Facility located on the NNCC compound who, at all times mentioned herein, is a medical administrator generally responsible for ensuring the provision of medical care to prisoners and specifically for scheduling medical appointments outside the correctional center when an offender needs specialized treatment or evaluation. He is sued in his individual and official capacity.

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COUNT I

The following civil rights has been violated:

Irrational disability discrimination as a matter of official unwritten policy during a wrongful arrest. Attributable, as a direct or proximate cause, to a lack of adequate police training and therefore a failure to recognize and provide reasonable accommodations for plaintiff's apparent severe disabilities in the course of conducting a criminal investigation, interrogation, and arrest, causing plaintiff to suffer greater injury or degradation in that process than other arrestees, in violation of the First, Fourth, Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the Constitution of the United States and corresponding provisions of the Constitution of the State of Nevada.

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Background

In actuality, this case evolved from an incident sparked by a grandmother's jelous rage and distorted perception of unrequited love. A case which developed as a result of the granddaughter Tessa, showing great love and affection towards her grandfather, in a very normal and open fashion, which displays of affection were evidently perceived and taken in the wrong way by the grandmother, who then became frustrated and confrontational towards Tessa, and had, in the past, accused the granddaughter of being involved in sexual misconduct or improprieties with her grandfather. The accusations were denied at least three times, on three seperate occaisions by Tessa, and on one prior occaision by the grandfather.

These denials culminated on or about the 14th of September, 2002, Gladys who evidently, disbelieving the denials, confronted Tessa with harsh accusatory words. Then out of apparent self righteous indignation and jelous rage, she started slapping Tessa about the head and face, and Tessa while retreating backwards with her hands covering her face, tripped and fell back on the couch, Gladys then fell on top of her putting both hands around Tessa's throat as if to throttle her.

Immediately following this incident, Gladys told Tessa that she had to leave the house right than, She said that Tessa had to go, but her younger brother Luke could stay, if he wanted to.

As it happend, Gladys Threw Tessa out of the only home the girl had known for more than half of her young lifetime, and her brother Luke chose to go with her after witnessing the entire fracas that had occurred between grandma and Tessa in the living room of the Lancaster home, around 7:00 or 8:00 o'clock in the evening. At the time these events occurred, Mr. Lancaster was standing approximately fifteen feet away, behind the breakfast counter in the kitchen area and because of his mental impairment and hearing disability Doyle understood little of what was actually being said.

Based upon information and belief, on or about September 15, 2002, when Tessa returned to grandma. Gladys and grandpa Doyle's house to pick up her clothes and other personal belongings, while her grandpa was at work, Gladys accused Tessa, again, of sexual improprities, To appease her grandmother, with hopes of resolving the situation and being able to move back home to her room, Tessa told her grandma that something improper had happend. Despite the fact that Tessa had previously denied any sexual impropriety between her and her grandfather, Gladys was altogether too readily willing to believe that some sexual improprieties between grandpa Doyle and Tessa occurred. After that nothing could persuade Gladys to change her mind, because she had always been very confrontational and stubborn when a real or imagined problem arose in the family or in her relationship with her husband Doyle. When Doyle came home from work that day, Gladys confronted him with what Tessa had told her, Gladys stated that Tessa had confided in her, that some things had happened between her and grandpa.

On or about the 12th or 13th of September, 2002, Doyle's brother Mack Lancaster died and the family attended the funeral and buriel services in Likely, California, on the 18th of September, 2002. Doyle was devastated by the loss of his brother as they were very close.

Following his return home from burying his brother, Doyle's wife Gladys called Fred Muster, a former pastor and long time friend, whom the family went to and relied on whenever counselling or spiritual advice was needed. Gladys insisted that Pastor Muster be brought in and informed of the matter of Gladys's suspicions of improprieties and Tessa's supposed confession to her grandmother that some sexual improprieties had occurred between her and her grandfather Doyle.

To illustrate the extent of trust placed by Mr. Lancaster and his family in Pastor Fred Muster a regression is necessary, here, going back in time to a series of events that occurred on 1973, when Gladys Lancaster ran off to Mexico to live with a young hispanic male named Alvino Morales, Who had just turned seventeen years of age at the time.

When the incident occurred Mr. Lancaster was working long hours seven days a week, except to go to church and on occasion taking the day off from work on Sundays. The family regularly attended Calvary Christian Center Church, in Fortuna, California, where Fred Muster was the resident Pastor.

In 1973, Mr. Lancaster had just completed construction on his new home and hired Alvino Morales to help do the landscaping. Gladys Lancaster's older brother Larry had met this young man in Mexico, and being very likeable and hardworking, Larry had brought Alvino back to Fortuna to work for him, As work slaked off for Larry Willey, who was in the seasonal business of cutting cord wood for sale, during a time when both Alvino and Larry were residing with the Lancaster family, Doyle put Larry to work driving truck and he put Alvino to work doing landscaping around the new Lancaster home, for which Alvino was paid quite well.

During this time, Mr. Lancaster had several of his logging operations going on that required his oversight throughout the day.

While at one of these job sites, approximately one hour distance from his home, Gladys and Alvino showed up one day to visit her older brother Larry Willey, which Doyle thought was rather odd. During this unusual visit Gladys and Alvino spoke with Larry Willey and told him that they were having an affair, Doyle later learned what was said and that Larry told Gladys that he was going to inform Doyle what she had told him, because Larry was very upset with the fact that his sister and the young man he had befriended had betrayed Doyle whose roof they were living under. Gladys asked her brother not to tell Doyle about the affair, then, as she intended to tell him herself that evening.

When Gladys and Alvino left the job site that day, Gladys took Alvino over to Lyle Rock's home and left him there. That same night, Gladys told Doyle about the affair she had been having with Alvino Morales for the past three months. It seemed as though the whole family knew what had happend within the hour.

Gladys's brothers were very upset about the whole affair and took Alvino Morales to the Arcata-Eureka Airport and put him on a plane to San Francisco where Alvino was put on another plane to Mexico.

Even though Doyle had nothing to do with sending Alvino back to Mexico, Gladys was blistering mad and insisted that she was going to Mexico to be with Alvino no matter what. When Gladys's older brother Walter Willey learned of her intention to travel to Mexico to find Alvino Morales he called the Fortuna Police Department and told them to lock her up until she regained her senses. The Fortuna Police told Walter Willey that they had no legal reason or jurisdiction to put Gladys in jail.

Gladys took a pickup truck and withdrew all the money that she could from the joint bank account and left home, bound for Mexico, while nearing San Francisco she called Larry Willey and told him she was on her way to Mexico to find her lover Alvino. Since she was hell bent on going, Larry was persuaded to accompany Gladys, to watch over her, because she spoke no spanish, whereas, he did speak some spanish.

Gladys and Larry travelled 800 miles, from the border into the interor of Mexico, to the town where Alvino lived, Larry stayed there with Gladys for a couple of days. Realizing that she fully intended to stay, Larry returned to Fortuna.

When Gladys abandoned Doyle and her family, she left her sons Jeff who was four years old and her other boy David who was eight, at the time. Her daughter Susan was age 15 and in boarding school, at the Canyonville Christian Academy, in Canyonville Oregon. Her oldest daughter Barbara was 18 and still living at home with her father Doyle.

A couple of months after she left home, Gladys called her brother Gail in Fortuna, California, and informed him that she missed her kids and wanted to come to see them. The family had a suspicion that she might be coming to take the boys back to Mexico. So Doyle's sister Donna and her husband Lester Choate, who were taking care of the boys, hid them in a motel in Eureka.

Meanwhile, Doyle was in Indio, California, getting ready to cross over into Mexico in search of Gladys, when he learned over the phone that she was returning to see the kids.

At this juncture, Doyle drove to LAX and boarded a plane to go home. He left his truck in L.A. and on arrival in San Francisco boarded another plane for the Arcata-Eureka airport. After boarding the plane for Arcata and awaiting takeoff, Doyle discovered that Gladys was boarding the same late Friday evening flight for Arcata-Eureka airport at Mc Kinleyville California. She took a seat two rows in front of him, totally unaware that Doyle was on the same plane.

Doyle's sister, Donna, took Doyle to the undisclosed Motel where he spent the week end with the boys and his sister and her husband. Gladys called her brother Larry who came and got her and took her home. A couple of days later pastor Fred Muster, who counselled with Doyle several times while Gladys was away, — had promised Doyle that he would see the family reunited together again. Fred Muster was in constant contact with the family during this time and arranged a meeting, together with Doyle and Gladys in their home. After much counselling, she promised that she wouldn't try to take the kids to Mexico when she returned.

At this time, Gladys expressed her intention of not getting back with Doyle then, however, both Gladys and Doyle agreed to maintain an amicable relationship apart, for the sake of the children.

Gladys returned to Mexico with her daughter Barbara. Only after she promised to come back to take care of the boys did Doyle permit Barbara to go along with her mother. Doyle even provided them with their new Oldsmobile Tornado to safely make the trip there and back.

When Gladys and Barbara returned, about three weeks later, Doyle rented a house in Redding California, for Gladys and the boys to live in, and the boys could go to school. Everyone in Fortuna knew what Gladys had done, so it was decided that it would be best if she lived in Redding which was four hours from Fortuna, to spare her and the boys any public embarrassment.

After Gladys went to Mexico, Doyle called his attorney, Francis B. Matthews, known as "moose," and told him what was going on with Gladys leaving, and "Moose" advised Doyle to seek a devorce which he did, having "Moose" file a disllusion of marriage

After Gladys returned and was living with the boys in the home rented for her by Doyle, in Redding California, Doyle spoke with "Moose" again, Doyle asked "Moose" to stop the divorce, however, "Moose" advised him to proceed with the divorce, in effect, stating: "Doyle. If she did it once, she'll do it again, and it will be worse next time.

In spite of what happend after 20 years of marrage, as depicted in the foregoing paragraphs, Doyle has always felt that Gladys was basically a good woman, mother, and loving wife. The couple shared many good years together, until the events occurred which led to Doyle's unlawful conviction and imprisonment for life that could only have and, in fact was obtained due to Doyle's physical hearing and mental impairments, which gross'ly interfered with Doyle's ability to fully understand and know what was actually going on throughout the various stages of the prosecution, beginning with pastor Muster's suggestion that Doyle go with him to the police for counselling.

When Gladys brought Pastor Fred Muster into this matter, Pastor Muster was informed by Doyle that he had done nothing wrong, at this juncture Doyle knew that nothing that had really occurred was the cause of Gladys being so irate. She had never layed hand on any of the children before. Nor had she ever flown off the handle and become both physically and emotionally violent towards anyone as far as Doyle was aware. The couple had been married and, for the most part, living a good life together for the better part of 49 years. Bearing in mind the aforementioned disabilities, Doyle was of a mind to try and appease Gladys by cooporating with her wishes. So he agreed to meet with Pastor Muster and without fully understanding the implications of what may have been said by Tessa to her grandmother he agreed that whatever she said was true.

Neither Tessa or her grandpa Doyle, thought that any of this misinformation would be shared beyond grandma and Pastor Muster.

It followed then that, when Fred Muster told Doyle and Gladys, that Doyle would not go to jail, because Pastor Muster had been involved with dozens of these type of cases as a Pastor in California, Doyle and Gladys both believed him and agreed that Doyle should accompany Pastor Muster voluntarily to the police station for counselling.

Thereafter, during the late evening of September 19th 2002, at approximately 10:30 or 11:00 p.m., Pastor Muster and a uniformed patrol officer in a marked black and white police car came to the house to pick up Doyle and take him to the police station. Although it was an ungodly hour, Doyle voluntarily went to the police station with Pastor Muster and the patrol officer. Had Doyle known then what he was in for on arrival at the police station he would not have gone voluntarily. It is noteworthy here that no arrest warrant was presented or discussed at the house.

On arrival at the police station, Doyle was driven inside a gate, into a secured police compound. He was then escorted directly inside to an interrogation room by detective Tom Broom. Pastor Muster was not permitted to accompany Doyle when he was taken to an interrogation room which Doyle later learned was equipped with video tape and sound equipment.

In the beginning Detective Tom Broom and another officer were present. The interrogation that ensued took perhaps, two hours. Maybe longer. After a short while the other officer left the room and, Tom Broom continued asking Doyle questions. During the questioning by detective Tom Broom Doyle informed the detective several times that he could not hear what the detective was saying. After a while, another police officer believed to be a Sheriffs Deputy came into the room and stated that he was the arresting officer. Doyle had to ask this man several times what he was saying. Partly due to his hearing impairment and also disbelief because Doyle didn't know and didn't believe that he was there to be arrested. This officer apparently was not supposed to come into the room and make such a declaration because he was quickly ushured back out of the room, not to be seen again until the interrogation was concluded, at which time the same officer came into the room, put handcuffs on Doyle and transported him to the Washoe County Jail.

During the interrogation, Detective Tom Broom left the room several times, leaving Doyle by himself. At no time was Doyle ever read his Miranda rights or asked to sign a waiver card or form.

Much of what was said during questioning of Doyle by Detective Tom broom, was neither heard or understood by Doyle. Doyle does remember denying several things said by Detective Tom Broom because they were perposterous lies in the first place.

Doyle was merily trying to be cooporative with Detective Tom Broom and others who came and went during the interrogation to appease Gladys and pastor Muster, He didn't know what had actually been said by Tessa, and to this day doesn't know with certainty what was said.

Had any official, police or defense investigator spoken with Tessa and ask her if she believed any acts committed by her grand-father were committed ". . . with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of that child, . . ." which is what is required by law in order for a jury or court to make a finding that the accused" is guilty of lewdness with a child." pursuant to NRS 201.230, there is no doubt that Tessa would have unequivocally answered that Doyle had never committed any such act against her person that could be construed as having such an intent. The thought of such an intention is repugnant to Doyle and entirely out of character.

ACTUAL TYPES OF CONDUCT THAT HAVE BEEN CONSTRUED AS AN OFFENSE AND UPON WHICH THE CONVICTION SUB JUDICE RESTS.

When the Lancaster's lived in Stead, Nevada, Tessa was thirteen and when Doyle came home from work he would sit down in the foyer, on the steps leading upstairs to take off his work boots upon entering the house. This was routine. Tessa loved her grandpa Doyle and was openly affectionate with her grandfather. And Doyle loved the attention and affection shown by Tessa. When he would come home and sit on the steps to take off his boots, Tessa would jump on his sholders and couldn't be put off unless Doyle reached back over his shoulder and tickle her pyayfully. This occurred many times, even when Doyle was tired and didn't want to be bothered with the playful antics of his granddaughter or anyone else after a long and hard days work hauling gravel, rock and sand.

Grandma was always a very staid and proper person, who showed little outward affection, even towards her own children. So the presence of Tessa and her brother Luke, in the Lancaster home, was refreshing from Doyle's perspective, after his own children had grown up and left home. Both Tessa and Luke were less subdued children, and openly affectionate, as children quite often are, For example, if grandpa Doyle didn't tuck the children in, and say good night, and in Tessa's case give her a hug, Tessa insisted on coming into Doyle and Gladys' bedroom for her good night hug and peck on the cheek from grandpa. As Tessa got older, it became apparent that the open display of affection between grandfather and granddaughter were disapproved by Tessa's grandmother Gladys.

At one point, and on several occaisions Doyle told Tessa that she needed to stop with her antics of jumping on his sholders when he got off from work and was sitting on the stairs taking off his boots, because she was going to get him into trouble. The trouble he was talking about was not with the law for doing anything wrong, but rather getting him into hot watter with his wife and her grandmother Gladys.

RECORD SUPPORTED HISTORY OF "IRRATIONAL Disability Discrimination"

The A.D.A., Americans with Disabilities Act, was enacted by congress to prevent Disability Discrimination, A.D.A. of 1990, 42 U.S.C. §§ 12101 thru 12131, § 201, 502; and 42 U.S.C. § 1983 civil rights act of 1964.

Early in 2003, following a stroke in February, 2003, Doctor Jeff Lovett, MD/RD, prescribed a Magnetic Resonance Imaging (MRI) test for Mr. Lancaster. This test reveald a medical condition known as "Critical Carotid Stenosis" and evidence of previous Lacunar Infarcts as well as a Lacuna hole the size of a golf ball in the right frontal lobe of Mr. Lancaster's Brain; Where memory and decision making brain cells are located. Carotid Endarterectomy surgery was performed in February, 2003 by Dr. Gomez, at St. Mary's Hospital, to correct the "Critical Carotid Stenosis" disclosed by the M.R.I.

Dr. Lovett, MD/RD of Spanish Springs Medical Group provided Mr. Lancaster with a letter pertaining to the above which states:

Mr. Lancaster had a Carotid Endarterectomy for critical Carotid Stenosis. He has M.R.I. evidence of previous Lacunar Infarcts (Mini Strokes). I believe these events have influenced Mr. Lancaster's thought processes and ability to make decisions.

See a true and correct copy of letter dated and signed on May 1, 2003 by Jeff Lovett, MD/RD, appended hereto and incorporated herein by reference, marked Exhibit A:

Dr. Lovett's expert opinion is dated May 1, 2003, and was filed with the trial court on May 12, 2003. Thus, both trial defense counsel David Houston, Esq., and judge Jerome Palaha were cognizant of the defendant's significant physical and mental impairments.

The "Critical Carotid Stenosis" was apparently the result of injuries sustained by Mr. Lancaster during a logging accident in 1952, because soon after the accident he began having acute headaches, experiencing a great deal of anxiety and anguish, and temporary partial blindness.

Events alluded to in the previous paragraph would last approximately 20 to 30 minutes and would, sometimes, occur one after the other with a brief period of respite or, repeat periodically at any time of the day or night, even while sleeping, quite often awakening Mr. Lancaster. Many times episodes came daily, but seldom more than a week apart. On rare occasions a month or two would pass without one of these episodic attacks. The torment of these episodic attacks lasted for more than fifty years, and until recent medical breakthroughs the medical profession could offer little help, didn't have a name for these attacks or know their cause. And thier cause is chiefly attributed to "Ischemia", a suppression of blood flow; in this case, constricted blood flow to the brain.

The "Critical Carotid Stenosis" led to a condition known as "Necrosis of the Brain", which means that Brain cells by the thousands, and tissue to die due to the lack of oxygen, which left a "Lacuna Hole" in the right frontal lobe of Mr. Lancaster's brain. as depicted by the M.R.I. causing the "Lacuna Infarcts" referred to by Dr. Lovett, MD/RD, Exhibit A.

The Ischemia, exacerbated by the onset of old age, natural plaque build-up and hardening of the arteries, a disease for treatment of which Mr. Lancaster now takes daily doses of prescribed medication, were the cause of the "Transit Ischemic attacks" (T.I.A.'s) thus causing "Abulia", which is a condition that causes a concomitant loss of free will and ability to make decisions or to act independently; also known as "Abulla".

On August 16 2005 Mr. Lancaster was administered a hearing test by Jermy Jenkins, M.S. CCC/Audiologist-A-142, who produced an Audiometric report. See 8/16/2005 Audiometric report, appended hereto and incorporated herein by reference, marked, Exhibit B. Because Nevada Department of Corrections would only authorize one hearing Aid for Mr. Lancaster's left ear, or patients preferred ear, the cheapest prosthetic hearing aid available at a cost of $850.00, Mr. Lancaster had his wife Gladys Lancaster contact Jan Matthews, the claims adjuster assigned to administer his claim #NH115631 with the Calif. State Compensation Insurance Fund, who approved hearing aids at a cost of $2,500 each; (the best available), even with thoes hearing aids Mr. Lancaster's hearing impairment was little improved. It wasen't until April 4, 2008 that Mr. Lancaster was administered another Audiogram by Mark Weeks, CCC-A Ha552, at hearing care of Carson City, where he was returned on Monday, July 14, 2008 and provided with a set of hearing aids that compensate reasonably well under ideal conditions for his hearing loss due to impairment. Nevertheless, in order for Mr. Lancaster to effectively hear and communicate, the person with whom he is communicating must be very close to him.See April 25, 2008 Audiogram, appended hereto and incorporated herein by reference, marked, Exhibit C. it may be worthy of note, to consider, that on August 16, 2005 Dr. Jenkins advised Mr. Lancaster that he can only understand 72% of what is made loud enough for him to hear in his right ear and 84% in the left ear. The most recent test results from the Audiogram administered by Dr. Weeks on April 25, 2008 indicate 72% in the right ear and 80% in the left ear (ex. "C") these hearing test results were obtained under ideal conditions, in a sound proof booth, by Mr. Jenkins (8/16/2005), and Mr. Weeks on (4/25/2008), respectively.

Even with the higest quality hearing aids, such as Mr. Lancater now possesses, he is still unable to hear and understand what is being said to him, unless, there is little or no background noise from any sourse.

During the August 16, 2005 testing, Dr. Jenkins informed Mr. Lancaster, in essence, that in addition to the severe hearing impairment and loss, the strokes he had were the probable cause of Mr. Lancaster's lack of ability to understand much of what is said loud enough to or around him during the normal course of his daily activities.

Additionally, Mr. Lancaster has a vision impairment, a cataract in the left eye which impairs his vision by limiting the ability to see and to focus the eye as well as having an abherent effect of cross-eyedness and double vision when not looking straight ahead.

The record also discloses that Detective Tom Broom was fully aware of Mr. Lancaster's severe hearing impairment and disability during Mr. Lancaster's interrogation by police during the late evening of the 19th and early morning hours of the 20th of September, 2002, Thus making Detective Broom's failure to read and have Mr. Lancaster sign a waiver of his Miranda rights, before conducting the custodial interrogation, which took place at the time of his arrest, a violation of Mr. Lancaster's right to be informed of his Miranda rights by police prior to initiating questioning.

Therefore, Mr. Lancaster's ability to participate fully, with all of his faculties intact, in the investigation and defense preparation of his case was severely limited, from the time of his arrest, throughout the entire prosecution, to the present.

For example, at the time of his arrest and as will appear more fully herein the following, Mr. Lancaster had a pair of hearing aids that for all practical intents and purposes were nearly useless. Even with the hearing aids in place Mr. Lancaster could not hear and distinguish what was being said to him unless the person speaking to him was located directly in front of and very close to him. Additionally, due to the severe strokes that Mr. Lancaster suffered, his ability to mentally process verbal input was extremely limited. These limitations upon Mr. Lancaster's ability to function, normally, were further aggrevated by stresses caused by confusion and frustration as a result of not being able to fully understand and participate, normally, in what was actually, or really going on during the time of his arrest and subsequent prosecution; these stresses, confusion and frustration further distorted his perception and diminished Mr. Lancaster's capacity to fully understand what was being said to or asked of him, and, ultimately, distorted and affected his answers under questioning during his interrogation and court proceedings, as well as, officials and others perceptions and interpretations of what was actually going on with respect to Mr. Lancaster's involvement or lack of any involvement in criminally culpable conduct in this case.

