Documentos de Académico
Documentos de Profesional
Documentos de Cultura
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IN MATTER OF APPLICANT
FOR ADMISSION
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ZACHARY BARKER
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COUGHLIN, ESQ.
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) Case No: 06-M-13755-PEM
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Also Present:
Susan I. Kagan, Esq.
Deputy Trial Counsel, State Bar of California
Zachary Barker Coughlin, Esq.
Applicant
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5/8/07 Transcript:
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number 06-M-13755. Today's date is May 8 th, 2007. today's the first day
of the moral character hearing. Parties, state your appearances for the
record.
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evidence that he has addressed any alcohol abuse issues, okay? Once
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the applicant has made his showing of good moral character the State
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character and then the applicant is going to have to rebut the showing
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for why his behavior may not indicate bad moral character. In terms of
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scheduling witnesses, how many witnesses are you gonna have, and how
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and I believe there are at this point seven witnesses scheduled for
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tomorrow.
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Judge McElroy: Tomorrow we're only going until four o'clock so.
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Mr. Coughlin: I don't have any witnesses other than myself, if the
Judge McElroy: Okay, well you're going to present your case first,
so do you want to start with opening statements and you would go first
because it's your burden. So, let's start with opening statements.
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that nature. I don't have any excuse for that other than to say that this
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process has kind of gone about as far as I can go with this process, and so
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I'm just here to answer any questions you might have. I think you've got
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access to a thorough description of the issues that the State Bar was
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concerned with and my attempts to address those issues and simply put
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steps I've taken to address the concerns the State Bar has.
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Ms. Kagan: It'll be just very brief, Your Honor. As set forth in the
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pretrial statement this case is about candor and cooperation. There are
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proceeding. He, first of all, omitted things from his application and he
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and he has essentially failed to cooperate with the preceding and that's
court and the State Bar and based on that the State Bar submits that
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yourself you'll have to get up on the stand and present your evidence of
good moral character in a narrative form. Okay, so you're gonna have
to be sworn.
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narrative form why I think I should be given a license I would start off
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by pointing to the issues that the State Bar has highlighted. To start,
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the omissions that the State Bar is pointing to are of the type that past
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the fact that I reported things of a far more serious nature such as a dry
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State Bar. I reported my arrest in October 2001 to the State Bar and
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which they're taking issue with are things things like, and I'm quoting
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here: Mr. Coughlin said he was a patent attorney he's an attorney who
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attorney. Things of this sort which are really overly technical and
and I'm not even sure that's an omission if you look at the record
Bar I've been, if anything, extremely candid. I don't know how many
people you have come into the State Bar informal conferences and
bring up drinking as an issue, you know, who you don't have a DUI, and
who never been convicted of any crime other than a dry reckless
driving charge January 2003 and perhaps some minor speeding tickets
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along the way. Further, the State Bar has been presented with, in my
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recovery based meetings. So, if the issue is recovery, you've got someone
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who came in self-reported and they went out in going to a great deal of
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the State Bar Nevada's Director of that bar's Lawyer's Concerned for
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Mr. Coughlin: Other than what the State Bar submitted, no.
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they?
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Mr. Coughlin: Other than what I would be able to use out of the
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State Bar's.
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for AA meetings from over from early 2003 to the present day these
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were done and just voluntarily on my part, for the most part other,
than a six-month period in which the LAP program had directed me to
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attend one meeting a days for 180 days in a row, or one recovery
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illustrate a great deal of time and effort that's been put into this which
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this number of signatures and the number of pages that have been
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Ms. Kagan: Your Honor, I'm sorry, I'm going to object to any
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or by letter.
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suggest is that you tell the court in your own words why you think
done. I mean just give us why you think you're a person of good moral
character and why you should be admitted and you can refer to some of
the exhibits. Some of them may come in, some of them may not, but that
should have been worked out with you in terms of a declaration with
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the State Bar in terms of whether they would accept declarations from
people that you were a person of good moral character and in general
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they accept declarations but you have to work that out ahead of time
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sustained the objection so I don't know to what extent I can still refer to
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them but they are included in the State Bar's exhibits. There's a letter
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from a Reno District Court Judge John Kadlic in there. There's letters
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from attorneys that I've worked for, the Johnson Hanan firm, the
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Morishita firm.