For example, a formal charge can only be brought by the filing of a criminal information or indictment when the State has produced "slight or marginal" evidence of a crime and reliable evidence that the accused is, likely, to have been the person who committed the offense charged, which would establish the corpus delicti, or body of the crime, as it were. In this particular case, there existed neither the actus reus (guilty act) or (wrong full deed), nor the mens rea (guilty mind) essential to form the corpus delicti of a crime which would properly form the basis of criminal liability on the part of Mr. Lancaster. Mr. Lancaster has always known that there was never any crime actually committed by anyone.

Moreover, as will appear more fully herein the following, Doyle was entirely unlearned in law and had no prior involvement or expierence in dealing with police authorities and the courts.

Based on information and belief, Doyle was informally charged, arrested, and placed in detentive custody during the wee early moring hours of September, 20, 2002.

Exhibit

The following civil rights has been violated:

Irrational disability discrimination due to a failure of defendant jail officials to adequately screen in hiring, train, supervise, and discipline subordinate jail personnel. This resulted in failure to recognize and provide reasonable accommodations for plaintiff's severe disabilities while housed in pretrial and post trial detentive custody for 47 days in the Washoe County Detention Center (jail) Parr Boulevard. Plaintiff was excluded from participating in and receiving the benefit of services, programs, and activities to which he would otherwise benefit as an entitlement, but for his disabilities including, but not limited to: Denial of necessary medical care and/or deliberate indifference exhibited by named jail officials and employees towards plaintiff's serious medical needs and intentional delay or denial of important prescribed treatment and medication, as well as denial of effective communication with immediate family members, friends, bondsmen, and attorneys in violation of the First, Fourth, Fifth, Sixth, Eighth, Ninth, and Fourteenth amendments to the Constitution of the United States and corresponding provisions of the Constitution of the State of Nevada, Art. 1, §§ 1, 4, 6, and 8.

Graph

The following civil rights has been violated:

Irrational disability discrimination and failure to provide reasonable accommodations for plaintiff's physical and mental disabilities by named defendants. This resulted in denial of plaintiff's right to adequate, effective, and meaningful court access during state court criminal proceedings initiated against plaintiff in violation of the First, Fourth, Fifth, Sixth, Eighth, Ninth, and Fourteenth amendments to the Constitution of the United States and corresponding provisions of the Constitution of the State of Nevada, Art. 1, §§ 1, 4, 6, and 8.

For purposes of brevity and clarity, the facts and matters Asserted in support of foregoing Count I and Count II, in relevant part, are hereby adopted and in corporated herein by reference in their entirety.

ATTORNEYS DAVID HOUSTON, Esq., AND PAUL QUADE, Esq., WERE BOTH FULLY INFORMED REGARDING Mr. LANCASTER'S SEVERE DISABILITIES, INCLUDING HIS MENTAL IMPAIRMENTS CAUSED BY PHYSICAL BRAIN DAMAGE AND HEARING IMPAIRMENT DUE TO BEING LEGALLY DEAF, WHICH IMPAIRMENTS PRE DATED INVESTIGATION, INTERROGATION, ARREST ON SEPTEMBER 20, 2002, AND ALL SUBSEQUENT CRITICAL STAGES OF THE PROSECUTION OF THIS CASE, AS WELL AS ALL POST-CONVICTION PROCEEDINGS AND APPEALS.

In 1995, Mr. Lancaster suffered a stroke that was followed by a series of mini strokes. The last of these strokes occurred in Feburary, 2003. At that time, Mr. Lancaster was hospitalized and underwent an emergency carotid endarterectomy surgical procedure to correct a medical condition diagnosed as critical carotid stenosis.

Following the aforementioned surgery, a medical specialist and treating physician named Jeff Lovett, MD/RD, of the Spanish Springs medical group, provided Mr. Lancaster with a letter, Dated 5/1/03, which states;

"Mr. Lancaster had a carotid endarterectomy for ctitical carotid stenosis. He has M.R.I. evidence of previous lacunar infarcts (mimi strokes). I believe these events have influenced Mr. Lancaster's thought processes and ability to make decisions."

This letter received from Dr. Lovett which shows that a record of mini strokes existed was provided to attorney David Houston by Mr. Lancaster. It was subsequently provided to state prosecuting authorities and the District Court as an exhibit appended to and in support of the Statement in Mitigation on 5/12/03.

Besides the mental impairments suffered by Mr. Lancaster from the inception of the prosecution in this case — due to multiple strokes and a Lacuna hole the size of a golf ball in the right frontal lobe of Mr. Lancaster's brain, where memory and decision making brain cells are located, as disclosed by a Magnetic Resonance Imaging (M.R.I.) test, which obviosly should have raised questions concerning Mr. Lancaster's competency in the minds of Mr. Houston, Mr. Quade, State prosecutors and the court, any appearances to the contrary notwithstanding, Mr. Lancaster suffered from a visual impair caused by cataracts in both eyes and an acute hearing disability due to Mr. Lancaster being legally deaf, at the time of his arrest and thruoghout the period of his prosecution, guilty plea, and sentencing proceedings. Even with the higest quality hearing aids, such as Mr. Lancaster now possesses, he was and remains unable to hear and understand what is being said to him much of the time, unless there is very little or no background noise from any source.

At the time of Mr. Lancaster's arrest he was 70 years of age, and although he possessed a pair of hearing aids they did very little to compensate for his hearing loss. In order to be heard, the speaker had to be very close. To compensate for this problem Mr. Lancaster would watch the lips of the speaker to aid in hearing what was being said to him. Additionally, Mr. Lancaster frequently experienced, and still does, difficulty in grasping complex expressions and understanding what is being communicated to him verbally.

Mr. Lancaster's disabilities were not officially recognized by the district court until October 13, 2006, when Judge Palaha entered an order finding "that an interpretive reporter shall be assigned to assist petitioner to understand the proceedings," which followed the court's review of the transcript of a post-conviction relief hearing held July 24, 2006, more than three full years after his conviction and sentence and just three months shy of Four years from the date of his arrest on September 20, 2002. However, the second part of the post conviction relief evidentiary hearing, for which a real time computer was provided by the court reporter, to assist Mr. Lancaster in understanding the proceedings, did not take place until April 6, 2007, nearly a year after the first evidentiary hearing conducted on Mr. Lancaster,s orginal petition for post conviction relief, which took place on Friday, June 9, 2006. Nevertheless, Mr. Lancaster was still excluded from participating in and understanding what was going on during the evidentiary hearing, since he could not grasp and understand what was going on by using the device because of his mental and vision impairments. Moreover, the device was only used during one segment of the last day of the hearings, When Attorney David Houston, Esq., took the stand. From Mr. Lancaster's perspective, the only device that might have worked for him, adequately, would have been a voice amplification system with head phones. Unfortunately, no one asked Mr. Lancaster what might work for him, and besides being confused he was somewhat intimidated by the whole proceeding because he didn't understand what was going on.

THE RETAINER AND DECEPTION OF Mr. LANCASTER AND COURT BY ATTORNEY DAVID HOUSTON, Esq., ENVINCING AN INHERENT CONFLICT OF INTEREST AND CONSTRUCTIVE DENIAL OF COUNSEL FOR DEFENSE ALTOGETHER.

On November 25, 2002, Attorney David R. Houston, Esq., posted a confirmation of retainer agreement, in letter form, to Mr. Lancaster. The substance of the retainer agreement clearly states what was expected from Mr. Houston, when he agreed to undertake legal representation on behalf of Mr. Lancaster's defense, and when Mr. Lancaster dated, signed, and returned the agreement to Mr. Houston on December 8, 2002, the substance of the agreement is quoted in full as follows:

Dear Mr. Lancaster:

Thank you very much for retaining the Law offices of David Houston. As per our agreement, I've indicated to you we will charge you a $25,000.00 non-refundable flat fee. The $25,000.00 non-refundable flat fee is assessed by this office to cover any and all cost, save and except expert witnesses and appeals, up and to trial preparation. As explained to you, we will devote a minimum of two weeks of trial preparation for your case. We will bill separately for the trial preparation at $1,500.00 per day, assessing only a five day per week charge. The remaining two days per week will be donated by this office for the purpose of assisting in deferring expenses.

We will also bill a sum total of $2,500.00 per day for each and every day involved in trial, I'm uncertain as to how long the trial may be. As indicated to you, it is our policy to spend at least three to four days of preparation for every one day to be anticipated for trial. Therefore, in this case you might anticipate a sum total of ten days of trial preparation totaling $15,000.00, with a trial in the neighborhood of three or four days, totaling between $7,500.00 and $10,000.00.

As well, there may be expert witness cost. I have discussed with you expert witnesses and what they may accomplish on your behalf. As well, we may need an investigator. Again, I am uncertain as to the cost of the expert witnesses or the investigators.

As stated during our initial meeting, trials are expensive. It is inappropriate to approach a trial on a shoestring and therefore, you should be adequately financed in order to thoroughly protect your rights. In that this is a small firm, we have a limited number of cases that we may take. Therefore, by agreeing to take your case, we are then allotting time that we could not allot to another cliant should they call us. Therefore, the $25,000.00 is a non-refundable retainer.

November 25, 2002

page 2

In that this office has had the opportunity to meet with you and discuss the financial arrangement at length, I am hopeful this letter represents a confirmation of those matters disscused. In the event you have any questions, please do not hesitate to contact me. In the event that all matters are clear to you, I have left a signature line on the last page of this document for your execution. The purpose of providing your signature is to indicate that you understand the terms and conditions of this letter and agree to abide by our financial agreements. If that is true, please excute this document, once you have reviewed, and return the same to my office so that we will have appropriately documented our financial relationship.

I do look foreward to working with you and will assure the best possible job that can be done, will be done by this office. Once again, I thank you for your confidence in the Law Office of David Houston and look foreward to a very productive relationship. See Appellants EXHIBIT D.

Clearly, when Mr. Lancaster signed the retainer agreement with Mr. Houston he fully understood that he could expect to receive a fair trial. That his rights and interest in this matter would be fully asserted and protected. Of particular import, is Mr. Houston's caveat that, "[As stated during our initial meeting, Trials are expensive. It is inappropriate to approach a trial on a shoestring and, [therefore you should be adequately financed to thoroughly protect your rights.]" Exhibit D. p. 1, ¶ 3. (emphasis added)

RECORD EVIDENCE OF CONFLICTED DEFENSE REPRESENTATION OF MR. LANCASTER BY Mr. HOUSTON FROM THE INCEPTION OF THE CASE

Mr. Houston was retained by immeadiate members of Mr. Lancaster's family sometime prior to Mr. Lancaster ratifying the written retainer agreement on December 8, 2002, two months after Mr. Lancaster was arrested and taken into custody on September 20, 2002, charged with six counts of sexual assault and lewdness with a minor.

Mr. Lancaster was initialy represented by Attorney Lee Hotchkin. Based upon information and belief, sometime during the last part of September, 2002, Attorney Lee Hotchkin visited Mr. Lancaster in the county jail, for the given reason, to discuss issues to be considered at an upcoming preliminary hearing scheduled, when the defense would have opportunity to cross-examine Tessa's statements, at that time, Mr. Hotchkin told Mr. Lancaster that the preliminary hearing was very necessary, and would help the defense later at trial. The day after Mr. Hotchkin's legal visit at the jail, Mr. Lancaster was transportted from the jail to the court where he sat in a holding cell awaiting the preliminary hearing, which did not take place. No one came to the holding cell to tell Mr. Lancaster that the preliminary hearing had been continued until another date. He was just transported back to the jail later that evening. The preliminary hearing was rescheduled for a few days later, but the same thing occurred. To the best of Mr. Lancaster's personal knowledge and belief, there was no further attempt made to have a preliminary hearing. However, Mr. Lancaster later learned that no preliminary hearing had taken place because Tessa did not show up for the hearing as the family would not allow her to be subjected to questioning against her will.

The orginal criminal complaint filed by the Washoe County District Attorney charged Mr. Lancaster in counts I and II with Sexual Assault on a child, felony offense in violation of NRS 200.366; and counts III and IV lewdness with a child under the age of Fourteen years, felony offense in violation of NRS 201.230, alleging events which occurred between Janurary 1, 2000 and September 10, 2002. An amended criminal complaint was filed by the Washoe County District Attorney on November 20, 2002 adding two counts of lewdness with a child under the age of fourteen years and charging Sexual Assault.

On Janurary 30, 2003, Mr. Lancaster signed a waiver of prelimminary examination. At the time of signing the waiver of Preliminary Examination Mr. Lancaster was represented by Attorney David Houston. However, to the best of Mr. Lancaster's personal knowledge and recollection, the handwritten notations regarding terms of the proposed plea were not present on this document at the time it was presented to Mr. Lancaster and signed by him, See Appellant's Exhibit E. Apparently, Mr, Houston had entered into plea negotations with the District Attorney's Office at this stage in the prosecution which is the only plausible explaination for the handwritten notation at the bottom of the page of the waiver. The Preliminary Hearing at Reno Justice Court was continued again until Februrary 11, 2003.

Instead of having a preliminary hearing on February 11, 2003, Mr. Lancaster was formally charged by INFORMATION, in count I and II, with sexual assault on a child, a violation of NRS 200.366, a felony, or in the alternative; Lewdness with a child under the age of fourteen years, a violation of NRS 201.230, a felony, alleged between the 1 st day of January, 2000, and the 10 th day of September, 2002; and, in count III and IV he was charged with an additional two counts of Lewdness with a child under the age of fourteen.

Given the nature of the charge and the fact that Mr. Lancaster had informed Mr. Houston that he was not guilty of any wrong doing, such that he should be charged and tried for a crime, and not really knowing what was actually involved in the case due to being unlearned in law and inexperienced in such matters, as well as having severe mental and hearing impairments which limited Mr. Lancaster's ability to understand and knowingly and intelligently participate in the criminal process from the very inception of the case on September 20, 2002, it was vitally important for the defense to conduct a preliminary examination in Justice Court. The value of the preliminary hearing examination cannot be overstated, in such a case, and any defense attorney would know this. It was because of Mr. Lancaster's disabilities and lack of expierence and understanding of the criminal process that he was denied the benefit of a preliminary hearing, and thus, opportunity to clear up the charges brought against him by bringing out the actual truth during cross-examination of the alleged victim, all of which was denied to Mr. Lancaster due to an inherent conflict existing in recieving a fair trail and adjudication of the case as law and justice require, and Mr. Houston's apparent interest in disposing of an unwanted case and receiving a substantial fee for doing so. This was only made possible by an agreement reached between Gladys Lancaster, Gail Willey, and Mr. Houston, that Tessa (the alleged victim) would not be involved in the prosecution of this case, as a precondition for Mr. Houston's retainer. Mr. Lancaster had no knowledge of this precondition as he was not a participant in the meetings when this agreement was reached as an unconditional precondition of his employment on this case.

In United States v. Hunt, 543 F.2d 162 (D.C. Cir. 1976), the court held that competition between the cliant's interest and counsel's own interest plainly threaten the results of the proceedings, and constitutes a conflict of interest that corrupts the relationship. To find a Sixth Amendment violation based on a conflict of interest, the reviewing court must find: (1) that counsel actively represented conflicting interest, and (2) that an actual conflict of interest affected the attorney's performance. Cuyler V. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L. ed.2d 333 (1980). Under Cuyler, the court must presume prejudice if the conflict of interest adversely affected the attorney's performance. Id. Although Cuyler involved a conflict of interest between client's, the presumption of prejudice extends to a "conflict of interest between a client and his lawyer's personal interest." See Mannhalt V. Reed, 847 F.2d 576, 580 (9th Cir.), Cert. denied, 488 U.S. 908, 109 S.Ct. 260, 102 L.Ed.2d 249 (1988).

It wasn't until sometime after the July 24, 2006 hearing conducted on Mr. Lancaster's Petition For Post-Conviction Relief, that he received the transcripts for the hearing held on June 9, 2006, which disclose unequivocal evidence of the agreement alluded to in the foregoing paragraphs, which eviscerated Mr. Lancaster's defense, due to conflicted defense representation. This evidence was adduced in testimony from Joy Adams (formerly Mrs. Gladys Lancaster) and Gail Willey (Doyle Lancaster's brother-in-law).

Beginning at page 14 of the transcript of the Friday, June 9th, 2006, evidentiary hearing conducted on Mr. Lancaster's Petition For Post-Conviction Relief, Joy Adams testified under oath, in pertinent part as follows:

Q. Now, with respect to the situation with Mr. Lancaster, did you participate in finding him an attorney?

A Yes, I did.

Q When was that?

A Well, I guess it would have been in the winter or the fall of '02.

Q And did you participate in the retention of Dave Houston in this matter?

A Yes, not financially. But — helping to find him.

Q At that point were you having difficulties with the situation with Mr. Lancaster based upon your feelings and the like?

A You mean emotionally?

Q Yes.

A Yes, it was a difficult time. It was very traumatic. But — I felt that that was the right thing to do.

Q Now, when did you first come in contact with Mr. Houston, as best as you can recollect?

A It was probably in the first part of '03 because — this was about, I don't know, in the spring probably.

Q Now, this court case began sometime in the fall of 2002, is that right?

A Yes.

Q And Mr. Houston wasn't Mr. Lancaster's first attorney, correct?

A No, he was not.

. . .

Q Do you have any idea when Mr. Houston came to be on the case?

A I can't tell you an exact date. But I think it was in the spring of '03.

Q At some point did you sit down with Mr. Houston and discuss Mr. Lancaster's case with him?

A Yes. Just a moment please.

Yes, shortly after he was retained, we had a meeting with him. Doyle and I and I think my brother Gail was with us.

Q Did you discuss the nature of Mr. Houston's representation at that time?

A We had quite a long, lengthy discussion. We were there for some time.

Q Did you discuss Mr. Lancaster's rights at that time?

A Uhm, mostly what he was charged with and that sort of thing and what we could expect and the regular procedure that the court would be going through.

Q Were there any restrictions placed upon Mr. Houston at that time as far as his representation was concerned?

A Yes.

Q What were those restrictions as far as you were aware and who placed them?

A He asked — David Houston asked about having Tessa take — you know, be brought into court.

Q And who is Tessa?

A She is my granddaughter. And —

Q She is the alleged victim or the victim in this matter; is that right?

A Yes. And our family had agreed that we did not want that to happen.

Q Who brought the fact up that — that you didn't want to bring Tessa into court or into the proceedings?

A Who brought that up?

Q Yes. Who said that was not okay?

A We did.

Q Who is we?

A Gail Willey, my brother, myself and others. They were not present. But we represented them.

(6/9/06, EH tr. p. 17, L. 1-15)

During RECROSS EXAMINATION of Joy Adams, testimony was adduced from this witness by ADA Plater, regarding her understanding of when the appeal was going to be pursued, and further questioned by the court regarding whether Mr. Houston had told her that he had withdrawn from representation following the sentencing on July 2, 2003, and related matters, as follows:

* RECROSS EXAMINATION *

BY MR. PLATER:

Q So it is your understanding that the appeal was going to be pursued based on Mr. Houston's telling you that you had that option of filing it within thirty days after the judgment of conviction?

A Yes.

Q Okay. That's all I have.

MR. QUADE: Nothing further, your Honor.

THE COURT: Ma'am, let me ask you a couple of questions.

When you retained David Houston, did he talk about — when he was mentioning his fee — what it would cost for trial and, if there was an appeal, what that would cost?

A I wasn't privy to the first discussion concerning those matters. That would have been my brother Gail.

THE COURT: All right. When you were talking to Mr. Houston after the sentencing, did he ever tell you that he withdrew from representation?

THE WITNESS: Never.

THE COURT: He never did that?

THE WITNESS: Never.

THE COURT: Were you aware on July 2nd that he filed a notice to withdraw as attorney?

THE WITNESS: Not until probably seven or eight months later.

* REDIRECT EXAMINATION *

BY MR. QUADE:

Q When you talked about — with Mr. Houston — the additional work that he was going to do after the sentence, did he ask you for any more money?

A Never.

Q Did anybody else in your presence ask for any more money?

A No.

Q Did he place any restrictions on when his representation was done to you?

A No.

Q To your knowledge, did he say, "I am done representing Mr. Lancaster"?

A No.

Q After — you weren't aware of the notice of withdrawal that was filed on June 2nd until well after —

THE COURT: July. July 2nd.

MR. QUADE: Thank you.

Q July 2nd until well after, right?

A Right.

Q And you believe that Dave Houston was still making efforts on behalf of Mr. Lancaster?

A Yes, yes, I did.

Q Okay. Nothing further, your Honor.

MR. PLATER: Nothing else.

(6/9/06, EH tr. p. 49, L. 1-24)

The following excerpts of sworn testimony adduced under DIRECT EXAMINATION of Gail Willey by defense attorney Paul Quade, Esq., during the evidentiary hearing conducted on June 9, 2006, is direct evidence, which is corroborated by the preceding testimony provided by Joy Adams, that there were "nonnegotiable" limitations placed on the defense representation of Doyle Lancaster by Attorney David Houston when Mr. Houston accepted the retainer to represent Mr. Lancaster. As will appear more fully herein the following, the conditions limiting the defense representation of Mr. Lancaster by Attorney David Houston, were unwittingly made a pre condition of the retainer and legal representation by agreement of immediate family members of the Lancaster family without Doyle Lancaster's informed knowledge and consent. In fact Mr. Lancaster was completely left in the dark with respect to any such agreement. The following excerpts represent clear unequivocal direct testimonial evidence of the existence of a third party agreement reached between members of the Lancaster family and Mr. Houston, to limit the defense representation of Mr. Lancaster by making the alleged victim Tessa unavailable, precluded any possibility to confront and cross-examine Tessa, at a regularly scheduled preliminary hearing or trial and, thereby, bring out the truth establishing Mr. Lancaster's actual innocense by showing the innocent nature of his conduct. Thus, Mr. Lancaster submits that he has shown by a preponderence of the evidence that he was denied any semblance of effective assistance of counsel and due process of law from the inception of the case, due to an actual conflict of interest in the defense representaion which forclosed any possibility of Mr. Lancaster defending himself, or subjecting the States case to meaningful adversarial testing through counsel. The pertinent testimony germane to the issue of inherent conflict of interest amounting to constructive denial of counsel altogether is, as follows:

A No. He was the second one.

Q Now, you retained Mr. Houston. Did you actually pay the bills?

A Yes, I did basically.

Q A lot of your money was used to pay these bills, attorney's fees?

A Yes, sir.

Q When did you first meet with Mr. Houston, as far as you can recollect?

A The latter part of 2002. I don't remember the date exactly.

Q And you actually met with Mr. Houston personally?

A Yes, sir.

Q In his office?

A Yes, sir.

Q Who else was present then?

A I honestly don't remember that first meeting who was with me.

Q When — did you transfer money at that time to Mr. Houston to retain him?

A As I — the best I can recall. I remember giving him a fairly good check.

Q Was there any type of conditions that you placed upon his representation of Mr. Lancaster at that time?

A Well, I stipulated to him very strongly that my personal convictions and our family was that he was not to interrogate or to — use Tessa in any way to bring her into the equation.

Q Did that mean investigating her or talking to her? What did that mean to you?

A Well, it meant that he would just leave her alone, She was not to be a part. We wanted to protect her as a family, that she wouldn't have to — be subject to any of this.

Q At that point did you have any understanding of whether that would be a problem in Mr. Houston's representation of Mr. Lancaster?

A Well, if I recall right, he mentioned that it was — it would weaken his position. But, as far as we were concerned, it was an absolute — it was without — it was not — it was nonnegotiable.

Q It was a situation though that either you are going to — was it either a situation that you were going to retain him and he was going to follow that condition or you wouldn't have retained him? Was it that strong of a condition?

A Yes, sir, that is correct.

Q Is that part of the reason you left the first person or Mr. Lancaster switched attorneys? Do you know?

A I don't recall it being — I know it was an issue with the first attorney. But I don't recall any specific details.

Q Okay. That's fair.

So this meeting the latter part of December, that was face to face in Mr. Houston's office and that is when he was retained, correct?

A I am not sure exactly of the date. You know, positive. But it was in that time frame.

THE COURT: Excuse me, Mr. Quade. Let me ask a question.

MR. QUADE: Yes.

THE COURT: Is it Mr. Willey?

THE WITNESS: Yes, sir.

THE COURT: Sir, when you spoke — I used to do criminal defense work. Okay. And something is not computing here.

When you went to Mr. Houston's office and you talked about retaining him as the lawyer and then you told him that whatever he does he is not to interrogate or bring Tessa into court?

THE WITNESS: Yes, sir.

THE COURT: Okay. Now Tessa was the victim in this case. And she was a necessary player in a trial. So did you talk about trial or did you retain him to represent Mr. Lancaster just at a sentencing and to try to get the best deal that he could? Or did that even come up?

THE WITNESS: Well, our thought — the reason we got involved, we wanted to see Doyle get a fair trial and we wanted him to get a fair representation.

But, as a family, we were — somewhat awestruck. We were kind of torn between what to do — we don't know law. We didn't know the real honest details of things, but we wanted to protect Tessa.

Yet, on the other hand, we wanted — Doyle is like a brother. We wanted to see him get a fair representation. And we, as a family, just did not want to see Tessa drug through an awkward situation.

Whether we were right or wrong, that was just our desire.

And I strongly said that — you cannot do that. We as a family, we don't know the law; but we just made a strong stand that you can't go and get Tessa and — you know, we know, if the law does something, we don't have any choice.

But our perspective was that the attorney we hired, he was not to do anything to hurt her or put her in an embarrassing, awkward situation.

THE COURT: Okay. But, if you go to trial in a case such as this, the State would have to bring the girl to testify. And then the lawyer would have to cross examine the girl, okay, in front of a jury.

THE WITNESS: Okay.

THE COURT: Okay. That's what you are talking about. You did not want that to happen?

THE WITNESS: No, we didn't want — Tessa to be drug through the courts as a young girl and put her through that. Whether we were stupid or — we just — it was our desire.

THE COURT: But then did Mr. Houston explain to you that, if you are going to put that type of limitation on me as a lawyer, that that would mean that there is not going to be a trial. And what that means is he is going to have to plead guilty?

THE WITNESS: No. That was never — he never said that to us in any form as that way.

The only thing they did — both attorneys mentioned that it would be difficult. But there was never — never anything told to us, "You put that stipulation on and that a consequence —"

It's just that it would be difficult. It went no further than that.

THE COURT: Now, I notice in the file that on February the 11th, 2003 a waiver of preliminary examination happened and that happened actually on January 30th, 2003.

And here it says that the defendant will plead to four counts of lewdness with a minor. In the event the defendant is given a prison-sentence, it is agreed that one of the four counts may run concurrent to the time of the other three counts. Both the State and defendant agree probation is available. However, the State is free to argue for whatever it may deem appropriate. The defendant waives his right to arraignment on the Amended Complaint. All other charges are to be dismissed. And no additional charges will be filed."

Now this was already done January 30th.

And, as I look at the file, David Houston — well, it doesn't say that he was the attorney at the preliminary hearing stage. I don't know if he was or not. Because his first appearance comes in on February the 3rd.

Did he talk to you about what the process is? What a preliminary hearing was? What a Grand Jury Indictment was?

THE WITNESS: No, we didn't discuss that. If he did.

I — you know — I didn't —

THE COURT: All right. Did he happen to say that it would be probably impossible to defend a case if he can't cross examine the girl and he had no control in bringing her to court?

THE WITNESS: He didn't to that degree, no, sir.

THE COURT: Now, is Mr. Lancaster on bail all this time?

THE WITNESS: Yes.

THE COURT: All right. family. We are a pretty close family. And I —

Q So that was your position based upon your understanding of the family's position that Tessa could not come and testify at the time of sentencing?

A I did know that she had made some statement that she had talked to the District Attorney and had been — had went in and talked to some of the District Attorney people. And I knew that that had went on.

Q But nothing from the defense side?

A No, nothing from the defendant's side.

Q Okay. Now was there any discussion about alternatives about having Tessa actually come in and give live testimony at the time of sentencing?

A There was some discussion about maybe doing a tape or a video or something in that respect. And there was also a discussion about timing as to when the — we should go for the hearing and to try and — I remember a comment saying we need — we need to go before the right Judge.

And I remember we needed — there was some things that he wanted that we didn't have. And —

Q Do you know what those were?

A Well, one was a statement from Tessa. And the other thing was — there seemed to be three things. And, I'm sorry, it slipped my mind.

Q But you knew there was something else that needed to get finished before the sentencing could proceed?

A There was some issues that he was — concerned about and talked about filing for motions, if things didn't come out the way we wanted them to and stuff like that.

Q Let's talk about that.

What was your understanding of Doyle Lancaster's appellate rights prior to the sentencing on July 2nd, 2003.

A Was there another word that's more common for appellate right? Is that like —

Q Right to appeal?

A Right to appeal.

Q What was your understanding before July 2nd?

A Well, I do remember a conversation very clearly that that was something we always could fall back onto.

Q What do you mean fall back onto?

A If things in court didn't go the way we hoped they would, because we were hoping that Doyle would — at that time I was under — later on, maybe not — I have got the time — but later on we were understanding that Doyle — if he pled guilty, that he might get off on probation. And that, if not, we always had an opportunity for an appeal.

Q Now, with respect to that discussion — when did that happen as far as you are aware?

A It was a short time prior to the sentencing. And I honestly cannot put the date. I just know it was maybe thirty days or — there was a time there when we had a date for the sentencing and then it was set off that I remember. But it was prior to that that we talked about that.

Q Did you talk to Mr. Houston directly?

A Yes.

Q Face to face or on the telephone?

A On the telephone on that one I think.

Q When he mentioned the right to appeal, did he request any more finances out of you, if you were to exercise that right or Mr. Lancaster was?

A No, no, he did not. I assumed in the conversation that the amounts of money I gave him was — because I was out — I said I want to know that, you know — we are digging deep in the well to do this. You know, in this case I felt — always felt that there was plenty of money on the table to take care of what he needed to do in Doyle's defense and I even felt there was money left over.

Q It was your understanding that prior to the sentencing, if things didn't go favorably, Mr. Lancaster had the right to appeal; is that right?

A Yes, yes, sir.

Q Did you ever get a better idea of what Mr. Lancaster's rights to appeal were?

A Well, primarily I really got — a better understanding after the trial.

Q After the actual sentencing date?

A After the sentencing, I really —

Q Did you come to the sentencing?

A Yes, sir.

Q And what happened? Did you testify at the sentencing?

A No.

Q Was Tessa here at sentencing?

A No, sir.

Q Why is that? Do you know?

A For the very reason I stated. That she was not to be involved.

(6/9/06, EH Tr P. 66, L.1-20)

The sixth amendment guarantee of effective assistance of counsel comprises two correlative rights: the right to counsel of reasonable competence, McMann v. Richardson, 397 U.S. 759, 770-71, 90 S.Ct. 1441, 1448-49, 25 L. Ed. 2d 763 (1990), and the right to counsel's undivided loyalty, Wood V. Georgia, 450 U.S. 261, 272, 101 S.Ct. 1097, 1103-04, 67 L.Ed. 2d 220 (1981). The Supreme Court has articulated the different standards by which to judge the violation of these rights. To establish a sixth amendment violation based on a conflict of interest the defendant must show 1) That counsel actively represented conflicting interest, and 2) that an actual conflict of interest adversly affected his lawyer's performance. Cuyler v. Sullivan, 446 U.S. 335, 348, 350, 100 S.Ct. 1708, 1719, 64 L. Ed.2d 333 (1980). Unlike a challenge to counsel's competency, prejudice is presumed if the defendant makes such a showing. Strickland v. Washington, 466 U.S. 668, 692, 104 S. Ct. 2052, 2067, 80 L. Ed. 2d 674 (1984). Although Cuyler involved a conflict of interest between clients, the presumption of prejudice extends to a conflict between a client and his lawyers personal interest. See United States v. Hearst, 638 F.2d 1190, 1193 (9th Cir. 1980) (conflict based on attorney's private financial interest) cert-denied, 451 U.S. 938, 101 S.Ct. 2018, 68 L.Ed 325 (1981).

Summary of facts disclosing that an actual conflict of interest existed :

The foregoing excerpts of testimony adduced from Joy Adams at the evidentiary hearing conducted on June 9, 2006, envinces that Mrs. Adams, Gail Willey, and others they represented, had placed restrictions upon attorney David Houston as a condition of his representation of Doyle Lancaster and his retainer, specifically, he was not to bring Tessa into court or into the proceedings. (EH Tr. Pp. 14-17)

Gail Willey's testimony envinces that he met with and retained Attorney David Houston during the latter part of 2002 by giving Mr. Houston a "fairly good check" in payment for his legal services on behalf of his brother-in-law Doyle Lancaster. At the time of retaining Mr. Houston conditions were placed on his representation of Doyle Lancaster as follows: 1) . . . he was not to interrogate or to — use Tessa (the alleged victim) in any way to bring her into the equasion; 2)" . . ., it meant that he would just leave her alone.", 3) Tessa was not to be involved or play any part in the case. These conditions were "absolute", "nonnegotionable". The condition placed on Mr. Houston's representation not to involve Tessa in any way was a situation where Mr. Houston had to agree to and follow that condition or Gail Willey and the family would'nt have retained him. (EH Tr. Pp. 53-54)

The members of the Lancaster family who were represented by Joy Adams and Gail Willey when they hired Mr. Houston were not aware of the fact that the precondition and limitations placed on the representation of Mr. Lancaster when they retained David Houston, Esq., would eviscerate any possible defense or trial in the case as well as any semblance of fair representation by defense counsel Mr. Houston because the only available option left open to him was that of pleading his client out in the case. Gail Willey was questioned extensively by Judge Palaha regarding his understanding and intentions when he retained Attorney David Houston to undertake legal representation on behalf of his brother-in-law Doyle Lancaster. Specifically, when asked by Judge Polaha, en quote: "Okay. Now Tessa was the victim in this case. And she was a necessary player in a trial. So did you talk about trial or did you retain him to represent Mr. Lancaster at a sentencing and to try to get the best deal that he could? or did that even come up?", Gail Willey testified under questioning by Judge Polaha, as follows:" Well our thought — the reason we got involved, we wanted to see Doyle get a fair trial and we wanted him to get a fair represtantion," (6/9/06, Eh Tr. P. 56, L. 2-9)

Thus Mr Lancaster has shown by clear evidence that an actual conflict of interest existed from the inception of Attorney David Houston's legal representation of Mr. Lancaster. Mr. Houston knew when he accepted the retainer fee from Gail Willey and others that there existed a significant risk that the representation of Mr. Lancaster would be materially limited by his responsibilities to a third person or persons and by his own financial interest in accepting a substantial fee, in a case that he could not honestly and diligently represent, by agreement with a third party. The conflict of interest involved in this case represents a clear violation N.R.S. R.P.C. 7.1 (formerly Supreme Court Rule 157). When a lawyer knows that his responsibility to a third party may impair representation of a client, the lawyer must decline or withdraw from representation. Duval Ranching Co. V. Glickman, 930 F.Supp. 469 (1996). Attorney David Houston accepted the retainer while knowing full well that the agreement reached with Joy Adams and Gail Willey, not to involve the alleged victim Tessa L., in any way, in the criminal prosecution of Mr. Lancaster, left Mr. Houston with no other option than to plead his client out in the case.

additionally, the actual conflict of interest envinced on the record of evidentiary proceedings conducted in this case also clearly violate express provisions of the Nevada Rules of Professional Conduct and former Supreme Court Rules governing a lawyer's professional conduct including, but not limited to, N.R.S. RPC 1, 8, (a)(b) (f), which, essentially, provide that, a) an attorney shall not knowingly acquire a pecuniary interest adverse to a client; etc.; b) a lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as otherwise permitted or required by the rules; and (f) a lawyer,shall not accept compensation for representating a client from one other than the client unless; (1) the client gives informed consent; (2) there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and (3) information relating to representation of a client is protected as required by Rule 1.6.

Applying the second prong of the Cuyler standard whether the conflict adversely affected counsel's performance. Here, the actual conflict of interest adversely affected Attorney David Houston's representation of Mr. Lancaster in manifold areas of the defense representation as follows:

1) Mr. Lancaster was unaware of the actual conflict of interest until it was disclosed by reading the transcript of the June 9, 2006 evidentiary hearing proceedings and, therefore, the actual conflict of interest under which attorney David Houston labored under was not with the informed consent of Mr. Lancaster;

2) By its very nature, the conflict of interest involved in this case undoubtedly, interfered with the independence and professional judgment of Mr. Houston, as well as the attorney-client-relationship, in that (a) Mr. Houston advised Mr. Lancaster in no uncertain terms that if he insisted on going to trial he would be found guilty and would be sentenced to life imprisonment without the possibility of parole, which by any standard is ineffective assistance of counsel based on material misadvice and but for which misadvice Mr. Lancaster would not have pled guilty, Sparks v. Sowders, 852 F.2d 882 (6th Cir. 1988), but would have insisted on going to trial; (b) after the complaining witness failed to appear for the preliminary examination on at least two seperate occasions, instead of filing an appropriate motion to dismiss, Attorney David Houston improvidently induced Mr. Lancaster to waive the preliminary hearing and opt for a plea of guilty with a promise of probation when the crimes in question had not even been established with any fair degree of certainty and the preliminary hearing testimony of Tessa under cross examination, likely would have established a lack of criminal intent on the part of her grandfather to commit either of the crimes charged in the information in alternative form, because nothing that Doyle Lancaster ever did with his granddaughter was intended to arouse, appeal to or gratify the lust, passions or sexual desires of either himself or Tessa, and Tessa would have testified that she had been forced into making admissions by her grandmother's, in effect, incessant jealous harrassment, threats, and physical abuse, therefore making a threefold showing of reliable slight or marginal evidence sufficient to bind the case over for trial from Justice Court highly improbable, if not impossible, on the actual facts of this case brought to light, therefore, Mr. Houston's total failure to actively advocate his client's cause" had the effect of "provid[ing] [petitioner] not with a defense counsel, but with a second prosecutor. "Rickman v. Bell, 131 F.3d 1150 (6th Cir. 1997), Cert. denied, 118 S.Ct. 1827 (1998). In fact, Mr. Houston committed perjury in his given testimony on the waiver of preliminary hearing and in regard's to when he was retained, in pertinent part, as follows:

Q Okay. So you were retained?

A Yes.

THE COURT: Was that before or after the prelim, just to put it in —

THE WITNESS: I will have to say it was probably after the prelim. I don't remember, Judge.

THE COURT: I have writing on the waiver of preliminary examination, if that will help.

THE WITNESS: If I could see that?

MR. QUADE: I will stipulate that you can take judicial notice it was prior to prelim because Mr. Houston represented him during the waiver.

THE WITNESS: I don't recall doing the prelim, so we certainly could have waived that.

BY MR. PLATER:

Q Do you remember waiving the prelim?

A Vaguely.] (Emphaiss added)

(7/6/07, EH Tr. at P. 73, 2-18); (c) the entire evidentiary hearing testimony of Attorney David Houston as to why he advised Mr. Lancaster to plead guilty was false. An investigator wasen't even hired by the defense until sometime in April, a long time after the Feburary 11, 2003 arraignment and change of plea proceeding at which Mr. Lancaster pled guilty on the advice of counsel. Mr. Houston never went over any discovery material with Mr. Lancaster. He never discussed a motion to supress the uncounselled statements unlawfully obtained during a custodial interrogation by detective Tom Broom, and the whole cock and bull story about the D.E.A. report containing a confession or incriminating statements was entirely false. In fact, no defense investigator ever spoke with Tessa L. (6/9/06, EH Tr. P. 63, L. 2-10) (7/6/07, EH Tr. P. 73-108) Mr. Houston's answer to the court's question "why wasen't she at sentencing?" that the family spirited her away was false and belied by previous 6/9/06 testimony that Tessa was brought to court to speak to the Judge, but according to Mr. Houston Judge Palaha wouldn't talk with her and family members who accompanied her to the court following sentencing on July 2, 2003.

The sentencing hearing was continued three times from 4/29/03 to 5/13/03, from 5/13/03 to 5/21/03, and from 5/21/03 to 7/2/03, Tessa L. was brought to the court for the first sentencing, but it was continued. Attorney David Houston's response to Judge Polaha's questioning of why Tessa L. did not appear in court for the sentencing on July 2, 2003, is also belied by statements made to the court by Mr. Houston and Kelli Anne Viloria, Esq., Deputy District Attorney, as disclosed by the transcribed stenographic notes from the sentencing hearing conducted on Tuesday, May 23, 2003. As previously shown in the testimony adduced from Joy Adams and Gail Willey during the evidentiary hearing proceedings conducted on June 9, 2006, Mr. Houston had agreed, as a "nonegotiable" condition of accepting his retainer, in essense, that he would not bring Tessa L. into court or involve her in any way in the proceedings. Nevertheless, on May 13, 2003, Mr. Houston represented to the court, in pertinent-part, that, "Apparently the victim is not present. . . . As A consequence, there is a request, I believe mutually from both sides, that we move this until such time as the victim can [actually be present]. [Because I think that is also part of the healing process for the victim, and my client agrees with that as well."] after which ms. viloria, in pertinent part, stated:: Judge, we have been in contact with the person who has guardianship over her. [We did expect him to be here.] He did have some concerns he expressed this morning. He's no longer answering his cellular telephone. I can't verify thoes concerns. Mr. Houston has agreed to continue. What we would like to do, because of the nature of the offense, is set it for a special setting especially since we do have a child victim."

(5/13/03, SH Tr. Pp 2-3) (emphasis added) Knowing that he had agreed to limit his defense representation of Mr. Lancaster as a condition of being retained by Gail Willey and other members of the Lancaster family, Mr. Houston is merely putting on an appearence of propreity while perpetrating a fraud upon the court. Judge Palaha was fully informed in the premises that an actual conflict of interest existed in the trial defense representation of Doyle Lancaster by Attorney David Houston, from the inception of the case, when it was disclosed through the given testimony adduced from Joy Adams and Gail Willey during evidentiary hearing proceedings conducted before Judge Polaha on Friday, June 9, 2006. yet the court failed to recognize and correct the glaringly apparent cancer of injustice which had infected the case, thus, in light of other record evidence and testimony adduced at the Monday, July 24, 2006, and Friday, April 6, 2007, evidentiary hearing proceedings, clearly showing, that collusion existed between defense Attorneys, State prosecuting authorities, and the court, for self-serving reasons of insular self-interest and political expedience in obtaining a conviction and disposing of an unwanted case.

Judge Jerome M. Polaha presided over the Arraignment on the criminal Information filed on February 11, 2003. The Arraignment of Doyle Lancaster was continued twice from the 13th to the 20th of February, 2003, with the Arraignment and change of plea proceedings finally being conducted on February 25, 2003,

Deputy District Attorney David Clifton, Esq., appeared on behalf of the State, and Attorney David Houston, Esq., appeared for Mr. Lancaster, at the Arraignment.

According to the aforementioned testimony of Joy Adams and Gail Willey, under examination by collateral counsel Paul Quade, Esq., Joseph Plater, Esq., Deputy District Attorney, and extensive questioning by the court, as well, it was clearly proven by a perponderance of direct evidence in the given testimony of the witnesses that Attorney David Houston, Esq., knew that there could be no trial in this case and that he fully intended to plead Doyle Lancaster out because he had agreed to the "nonnegotiable" limitations placed upon the defense representation of Mr. Lancaster, as a precondition of being retained by Joy Adams and Gail Willey who represented, themselves, and other members of the Lancaster family when retaining Mr. Houston, specifically, Mr. Houston was prohibited from involving Tessa L. in any way in the proceedings or bringing her into court and subjecting her to cross-examination by the defense, therefore, making any meaningful adversarial testing of the States evidence and theory of prosecution virtually impossible. Mr. Houston had agreed not to involve Tessa L. in the case, as aforesaid, long before he coerced, misadvised and improvidently induced Mr. Lancaster to sign the waiver of preliminary hearing on January 30, 2003 andplead guilty on the advice of counsel.

Mr. Lancaster did not hear much of what was being said during the arraignment and the change of plea proceedings on February 25, 2003. Nor did he fully understand what he did hear. This is made evident in the transcript of Tuesday, February 25, 2003, Arraigment, at p. 4, L. 6-12,

Both Mr. Houston and the court were made fully aware of Mr. Lancaster's mental disability due to seven strokes caused by carotid stenosis-a constriction of the carotid artery-that was corrected by surgery following the last stroke in February, 2003, and the hearing disability which Mr. Lancaster had suffered from for many years, as he was legally deaf, the Jeff LOvett, MD/RD, letter dated 5/12/03, long before the sentencing hearing conducted on July 2, 03. See attached Exhibit F. A defense counsel's failure to investigate, inter alia, his clients brain damage constitutes ineffective assistance of counsel. Caro V. Woodford, 280 F.3d 1247 (9th Cir. 2002).