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is these people there should have been declarations are they should
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come in here and testify. I mean, I can tell you generally in moral
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character trials, what you do is you have eight or nine witnesses come
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in and say that you're a good moral character and that you should be
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admitted and they give examples of what things that you've done that
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would indicate that you're good moral character. And you can do it I
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mean, if you don't have other witnesses, of course you can do it yourself,
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as you can start testifying as to why you believe you are a good moral
character.
college, graduated from law school. I passed three bar exams and I've
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don't know how many people you get to do that a year, but certainly if
that's not looked upon as exhibiting some degree of candor or
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with the State Bar if you got a guy who came in never was arrested for
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anything other than it dry reckless driving charge who said to the
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State Bar, you know I think I have a problem with drinking and I'm
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taking a look at it, who then went out on his own at his own direction
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the Nevada State Bar's substance abuse chapter for years and years,
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really got into details about what they've said. Do you do any type of
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the coffee before the meeting. I have people in my life who have started
started getting sober because some way I think helped that to some
here is a bit of a service that I'm doing because this isn't a comfortable
situation for me and probably there's not a whole lot for me to gain out
of this, but I believe, I have strong feelings about the way this situation
has gone and the way my particular case has been handled and I think
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that's set forth if this court and the bar is to look at those who self-
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report and go on to treat them in the way that my case has been treated
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and what the ramifications of that will be. In addition, I think there's
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some issues to look at in terms of the LAP program and how it deals
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with the individuals who present with either some sort of a ADA issue
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or some sort of condition or health problem that maybe takes them out
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garden-variety alcoholic. But, how does the LAP program treat those
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who present with ADD or who present with back pain or who present
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with diabetes or something that complicates the matter and is the LAP
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and the State Bar discriminated against individuals who maybe I've
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had to take certain medications that the LAP program would rather
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that you're trustworthy that there's honesty, candor those issues, okay?
team, things like that, never missed a practice and developed a good
relationship with a group of people in that way and I think was you
life. From there I went on to college and then law school and basically
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reporting of my dry reckless arrest and of the movie theater arrest and
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of the law school paper matter. This isn't a case of someone who got
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arrested and didn't report to the State Bar. These are situations where
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adversity of you know graduating from law school and passing bar
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exams and not being licensed, and going from the time I passed you
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know the Nevada Bar to get actually getting license was well over
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three and a half years. So just hanging in there trying to stay active in
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the legal community, which was not very easy I think most people who
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are trying to work it in the law who don't have a license but passed the
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bar would say that it can be difficult to find a good position in a firm
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given the economics of law practices and the state of the economy in
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stuck with it. I had to do something to get the Nevada bar to license me
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because from my experience they don't take that lightly at all and you
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should get a license. I think that's something that perhaps this bar
was in Nevada for the better part of my life. I only lived in California
first something around two months and so it's those in Nevada who
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I'm not hearing it now. What you, I mean I can presume your a Nevada
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lawyer because I have all the papers, but it's not in the record. You've
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what you have to do is prove that you have good moral character and
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you have to give us proof so you have to set it up so that it's in evidence.
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passed the patent bar exam, the U.S Patent and Trademark Office's bar
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getting the license for Nevada? Was there moral character component
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need to hear.
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in the Nevada Bar's. I was given the license as a patent agent prior to
a Nevada practice law March of 2005. From march of 2003, I've been
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firm and I don't know what else I might be able to say to prove that I
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have character.
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Judge McElroy: So, at this point I'm gonna make a ruling that
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you've made a prima facie case that you have good moral character and
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so now the issue is going to be the State Bar rebutting that good
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character. So, I'm gonna make a ruling that you've shown that you have
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you've made enough of the case that you have good moral character. So
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now the State Bar can present their evidence to rebut that, so you can
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you can.
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Exhibit 1?
A: Yes, I do.
Q: How do you recognize it?
A: My original application, moral character applications to the
State Bar of California.
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A: Yes.
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letterhead of Zachary Barker Coughlin dated March 19, 2003 and page 3
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23rd, 2003.
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Q: Yes.
A: I recognize the first page the second page I don't see a signature
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A: Yes.
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State Bar of Nevada Application for Admission 2001 data input sheet,
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A: Yes, I did.
Nevada?
A: Yes.
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the first page is dated January 9th, 2003, attention Kathy Crary and the
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exhibit 17?
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A: Yes, I do.
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Q: Let's turn to Exhibit 19, a two-page exhibit and the first page is
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Q: I would like you to turn to Exhibit 20, a letter from Ms. Crary
A: Yes, I did.
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Exhibit 2?
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A:Yes.
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see a signature on the second page, but I do recognize the police report.
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A: Yes.
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to Ms. Kathy Crary dated September 15 2003 from Zach Coughlin, the
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A: I don't know it looks familiar. there's two letters that look like
the same letter. I have pretty much a vague recollection of this.
A: I believe so close.
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A: Yes, I do.
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Q: Now turn to Exhibit 39, please turn to page 29, a letter on the
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letterhead of Zach Coughlin, J.D., to Pam Poley, the second page of that
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exhibit is the second page of the letter signed Zach Coughlin. Do you
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evidence.
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document that goes through page 57 and it's signed or it says thank you,
Zach Coughlin, Esq. on the last page. Do you recognize these pages of
this exhibit?
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Q: Mr. Coughlin on July 8th, 2004, did you take part in an informal
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conference with the Committee of Bar Examiners, and are you aware
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A: Yes, I was.
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Q: I would like you to turn to Exhibit 12, a 10-page exhibit and it's
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A: I believe so.
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A: Yes, I do.
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and advise whether or not these are emails between yourself and
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Professor Tratos.
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about that one email and is asking for another copy of the paper.
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A: Yes.
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Q: Okay, but other than the chronological order can you answer
the question.
A: Yes, they appear to be emails between Professor Tratos and
myself.
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Exhibit 6?
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A: Yes, I do.
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Q: To you?
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A: Yes.
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A: I believe so, yes. And I'm sorry to ask again, but can I use the
restroom again, Your Honor?
into evidence?
A: No.
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willing to stipulate now to all the exhibits I have 74 exhibits we'd like
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just go over the exhibits and just give me a list of the ones you have
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objections to or I don't want to put any pressure on you if you don't feel
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like at this point you can why why don't we just proceed and because I
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realize it's a lot for you to have to look at so why don't we just proceed.
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Thingvold and it's from Rob Walton to Lynn Thingvold subject Zach
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A: No.
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Thingvold?
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Ms. Kagan: Exhibit 10, Mr. Coughlin, a two-page exhibit and the
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first page is a letter January 3rd, 2007 to you. Do you recognize Exhibit
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10.
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A: Yes I do.
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A: I believe so.
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Exhibit 24.
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May 10th, 2004 to Kathy Crary from Jerome Fishkin, second page is a
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report of Robert Hunter PhD. D dated May 21, 2002. Do you recognize
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Exhibit 29?
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Exhibit 31.
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A: Yes, I do.
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is a letter dated July 13, 2004 to Jerome Fishkin from Deborah Lawson
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A: Yes, I do.
Q: How do you recognize it?
A: It is as you described.
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Q: Exhibit 38, a two-page exhibit the first page is dated July 22 nd,
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2004 to Deborah Murphy Lawson from Jerome Fishkin, the second page
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A: Yes, I do.
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A: It is as you described.
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Q: I'd like to go back to Exhibit 39, I'd like you to review pages 1 to
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28 of Exhibit 39, Page 1is the letter dated January 12, 2005 to Deborah
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A: Yes, I do.
evidence.
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Judge McElroy: Let's see, Exhibit 39, what I'm going to do right
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now is not make a ruling at all and at the end determine whether it
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Deborah Lawson dated January 27 th, 2005 from Fishkin and the exhibit
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10th, 2005 to Jerome Fishkin from Kathy Crary. Do you recognize this
exhibit?
A: Yes I do.
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Jerome Fishkin and pages three through five of the exhibit is the order
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exhibit.
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A: Yes.
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dated May 12th, 2005 to Debra Murphy Lawson from Jerome Fishkin,
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A: Yes.
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A: Yes I do.
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A: No.
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53?
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the exhibit is dated May 26th, 2006 to Deborah Murphy Lawson from
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of Mujahid Rasul, M.D. and page four is a report of Oliver Ocskay, PhD.
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A: Yes I do.
Ms. Kagan: I request to have Exhibit 55 moved into evidence.
Judge McElroy: Objection?
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A: Yes.
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Q: Yes.
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evidence.
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there's a foundation.
Q: Exhibit 13 is the reporters transcript of proceedings from
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A: Yes.
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A: Yeah.
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you have to do is bring in specific parts that you want in because not all
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before that Committee. I would request to have pages 1 through 106 and
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objection.