It wasen't until nearly four years and one month from the date of Mr. Lancaster's arrest on September 20, 2002, that the trial court recognized and entered an Order "that an interpretive reporter shall be assigned to assist petitioner to understand the proceedings." See Order dated and signed October 13, 2006, by Jerome M. Palaha, District Judge, appended hereto and incorporated herein by reference in its entirety, Marked Exhibit H. However, the only time the screen print-out was used to assist Mr. Lancaster's understanding of the proceedings, occurred approximately (6) months later during the Friday, April 6, 2007, evidentiary hearing conducted on Mr. Lancaster's Petition For Post-conviction Relief that was continued from June 9th and July 24, 2006, when testimony was taken from Attorney David Houston. The screen print-out machine provided did not work very well because it took time for the visual images to register as Mr. Lancaster read and tried to keek up with the images appearing on the screen, for comprehension. Many of the words appearing on the screen were abbreviated, making it necessary for Mr. Lancaster to try to figure out what was being said in the courtroom. Unfortunately, however, Mr. Lancaster's mind did not work fast enough to enable him to keep up with the abbreviated testimony and what was being said between the court and counsel as it passed across the screen printout, therefore, in light of Mr. Lancaster's mental and hearing impairments it was impossible for him to keep up with and understand even Attorney David Houston's evidentiary hearing testimony. The only kind of device that might have been effective to reasonably accommodate Mr. Lancaster's disabilities would have been some type of headphones that would work in conjunction with hearing aids, for the purpose of voice audible sound amplification, to assist Mr. Lancaster in directly hearing what was being said in the courtroom and therefore aid in his understanding, to the extent he was capable of understanding what was going on during the proceedings at that time.

In fact, the record discloses that Judge Polaha, Attorney David Houston, and Attorney Paul Quade colluded in defeating the ends of justice by seeing to it that Mr. Lancaster was left, largely, in the dark as to what was going on and what was being said during the evidentiary hearing proceedings conducted on Friday, April 6, 2007. Judge Palaha, Attorney Paul Quade, and Attorney David Houston were all aware of Mr. Lancaster's impairments due to several strokes, including brain damage, and his hearing disability, as well.

During the July 2, 2003 sentencing hearing Mr. Houston in pertinent part, argued, en quote; "And I then have asked the Court to factor in other things about Mr. Lancaster that I made your Honor aware of. ¶ I can't stand before you and say this issue concerning a medical condition played into it. Nobody can. ¶ Nobody can tell you about the brain or the complexities of it. But I can tell you that it is consistent with the time frame. " (7/2/03, S.Tr. at P. 22, L. 5-12) Then during his evidentiary hearing testimony Mr. Houston, in pertinent part, testified as follows; "He had these medical issues. I think he had the mini strokes. He had some other issues involved that could explain that. He had some psychological issues involved because his wife had cheated on him with I think the gardener. There are all these things in the mix that I felt kind of represented a very unique situation. And I felt badly for Mr. Lancaster. He was a good man that made a terrible mistake. Q Did his mental issues, his difficulty with hearing, did that ever interfere — A NO." (4/6/07, EH TR. P. 82, L. 12-23) Shortly after this testimony Attorney David Houston is seen giving false testimony on two material points. In one instance, Mr. Houston testifies that Mr. Lancaster never told him that he could not hear what Mr. Houston was saying. (4/6/07 Eh. Tr. Pp. 83, L.8-10 and 18-24; and P. 84, L. 11-17.) Then testifying to the contrary that Mr. Lancaster did tell him "I didn't hear what you said" when he couldn't hear. The other instance of Mr. Houston giving false, misleading and perjered testimony on a material point concerns which of the doctors was retained by the defense to do the psychosexual evaluation. Mr. Houston is seen giving false evidentiary hearing testimony when testifying that the defense hired Dr. Nielsen. When in fact, the record discloses that Mr. Houston hired Dr. Stuyvesant. at "page 1" of Robert P Stuyvesant, M.S.W., Psychosexual Evaluation/Risk Assessment (14 pages, under "referral Source:") it clearly stated: "David Houston, Attorney at law, Reno Nevada, This report is dated 4/20/03 and is part of the court record in this case. Yet Attorney David Houston testified, falsely to the contrary as follows:

15 But I am saying that we retained Nielsen, I

16 believe, and the State had provided through P P Stuyvesant.

(4/5/07, Eh. Tr. P. 86, L. 15-16)

Attorneys Lee Hotchkin, Esq., David Houston, Esq., and Paul Quade, Esq., all Three defense Attorneys retained by Joy Adams (formerly Mrs. Gladys Lancaster) and brother-in-law Gail Willey, labored under the same actual conflict of interest while serving as trial defense counsel and collateral appeal counsel, respectively. All three of them were aware of the "nonnegotiable" condition of there retainer that they were not to involve the alleged victim, Tessa Lancaster, in the trial proceedings conducted in Doyle Lancaster's case, in any way, when they were hired by the family. As previously pointed out and testified to during the June 9, 2006 evidentiary hearing proceedings, Joy Adams and Gail Willey both believed and expected that Doyle Lancaster would still receive a fair trial despite their insistence on the pre-condition that Tessa not be involved in the case. Moreover, the record supports the obvious conclusion that neither Joy Adams or Gail Willey knew any better. Their sole concern was to protect Tessa from any unnecessary embarrassment or discomfort that would necessarily result from involving her in the prosecution or defense of the case, from its inception.

pertinent facts pertaining to Attorney Lee Hotchkins Represention

Attorney Lee Hotchkins was relieved of defense counsel because he didn't want to talk with Mr. Lancaster about any defense in the case.

As the record reflects, Attorney David Houston was substituted in place of Lee Hotchkins, Esq. This substitution of counsel occurred because Mr. Lancaster voiced his complete dissatisfaction with Mr. Hotchkins representatoin to his wife Gladys Lancaster (Joy Adams) and other Family members.

According to Lee Hotchkins, Esq., he was a former prosecutor in Dick Gammick's office, and professed to be able to get Mr. Lancaster a good deal. Mr. Hotchkins said that he could get the bail bond reduced from $55,000.00 to $10,000.00, and would obtain a reduction in the charges, including the sexual assault counts, was obviously false.

Attorney Lee Hotchkins did file a bail reduction motion but failed to provide the court with good reason for the reduction requested. After 47 days in jail Mr. Lancaster, with help from family and friends, pulled together the resources to put up the full amount of $55,000.00, for the bail bond, since Lee Hotchkins hadn't performed as he had said that he would by obtaining an appropriate reduction in the bail bond.

In effect, Attorney Lee Hotchkins told Mr. Lancaster that he could get the charges reduced and a deal for a plea of guilty to attempt sexual assault and could guarantee a sentence of no more than five years imprisonment as the State would agree to it. Doyle Lancaster told Mr. Hotchkins "no way", and the search for substitute counsel began.

Unknown to Doyle Lancaster, until just recently, when he was able to read and comprehend the testimony adduced from Joy Adams and Gail Willey at the evidentiary hearing proceedings conducted on June 9, 2006, Attorney Lee Hotchkin was laboring under the same actual conflict of interest in Accepting his retainer and defense representation on behalf of Mr. Lancaster as David Houston, due to the same unconditional limitations having been placed upon the defense by members of the Lancaster family responsible for hiring these attorneys for Doyle Lancaster's defense. In fact Leland Rock and Gail Willey, jointly, paid Lee Hotchkins a substantial retainer in the amount of $15,000.00 for his defense representations in the case. (6/9/06, Eh Tr. Pp 52, L. 16 thru 59, L. 10)

While Lee Hotchkin may have tried to earn his money by attempting to induce Doyle Lancaster to plead out in the case, in light of the restriction's unwittingly placed on his defense effort by the people paying his retainer, he actually did nothing legally required of him as an attorney and sworn officer of the court on behalf of Doyle Lancaster's defense.

When David Houston was rtained, and Mr. Lancaster spoke with him, the topic of discussion was a trial. Initially, Mr. Lancaster was vehemently against and had no intention of pleading guilty because he didn't feel as though he had really done anything wrong such that it would warrant a trial, much less imprisonment.

Moreover, the waiver of preliminary hearing signed by Mr. Lancaster on January 30, 2003 and filed in Justice Court on February 11, 2003, was put before him by Mr. Houston for his signature at a time when he had no idea of the real significance of what he was signing, the document deffinitely did not have the conditions of the plea agreement inscribed on the bottom of the document at the time it was presented to Mr. Lancaster by Mr. Houston for his signature. In fact, although Lee Hotchkin had explained the need for a preliminary hearing to Mr. Lancaster, Mr. Lancaster did not really understand what a preliminary hearing was, it's purpose or the significance to his case of the waiver Mr. Houston presented and had him sign as a necessary part of his conflicted defense representation of Mr. Lancaster.

Mr. Lancaster was denied effective assistance of counsel on the Lozada appeal filed in the district Court due to appellate counsel Paul Quade, Esq's, failure to raise and argue the record supported significant and obvious viable issues of ineffective assistance of trial counsel based upon an actual conflict of interest inherent in the trial defenae representation afforded by retained counsel David Houston from the inception of the case, in violation of the Fifth, Sixth and Fourteenth amendments to the Constitution of the United States and corresponding provisions of the Constitution of the State of Nevada, article I, § 8,

Based upon information and belief Attorney Paul Quade, Esq., first visited Mr. Lancaster in June, 2004, at the Northern Nevada correctional Center, Carson City Nevada. Mr. Quade had been retained by Mr. Lancaster's brother-in-law Gail Willey to represent Mr. Lancaster as collateral counsel in the proceedings conducted on Mr. Lancaster's Pro Se Petition for writ of Habeas Corpus (post conviction) filed on July 1, 2004. During said visit Attorney Palu E. Quade, Esq., read the orginal petition for writ of habeas corpus and advised Mr. Lancaster to file it as is with the District Court, and further advised that he would supplement the orginal Petition for Writ of Habeas Corpus later on. Attorney Paul Quade, Esq., entered his NOTICE OF APPEARANCE on behalf of Doyle Lancaster on July 16, 2004.

It wasn't until May 31, 2006, 22 1/2 months later, that Attorney Paul Quade, Esq., actually filled a supplemental petition with points and authorities which was dismissed by the court granting the States Motion to dismiss on grounds that Mr. Quade had faild to file a reply. Said dismissal of the, supplemental petition occurred during evidentiary hearing proceedings conducted April 6, 2007.

Even more remarkable is the fact that the notice of ENTRY OF ORDER filled June 29, 2007, giving notice that the court had entered its Findings of fact, Conclusions of law, and Order rendered by District court judge Jerome Polaha on June 6, 2007, in conclusion, held that Mr. Lancaster "[was afforded effective assistance of counsel except for his right to direct appeal based upon the evidence and testimony presented at time of hearing on this matter April 6, 2007.] The court further holds all other issues, including those raised in the States motion to dismiss are rendered moot by this order". See June 6, 2007 Order filed June 13, 2007, at P. 13, The aforesaid findings of fact, conclusions of law and order filed June 13, 2007, and Order Dismissing Appeal rendered by Judge Polaha in regard to the Lozada appeal on March 6, 2008 and filed in the District Court on March 7, 2008, both rely on judicial fact findings, based on testimony adduced from Doyle Lancaster, and Lancaster's 2nd. Attorney David Houston, Esq., at the evidentiary hearing conducted on April 6, 2007. Yet neither of the two Orders take into account the matter and evidence in the given testimony adduced from Joy Adams and Gail Willey which clearly and unequivocally established that an actual conflict of interest existed in the trial defence representation of Doyle Lancaster by Attorney David Houston from the inception of the case, which Mr. Lancaster was not privy to and was kept entirely in the dark with respect to, by both the family and retained counsel David Houston, Esq.,

The First evidentiary hearing conducted on Mr. Lancaster's Petition for writ of Habeas Corpus (post conviction commenced at 1:30 P.M. on Friday, June 9, 2006, and was concluded sometime before 4:00 P.M., because Mr. Quade had to pick up his son by 4:45 P.M. and catch a flight out of town. The State was represented at the evidentiary hearing by Deputy District Attorney Joseph Plater, Esq., during which the issues were discussed and testimony taken from Joy Adams and Gail Willey, both of whom gave quite extensive testimony under oath that supports an obvious inference that the trial defense representation in this case was conflicted from the very beginning.

Both the Findings of Fact, Conclusions of Law and Order rendered by Judge Polaha on Mr. Lancaster's original Petition for writ of Habeas Corpus (post conviction) filed June 13, 2007, and Judge Polaha's Order Dismissing Appeal filed March 7, 2008, failed to take into account the testimony adduced from Joy Adams and Gail Willey at the June 9, 2006 evidentiary hearing proceeding which clearly establish that an actual conflict of interest existed in the trial defense representation of Mr. Lancaster by Attorney David Houston from the moment that he accepted payment for his services as defense counsel in the case from Gail Willey under the nonnegotiable condition that Mr. Houston not involve Tessa Lancaster in anyway, and thus obviating any need or possibility of presenting a defense. By ac — cepting the retainer Mr. Houston had no other option or intention available to him, while laboring under such conflicted condition limiting the defense, other than to plead his client out.

Once Mr. Houston accepted his retainer under the condition that he was not to involve the alleged victim Tessa Lancaster in any way in the case, unknown to Mr. Lancaster the defense became an absurd pretense, a charade. And once collateral counsel Paul Quade, Esq., the prosecutor Deputy District Attorney Joseph Plater, and trial court Judge Jerome Polaha became aware of the blatant and obvious conflict of interest that existed in Mr. Houston's defense representation of Mr. Lancaster it became incumbent upon them as sworn officers of the court to take the necessary steps to cure the cancer of injustice that had infected the case by reason of an unscrupulous defense attorney accepting a retainer under false pretenses and thereafter prepetrating a complete fraud upon the court which caused the conviction of one who is actually innocent.

Due process guarantees a defendant the right to effective assistance of counsel on his first direct appeal of right. Evitts V. Lucey, 469 U.S. 387, 83 L.Ed.3d. 821, 105 S.Ct. 830 (1985). The Strickland standard applies to appellate counsel ineffectiveness claims. Strickland V. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064-74, 80 L.Ed.2d 674 (1984). Under Strickland ineffective assistance of counsel will be found when "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result". Strickland, 104 S.Ct. at 2064. The Strickland standard establishes a two-prong analysis. First, counsels performancas must have been deficient, and second, the deficiency must have prejudiced the defense. Id. Had appellate counsel failed to raise a significant and obvious issue, the failure could be viewed as deficient performance. If an issue, which was not raised, may have resulted in a reversal of the conviction, or an Order for a new trial, the failure was prejudicial. Id. at 352.

Ineffective Assistance of counsel claims may be resolved on direct appeal where defendant relies on trial court record to support ineffective claims. Guihan V. U.S., 6 F3d 468 (7th Cir. 1993). Moreover, appellate counsel's failure to raise A "dead bang winner", constitutes ineffective assistance and establishes "cause" for failure to raise the error. U.S. V. Cook 45 F3d 388 (10 Cir. 1995).

During the June 9th 2006 evidentiary hearing proceedings conducted on Mr. Lancaster's Petition for writ of habeas corpus filed July 1, 2004, retained counsel Paul Quade, Esq., adduced testimony under direct examination from both Joy Adams and Gail Willey which clearly established that Attorney David Houston was laboring under an actual conflict of interest by excepting the retainer from Gail Willey and members of the Lancaster family, whom Joy Adams and Gail Willey represented when they hired David Houston, under the condition that the victim not be involved in the case, in any way. The conflict of interest created by limiting the defense counsel in this way had the effect on Mr. Houston's representation of Mr. Lancaster, of representing the victim and victims families interest in not being involved in the case which violated Mr. Houston's duty of loyalty owed his client. Obviously, Mr. Houston could not represent both the interest of the victim by not involving the alleged victim in the case and the interest of his client Mr. Lancaster in receiving a fair trial or disposition of his case, even in a plea context.

In Wood V. Georgia, 450 U.S. 261, 67 L. Ed. 2d. 220, 101 S.Ct. 1097 (1981), The Supreme Court held that a conflict of interest issue, where a third party retains counsel, requires an evidentiary hearing.

The standard governing conflict of interest in defense representation claims is governed by Cuyler V. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). In order to find a Sixth Amendment violation based on a conflict of interest, the reviewing court must find: (1) that counsel actively represented conflicting interests; and (2) that an actual conflict of interest adversely affected the attorneys performance. Id. at 348, 100 S.Ct. at 1718. Under Cuyler, the court must presume prejudice if the conflict of interest adversely affected the attorneys performance. Id. although Cuyler involved a conflict of interest between clients, the presumption of prejudice extends to a "conflict between a client and his lawyer's personal interest." See Mannhalt V. Reed, 847 F.2d 576,580 (9th. Cir.), cert. denied, 488 U.S. 908, 109 S. Ct. 260, 102 L.Ed. 2d 249 (1988). However, worthy of note here, The Fifth Circuit in Beets held that theStrickland standard test, rather than the Cuyler test, offers a superior framework for addressing conflict of interest outside the multiple or serial client context. Beets V. Scott, 65 F.3d 1258 (5th. Cir. 1995).

Applying the Cuyler standard to the facts of this case, there can be no doubt that an actual conflict of interest existed, by representing the interest of the victim Tessa LancASTER IN NOT BEING BROUGHT INTO COURT and not being involved in the case, because the potential for diminished representation is so great. In fact the record supported conflict of interest eviscerated any possible defense. Applying the second prong of Cuyler, the conflict of interest adversly affected Attorney David Houstons performance in several areas, inter alia, which includes: 1) counsel accepted the States version of the facts and failed to file any appropriate pretrial motions because he relied on the governments version of facts, and not based on his own reasonable investigation, any representation to the contrary not withstanding, see U.S. V. Matos, 905 F.2d. 30 (2nd Cir. 1990); and Woodard V. Collins, 898 F.2d 1027 (5th Cir: 1990); 2) counsel advised Mr. Lancaster to sign a waiver of preliminary examination when he should have filed an appropreate motion to dismiss for the States failure to produce the complaining witness for the preliminary hearing on three separate occasions and thereby abandoned his client to the mercies of the State; 3) Attorney David Houston conceded his client's guilt and advised Mr. Lancaster and members of his family that he would receive probation if he received a good result on the psychosexual evaluation that he must undergo, but in order to receive probation and resolve the case with the least amount of embarrassment and trouble for everone involved, Mr. Lancaster could not completely deny the accusations made against him and he must admit guilt, but for which material misadvice which induced the plea Mr. Lancaster would not have pled out, but rather would have insisted on going to trial, Hill V. Lockhart, 474 U.S. 52, 88 L. Ed. 2d 203, 106 S. Ct. 366 (1985); 4) Mr. Houston failed to investigate the obvious defense of diminished capacity or insanity at the time of the alleged offenses due to Mr. Lancaster's cognitive incapacity caused by seven lacunar infarcts (strokes), a hole in his brain the size of a golf ball, and being legally deaf at the time of the alleged offenses, see Clark V. Arizona, 548 U.S. 735, 126 S.Ct. 2209 (2006); 5) by conceeding Mr. Lancaster's guilt throughout the proceedings while Mr. Lancaster could not hear and fully understand for the mostpart what was actually going on Mr. Houston, in effect, became a second prosecutor; 6) Mr. Houston argued against the interest of his client for a finding of guilt and sentence on four counts of lewdness with a child under the age of 14 for which Mr. Lancaster received a sentence of 4 ten to life terms of imprisonment, when in fact, Mr. Lancaster only admitted to one instance of lewd conduct and that only on the advice of counsel; 7) the State was only able to fabricate the case against Mr. Lancaster due to Mr. Lancaster's inability to hear and comprehend the proceedings, and due to the multiple misrepresentations of fact presented by Mr. Houston and the State prosecutor Mr. Clifton which amounted to fraud upon the court and collusion, as will more fully Appear herein the following.

Under these circumstances Mr. Lancaster was constructively denied counsel alltogether and prejudice is presumed under bothStrickland, and U.S. V. Cronic standards. Yet, when the conflict of interest, in question was disclosed through the testimony of Joy Adams and Gail Willey, Attorney Paul Quade, Esq., ADA Plater, and Judge Polaha, all acted and, or agreed in concert to sweep the matter under the rug, to cover up the evidence of conflicted defense representation that had surfaced in the case, this was accomplished by Judge Polaha assigning Attorney Paul Quade to do the Lozada appeal as court-appointed counsel and, therefore, due to colusion between retained collateral counsel Paul Quade, Esq., (who also served as court appointed counsel on the Lozada appeal,) Assistant District Attorney Plater, and Trial court Judge Jerome Polaha, this significant and obvious viable issue available for appellate review on the record was not briefed.See, U.S. ex rel. Duncan V. O'Leary, 806 F.2d 1307 (C.a. 7 (111.) 1986).

Thus substantial evidence existed in the record prior to sentencing on July 2, 2003 regarding Mr. Lancaster's mental disabilities and hearing impairment. More importantly, retained trial defense counsel David Houston, Esq., had been fully informed concerning Mr. Lancaster's physical and mental impairments when he was retained by members of Mr. Lancaster's family, and two close personal friends and associates, who paid substantial portions of Attorney David Houstons flat fee of $25,000.00, Including Leland Rock and Richard Schluter. Doyle told David Houston on several occasions that he could not hear what was being said during court proceedings, however, Mr. Houston told him, "it doesn't matter, I'll take care of everything, it's going to be O.K., so don't worry about it." Doyle did not feel that it was right that he couldn't hear what was being said durings these proceedings, but could do nothing about it, because he knew nothing of his rights to the contrary until several years after his conviction and subsequent incarceration.

Graph

COUNT IV

The following civilright has been violated:

Plaintiff further alleges that a conspiracy existed as a matter of official unwritten policy and practice from the inception of the criminal investigation and prosecution initiated in Justice Court of Reno Township case number 02-5108 and Second Judicial District Court of the State of Nevada case number CR 03P0255, to overcharge plaintiff with crimes for which there existed no reliable direct or circumstantial evidentiary basis in either fact or law. They thereby obtained a false or fabricated conviction, which deprived plaintiff of equal protection of the laws and equal privileges under the laws. Other named defendants, having power to prevent or aid in preventing commission of the same, neglected to do so by indifference, an invidious animus, by acquiescence or giving tacit approval of the conspiracy to falsely convict, for self-serving reasons of insular self-interest and political expedience in disposing of an unwanted case, and for the appeasement of an irate and incensed public spirit existing in the community against such crimes, in violation of the First, Fourth, Fifth, Sixth, Eighth, Ninth, and Fourteenth amendments to the Constitution of the United States and the corresponding provisions of the Constitution of the state of Nevada.

Exhibit

COUNT V

The following civil rights have been violated:

Finally, alleging that named defendant state government officials and prison authorities within the Nevada Department of Corrections have put in place and enforce an official unwritten policy, as a matter of practice, of condoning the routine denial of necessary medical care, as well as engage in an ongoing pattern of practice of exhibiting deliberate and callous indifference to serious medical needs of the plaintiff. This includes, but is not limited to, the intentional delay and denial of important prescribed diagnostic attention, medical specialist recommended heart related surgical procedures, medications, and other treatments (rehabilitative physical therapy), in violation of the Fifth, Sixth, Eighth, Ninth, and Fourteenth amendments to the Constitution of the United States and the corresponding provisions of the Constitution of the State of Nevada, Art. 1, § 4, 6, and 8.

Exhibit

The following civil rights has been violated: _______________________________________________________ _________________________________________________________________ _________________________________________________________________

Supporting Facts: [Include all fact you consider important. State the facts clearly, in your own words, and without citing legal authority or argument. Be sure you describe exactly what each specific defendant (by name) did to violate your rights].

_________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________

D. PREVIOUS LAWSUITS AND ADMINISTRATIVE RELIEF

same or similar facts dismissed because it was determined to be frivolous, malicious, or failed to state a claim upon which relief could be granted?

1) Have you filed other actions in state or federal courts involving the as involved in this action? _____ Yes No. If your answer is "Yes", describe each lawsuit. (If more than one, describe the others on an additional page following the below outline). a) Defendants: __________________________________________________________________________________________________ b) Name of court and docket number: _____________________________________________________________________________ c) Disposition (for example, was the case dismissed, appealed or is it still pending?): ______________________________________________________________________________________________________________ d) Issues raised: _______________________________________________________________________________________________ ______________________________________________________________________________________________________________ ______________________________________________________________________________________________________________ e) Approximate date it was filed: ____________________________________ f) Approximate date of disposition: __________________________________ 2) Have you filed an action in federal court that was _____ Yes No. If your answer is "Yes", describe each lawsuit. (If you had more than three actions dismissed based on the above reasons, describe the others on an additional page following the below outline.) Lawsuit #1 dismissed as frivolous, malicious, or failed to state a claim: a) Defendants: __________________________________________________________________________________________________. b) Name of court and case number: _______________________________________________________________________________. c) The case was dismissed because it was found to be (check one): _______ frivolous _____ malicious or _____ failed to state a claim upon which relief could be granted. d) Issues raised: _______________________________________________________________________________________________ ______________________________________________________________________________________________________________ e) Approximate date it was filed: ____________________________________ f) Approximate date of disposition: __________________________________ Lawsuit #2 dismissed as frivolous, malicious, or failed to state a claim: a) Defendants: __________________________________________________________________________________________________. b) Name of court and case number: _______________________________________________________________________________. ______________________________________________________________________________________________________________________ ______________________________________________________________________________________________________________________

E. REQUEST FOR RELIEF

I believe that I am entitled to the following relief:

1) A judgement declaring the actions of Defendants described herein are unlawful and violate Plaintiffs protected rights under the Consitution and law of the United States; 2) A temporary restraining order preliminary to a permanent injunction enjoining the Defendants, their subordinates, agents, employees, and all others actings (cont'd on Page 126)

I understand that a false statement or answer to any question in this complaint will subject me to penalties of perjury. I DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE UNITED STATES OF AMERICA THAT THE FOREGOING IS TRUE AND CORRECT. See 28 U.S.C. § 1746 and 18 U.S.C. § 1621.7-15-09

_________________________________________ _____________________________________ (Name of Person who prepared or helped (Signature of Plaintiff) prepare this complaint if not Plaintiff) (Date) (Additional space if needed; identify what is being continued) ______________________________________________________________________________________________________________________ ______________________________________________________________________________________________________________________ Exhibit

Exhibit

EXHIBIT A

Exhibit

EXHIBIT B

Exhibit

EXHIBIT C

Exhibit

EXHIBIT D November 25, 2002

Mr. Doyle Lancaster

11240 S. Virginia Street

Reno, NV 89511

Dear Mr. Lancaster:

Thank you very much for retaining the Law Offices of David Houston. As per our agreement, I've indicated to you we will charge you a $25,000,00 non-refundable flat fee. The $25,000.00 non-refundable flat fee is assessed by this office to cover any and all costs, save and except expert witnesses and appeals, up and to trial preparation. As explained to you, we will devote a minimum of two weeks of trial preparation for your case. We will bill separately for the trial preparation at $1,500.00 per day, assessing only a five day per week charge. The remaining two days per week will be donated by this office for the purpose of assisting in deferring expenses.

We will also bill a sum total of $2,500.00 per day for each and every day involved in trial. I'm uncertain as to how long the trial may be. As indicated to you, it is our policy to spend at least three to four days of preparation for every one day to be anticipated for trial. Therefore, in this case you might anticipate a sum total of ten days of trial preparation totaling $15,000.00, with a trial in the neighborhood of three to four days, totaling between $7,500.00 and $10,000.00. As well, there may be expert witness costs. I have discussed with you expert witnesses and what they may accomplish on your behalf. As well, we may need an investigator. Again, I am uncertain as to the cost of the expert witnesses or the investigators.

As stated during our initial meeting, trials are expensive. It is inappropriate to approach a trial on a shoestring and, therefore, you should be adequately financed in order to thoroughly protect your rights. In that this is a small firm, we have a limited number of cases that we may take. Therefore, by agreeing to take your case, we are then allotting time that we could not allot to another client should they call us. Therefore, the $25,000.00 is a non-refundable retainer.

In that this office has had the opportunity to meet with you and discuss the financial arrangement at length, I am hopeful this letter represents a confirmation of those matters discussed. In the event you have any questions, please do not hesitate to contact me. In the event that all matters are clear to you, I have left a signature line on the last page of this document for your execution. The purpose of providing your signature is to indicate that you understand the terms and conditions of this letter and agree to abide by our financial agreements. If that is true, please execute this document, once you have reviewed, and return the same to my office so that we will have appropriately documented our financial relationship.

I do look forward to working with you and will assure the best possible job that can be done, will be done by this office. Once again, I thank you for your confidence in the Law Offices of David Houston and I look forward to a very productive relationship.8 DEC

Sincerely, LAW OFFICE OF DAVID R. HOUSTON DAVID R. HOUSTON DRH/d/g Dated this day of , 2002. ____________________________________________ DOYLE D LANCASTER

EXHIBIT E

In the Justice Court of Reno Township C203-0285 Doylehancaster, County of Washoe, State of Nevada THE STATE OF NEVADA, Plaintiff, vs. No.___________________ Defendant. _________________________

Waiver of Preliminary Examination

I, the Defendant in the above-entitled action, being fully advised of my rights in the premises, hereby waive my preliminary examination on the charge of sex assault ex A in the above entitled action, and consent that I may be remanded to the Second Judicial District Court of the State of Nevada, for further proceedings therein.1-30-03 DATE: ____________________________________________________

EXHIBIT F

4185 JUDITH ANN SCHONLAU CCR #18 75 COURT STREET RENO, NEVADA IN THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA IN AND FOR THE COUNTY OF WASHOE BEFORE THE HONORABLE JEROME M. POLAHA, DISTRICT JUDGE THE STATE OF NEVADA, ) ) Plaintiff, ) ) vs. ) CASE NO. CR03-0255 ) DEPARTMENT NO. 3 DOYLE DOLEN LANCASTER, ) ) Defendant. ) _______________________________) ARRAIGNMENT TUESDAY, FEBRUARY 25, 2003; 8:30 A.M. Reno, Nevada APPEARANCES: For the Plaintiff: DAVID CLIFTON, ESQ. Deputy District Attorney Washoe County Courthouse Reno, Nevada For the Defendant: DAVID HOUSTON, ESQ. Attorney at Law Reno, Nevada Reported by: JUDITH ANN SCHONLAU, CCR No. 18 Computer-aided Transcription

RENO, NEVADA; TUESDAY, FEBRUARY 25, 2003; 8:30 A.M.

THE COURT: Next matter CR00-30255, State of Nevada versus Doyle Dolen Lancaster.

MR. HOUSTON: Good morning. Dave Houston on behalf of Mr. Lancaster.

MR. CLIFTON: Dave Clifton for the State on this case also. Good morning.

THE COURT: This is the time set for arraignment on an Information filed February the 11th, 2003. Let the record reflect I have provided counsel a copy of that Information.

MR. HOUSTON: May I have a moment?

THE COURT: Sure.

MR. HOUSTON: Your Honor, we are familiar with the contents of the Information. The name is correctly spelled an stated at line 12. Based upon negotiations, we are prepared to enter pleas of guilty. And I would like the Court to note the way this Complaint is charged is in the alternative. Specifically, Count 1 is represented as sexual assault with a lewdness charge attached to it. We would be pleading guilty under Count 1 to the lewdness charge.

As it concerns Count II, that also contains an attached lewdness charge. We would be pleading guilty to Count II only as to the lewdness charge. And reference to Count III, we have a straight lewdness as well as Count IV, again a straight lewdness. We would also be entering pleas of guilty to Count III and Count IV.

The negotiations are that the State will not pursue any additional criminal conduct they could have pursued, nor would there be any additional charging by virtue of the conduct of the defendant. Obviously, the sexual assault counts would be dismissed at the time of sentencing.

The parties are free to argue in this particular case, Your Honor. And, further, the defendant is aware that we have agreed there will be a concurrent argument in the event the Court were to impose a prison term as concerns Count III and Count IV.

I provided the defendant with a Guilty Plea Memorandum. He's executed that. As a consequence, I would like to present it to the Court. I have also advised the defendant, Your Honor, that he faces a lifetime sentence for a lewdness count with a ten year minimum eligibility as far as parole, and that he is not eligible for probation absent the defendant qualifying as per statute as to not representing a threat to society.

He's aware he as well faces the potential of a $10,000 fine. And, certainly, if not given probation, the counts could run consecutive as far as the prison sentence or concurrent. The same would be true if given probation.

THE COURT: All right. There is a requirement under NRS 176.0931, lifetime supervision.

MR. HOUSTON: We talked about that as well, Your Honor.

THE COURT: Mr. Lancaster, you heard what your attorney said. Is that your understanding what you will be doing this morning?

THE DEFENDANT: Pardon, Your Honor?

THE COURT: Is that what you are going to be doing this morning?

THE DEFENDANT: Yes, we are.

THE COURT: Okay. Let me take the plea here. Mr. Lancaster, you have been charged by the Information in Count 1 with an alternative offense, and you will be pleading, as I understand it, to the second alternative set out in Count 1, and that is lewdness with a child under the age of 14 years, a violation of NRS 201.230, a felony. To that charge, how do you plead?

THE DEFENDANT: Guilty, Your Honor.

THE COURT: All right. In Count II, there is also an alternative charge. And to the second alternative lewdness with a child under the age of 14 years, a violation of NRS 201.230, a felony, how do you plead?

THE DEFENDANT: Guilty.

THE COURT: Count III charges you with lewdness with a child under the age of 14 years, a felony, a violation of NRS 203.230, how do you plead?

THE DEFENDANT: Guilty.

THE COURT: Count IV charges lewdness with a child under the age of 14 years, a felony, a violation of NRS 201.230, how do you plead?

THE DEFENDANT: Guilty.

THE COURT: Before I can accept your pleas of guilty Mr. Landcaster, I have to ask you questions to make sure you fully understand what it is that you are doing this morning and you understand the rights that you have and that you are willingly giving up those rights.

I received the Guilty Plea Memorandum. At page 8 of the document under today's date, there is a signature. Did you sign this document?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Did you read it before you signed it?

THE DEFENDANT: Yes.

THE COURT: Do you understand what you read?

THE DEFENDANT: Yes.

THE COURT: Okay. Did you have any questions that were unanswered by your attorney?

THE DEFENDANT: No.

THE COURT: Okay. You fully understand the document?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Okay. How much education do you have?

THE DEFENDANT: Completed the 8th grade.

THE COURT: All right. Now at page 2 of the Plea Memorandum, there is set out your constitutional rights. And basically what these rights are for and what they do to you is to tell you that you have a right to contest these charges. You do not have to plead guilty. The way you contest the charges is to plead not guilty. At that time, we will set a jury trial for you, and the State would have to convince twelve people from the community who will sit on the jury as to your guilt, and they have to convince these people beyond a reasonable doubt. You would have a right to be there. You would be represented by Mr. Houston during the course of the trial, and he would get a chance to cross-examine each and every witness that the State would bring against you. If you had witnesses, the Court could issue subpoenas. If those people were properly served, they would be compelled to come to Court and offer their testimony in your behalf. The privilege against self-incrimination incorporates the Constitutional protection against self-incrimination which means that, again, you do not have to say you are guilty. Nobody can make you say you are guilty except yourself. If we had gone to trial, the State could not call you as a witness against yourself. If you chose, when it was time to put on your defense, not to testify, the State could not argue that fact as an indicator of guilt to the jury. That privilege rests with you alone. And by your pleas of guilty, you are setting that privilege aside and you are telling the State that it won't have to try to convict you at a trial, that you would rather convict yourself by your pleas of guilt. Is that what you want to do?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Do you have any questions about any of the constitutional rights I just discussed?

THE DEFENDANT: No, Your Honor.

THE COURT: All right. Mr. Clifton, if you would explain the elements, please.

MR. CLIFTON: Certainly. Mr. Lancaster, do you understand that you had the right to proceed to a jury trial on those four counts to which you are pleading guilty?

THE DEFENDANT: Yes, I do.

MR. CLIFTON: Do you understand if you were to go to that jury trial, the state was prepared to prove the elements of those four charges?

THE DEFENDANT: Yes.

MR. CLIFTON: The elements of those four charges are fairly similar. Mr. Lancaster, I will kind of lump them together. The elements of those four felony charges of lewdness with a child include that on or about or between the 1st day of January 2000 to the 10th day of September, 2002 within Washoe County, Nevada, you did willfully and unlawfully subject Tessa L., birth date February 10, 1989, a female child under the age of 14 years, to sexual contact involving rubbing or touching her genital area on Counts I, II and III, and on Count IV involving rubbing her breasts, and that you did all of these acts with the intent of arousing, appealing to or gratifying the lust, the passions or sexual desires of yourself or the child. Do you understand all these elements the State was prepared to prove?

THE DEFENDANT: Yes.

MR. CLIFTON: Do you have any questions?

THE DEFENDANT: No.

THE COURT: Mr. Lancaster, do you also understand that not only are those the facts that the State would have had to prove had you gone to trial, but they are the facts that you are admitting by your pleas of guilty?

THE DEFENDANT: Yes, I understand that, Your Honor.

THE COURT: All right. Now these are felonies, and each one of those felonies that you pled to is punishable by a period of life in the Nevada State Prison with the eligibility of probation beginning after you have served ten years. Do you understand that?

THE DEFENDANT: Yes.

THE COURT: The worst case scenario is I could sentence you to life in imprisonment on each of those counts and make it run consecutive, which means you would have to spend 40 years in prison. Do you understand that?

THE DEFENDANT: Yes.

THE COURT: And also there is a $10,000 fine. So you are facing a maximum fine of $40,000. Do you understand that?

THE DEFENDANT: Yes.

THE COURT: All right. Mr. Lancaster, do you fully understand probation is not available unless you satisfy the requirements of NRS 176.139? That means you undergo a psycho-sexual evaluation and they certify that you are not a high risk to reoffend.

MR. HOUSTON: If you do not get that certification from a psychologist or a psychiatrist licensed to practice in the State of Nevada, then you must go to prison. Do you understand that?

THE DEFENDANT: Yes, I do.

THE COURT: All right. One last thing, NRS 176.093(1) requires that I impose lifetime supervision on you. If you get probation, you will be on probation for the rest of your life. If you get prison, if you get out of prison, you will be on supervision for the rest of your life. Do you understand that?

THE DEFENDANT: Yes, Your Honor.

THE COURT: What that means is you have to pay $30 a month for the supervision fees, and you would be subject to search and basically regular probation supervision. If you violate any of the terms, it is a new crime, a felony. All right? Do you understand that?

THE DEFENDANT: Yes, I do.

THE COURT: Do you have any questions about any of that?

THE DEFENDANT: No.

THE COURT: All right.

MR. CLIFTON: I hate to interrupt. I believe I misstated on the factual recitation on Count IV. Because these are serious charges, I want to make sure Mr. Lancaster understands what he's pleading to. In Count IV, the lewdness charge, actually the factual event is kissing Tessa L.'s breasts, not rubbing them. I think I may have cited it wrong. I want to make sure he understands that.

THE COURT: All right. Do you understand that, Mr. Lancaster?

THE DEFENDANT: Yes, I do.

THE COURT: Now do you also understand,

Mr. Lancaster, that regardless of the negotiations that you entered into with the State through your attorney, that whatever happens to you at the sentencing is up to the Court?

THE DEFENDANT: Yes I do, Your Honor.

THE COURT: All right. One of the constitutional rights you have not given up is your right to be represented by an attorney. Mr. Houston is your attorney. He's standing there with you. And are you satisfied with the amount of time that you had to spend with him on this case?

THE DEFENDANT: Yes.

THE COURT: Are you satisfied with the representation he's provided for you so far?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Has anybody, aside from the negotiations, has anybody promised you anything to get you to plead guilty?

THE DEFENDANT: No.

THE COURT: Has anybody threatened you with anything to get you to plead guilty?

THE DEFENDANT: No.

THE COURT: Okay. Are you pleading guilty because in truth and in fact you are guilty of these charges?

THE DEFENDANT: Yes.

THE COURT: All right. Now, Mr. Lancaster, you pled guilty to four counts here. I want you to tell me in your own words what you did that makes you plead guilty to these four counts.

THE DEFENDANT: I touched Tessa on her vagina and I kissed her on her breast one time.

THE COURT: All right. And she's under 14 years old?

THE DEFENDANT: Yes. She's 14 now.

THE COURT: All right. Are you under the influence of any medication or anything this morning, sir?

THE DEFENDANT: No.

THE COURT: You are clearheaded and you understand what you are doing?

THE DEFENDANT: Yes.

THE COURT: And the potential consequences of what it is that you are doing this morning?

THE DEFENDANT: Yes.

THE COURT: You still want to do it?

THE DEFENDANT: Yes.

THE COURT: All right. The Court finds Doyle Dolen Lancaster competent to enter his pleas of guilty.

The Court finds that there are factual bases for the Court to accept the pleas of guilty.

The Court finds that Mr. Lancaster does understand his constitutional rights and has freely, knowingly, voluntarily and intelligently waived those constitutional rights.

The Court finds he does understand the true nature of the charges that have been filed against him and to which he has entered his pleas of guilty.

The Court finds that he does understand fully the potential consequences of a conviction based upon his pleas of guilty to these particular charges.

The Court finds that the pleas of guilty that were entered were entered freely, knowingly, voluntarily and intelligently with the advice of counsel, and the Court does hereby accept the plaes of guilty.

MR. HOUSTON: Your Honor, may we consider a sentencing date 60 days out as opposed to thirty or forty-five?

MR. CLIFTON: No objection.

THE COURT: Yes.

THE CLERK: April 29th, 8:30.

MR. HOUSTON: Thank you, Judge.

THE COURT: All right.

(Whereupon, the proceedings were concluded.) COURT PRESENT APPEARANCES — HEARING CONT'D TO ARRAIGNMENT DOYLE DOLEN LANCASTER.

Case No. CR03-0255 STATE OF NEVADA -VS- DOYLE DOLEN LANCASTER DATE,JUDGE OFFICERS OF 02/25/03 HONORABLE Deputy D.A. David Clifton was present for the State. Defendant was present JEROME M. with counsel, Mr. David Houston. Officer Linda Shipley was present for the POLAHA Division of Parole and Probation. DEPT. NO. 3 Copy of the Information was handed to Counsel Houston to review with the 04/29/03 S. Hopper Defendant; reading was waived and the Defendant acknowledged his true 8:30 a.m. (Clerk) name to be: Sentence J. Schonlau Defendant waived time in which to enter a plea and entered pleas of Guilty to (Reporter) Lewdness With A Child Under The Age Of Fourteen Years as charged in Counts I through IV of the Information. Counsel for the Defendant stated negotiations. The Court interrogated the Defendant and informed her of her rights. Counsel for the State recited the elements of the crime. Court further canvassed the Defendant and explained the possible penalties to the offense; further found the plea was made freely and voluntarily, and accepted same. Court and counsel further discussed the Defendant's psycho-sexual evaluation. COURT ORDERED: Matter referred to the Division of Parole and Probation for presentence investigation and report, matter continued for entry of judgment and imposition of sentence. Defendant continued on bail.

EXHIBIT G

IN THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA IN AND FOR THE COUNTY OF WASHOE DOYLE DOLEN LANCASTER Petitioner, Case No. CR03P0255 Dept. No. 3. vs. THE STATE OF NEVADA, et al., Respondent.

ORDER

The Court has reviewed the transcript of Petitioner's post-conviction relief hearing held on July 24, 2006. The Court finds that an interpretative reporter shall be assigned to assist Petitioner to understand the proceeding.

IT IS HEREBY ORDERED that the parties shall appear before the Administrative Assistant of Department Three within 10 days of this Order to set the post conviction hearing.

DATED this 13th day of October, 2006.

EXHIBIT H ROBERT P. STUYVESANT, M.S.W. Licensed Clinical Social Worker Licensed Marriage Family Therapist PSYCHOSEXUAL EVALUATION/RISK ASSESSMENT

NAME: Lancaster, Doyle DATE OF BIRTH: 09/18/32 CURRENT AGE: 70 Years, Seven Months ETHNICITY: Caucasian, Male RESIDENCE: Reno, Nevada CURRENT STATUS: Mr. Lancaster resides alone in Reno, Nevada. DATE OF ASSESSMENT: 04/14/03, 04/16/03 DATE OF REPORT: 04/20/03 REFERRAL SOURCE: David Houston, Attorney at Law, Reno, Nevada

REASON FOR REFERRAL/PRESENTING INFORMATION:

Mr. Lancaster is a 70-year-old Caucasian male who was originally charged with sexual assault and lewdness against a minor child in September 2002. The charges were a result of Mr. Lancaster having engaged in sexualized behaviors against his granddaughter who was 12 to 13 years old at the time of the reporting. She had been residing with him at the time of the referral offense. She is the daughter of his oldest son. The offense was reported after the victim had informed Mr. Lancaster's wife. His wife in turn contacted their church pastor who reported the information to Reno Police Department on September 20, 2002. Prior to this assessment the police report noted that Mr. Lancaster had admitted to "some of the acts." The behaviors occurred over a five-year time frame concluding possibly between July and September 2002. The onset of the behaviors was when the child was residing with Mr. Lancaster and his wife in Rio Del, California. He and his wife had custody of their granddaughter since 1998. Mr. Lancaster was interviewed by the Reno Police Department on September 20, 2002 and he admitted to having kissed her on the breast one time and rubbing her clitoris, six to eight times over the pastryear. It also indicated that the victim had pretended that she was asleep during these encounters. Following the interview Mr. Lancaster was arrested and detained for seven weeks in the Washoe County Jail. He entered a guilty plea to a charge of lewdness against a minor child under the age of 14 in March 2003 and his sentencing is scheduled for a later date. According to police reports the offenses occurred in California and Reno, Nevada. He was residing with his wife at the time. Currently Mr. Lancaster is employed by Color Rock Landscaping Company driving trucks and operating equipment. He has been employed there for the past three years. Since his arrest his wife has divorced him. Mr. Lancaster presents with no history of prior sexual offense charges, arrests or convictions. Furthermore, he reports no history of personal sexual victimization.