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Ms. Kagan: I will limit that to just page 29, just the affidavit.
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A: No.
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RSC 2005-000301.
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Judge McElroy: I'm going to take judicial notice of the fact that
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A: Yes.
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Mr. Coughlin: Your Honor, I'm sorry to ask again, but can I use
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A: Yes I do.
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Judge McElroy: The court will take judicial notice of the fact that
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notice of, I mean, all the other stuff in the report may be hearsay.
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okay.
Q: Actually, strike that. Mr. Coughlin did you attend evaluation
with Douglas Tucker on our April 27th, 2007.
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A: Yes I did.
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Q: And was that based on this Court ordering you to attend that
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evaluation.
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A: Yes.
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A: Yes he did.
Q: Can you review Exhibit 71 and advise whether or not this is the
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report Dr. Tucker issued regarding your evaluation on April 27 th, 2007.
A: I can't advise of that. This is the first time I've ever since report
I couldn't advise you of that.
Q: Did Dr. Tucker provide a copy of the report to you?
A: Not to my knowledge, not yet at least.
Q: And at this point are you objecting to the admissibility of this
report?
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A: Yes.
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examination?
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A: Correct.
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A: Yes.
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A: Yes.
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A: Yes.
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A: Yes.
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A: That's correct.
A: That's correct.
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the State Bar of Nevada please turn to page 17 of that exhibit. Page 17
and page 18 are an authorization and release. Did you read this
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A: I can't recall.
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A: I believe so.
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states I've carefully read the questions and the foregoing application
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reservation of any kind and fully understand that failure to make full
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therefore agree to give the Committee through the State Bar's office of
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Q: No I'm sorry the first part was in bold, the rest starting with I
therefore agree is not in bold. That's what the documents says, correct?
A: Yes.
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the laws of the State of California that the answers and statements
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A: I don't know.
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A: No.
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signature.
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A: Yeah.
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you listed your law school employment with the law school library
page 4.
A: Yes.
want you to show me where that your employment at the law school
library is listed.
A: Page 4, where it says all your employment which is or was law
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law library related employment was listed. It's not listed is it?
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not related but lasted longer than six months since your 18th birthday.
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A: Yes.
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Q: You worked at the law library from October 1999 to May 2000.
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that?
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A: Paycheck stubs.
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where you stated on page 16 of that exhibit at the top month and year
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Nevada Las Vegas law library. Would that refresh your recollection?
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A: I don't recall.
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first of October and you ended on the 1st of May, and even without a
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A: I don't know.
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2 you wrote that I was not employed at the law library for an extended
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period during the winter break from classes in December 1999 through
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January 2000?
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Q: So, are you saying that those are the dates of your employment?
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A: No I'm saying when you work there and they close for the
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winter break and I wasn't working there while they were closed.
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where it says that um you're not supposed to list things where there's a
A: Which application?
out where it says don't list it if there was a break involved in the
employment.
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A: And, also, it wasn't full time employment it was part time, like
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10 to 12 hours a week.
Q: And I want you to list under employment history on the
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and part-time.
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Ms. Kagan: I want you to point out where it says that you should
Judge McElroy: She is just simply asking it and if you can answer,
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employment at the law school pretty much lasted the first year of law
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school.
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Q: Let's turn to Exhibit 13, page 37, starting at line 9, Ms. Story:
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how long did you work for the law library? The witness: I'm not certain
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the exact number of months but it was pretty much the first year of law
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school, I was working I was studying there until midnight each night
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the lady who worked there said why don't you just work here and I said
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well yeah that would be great you get paid so for that so I worked there
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for the whole first year basically it might not be the entire first year
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because the first probably month or maybe longer than that two, three
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A: I believe so.
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Q: So you actually worked there for longer than just a few months,
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didn't you?
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A: Well, I don't know. If the school year is like eight months and I
say I hadn't worked there the first three months, then you. What was
Q: Okay, so let me get this straight. The reason why you didn't list
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A: I can't recall.
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Q: Did you have any help with filling out the application
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A: I can recall.
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Q: If the employment was for the actual first-year would you put
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in the application?
A: If I felt that it fit within what was called for them by the
application, I would have put in.
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Q: What did you feel you could leave out of the application in that
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section?
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Q: Mr. Coughlin, you just testified that you didn't believe putting
A: Correct.