This is a preliminary risk assessment aimed at developing an estimation for sexual reoffense risk. Static and dynamic factors determined by research to be associated with sexual reoffense risk for adults were considered. The overall estimation for reoffense risk is based on these factors combined with clinical judgment, and use of actuarial scales as applied to adults that have committed sexual crimes. The overall goal of the evaluation is to provide information as to whether the offender represents ahigh risk to reoffend sexually based on currently accepted standards of assessment.

Sources of Information

1. Review of police reports pertaining to the referral offense including victims' statements.

2. Clinical interviews with Mr. Lancaster.

3. Burns Depression Checklist.

4. Hanson's Sexual Attitudes Questionnaire.

5. Mental Status Exam.

6. Abel Assessment for Sexual Interest.

7. Carich/Adkerson Victim Empathy and Remorse Scale.

8. Rapid Risk Assessment for Sex Offense Recidivism.

9. Static 99.

SOCIAL HISTORY: Background Information

Mr. Lancaster was born in Santa Rosa, California to Andrew and Mary Lancaster. He was the youngest of nine children. His family was intact throughout his childhood. His father was primarily involved in the construction industry and his mother was a homemaker. Mr. Lancaster resided in the Santa Rosa area with his family until the age of 18. He reports that his mother died when he was approximately 30 years old and his father died when he was 55 years old. Mr. Lancaster characterized family life in mostly positive terms. He denied any history of substance abuse, violence or criminal behavior for any family members. His mother was primarily responsible for the day-to-day care and discipline of the children. He was never placed out of his parents care throughout his childhood. He reports of his siblings who are still alive, all are aware of the current charge against him. He has one brother and two sisters who are alive. He reports no family members have ever been charged with sex related offenses. Mr. Lancaster quit school in the eighth grade to work. He reports that he began working in a lumber mill at that time. He eventually moved away from his family at the age of 18, living with an older brother in the northern California area. He married his wife Glaydis when he was 21 years old. They have four children together. Mr. Lancaster reports that he and his wife moved frequently to pursue employment opportunities in the logging industry in California and Oregon. The longest established residence was in the Eureka, California area for about 25 years. He lived there until he was approximately 65 years old. All of their children were raised in the Eureka area. Mr. Lancaster denied any history of violence, substance abuse, physical abuse or sexual abuse within his immediate family or with his own children. He reports that his children are all aware of the current charge against him. His two sons reside in Reno and one daughter in Oklahoma and one daughter in California. His son David and his wife Patty are the parents of the granddaughter he molested. He reports to have some contact with his son David, however, Patty resides in California. The granddaughter he molested is currently residing with other family members, however, she does not reside with her parents. He reports that may be due to instability with her parents in that her father has been diagnosed with bipolar and has had a substance abuse history.

Educational Background

Mr. Lancaster completed the eighth grade and has had no formal education beyond the eighth grade.

Military History

Mr. Lancaster never served in the military due to a heart murmur.

Employment History

For the past three years he has been employed for Color Rock Landscaping Company as a truck driver and equipment operator. He reports over the past 20 to 30 years he has worked primarily in the logging industry in California and Oregon.

Legal History

Mr. Lancaster reports no previous arrest record.

Substance Abuse History

Mr. Lancaster reports minimal use of alcohol, claiming he has an occasional glass of wine with dinner. He reports at no time in his history has he abused alcohol or drugs.

Significant Medical History

Mr. Lancaster reports around 1995 he experienced five "mini" strokes which he said were not severe and did not require hospitalization. It was recommended that he take aspirin for those strokes. He recently had an MRI that revealed some possible brain damage in his frontal lobe and he also has blockage of an artery in his neck. He recently had the artery operated on to clear it up. He is on medication for high blood pressure and has taken Viagra in the past to assist with sexual arousal, however, he claims that he has not been on Viagra for several months and use was minimal.

Previous Mental Health Treatment

None

Religious Affiliation

Mr. Lancaster regularly attends the Assembly of God and describes himself as protestant.

Immediate Support Available

Mr. Lancaster has maintained his current employment since his arrest. Although he is now divorced, he-states that his wife remains supportive of him and has assisted him through this process. She recently moved back from Idaho and is living in a separate trailer on the same property as Mr. Lancaster. He also described some friends and all of his children as supportive.

CLINICAL INTERVIEW/ACCOUNT OF REFERRAL OFFENSE/SEXUAL HISTORY Mental Status

Mr. Lancaster was interviewed in an outpatient setting. He arrived for each interview in a timely manner and was considered cooperative. He is approximately six feet tall, 215 pounds. He was well groomed and appropriately attired. Mr. Lancaster seemed to be making genuine attempts to challenge himself to answer question and provide information about the referral offense. Some anxiety was apparent, however, affect was appropriate to the situation. He was appropriately oriented to person, place, time and situation with no evidence of a thought disorder. He denied any suicidal ideation, past or present, and reports no history of substance abuse. His memory appears to be good for both recent and remote, and is likely functioning within the average range intellectually. There was no evidence of a criminal lifestyle. He may be experiencing transient or situational depression, given his concern and anxiety for negative consequences as a result of his current situation.

The purpose and scope of the assessment process was explained to Mr. Lancaster. Some of the risks and benefits associated with this evaluation were discussed. He read and signed an informed consent form to participate in this evaluation. Mr. Lancaster authorized results of the evaluation to be released to his attorney, David Houston, Reno, Nevada.

Synopsis of Referral Offense

Mr. Lancaster reports having engaged in sexualized behaviors against his granddaughter when she was between the ages of eight or nine to 12/13 years old. He estimated a four to five-year time frame with the last incident occurring likely in July 2002. His best estimation of the total number of sexualized incidents that he engaged in was over 20. He reports the sexual behaviors consisted of fondling her around her labia or outer vaginal area and rubbing her clitoris. He also reports one incident of kissing her breast when she was 12 or 13. Mr. Lancaster denies additional sexual acts occurring against her or any sexual deviant behaviors with other children.

Onset/Progression of Referral Offense

He reports that his granddaughter came to live with him and his wife when she was about eight or nine years old after they obtained custody of her. The first incident of sexual abuse against her occurred while residing in Rio Del, California. He reports that he would frequently put her in bed at night along with her younger brother, Luke, as they were sharing a bedroom sleeping in bunk beds at that time. He recalled the first incident developed after placing her in bed, rubbing her stomach and moving his hand under her nightgeown and panties, "touching her briefly around her vagina." He stated, "I don't know what I was thinking. It just happened. I don't know what else to say." He claims he did not say anything after the first incident and that she was aware and alert during the incident. Mr. Lancaster reports that the next incident occurred within a week and he described similar behaviors in the same pattern as the first incident. The behaviors then progressed from that point. He recalled a third incident soon after the second incident, however, on this occasion she was sitting on his lap on the couch watching television. He recalled fondling her under her dress.

According to Mr. Lancaster following the first three incidents several months elapsed until there was another incident. He stated that they had relocated and the behaviors discontinued. He stated that he was fully aware of the inappropriate nature and made some attempts to discontinue the acts. The behaviors resumed after they relocated from Rio Del, California. He recalled an incident in which he was wrestling with her on the bed and while wrestling with her, he placed his hand down her pants, fondling her. The family then relocated to Ferndale, California and the behaviors continued.

In all instances he reports a similar pattern in that the majority of incidents occurred while placing her in bed at night. The behaviors consisted of fondling her, placing his hand down her pants and rubbing her outside of her vagina and stimulating her clitoris. He states that she was never asleep during the incidents and in the early stages he did not believe that her younger brother was aware of the acts. Over the next few years he claims that the behaviors followed the same pattern. Mr. Lancaster denied during the course of this evaluation that the behaviors ever progressed beyond fondling her vaginal opening and stimulating her clitoris, other than one incident of kissing her breast. He reports having masturbated on one occasion following one of the incidents of fondling her. Throughout the evaluation he maintained the number of incidents were in the 20 plus range during the four to five-year time frame. Again, he reported one incident of having kissed her breast when she was 12 or 13 years old. According to Mr. Lancaster that was the last occurrence which he estimated was likely July 2002.

Offense Engagement Strategies

Mr. Lancaster estimates that over 95% of the incidents occurred on occasions when he would put her to bed, under the guise of "tucking her in." He was aware that she was awake but that she may have feigned being asleep. He denied any use of force or threatening her in any way. The only discussion between them regarding the behaviors occurred following the incident in which he kissed her on the breast. He stated, "while tucking her in I kissed her on the breast" and she told him "grandpa we shouldn't do this again." Mr. Lancaster said he responded by saying, "no we shouldn't" and there was no further discussion between them. He claims he never told her not to inform others or threaten her in any manner. Typically his wife was already in bed when these incidents would occur. During the first few incidents, they occurred with her brother in the room sleeping on a bottom bunk. He does not believe that the brother was aware. Mr. Lancaster said that he would not close the door stating, "I was worried about getting caught" and keeping the door open made it possible for him to listen for people entering the room. He said since he was so worried about getting caught the incidents lasted only a few minutes.

Identifiable Cognitive Distortions Associated with Referral Offense

In providing treatment for those who sexually molest children, it is important to assess thought processes associated with the acts, as treatment will address such distortions to encourage responsibility, and develop strategies for intervention to prevent recurrence. During the assessment phase, most individuals have difficult recognizing thoughts associated with the acts beyond a superficial level, as they are highly defensive. Mr. Lancaster acknowledged being aware that the acts were inappropriate and wrong and should not have occurred. He had difficulty, however, identifying any specific justifications stating "I don't know why I decided to do this. I never had the desire to do it before." He had some beliefs that he would not get caught if he kept the acts to a minimal length of time and level of intrusiveness. According to Mr. Lancaster he chose his granddaughter simply out of availability and opportunity. He views himself as entirely responsible for the abuse.

Identifiable Motivating Factors

Perception of Victim Impact

Additional Sexual Offense Behaviors Reported

Mr. Lancaster did not report having engaged in other sexual offense behaviors aside from those in the referral offense.

Offender Perception of Referral Offense

Mr. Lancaster stated that he was sorry and remorseful. He stated he would like the opportunity to make amends and feels that he needs to participate in some level of treatment to address this problem.

Sexual History

Mr. Lancaster denies any history of personal sexual victimization. He first experienced intercourse with his wife at age 21. He has had two affairs during the course of his marriage. He estimates having begun masturbating at the age of 12. He reports no significant exposure to pornography as a youth and does not rely on pornography as an adult. During the course of the evaluation Mr. Lancaster self reported sexual attraction to adult females. He stated he did have two affairs during his marriage and believes that his wife also had an affair in the early 70's. They separated for a brief period of time, which is when he had the relationship with the two women he was involved with. Additional information regarding his sexual history if provided in the Abel Assessment for Sexual Interest.

RESULTS OF INVENTORIES

On the Hanson's Sexual Attitudes Questionnaire which screens for attitudes supportive of sexual entitlement and tolerance for adults engaging in sexual behaviors with children, Mr. Lancaster's responses did not yield any concerns. He did not endorse attitudes tolerant of sexual entitlement or adults engaging in sexual acts with children.

Under the Burns Depression Checklist, a quick screen for symptoms associated with depression, Mr. Lancaster's overall score was not indicative of symptoms often associated with depression. His strongest symptom endorsement was that of indecisiveness, in the modern range.

On the Carich-Adkerson Victim Empathy and Remorse Self Report Inventory he was able to demonstrate moderate to high degree of empathy in regard to awareness for potential harm and negative impact on the child he sexually abused.

Abel Assessment for Sexual Interest Test Results

The test results of the Abel Assessment for Sexual Interest fall into three categories: Objective measures taken beyond the clients awareness of sexual interest to 22 slide categories depicting children, teens and adults; the clients' self reported ratings of sexual arousal to the same slides; a sex offender specific questionnaire; and, probability values (the probability that the individual completing the test matches a set of characteristics for individuals known to have molested children under the age of 13). Of primary concern on the Abel Assessment results is whether Mr. Lancaster appears to have sustained sexual interest in preschool and elementary school aged children. Based on the objective measures taken beyond his awareness of sexual interest in 22 slide categories, Mr. Lancaster's relative sexual interests were strongest to adolescent and adult females. His responses to all other age groups and categories fell below the significant interest range for sexual interest. Based on objective measures he did not show an interest in preschool children, elementary school aged children or sadistic sexual behaviors. It should be noted that normal heterosexual adult males, based on various studies, show sexual interest in both adolescent and adult females. Mr. Lancaster's self reported ratings of sexual arousal to the same slides were highest to adult females. All other categories were scored in the highly sexually disgusted range, except adolescent females, which he scored in the moderately sexually disgusted range. On the questionnaire portion of the test, in regard to summarizing any deviant sexual behaviors, Mr. Lancaster reported sexual abuse of a child, at age 70, against one victim on 20 occasions. He indicated of all sexual fantasies, none are about molesting a child. He identified the victim as his granddaughter. He also reported a history of sexual affairs, on two occasions, with two people. He denies sexual fantasies of this behavior. His responses to the sexual behavior and fantasies ratings within the questionnaire revealed no arousal to, or fantasy about, any of the sexual behaviors listed, including sexual behaviors with a child. There is a cognitive distortion scale within the questionnaire which screens for attitudes tolerant of adults engaging in sexual behaviors with children. On this scale Mr. Lancaster's score was in the 2% range, suggesting no attitudes tolerant of adults engaging in sexual behaviors with children. On the Social Desirability Scale which measures a persons' unwillingness to admit to any violation of common social mores such as impatience, feelings of anger, etc., and provides some indication of their willingness to report honestly, Mr. Lancaster scored in the 80% range. This is a high score and indicates serious difficulty reporting truthfully to others regarding non deviant themes. This is often the case in the evaluation stage as most individuals are eager to be seen in a favorable light and often "fake good." The Danger Registry within the questionnaire identifies the client's attraction to, fantasies about, and future interest in young children. Mr. Lancaster registered severe concerns, as he admitted to masturbatory fantasies of sex with girls 13 years of age or younger since he turned 18. Moderate concerns are registered when the client reports fantasy without actions and severe concerns are registered when the client reports actual behavior or behavioral intent regarding deviant sexual acts involving children. His honesty on this section of the questionnaire was consistent with the clinical interview, in which he admitted, on at least one occasion, to masturbating following an incident against his granddaughter. In response to the question about sexually molesting a child, Mr. Lancaster reported he was guilty as reported.

The results of the test are tabulated, and provide probability values which are values that represent the probability that the client's responses match a set of characteristics of known child molesters of male/females under the age of 13 for three specific categories: Clients' accused of molesting a child outside the family; Clients' accused of molesting a child inside the family (incest only); Clients' who attempted to conceal having molested a child (denier category). The denier category, however, is only applicable to individuals accused of child molestation but who deny the offense. A probability value close to zero percent indicates a low probability that the client matches individuals that molested a child in that category. Probability values close to 100% indicate a high probability that the client matches individuals who have molested a child in that category. A probability value close to 50% indicates that the test is unable to classify the client as an individual that matches a child molester or non child molester group.

Mr. Lancaster's probability values for children under age 13 are:

Female victims outside of the family 34%

Male victims outside of the family 2%

Female victims, incest only 7%

Male victims, incest only 0%

His probability values did not indicate he matches charaeteristies for known child molesters of children under the age of 13.

CLINICAL IMPRESSIONS/REOFFENSE RISK/RECOMMENDATIONS Clinical Impressions

Mr. Lancaster is a 70-year-old Caucasian male who resides as a single man in Reno, Nevada. He is employed for a landscape company as a truck driver and equipment operator. Mr. Lancaster has pled guilty to a charge of lewdness against a minor child. The offense was against his granddaughter when she was between the ages of eight/nine to 12/13. Mr. Lancaster admitted during the course of this evaluation to engaging in hands-on sexual contact against her over a five-year period, estimating over 20 incidents. He maintained that the behaviors involved fondling the opening of her vagina, stimulating her clitoris, and on one occasion, kissing her breast. He estimated the last incident occurred in July 2002. He reports no penetration occurring or having her engage in any sexual acts against him. He reported on one occasion engaging in masturbation following one of the incidents to the fantasy of the behaviors that had occurred. Mr. Lancaster has no history of previous sexual offense charges, allegations, arrests or convictions. During the course of this evaluation he denied any history of sexual abuse involving other children or adults. Mr. Lancaster was cooperative and appeared to be making a reasonable attempt to provide some information regarding the onset and progression of the offense behaviors allowing for this evaluation to occur. His approach to the evaluation provides optimism that intervention would likely have a positive impact on him. He had some difficulty identifying specific precipitating factors associated with the offense and identifying justifications he may have engaged in. It should be noted that the child victim accounted for many more incidents having occurred against her during the five-year time frame than what Mr. Lancaster reported during the course of this evaluation.

It is less common to find the onset of pedophilia or sexual interest in a child at the age of Mr. Lancaster. The motivation for the abuse may have been precipitated by complications in his life including finances, depression, health concerns as well as likely problems within the marital relationship. Mr. Lancaster may have turned to the arousal and excitement that he experienced in the behaviors against his granddaughter to alleviate anxiety, frustration and anger. He can be characterized as a regressed sexual offender as opposed to fixated. The latter type generally presents with a more pronounced sexual interest and arousal to younger children in general and not a specific situation. The motivation for the abuse with regressed offenders is often varied but is generally about the individual becoming reliant on the child to meet various emotional needs. The sexual interest likely develops as the relationship progresses and the offender becomes more identified and attached to the child. Objective measures as determined by the results of the Abel Assessment for Sexual Interest, did not reveal that Mr. Lancaster has sexual interest in young children. Self reported arousal to the slides was greatest to adult females, consistent with the clinical interviews. This gives greater reliability to the hypothesis that Mr. Lancaster acted out sexually against his granddaughter to meet needs beyond sexual, and would be less likely to engage in sophisticated, predatory acts in attempts to engage other children in sexual behaviors. Mr. Lancaster deceived himself, making it possible to engage in the acts; believing that he would not be caught and limiting the acts to less intrusive (as determined by the type of acts; no evidence of penetration, ejaculation in the presence of the child, or forcing the child to engage in sexual acts against him) sexual behaviors in the hope that she would not realize the inappropriate nature of the behaviors. Based on his reporting and that of the victim, the behaviors appeared to subside as she became older and matured. This is most likely due to his fear of her eventually reporting the behaviors. Initially she was younger, possibly eight or nine years old. Since the behaviors were less intrusive, his cognitive distortions supporting the belief he would not be caught were strengthened, creating justifications for the continuation of the abuse.

Mr. Lancaster expressed some insight and awareness in regard to the potential for long term and immediate negative impact on his granddaughter. His responses on one scale reflect a high level of empathy and remorse. Furthermore, he does not present with attitudes tolerant of adults engaging in sexual behaviors with children and he was expressing complete responsibility for the act. During the police interview he seemed to indicate that she invited the behaviors, or was a willing participant. That theme was not present during this evaluation. Mr. Lancaster does not present as an antisocial individual nor does he have a criminal lifestyle. The fact that the behaviors did not progress to more intrusive sexual acts is likely due to his recognition of the inappropriate nature of the behaviors and some ability to control the behavior to the extent he did. This does not diminish the intrusive nature of the acts he engaged in against his granddaughter, as the extent of intrusion can only be determined by the victim and her family.

Opportunity to Reoffend Sexually

Mr. Lancaster engaged in sexual behaviors against his granddaughter in specific situations (within the residence and generally when placing her in bed). This was a child whom he has known her entire life and had consistent access to over an extended period of time. There is no current evidence he made attempts to generalize these behaviors to other children in other situations. Based on his current level of supervision and the fact he now resides alone, indicates he does not have opportunities to engage his granddaughter in further sexual abuse. The behavior in of itself was initially situational and opportunistic and eventually progressed to planned occurrences. Environmental controls greatly reduce the immediate opportunity to reoffend sexually, especially against his granddaughter.

Initial Diagnostic Impressions

AXIS I: 302.2 Pedophilia

AXIS II: Deferred

AXIS III: Client reports experiencing four to five mild strokes; has undergone surgery to clear a blocked artery in his neck.

AXIS IV: Current legal charge, disruptions in family life and relationships.

AXIS V: GAF = 60-65; recent divorce, history of sexual abuse against his granddaughter

Mr. Lancaster meets the criteria for a diagnosis of Pedophilia in that for over a period of six months he experienced recurrent, intense, sexually arousing fantasies, sexual urges or behaviors involving sexual activity with a prepubescent child. Furthermore, the fantasies, sexual urges or behaviors caused clinically significant distress or impairment socially, occupationally or in other important areas of functioning. He was over 16 years of age at the time and more than five years older than the child. Specifically he appears to be sexually attracted to females, and his pedophilic interests are limited to incest.

Reoffense Risk

The risk assessment process is a preliminary estimation for reoffense risk that is strengthened when factors related to sexual reoffense risk for adults are considered. The strongest evidence of factors characteristic of sexual reoffense risk come from follow-up studies that compare the recidivism rate of offenders with certain characteristics. No single risk factor is sufficiently related to recidivism that it can be used on its own, therefore evaluators need to consider a range of risk factors. The strongest predictors of sexual reoffense recidivism are variables related to sexual deviance, such as deviant sexual preferences as determined by physiological/objective measures, prior sexual offenses, early on sexual offending history and the diversity of sexual crimes (Hanson, 1997). The single strongest predictor has been determined in various studies to be sexual interest in children based on objective measures. Measures of criminal lifestyle are also significantly related to sexual recidivism. Response to treatment is another factor when considering risk assessment. The most well established risk factors are static, such as prior sexual offenses and dynamic risk factors (acute and stable). The acute factors are those which are immediately associated with the offense, such as being intoxicated and experiencing arousal in the presence of a child. Stable dynamic factors are those which occur over a longer period of time, such as mood disorder, deviant sexual interest, and alcoholism. In considering these factors, Mr. Lancaster did not present with sexual interest in young children based on objective measures and self reported arousal. He did, however, self report masturbatory fantasies of the victim, around the time of the behaviors (he self reported one incident of this behavior). His greatest sexual interests based on objective measures was to adolescent and adult females. He does not present with a criminal lifestyle and has no prior charges for sexual offense related behaviors.

On the RRASOR, which provides a reasonable baseline for sexual reoffense risk, but does not include a complete evaluation of the risk factors for recidivism, he was in the low range. His raw score was zero, and studies of individuals at five and ten-year follow-up that scored in this range showed recidivism rates of 4.4% at five years and 6.5% at ten years. There were no factors identified that elevated risk. He has no prior offense charges, arrests or convictions; is over age 25; had no male victims; the victim was related to him.

The Static 99 is an enhanced version of the RRASOR which incorporates a few more factors: prior sentencing dates; convictions for non-contact sex offenses; index non-sexual violence; prior non-sexual violence; relationship status. The added factors did not elevate risk, and there were no factors that registered a point.

On both the RRASOR and Static 99, there were no factors that elevated risk beynond the low range. This was based on no prior sex offenses; no prior sentencing dates or convictions for non contact sex offenses; the victim was female, and furthermore he does not present with objectively measured sexual interest in children. Both scales suggest low risk for recidivism, which is strengthened if treatment is completed.

In considering the risk scales along with clinical judgement, Mr. Lancaster falls in the low range for sexual reoffense risk against a child, based on current standards for assessment (NRS 176a. 110). There are, however, specific situations that wouldlikely elevate risk, such as access to his granddaughter, or alone and unsupervised time with children.

Risk Population

Based on historical information, responses to inventories, self reported arousal and objective measures of sexual interest, the identifiable risk population is limited to under aged females likely between the ages of eight and 12 years old; specific to a child he is related to, or has continued access to, over an extended period of time. The highest risk would be his granddaughter.

Amenability to Treatment/Prognosis

Mr. Lancaster presents as a positive candidate for treatment, based on his willingness to openly discuss and explore the factors related to the referral offense. He does not present as antisocial or defiant and although there may be some minimization and presence of cognitive distortions that support and maintain the behaviors, these issues can be addressed in the treatment process with Mr. Lancaster. Treatment would, in all likelihood, have a positive impact and further reduce his risk for sexual reoffense, therefore, the prognosis is favorable. As with many offenders, upon getting caught, they tend to minimize the potential for reoffense to occur. Mr. Lancaster was reminded during the course of the evaluation that many times while he was offending his granddaughter he would often tell himself he would not do it again and was fearful of getting caught, yet the behaviors recurred. With that said he clearly recognizes the need for intervention.

Recommendations

In the event that Mr. Lancaster is not incarcerated, placing him under the supervision of the probation department would ensure compliance and cooperation with the recommendations. If he is released to the community, the following recommendations are respectfully submitted:

1. Mr. Lancaster should be directed to participate in sexual offense specific treatment. Ideally a treatment program that provides individual, group and family-based intervention would be suitable for this situation. He has not participated in treatment specific to this situation to date. Ideally, sexual offense specific treatment will focus on: dynamic factors related to the offense behaviors; denial; consequences for the offender; identification of motivating factors; identification/confrontation of the sexual offense cycle and strategies for interrupting the pattern; recognition of cognitive distortions associated with sexual offense behaviors; vietim impact; relapse prevention; social and communication skill building; healthy relationship development; strategies for managing emotions/physiological states including sexual arousal; and, victim restitution. Treatment progress reports ideally will reflect such components as having been addressed, while providing measurements for progression through treatment, or lack thereof.

2. Mr. Lancaster should not have access to children, especially if alone or unsupervised. He should not be in situations in which he is responsible for the care or supervision of a child under the age of sixteen. Any plans for reunification/contact with his granddaughter are premature at this time.

3. Mr. Lancaster should be held responsible for any costs associated with treatment needs for the victims of the referral offense (to include her family).

4. It is recommended that treatment and progress reports are made available on a regular basis to the probation department Treatment may also include continued sexual interest screening and maintenance/disclosure polygraph assessments. Random searches of his residence by the supervising probation department further enhances environmental controls and compliance with treatment and probation terms. Failure to comply with such terms should be considered an immediate risk factor, and responded to expeditiously by the court.

Level of risk does not reflect the harm or trauma associated with the sexual offenses for the victims. Failure to comply with external controls may elevate risk. Studies have shown that those who are noncompliant with terms of probation or treatment contracts demonstrate higher recidivism rates. This is a preliminary estimation for sexual reoffense risk and risk may change based on identification of new factors and lack of adjustment to the stable dynamic factors associated with the offense. This evaluation is time limited.

EXHIBIT I Presentence Report February 28, 2003 The Honorable Jerome Polaha Department III 2nd Judicial District

Prosecutor: PSI #: Defense Attorney: I. Case Information: Defendant: Case #: Date of Birth: DA #: SS#: PCN: Aliases: P P Bin #: Address: FBI#: Phone: SID: Driver's License: US Citizen: State: Alien Registration #: Status: Sex Offender Tier Level: POB: II. Charge Information: Offense: NRS: Category: A NOC Code: Penalty: Offense: NRS: Category: A NOC Code: Penalty: Offense: NRS: Category: A NOC Code: Penalty: Offense: NRS: Category: A NOC Code: Penalty: Plea: Sentencing Set: III. Defendant Information: Physical Identifiers: Sex: M Race: W Height/Weight: Hair/Eyes: Scars/Tattoos: Social/Mental History: Childhood: Marital: Children/Dependants: Custody Status of Children: Employment Status: Total # of months employed/school full time during the 12 months prior to commission of Instant Offense: Income: Debts: Education: ^th Military: Discharge Type: N/A Health: Mr. Mental Health: ^th David Clifton 124420 David Houston retained (786-4188) Doyle Dolen Lancaster CR03-0255 9/18/32 227108 572-40-3268 82389172 None 1000228602 11240 S Virginia St. 312034XB2 (775) 843-6550 NV04045336 0801206346 Yes NV. N/A Valid Pending Santa Rosa, CA. CT. I, Lewdness with a Child Under the Age of Fourteen Years (F) 201.230 00191 For life with the possibility of parole, with eligibility for parole beginning when a minimum of 10 years has been served, and may be further punished by a fine of not more than $10,000.00. CT. II. Lewdness with a Child Under the Age of Fourteen Years (F) 201.230 00191 For life with the possibility of parole, with eligibility for parole beginning when a minimum of 10 years has been served, and may be further punished by a fine of not more than $10,000.00. CT. III, Lewdness with a Child Under the Age of Fourteen Years (F) 201.230 00191 For life with the possibility of parole, with eligibility for parole beginning when a minimum of 10 years has been served, and may be further punished by a fine of not more than $10,000.00. CT. IV. Lewdness with a Child Under the Age of Fourteen Years (F) 201.230 00191 For life with the possibility of parole, with eligibility for parole beginning when a minimum of 10 years has been served, and may be further punished by a fine of not more than $10,000.00. 2/25/03 Guilty. 4/29/03 6'/215 Green/White None Unremarkable Separated Four, all adult. N/A Employed, Colorock, truck driver. 12 $2,800/month, $1,028/month Social Security 8 grade N/A Lancaster reports he has suffered seven strokes in the past, five in 1996 and two in 2003. He reports he is currently taking medication for this medical problem. At the time of interview he indicated he was scheduling surgery to correct this problem. On Aprill 5th and 16, 2003 the defendant was evaluated by Dr. Earl Nielsen with respect to this offense and pursuant to the dictates of NRS176.133/176.135. The findings of the psychosexual evaluation are attached and reflect the following: DSM IV: Axis I: Sexual abuse of a child, V61.21

Axis II: None

Axis III: Carotid artery disease; history of mild stroke; prostrate problems

Axis IV: Psychosocial stressors — social embarrassment, criminal prosecution, divorce

Axis V: Global Assessment of Functioning — 75, the patient is frustrated, embarrassed, and depressed which effect his work capacity, but he can carry on with daily activities

Risk of Dangerousness to the Community: Based upon measures recognized as standards forrisk assessment, Mr. Lancaster is not a high risk to reoffend. Identification of Risk Population: Mr. Lancaster is not a high risk for sex offense recidivism. He does admit to sexual impropriety with his granddaughter as charged, and therefore the risk population continues to be females under the age of 16. With that population, he would continue to require supervision, and should not be left alone.

Amenability to Treatment: He is amenable to participation in a sex offender specific treatment program, and would benefit from participating in a sex offender specific treatment group for a period of two to five years, dependent upon his progress. He would not be difficult to supervise if granted probation.

Substance Abuse: None reported. IV. Criminal Record: Arrest Date: Offense: Disposition: Instant Offense (CR03-0255)

11/23/99 Conservation Offense (M) 4CTS; 8/11/2000 convicted Conservation Ukiah CA Unauthorized Change Etc./River/Etc.(M) Offense (M) 24 months probation P.D. 30 days injail 9/20/02 Sexual Assault (6 CTS.) (F); Reno, NV Lewdness with a Minor Under Fourteen Years (F) P.D.

V. Offense Synopsis:

On 9/19/02 a local pastor contacted the Reno Police Department and advised that he had a thirteen-year-old female with him who had been molested by her grandfather for the past five years. The pastor advised that he had spoken with the grand father, the defendant, Doyle Dolen Lancaster, and Mr. Lancaster had admitted some acts with the child. The defendant also wished to speak with officer's regarding his actions.

An investigation ensued and officers spoke with the victim. The victim stated she was being raised by her grandparents to include the defendant Doyle Dolen Lancaster. She reported the incidents began when she was approximately eight years old and continued for "quite a while" She related that the defendant had been coming into her room at night to tuck her in for bed. When he did so he would rub her breasts and touch her vaginal area with his hands. She reported that as she got older the incidents lessened but still continued. The victim told officers that the last occurrence was two weeks before the Labor Day holiday in 2002, and occurred in Reno, Nevada. On this occasion the victim reported the defendant had touched her vagina with his middle finger and rubbed until it hurt her. She also reported incidents where the defendant had performed oral sex on her while she resided in Ca.

Officer's then contacted the defendant and he was interviewed. The defendant advised he and his wife had gained custody of the victim and her brother in 1998. When questioned about the allegations the defendant acknowledged he had kissed the victims breasts in the past and admitted to rubbing the victim's vaginal area six to eight times over the past year. Subsequent to receiving this information the defendant was booked accordingly.

VI. Co-Defendant's Information:

Co-Defendant: N/A

VII. Defendant's Statement:

Mr. Lancaster was interviewed at the Division of Parole and Probation on 3/12/03. At that time he submitted a statement for the Court's review.

VIII. Victim Information:

(VC2131367) The victim in this offense or her representative have failed to respond to communication from the Division. As such impact and thoughts on sentencing are unknown.

IX. Plea Negotiations:

The state will be free to argue for an appropriate sentence. X. Custody Status/Credit For Time Served: Custody Status: CTS: XI. Aggravating/Mitigating Factors: A. Aggravating Factors: B. Mitigating Factors: 1. 1. 2. 2. 3. 4. 5. XII. Recommendations: 1. 2. 3. 4. 5. concurrent 6. concurrent 7. concurrent Bail 9/21/02-11/7/02 = 47 day(s) Position of authority. Minimal criminal history. Position of trust. No monetary restitution. Ongoing nature of offense. Multiple occurrences. Crime against person. $25.00 AAF $900.00 Psychosexual fee $150.00 DNA fee CT. I. Lewdness With a Child Under the Age of Fourteen Years (F), For life with the possibility of parole, with eligibility for parole beginning when a minimum of 10 years has been served. CT. II. Lewdness With a Child Under the Age of Fourteen Years (F), For life with the possibility of parole, with eligibility for parole beginning when a minimum of 10 years has been served, to CT. I. CT. III. Lewdness With a Child Under the Age of Fourteen Years (F), For life with the possibility of parole, with eligibility for parole beginning when a minimum of 10 years has been served, to CT. II CT. IV. Lewdness With a Child Under the Age of Fourteen Years (F), For life with the possibility of parole, with eligibility for parole beginning when a minimum of 10 years has been served, to CT. III. It is further recommended that a special sentence of lifetime supervision commence after any period of probation, or any term of imprisonment, or after any period of release on parole. RESPECTFULLY SUBMITTED, APPROVED: AMY WRIGHT, CHIEF _________________________ _________________________ JAMES ROUNTREE #460 HOWARD RIGDON # 678 PAROLE AND PROBATION OFFICER II UNIT MANAGER

EXHIBIT J

PSYCHOSEXUAL RISK ASSESSMENT NAME: DATE OF BIRTH: AGE: CASE NUMBER: PSI OFFICER: COURT: DATES OF EVALUATION: METHODS: April 17, 2003 Doyle D. Lancaster 9/18/1932 70 CR03-0255 James Rountree Second Judicial District Court, Department 3: Judge Jerome Polaha Presiding 4/15/2003, 4/16/2003 1. Review of records 2. Interview; mental status examination 3. Raven's Progressive Matrices 4. Millon Clinical Multiaxial Inventory — III 5. Hare PCL-R 6. Multiphasic Sex Inventory-2 7. STATIC-99 8. Sexual Offender Risk Appraisal Guide 9. SVR-20 PROBLEM HISTORY: Mr. Lancaster was arrested on September 20, 2002 on charges of sexual assault with a minor under the age of 16, and lewdness with a minor under the age of 14, all felonies. He was accused by his 13 year old grand daughter of fondling and sexual impropriety spanning a period of five years while she was in his care. Mr. Lancaster has plead guilty to four counts of lewdness with a minor under the age of 14, NRS 201.230. He is scheduled for sentencing on April 29, 2003 in District Court.

SOCIAL HISTORY: Mr. Lancaster was born in Santa Rosa, California on September 18, 1932. His birth was unremarkable and he met developmental milestones without delay. He had high fevers as a child but couldn't recall the cause.

His mother was raised in Indiana. He didn't she attended school, and she was raised an orphan She married at age 15 and remained at home to raise her children. She was a good and conscientious mother who taught her children what was right She did not smoke, did not use alcohol or drugs. She had no criminal history and was not violent She died from a stroke in 1958 at her age of 60.

His father could read and write, but Mr. Lancaster did not believe his father attended school. He established a homestead in northern Sonoma County, California near the time of Mr. Lancaster's birth. The land was remote, and the family had little contact with neighbors. His father did not use alcohol or drugs and had no arrests. He built houses and was self employed. In 1948, he sold the homestead and bought property in Santa Rosa which he developed. He died in 1995 at nearly 100 years of age.

Mr. Lancaster was the youngest of nine children, five boys and four girls. One brother and two sisters remain. The others have passed away. He feels he remains close to his siblings, but has not seen one sister in the past five years.

He began school in a one room facility several miles from the homestead. He and his siblings walked five miles each way to catch the bus to school. He was not a behavior problem in school, but found school difficult. His parents did not support education. He finished eighth grade, but felt he had a fourth grade education. He went to work instead of attending high school. One year later, his father sold the property and moved the family to Santa Rosa. Mr. Lancaster returned to high school but found it too difficult and dropped out. He went to work in the nearby saw mill, beginning a career in the lumber industry which he sustained most of his adult life. He remained with his parents in Santa Rosa to about age 20, then moved to Cloverdale where be lived and worked with his brother in the woods. He met 18 year old Gladys through church in Cloverdale, and they married the next year, in 1953. Gladys worked for Bank of America following her high school graduation, and has continued to work during their 50 years together.

Together they had four children. Barbara, the oldest, is age 48, has two children, and is disabled with fibro myalgia. She is cited in Court documents as having told her mother that Mr. Lancaster touched her inappropriately when she was young, but she has subsequently said the touching was a back rub which made her uncomfortable. Their second child, Susan, has two children and lives in Oklahoma. Their third child, David, is the father of the victim and has suffered bipolar disorder and alcohol problems. He was unable to care for his two children. Their youngest son, Jeff, is age 33, has no children, and drives a truck for a living.

Mr. Lancaster and his family remained in Cloverdale ten years, then moved north to Fortuna, where they lived on and off for almost 40 years. About 1975, Gladys had an affair with a 16 year old boy hired to help around the home. Her brothers transported the young man back to Mexico, but Gladys followed and lived there two months. She returned to northern California, and finally reunited with her family. Around 1980, Mr. Lancaster developed a side business selling television dish antennas He was successful until the market saturated, then moved his business to Carson City, Nevada, where be again had success until saturation. When demand for satellite TVs diminished, he returned to the woods of Northern California. By 1995, he had two logging units, and a large line of credit. Poor timing and impulsive business decisions reversed his fortune, however, and by 1999 he had declared bankruptcy. In 1999, Mr. Lancaster moved the family to Nevada, first to Cold Springs, then to Stead, and finally to south Reno. At age 70 he collects Social Security benefits but still works driving a truck for his brother-in-law.

In 1998, Mr. Lancaster and his wife discovered their grandchildren, Tessa and Luke, were not being adequately cared for. The mother had serious drug problems, while the father had alcohol problems and was diagnosed with bipolar disorder. The grandparents took the children in and were awarded guardianship. They brought the children with them to Nevada in 1999.

Mr. Lancaster says he loves both children and is very close to both. He admits be touched Tessa, but cannot recall all of the detail she has reported. He feels guilty about his involvement and cannot explain his motives. Since his arrest in September, 2002, the children have been placed in the care of other relatives. Gladys divorced Mr. Lancaster after his arrest and moved in with a niece in Idaho. In February, 2003, Gladys returned to Reno, works for her brother, and occupies a trailer next to Mr. Lancaster on the family property. Mr. Lancaster has no contact with the children, but hopes to provide financial assistance to the children as he can.

Mr. Lancaster is age 70 and has some health problems. He has some prostate symptoms and is being evaluated. He has had several"mini strokes" which leave him confused and depleted. He has just undergone carotid artery surgery to remove a blockage, apparently successfully. He has a history of ocular migraines, but symptoms have subsided since his carotid surgery.

He learned of sexual behavior from friends and other siblings. Sex was not discussed in his home. He began masturbation about age 14, and was sexually curious, but had no opportunity to explore or experiment His first sexual experience with a female was with Gladys on their wedding night at his age of 21. He felt his sexual experience within the marriage was satisfactory. He did have two sexual encounters with separate adult women while his wife was in Mexico, but otherwise was never unfaithful. He has DO experience with or interest in pornography, and no experience with computers or internet pornography. He has never fantasized about children as sexual abjects, and denies attraction to children. He has no experience with other paraphilias, and no history of sexual crime. He does not meet criteria for a diagnosis as a pedophile, and is not a predator of children. PSYCHOLOGICAL TESTING: Mr. Lancaster was cooperative with testing procedures and interviews. He understood materials, and reading was adequate for completion of assessment tools. Results are valid for interpretation.

On mental status examination, Mr. Lancaster is well groomed and appropriately dressed, appearing somewhat younger than his stated age of 70. He hears poorly, but is alert and responsive to questions. He is oriented to time, place, person, and purpose of the evaluation. Memory is adequate for recent and distant events, but be may indeed suffer mild impairment for some past detail doe to his strokes. Thinking is clear and well organized with no evidence of gross confusion, distortion, or poor reality testing. He does not appear to be thought disordered, and denies hallucinations or delusions. He is depressed, perbaps clinically, and has been for at least five years. Anxiety is low, but he does experience some agitation and some contemplated suicide in the past. He is not aggressive by nature, and is not a threat to others.

Intellectually, Mr. Lancaster scores in the top five percent of men his age on abstract reasoning, problem solving, and sequential processing. His verbal skills are lower, but still within the above average range in spite of his lack of formal education. He reads well and has good retention of facts.

Personality testing does not present any pattern consistent with psychopathology. Mr. Lancaster is open and straight forward in his approach to questions with no effort to distort or deny personal weaknesses. He is clear thinking and efficient. His reality testing is good, and he is not psychotic, thought disordered, or bizarre. He is not overly suspicious or paranoid, nor is he grandiose. He is indeed depressed, but his sadness is the result of guilt and disappointment in response to situation rather than a mood disorder. He is apprehensive about the outcome of his legal case, but is not anxious, agitated, or bipolar. Long standing personality traits do not indicate personality disorder. He is not sadistic or masochistic. He is not narcissistic or histrionic. He is actually a well adjusted individual with clear values, the capacity to form genuine long standing relationships, and he is hard working, goal oriented, and socially adept. Conscience development is good, with capacity for remorse, sympathy, empathy, and guilt. He is open minded and accepting of the weaknesses of others. He is not conning or manipulative in a social presentation. He does not feel entitled to special treatment, and he is calm and understanding in the face of crises. He is not antisocial, and scores very low on Hare's index for sociopathy. He is not aggressive or callous, nor is he mean spirited, violent or deceptive,

The MSI-2 is a measure which compares groups of sexual offenders to the individual. Mr. Lancaster does not present a profile consistent with rapists, child molesters, exhibitionists, voyeurs, or fetishists. He is not well informed about sexual function or anatomy, and is naive regarding psychosocial aspects of human sexuality. He is not likely to view children as sexual objects and does not engage in child or internet pornography. His motives for fondling his granddaughter were misguided and inappropriate, but are not typical of men who molest children.

Risk assessment measures were used to help predict the probability of recidivism of sexual crime. The STATIC-99 uses historical facts, features of the crime, and personal attributes to predict risk. On this measure, Mr. Lancaster obtains a raw score of zero, Placing him in the low risk range for reoffense. On this measure, no aggravating factors are counted toward risk. His age, lack of sexual offense history, and relationship to the victim are mitigating factors which reduce risk. The SORAG compares personal and criminal history factors to estimate sex offense risk. Mr. Lancaster scores in category one, the lowest on the scale. Risks for reoffense within seven and ten years are less than one in ten. Aggravating factors include the instant offense and the absence of psychosis or confusion. His minimal criminal history with no past sexual offenses and stable life pattern mitigate risk. The SVR-20 is a subjective measure which rates personal factors and details of the crime. He rates low on this measure as well. His sexual deviation in the instant offense is the aggravating factor. The facts that he has no criminal history, no violent history, and little denial combine to reduce the risk for reoffense, In summary, all sex offender ratings for risk of recidivism place Mr. Lancaster in the low risk category. DSM IV DIAGNOSTIC SUMMARY:

Axis I Sexual abuse of a child, V 61.21 Axis II None Axis III Carotid artery disease; history of mild stroke; prostate problems Axis IV Psychosocial stressors — social embarrassment, criminal prosectuion, divorce Axis V Global Assessment of Functioning — 75, the patient is frustrated, embarrassed, and depressed which effect his work capacity, but be can carry on with daily activities RISK POPULATION: Mr. Lancaster is not a high risk for sex offense recidivism. He does admit to sexual impropriety with his granddaughter as charged, and therefore the risk population continues to be females under the age of 16. With that population, he would continue to require supervision, and should not be left alone.

CONCLUSIONS: Mr. Lancaster was arrested in September, 2002 on charges involving sexual impropriety with his then 13 year old granddaughter. He plead to four counts of lewdness with a minor under the age of 14, all felonies, and awaits sentencing April 29, 2003.

Mr. Lancaster grew up in the woods of northern California and worked there most of his life. He married, had four children, and was successful and productive. He has no history of criminal behavior, no antisocial history, and no previous sexual crime. He has never used drugs, and has not suffered alcohol problems. He is a bright fellow with minimal education, but has compensated. He is not mentally or emotionally disturbed, but admits he fondled his granddaughter repeatedly over a five year period while she was in his custody. He feels remorse and guilty, and has hopes of participating in restitution.

Mr. Lancaster is not psychotic, mood disordered, or disturbed.He is not a pedophile or likely to comnait further sexual crimes. Based upon measures recognized as standards for risk assessment, Mr. Lancaster is not a high risk to reoffend. He is amendable to participation in a sex offender specifie treatment program, and would benefit from participating in a sex offender specific treatment group for a period of two to five years, dependent upon his progress. He would not be difficult to supervise if granted probation.