Q: That's great, now can you explain what you mean by that?
within a certain description I didn't feel that the law library clerk job
ms.
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checking books fit within that description called for by the question.
Q: Okay, let's turn to page eight of exhibit 1. Page 8 is entitled
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credentials and licenses the first paragraph three have you ever
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correct?
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A: That's correct.
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Q: And this was an application that you turned into the State Bar
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A: Yes,
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Q: Yet you took an exam for licensing before the U.S. Patent and
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Q: Okay but you passed the October 16th, 2002, test correct?
A: Yes.
Q: Let's turn to Exhibit 61, shall we? Its the application for
ms.
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registration to practice before the USPTO, and stamped receive July 9 th,
2002. You see Exhibit 61.
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A: Yes.
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A: I don't know.
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A: I'm not sure that would fit whether there's a more extensive
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A: I believe so.
Q: Yet, you didn't put that in your application to the California
State Bar did you?
A: Well I did tell the California State Bar about my involvement
with the patent office, so.
Q: That wasn't the question, the question is on page 8 of exhibit 1
where it asks for credentials and licenses you didn't state or put in any
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evidence that you were in fact applying for and taking an examination
did you?
ms.
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for or having applied for, if the application phase has become past
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tense, ie, applied would qualify rather than are you currently applying
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for.
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A: I don't know.
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A: I can't recall.
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Q: Let's see, you passed the examination on October 4 th, 2002 that's
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Q: Let's turn to Exhibit 61, page three, first sentence, upon further
Q: It says upon further review it's a letter dated March 28 th, 2003
ms.
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Q: And you were notified that you passed as of March 20, 2003
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correct?
A: No, I don't believe so. I knew I passed the exam prior that this
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2003?
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Q: Yet, you didn't inform the bar anything about the patent
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Q: Well let's look at Exhibit 32. This is your May 31 st, 2004 update
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passed the USPTO bar exam and I was admitted to practice as a patent
Anderson and Morishita of Las Vegas Nevada. That was your first
update to the State Bar regarding your patent exam isn't it?
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ms.
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A: I don't know that. I've had many conversations with Ms. Crary
on the phone and I don't know that that's my first written update.
Q: What I'd like you to do then is go through up you know strike
that so so your testimony is that you don't know whether or not you you
may have updated the bar before May 31st 2004.
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something like this I just don't see where this rises to the level of these
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proceedings.
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Judge McElroy: Well she has to put in her case and she's putting
on her case of bad moral.
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Judge McElroy: Yes, this is what she is leading with, this is the
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it's it does state correct that it's you've mentioned its September 2002
Judge McElroy: okay right now um why don't you answer this
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ms.
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required in my update. And when you say update I don't know if you
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mean just this one particular letter or the sum total of all the updates
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attorney provided.
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Q: Did you include those dates in your update of May 31 st, 2004?
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A: Which dates.
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Q: The July 2002 date, the first time you took the patent bar?
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Q: Well look at it right now you let me know whether or not you
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Q: Earlier you testified that you took the July 2002 patent bar
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A: Today, I did?
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A: I did that was because I was referencing the date you said it
was and now I'm recalling that I don't believe that bar is given in July
A: I believe so.
Q: so you took the April 2002 exam but you didn't include the,
dates of April 2002 through August 2002 in your update of May 31 st,
2004?
ms.
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A: Not that I see. But, this update starts in June? This May 31 st,
2004, update? It looks as though the first date listed is beginning in
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June 2002 and so we're talking April 2002 would be before June 2002.
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So, it's not as though this is saying this covers from April to-
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Q: But you put in the language yourself, correct, that during the
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period of September 2002 through December 2002 you studied for and
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A: Right.
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A: I believe so.
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A: That is correct.
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Q: But yet in your update to the California State Bar of May 31 st,
2004 you're only reference regarding your study and passage of the U.S.
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A: In that letter from May 31st, 2004, that is the only reference I
see to the patent bar exam.
California State Bar regarding the on patent bar exam before this date.
ms.
A: I don't know that I did and I don't know that I didn't and I don't
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A: I am not certain.
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Q: You've never looked to find out what your admission status is?
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Q: Have you ever checked your status on the website for the U.S.
Patent and Trademark Office.
A: I am not sure.
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or 2:15.
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that?
A: I don't remember.
Q: What about May 16th, 2001 were you issued a failure to appear
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failure to appear from the court regarding that case? Do you ever recall
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Q: Did you know that you had a duty to fill out your application
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under Exhibit 1, page 12, under the section titled convictions where it
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states in answering the following questions you should include all such
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misdemeanor or felony conviction. Did you know that you had a duty to
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A: Yes. True.
ms.
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be included in this?
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instance, if one of those was for not having proof of insurance, I don't
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know if that-
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Q: So did you have a question about the what the application was
asking you?
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Q: So what you're talking about is your not sure that the traffic
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violations are you talking about reading it now you're not sure or at the
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A: Probably both.
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Q: Did you ever ask anyone for any assistance and filling out your
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application?
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A: I can't remember.
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A: I believe so.
A: I believe so.
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ms.
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A: I think the State Bar might have asked for DMV printout at
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deafness and section 13.5 specifically asked do you owe and any debts
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including student loans that are past due, include those barred by the
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statute of limitations and past due credit account balances. Do you see
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A: Correct.
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outstanding?
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but I believe past due as I've heard it used doesn't mean you have a
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debt, it means you've had a debt that you have not made the current
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Q: Did you have any student loans that you still owed money?
A: Yes, I don't know that that means they were past due.
ms.
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a little more than midway down it says yes I have student loans
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A: I believe so.
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A: I believe so.
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September of 2002.
Mr. Coughlin: Objection, the language was not outstanding it
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that are past due?. So it seems to me that some that are past due are
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you have any student loans outstanding. It's clearly better written
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terms of the application for California it's a lot more vague than the
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Nevada one, so anyway why don't you just ask the question as it relates
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admission to the State Bar in September of 2002 did you have any, in
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Q: As of today's date do you have any student loans that are past
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due?
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but they're not past due, and I'm sorry are they in deferment right now
yes.
ms.
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Q: At the time that you are filled out this application and
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Judge McElroy: Okay, well, why don't you ask the question again
and maybe go down to 14.5. I think that might be more relevant.
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A: That's right.
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with alcohol?
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statement: there's a big change from those times and it would be that
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A: I believe so.
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that at the time of January 1st 2002 you became a sober member of
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Alcoholics Anonymous.
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A: I would say the same thing. I don't know if that's a true or false
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question. I don't know how you can know for certain whether or not you
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January of 2002?
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Q: Why did you tell the Committee that you were a sober member
of Alcoholics Anonymous since January 1st, 2002?
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A: I am not sure.
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A: I am not sure.
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Q: At the time that you filed your application with the State Bar
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Mr. Coughlin: (very hard to hear, might say: I don't see that in my
application).
Q: Had you received any treatment for alcohol abuse as of
September 2002?
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treatment?
Q: Well in your opinion, is going to an AA meeting treatment?
Mr. Coughlin: I don't know. That is what I just asked you. It
might be, I am not sure, but, probably not.
Q: As of today's date, have you had a diagnosis of chemical
dependency.
A: Not that I know of. I don't what is in your report that you just
gave me today, butQ: As of today's date, have you obtained treatment in relation to
alcohol abuse?
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abuse.
A: I don't believe so, can you explain what you mean by medical
treatment?
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A: No.
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A: I am not sure.
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A: I am not sure.
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ms.
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your genetics?
A: I am not sure.
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you understand that sentence when filled out this application did you
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A: Correct.
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A: Yes.
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in writing.
A: Yes.
A: Yes.
correct?
A: I believe so.
ms.
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starting on page three the last address that you listed was 4487 Los
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(unintelligible)
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I'll just start with that Exhibit 25 is that your update of September 15 th,
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2003 and it states your new address is 631 Humboldt, Reno, Nevada
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89509?
A: Your questions is, is that is that an update I did? Yes, I believe
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so.
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Crary to you dated September 9th, 2003 stating that you have two
addresses on file one in Reno Nevada as used above and one on the
address?
ms.
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A: Correct.
Q: Yet, prior to that date you did not provide a written update of
your address since filing the application of September 2002?
A: I don't know how you would know about Madera Road if that
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wasn't the case. I don't know why her later would reference Madera
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Q: Then after that date of September 15th, 2003 you did not provide
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addresses.
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A: I believe so.
A: I believe so.
Q: From April 2004 through October 2004 you lived at 1044 West
ms.
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A: approximately.
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Q: From May 2006 until the last updated February 2007 you lived
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A: Yes.