Earl S. Nielsen, Ph.D Clinica Psychologist

EXHIBIT K DECLARATION OF RENE BOTELLO

I, Rene Botello, declare under penalty of perjury that the following assertions are true and correct and made with personal knowledge. Further, I declare that Exhibit 40 is a true and accurate copy of a timeline and notes I prepared contemporaneously with the events it reflects.

On October 18, 2001, while working as a Washoe County Sheriff's Detective, I was assigned to investigate the possible sexual assault of twin four-year-old girls by their father, Jose Delgado. The girls had just been examined by Nurse Clarkson, who did so pursuant to a contract with Richard Gammick's CARES program. As part of her job, Clarkson would regularly testify for the prosecution regarding her findings. On or about October 18, 2001, I was provided with Clarkson's report on her examination of the girls.

On October 19, 2001, Clarkson assured me that she would testify that the injuries she observed in the twin girls were consistent with sexual abuse. I was aware that Clarkson's exam results are used in prosecuting alleged sex offenders and often they are sentenced to lengthy prison sentences.

Clarkson conducted several follow-up examinations on the girls. I had nothing to do with the ordering of those follow-up exams. On October 25, 2001, she determined one of the twins had an "absent hymen" with "clear evidence of a penetrating injury." This is a very serious finding. On November 12, 2001, Clarkson determined the second twin had an "almost gone hymen" suggestive of sexual abuse.

On February 14, 2002, I received a telephone call from Kevin Windich, M.D., pediatrician for both girls. They were brought to his office by their mother. Windiasch told me he could easily visually see the hymens of both girls. There was no evidence of ongoing sexual abuse and both girls had intact hymens and normal genitals. Dr. Windisch told me he was aware that the CARES nurse had made a finding of "absent hymens" and wanted to alert me that the CARES nurse was incorrect. He appeared angry that the CARES nurse would be so inesponsible as to note on an official examination that the girls had "absent" hymens. 1 was astonished at Dr. Windisch's news. Dr. Windisch was so concerned about what he considered a misdiagnosis that he called me on several occasions to discuss this problem. He told me he was aware that Dr. J, McKenzie, the physician who provided physician oversight to the CARES program was not a board certified pediatrician and to his knowledge had no training in forensic pediatrics. Dr. Windisch told me that even though he could see the girls had completely normal hymens; he was referring them to Oakland Children's Hospital ("OCH") where there are experts in pediatric female genitalia who are qualified to evaluate child abuse. In light of the serious findings made by the Clarkson, Dr. Windisch wanted experts in the field to examine the girls.

On February 14, 2002, I went directly to my immediate supervisor, Sgt. Nikoley to alert him to the fact that Dr. Windisch's findings contradicted Clarkson. Both of us discussed the matter on multiple occasions over the months that followed. Sgt Nikoley was as concerned as I was and we were waiting to see what OCH determined in their examination of the girls.

In March, 2002, I was temporarily assigned to Sparks Police Department to conduct interviews in Spanish with two young girls and the person accused of sexually assaulting them. I was informed the girls had been examined by Nurse Clarkson whose findings regarding absent hymens were identical to the findings she earlier made in the Delgado matter. After interviewing the girls, I concluded that they were "competent" to testify and essentially understood the difference between the tram and a lie. They had some trouble with the concept of the word "truth" and "lie" but they responded appropriately to me and I felt they were honest and truthful in the totality of their responses and would be competent to testify. I wrote a report based on my interviews with the girls. I also testified at a preliminary hearing in May 2002 consistent with my report, that the girls could tell the difference between the truth and a lie.

In February, 2002, I notified CARES program director Kim Schweikert, also an employee of the DA's office, to request a "physician review" of Clarkson's exam on the twin girls. I had been told that CARES nurses like Clarkson had their findings reviewed by physicians and I wanted to review those findings. The months that followed, I continued to request from Schweikert proof that doctors had approved Clarkson's findings on the twin girls, specifically that their hymens were absent I told Nikoley on numerous occasions that I was requesting proof that doctors had approved the "absent hymen" findings, but none was forthcoming. I emailed and telephoned Ms. Schweikert many times and she did not respond or provide to me any evidence of physician oversight of Clarkson's work. Nikoley was pleased that I was bringing this inaccuracy to his attention so it could be "rectified."

On May 28, 2002, I received a call from OCH Nurse Berriman to report on the results of OCH examination of the twin girls. Nurse Berriman was aware that Clarkson had found the girls to have absent and near absent hymens, and told me that the Reno nurse had made a "gross error" in her findings. Berriman was clear the girls had abundant hymenal tissue, I immediately reported to my supervisor Nikoley that OCH had agreed with Dr. Windisch that the girls had abundant hymens.

On May 30, 2002, I requested a "case review" for the purpose of discussing discrepancies between Clarkson's findings and OCH findings. I discussed the reasons for the review with Sgt. Nikoley and he agreed. We both wanted this issue to be resolved. CARES director Schweikert, Nikoley and I met with I believe two other detectives. Schweikert brought the examination photos taken by Clarkson and we looked at them. I could see hymenal tissue and I argued vigorously with Schweikert that Clarkson was wrong and the girls had hymenal tissue. I discussed with her the examination results from OCH and Dr. Windisch. I considered this issue of paramount importance because I was aware Clarkson routinely testified for the D.A.'s office and her testimony could be pivotal in sending suspects to prison for extended stays. I believed it may have been possible that Clarkson had made inaccurate findings in other cases. Schweikert vigorously defended Clarkson's findings and used the photos to explain why the hymens were absent Schweikert has no medical training and is not a nurse. After that May 30 meeting, Nikoley told me he approached Garnmick's chief deputy Helzer to alert him that the D.A.'s office was using a witness, Clarkson, who may not be credible. Nikoley asked Helzer to come for a meeting to WCSO.

On May 30, 2002, after the meeting with Nikoley and Schweikert, I emailed Deputy DA Hier-Johnson to let her know there were concerns with Clarkson's credibility. I knew she was the prosecutor for a Sparks Police Department case, Reyes-Chavez, also involving young sisters and Clarkson would be testifying in that case also. Clarkson had also found an "absent" hymen when examining the young female victims that case. I had worked with Ms. Hier-Johnson on the Reyes-Chavez case not only in conducting the original Spanish interviews, but also in testifying at the preliminary hearing conducted. Ms. Clarkson had also testified in that matter. I wanted Hier-Johnson to know that Clarkson's findings in Reyes-Chavez might not be credible because by that time two doctors had concluded she had been wrong in her findings regarding the twin girls. If Clarkson was not credible in one case she might not be credible in another and Hier-Johnson deserved to know that.

On May 31, 2002, I accidentally ran into Hier-Johnson at the WCSO. We spoke briefly and I again mentioned to her my concerns about Clarkson. It was a pleasant brief conversation. Hier-Johnson mentioned she was getting the tapes of the Spanish interviews I had conducted in Reyes-Chavez translated from Spanish to English. I had no reason to be concerned that she was getting the tapes of the interviews I had conducted translated into English.

On June 3, 2002, as a result of my supervisor Nikoley's approaching Helzer about the Clarkson discrepancies and findings, another meeting was held to discuss these discrepancies. Nikoley, Helzer, Schweikert and I were present. The four of us discussed the discrepancies between the findings by OCH and Clarkson. Helzer and Schweikert told Nikoley and me that there was no formal review by doctors of Clarkson's findings; the doctors' review was "informal" and not documented. I was disturbed by this news. I had the distinct impression that the doctor's review was very routine and perfunctory and they were not really conducting close oversight into Clarkson's findings. I had the distinct impression that Helzer and Schweikert were not concerned that Dr. Windisch and OCH had made radically different findings than Clarkson. I recall that Hetzer wanted to see the OCH photos when they came back but nothing was discussed as to how to resolve the discrepancy.

On June 3, 2002, immediately after the meeting with Helzer and Schwelkert, Nikoley and I went to see Captain Haley. Both of us still had concerns and felt the discrepancies between Clarkson and OCH had to be resolved. We were determined to talk it over with Captain Haley and ascertain the "next step." Haley met with Nikoley and me and agreed that a "3^rd opinion" from another medical facility should be obtained. Haley was concerned about the discrepancies, as Nikoley and I were, and thought it should be resolved. Haley and Nikoley instructed me to locate a medical agency to review the photographs from the OCH examination. It was my understanding that they wanted the OCH examination photos sent to a new medical agency to see if they could also determine whether "hymen" was present My goal was not to prove Clarkson to be wrong but to see whether the third medical agency when looking at the OCH photos would agree that the girls had hymens. That is what I understood Nikoley and Haley wanted me to do. I was in their chain of command and they fully authorized me to locate a third medical agency and send the OCH photos to that agency for review. Both of them were appreciative that I was looking into this and told me I was on the "right track."

On June 6, 2002, I entailed Nikoley and Haley requesting an audit of the CARES program. I told them that OCH would testify against the CARES program if necessary and to "hold our head" up we should request an audit of our Program. I did not receive a response to this email. Also on June 6, 2002, I received the formal findings from OCH in the mail.

On June 20, 2002, I received the formal findings from OCH; they were as indicated from my telephonic discussion with Nurse Berriman.

On August 5, 2002, with approval by Haley, I sent the examination photos taken during the girls' examinations at OCH to U.C. Davis. I had learned that U.C. Davis was the premier place on the west coast to conduct and evaluate child sexual assault and forensic examinations. I was present at Captain Haley's deposition and heard him state that he "authorized" the photos from OCH to be sent to Davis. Accordingly, the allegations that Mr. Gammick and Mr. Helzer are making, that I am some sort of renegade maverick who was ignoring direct orders and being insubordinate when I sent those photos to U.C. Davis is flat wrong My supervisors knew exactly what I was doing and approved of what I was doing. I was following my chain of command and doing what I was told to do.

On August 13, 2002, I received a telephone message from Kevin Coulter, M.D. of U.C. Davis. He confirmed to me that both girls had "generous amount of hymenal tissue." I immediately told my supervisor Sgt. Nikoley.

On August 14, 2002, shortly after I had received Dr. Coulter's letter, Captain Haley went to the D.A's office to see chief deputy Helzer. According to Haley, Helzer was "concerned" that a third opinion had been obtained from U.C. Davis without notifying him. Helzer wanted to know about all things that concerned CARES and did not appreciate that we at the WCSO had submitted the OCH photos to Davis without conferring with his office. Also on August 14^th, Helzer telephoned me to tell me not to send the OCH photos out for third-party analysis to anywhere. However, by that time, the OCH photos were sent to U.C. Davis.

On August 15, 2002, Haley informed me that he had met with Helzer and had to "apologize" to Helzer for having U.C. Davis review the case. I do not know what transpired when Haley met with Helzer, but I do know Captain Haley's attitude changed. He seemed to be angry and he ordered me not to talk about the Clarkson case or the medical findings to anyone — including my WCSO detective peers.

After my requests for an audit of CARES went nowhere, I began to fear a cover-up. My fears grew when: (1) Sgt. Nikoley advised me to "mind my own business" and that WCSO would continue to work with CARES and Clarkson; (2) when Cpt. Haley ordered me not tell anyone about Clarkson's erroneous findings; and, (3) when Helzer made clear he did not want the OCH findings released to other agencies. I feared that important issues would be ignored, the status quo would continue, and Clarkson would be free to make more inaccurate findings that would send more people to jail which ultimately made me bring my concerns to the AG and FBL.

On August 16, 2002, Dr. Coulter followed up his telephonic message with a letter confirming his findings. He stated that if the examinations in Reno had found that one girl had "no hymen" and her sister a "narrow, almost non-existent hymen" he disagreed with those findings." As far as I was concerned, the problem was now bigger than it had ever been. I was being ordered not to talk about this discrepancy and I was not hearing what would be done about it.

Shortly after August 16, 2002, Nikoley felt the issue surrounding Clarkson was such a problem that the consensus was he needed to meet with the DA's office. Nikoley expressed that it was important because Cladtson's credibility was squarely in issue and both Nikoley and Haley expressed to me the discrepancy needed to be resolve.

On August 19, 2002, I was notified by Nikoley that the WCSO would continue to contract with CARES and Clarkson for sexual assault examinations. This was in contradiction to what I had been told earlier by Nikoley and Haley — that until the discrepancy was resolved; we would not utilize CARES or Clarkson for medical exams. I was disturbed that Clarkson would continue and again requested that Nikoley notify the AG's office to request an audit of the CARES program. Nikoley told me to "mind his own business."

In late August, 2002, I was increasingly worried that Clarkson's inaccurate medical conclusions would be covered up by agreement with the WCSO and the DA's office. It seemed we were back at square one, nothing was being done, there would be no audit, no analysis of Clarkson's cases, and I was ordered not to discuss the medical discrepancies with anyone.

On August 30, 2002, I spoke with FBI Agent Anna Kohler regarding Clarkson's inaccuracies. I explained to her my concerns regarding the need for an audit of the CARES program and Clarkson's cases.

On September 3, 2002, I received a telephone call from Captain Haley ordering me not to talk to anyone about the discrepancy between Clarkson's findings and the findings by the doctors who disagreed with her. I was very disturbed and quite concerned that a cover up was in progress.

On September 6, 2002, I received notice that a disciplinary investigation or "OPI" would begin against me. The subject of the investigation was whether I had improperly told Mr. Ddgado that Clarkson had reached an incorrect diagnosis in her CARES exam of his daughters. I had talked to Delgado briefly about Clarkson and her CARES exam. Delgado had been angry to be accused of sexually abusing his young daughters and wanted to know what was happening in the case. I had talked to him before I was instructed to keep quiet by Haley.

On September 9, 2002, I met with Marcus Hodges, an investigator with the AG's office and gave him a complaint and request that the CARES program be audited. I was prompted to complain to the AG because of the OPI investigation against me. I could see that there would be disciplinary actions taken against me as punishment for my discussing the problems with Clarkson.

On September 13, 2002, I submitted my resignation from the WCSO and accepted a position with the school police. I resigned because I felt it was important that I work to bring the Clarkson errors to state agencies for investigation and I could not do that if I was employed by the WCSO.

On September 15, 2002, I sent an email message to Hier-Johnson, again advising her of the inaccuracies with Clarkson's testimony and specifically informing her of the identities of the OCH doctor and the U.C. Davis doctor who had reached conclusions opposite from Clarkson. I wanted her to know that well-respected physicians had found Clarkson not to be credible. I thought it would be dangerous for Hier-Johnson to put Clarkson on the stand to discuss an absent hymen in the Reyes-Chavez case when she had been found inaccurate in a similar case. I also felt she needed to disclose to the defense that Clarkson had been found inaccurate in a similar case.

On September 16, 2002, Gammick responded to the email I had sent to Hier-Johnson. Gammick vigorously defended Clarkson, ignored the medical evidence establishing Clarkson had been in error, and threatened me. He said to me, "Your assertion that she [Clarkson] is not credible has not been substantiated by anything we have seen in this office." Gammick ended his email requesting to know whether I had spoken with the FBI and the Attorney General's Office: "Did you go to both agencies accusing this office of some type of cover-up? I need to have an answer, because if that is true, then you have created an adversarial relationship with the District Attorney's Office and will not handle any criminal case you are involved with in Washoe County."

On September 19, 2002, WCSO Sheriff Balaam terminated the OPI disciplinary investigation against me. Balaam praised me for my willingness to speak out on legitimate concerns and my sense of civic duty. Balaam also "encouraged" me to withdraw my letter of resignation and remain with the WCSO. I knew that was not an option because as long as the WCSO continued to want everything to remain silent regarding Clarkson, I could not stay.

On September 25, 2002, I received a telephone call from Lieutenant Dale Richardson at the Washoe County School District police — my new boss. He wanted to meet with me to discuss a "disturbing call" he received from Gammick and Helzer.

On September 26, 2002, I met with Richardson at a local restaurant. Richardson asked whether I could "make amends" with the DA's office. Id asked, "Why?" Richardson told him that Helzer and Gammick had been in contact with the WCSD school police in an effort to "discourage" them from hiring me. According to Richardson, Helzer said I was not a team player and had created an adversarial relationship with the DA's office because I had gone to the Ag's office to audit the CARES program. I was now worried that Gammick and Helzer would now interfere with my new school police job.

In early January 2003, while newly employed with the school police, I was assigned to investigate a case involving sexual exploitation of students by a teacher's aide at Billinghurst Middle School. Early in the initial phase of the investigation before an arrest was made, Chief Mieras called Helzer to give him a "heeds up" on the investigation. During the conversation, Helzer asked about my involvement with the Billinghurst case. Without giving an explanation, Helzer told Mieras he had a "huge concern" with my doing the Billinghurst case and further made clear there would be a problem prosecuting the Billinghurst case if I were to continue being involved. This was told to me by Mieras.

On January 14, 2003, Gammick wrote Mieras to set up a meeting and allegedly "to give him background" on me. He sent Mieras the threatening email be had written to on September 16, 2002. Soon after, Gammick and Helzer meet with Mieras and Richardson to discuss my involvement with the Billinghurst case and what would happen if they were to allow me to remain an investigator. Mieras and Richardson told me they wanted me to stay on the case but, the prosecutors made clear, that the Billinghurst case would not be prosecuted if I remained on it. The case was not anywhere near prosecution, it was in the "initial" investigation phase and we were "gathering information."

At the January meeting, Gammick made it clear to Mieras that it would create a problem for the DA's office if I was involved even in the early stages of investigation. I was told by Mieras that Helzer said he wanted the Reno Police Department to "take over" the case and "retrace" what I had done. Richardson told me he was certain that Gammick and Helzer did not want me to participate in "any phase of any investigation." I was very nervous and worried about this. If the prosecutors would not permit me to investigate any cases I would not be able to keep my job.

Immediately following Mieras' and Richardson's January 2003 meeting with Gammick and Helzer, I was removed from the Billinghurst investigation. Mieras and Richardson were very nice about it and they made it clear to me that I had done nothing wrong but they felt their hands were tied. They had to work with Gammick and Helzer. I was assigned to a desk job.

I was told that Gammick and Helzer did not want me doubled up with another officer or even being on the scene with another officer who assumed the lead in an investigation. Just going out on a call and standing silently by would cause the prosecutors problems. If I were to do anything at all in an investigation, according to what Mieras and Richardson told me, everything I did would have to be re-done or the prosecutors would not prosecute the case and the suspect would go free. Mieras and Richardson indicated to me they felt this was unfair but there was nothing they could do. If Gammick and Helzer refused to prosecute cases, the victims would suffer and the guilty suspects would go free.

On February 5, 2003, at Mieras' request, Helzer sent a letter stating the DA's office would not "accept for prosecution" any case in which I was a witness. Helzer added that the reasons for the DA's position would be provided only if I signed a "release" of liability that ensured I would not sue anyone in Washoe County. I refused to sign the release. I was not going to allow them to defame me and then assure them I would not sue. After receiving that letter, Mieras and Richardson tried to figure out what they could do with me. I could tell both of them liked me and felt sorry for me but they were in a Catch 22 position.

April 14, 2003, I filed a lawsuit in United States District Court, naming Gammick, Helzer, and Washoe County as defendants.

On September 4, 2003, after trying to find something for me to do, Mieras terminated me as a school police officer effective September 30. It was a crushing blow. In his very nice termination letter, Chief Mieras expressed "deep regret" and explained that Gammick never provided an explanation but "has vehemently maintained" he would not prosecute my cases. Mieras was very caring and sympathetic to me and made it clear terminating me was not something he wanted to do and that he had "no reason" to terminate me other than this position Gammick had taken against me. Mieras wrote me that I had done an "exceptional job" as a school police officer.

On September 4, 2003 — the same day Mieras terminated me as a police officer — he also offered me a new job as a truancy officer. I was very thankful to be offered the position as I had a new baby, a lot of bills, and cold not afford to be out of work. It was my understanding based on my conversations with Mieras that he fully expected I would have no problem with Gammick as a truancy officer because truancy officers are not sworn officers and do not make arrests or issue citations — therefore I would not be involved in any criminal prosecutions that would involve Gammick's office. I would be making significantly less money as a truancy officer than I did as a school police officer.

On October 1, 2003, I began my new job as a truancy officer. A truancy officer is a liaison between schools and families. The job requires working with schools, parents, and juveniles to find students, monitor them, and ensure school attendance. A truancy officer takes juveniles to the School Attendance Advisory Board ("SARB"), a panel composed of law enforcement officers, social service personnel, and school officials. He prepares reports for SARB on interactions with particular problem juveniles and makes a 45-minute presentation to the SARB panel, which makes recommendations. SARB meets once a week. I was at all times aware that SARB was a primary job responsibility for me. If a parent does not comply with SARB recommendations, the SARB chair is legally obligated to report the student to school police for investigation and issuance of a citation. Since I would not be a sworn police officer, I would not be issuing citations. When I became a truancy officer, Gammick's employee Deputy DA Sue Edmondson, was chairing SARB twice each month.

On or about October 1, 2003, fellow truancy officer Janet Carthen told me that Gammick would not permit me to make presentations to SARB whenever his deputy Edmondson was present I was shocked and worried. It was obvious that Gammick was intent on punishing me. My truancy job and SARB presentations were not tied to any case his office was prosecuting, it was an intentional effort by Gammick to be petty and mean and to make me know how much he could harm me if he wanted to. L wrote to D.A. Edmondson and told her that submitting cases for SARB meetings was my primary responsibility and if she refused to hear my SARB cases, I feared I would lose this new job. I was sick with worry and nervousness. I feared Gammick would be destroying me where ever I went.

On October 7, 2003, Gammick emailed my lawyer advising her that I would not be permitted to make presentations to SARB. In that email, Gammick further ordered that I have no contact by any means with anyone in his office (DA's). He ordered me to limit my SARB presentations to the weeks when someone from his office was not present. There was absolutely no reason for him to do this.

I was very stressed and having a "very hard time" dealing with Gammick's directive following so close in time on my termination from the school police job. On at least two occasions my boss Lt. Richardson contacted the Reno Police Department to have them come out and check on my welfare because he believed me to be suicidal. On March 23, 2004, feeling very downgraded and belittled, I resigned as a truancy officer.

During the course of this litigation I discovered that despite Balaam's expressed order that the OPI against me be terminated, it was not The OPI against me proceeded unchecked, withadditional charges being leveled at me and findings made sustaining the violations even though the OPI was ordered terminated. I was never advised by anyone that the OPI continued after Balaam ordered it to be terminated. I was never given a copy of the findings made against me or asked to read or initial the findings.

In 2002, Undersheriff Diane Nicholson was the second in command at the WCSO. Assistant Sheriff Lopey was directly under Nicholson. I have learned during the depositions that both called me names and expressed their animosity towards me. They apparently believed that I violated direct orders. They were not present at the May 30, 2002 meeting or the June 3, 2002 meeting. They did not know that I followed orders in my chain of command and everything I did was according to orders by either Sgt. Nikoley or Captain Haley.

Dated this 22nd day of October, 2006

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