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A: Yes.
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address
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the last employment that you noted in this application was June 2002
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A: Yes.
letterheads and from letters around that time was indicated. And
you're saying from 2004, whereas there was letters from 2003 to the bar,
ms.
apologize. Let me change my question. You did not provide the State
10
Bar with an update of your employment history from May 31st 2004
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Q: Right ,so after this date May 31st 2004 you did not provide
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A: I don't know for sure. I don't believe so. I don't believe that is
correct.
Q: Yet, during that period you worked for the law office of Thomas
J Hall from approximately May 2003 until present correct?
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project.
employed to from I performed legal research and writing for Mr. Hall a
variety of times between may 2003 to the present. Was that a true
ms.
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A: When?
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A: I don't know that there was a time at which that would have
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been necessary. I don't know whether or not I did or not but if I hadn't
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Howard from July 17, 2005 to December 6th, 2005, yet you did not
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with LAP about that job and believe I my attorney was aware of that
job and I think it's possible that the State Bar had correspondence
Q: Do you think that the fact that your attorney knew about that
job is does that satisfy your duty to update your application in writing
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ms.
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A: I am not sure.
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you make the statement: I would just like you to know, to impress on
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you that I really have changed, you know? I've gone to probably five or
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alcohol I would still have character defects, still have the alcoholism as
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A: I believe so.
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Q: Was that statement true at the time that you made it.
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true or false.
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Q: Were you lying to the Committee at the time you made the
statement?
A: If something is not capable of being true or false I don't know
that it could be a lie.
Q: Did you believe yourself to have genetic alcoholism in your
genetics at the time you made the statement?
A: I'm not sure I believe I made a good faith effort to show the
community that I was concerned with the things they were concerned
about and I was taking steps to address it however I don't think
anybody can be certain about these types of things given their
subjective nature and the degree of introspection that is required.
Q: I asked you whether or not you believe the statements to be
true at the time that you made them.
A: I don't believe that's a subject matter that I think can be in
terms of true or false.
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Q: Okay, let's turn back to exhibit 1, page six under the title self-
16
employment question 6.1 have you ever in in business for yourself, you
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A: That is correct.
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A: Yes.
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Q: Okay, in your exhibit 32, in your May 31 st, 2004 update you list
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company correct.
A: Yes.
Q: Yet May 31st 2004 is the first time you've updated the bar
8
ms.
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business license that's one thing if it's the day which had the
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mattresses and pillow, and all legal matters, designed and maintained
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building up steam.
civil actions and administrative proceedings, 11.2 have you ever been a
ms.
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A: Yes.
Q: 11.3 have any judgments been filed against you you checked no
to that.
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A: Correct.
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in exhibit 3 your update of that date on page five you list three civil
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$660?
due $660.
A: Yes.
ms.
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Q: Yet, your February 15th, 2007 update that's the first time that
11
you provided that information to the State Bar regarding that case is
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Q: In fact, are you aware that the State Bar filed a response in this
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A: Yes.
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A: Yes.
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Q: In that response the State Bar actually list this case as well as
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the the two others that you've got failed to put in your application and
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update, correct?
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A: That is correct.
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ms.
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What did you mean by that statement just that I told you there was
things that I needed update
Q: So you were aware that there were things that needed to be
updated in your application that you had yet to do?
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with a fine-tooth comb. I didn't even realize the unlawful detainers fit
15
within that. I didn't realize they were judgments. I don't recall ever you
16
know.
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Mr. Coughlin: I knew I had been evicted but I didn't know legally
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what that meant in terms of there had been I guess a judgment for an
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unlawful detainer and that amounted to something that fit within this
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application. So for those two matters that was more a case of me not
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detainer for default and payment of rent at 1255 Jones Street 132 Reno
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for this. I don't think you could stay two months for you know without
paying. Its one residence, how can there be two unlawful detainer
ms.
A: Other than the damage deposit was kept in its entirety which
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$720?
A: Well I believe that damage deposit would be applied towards
15
that so other than that, no, but that would amount to a payment I
16
believe.
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A: No.
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of $720, have you ever made payment and that is if you look at it due
21
date of rent $595, total late charges applicable $50, due date of 3/1/06,
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A: That's what I don't understand is it's like these are two separate
actions but they're both dated from March 1 st.
Q: Do you see the difference that one actually takes place in 2005
which is exhibit 62 and one takes place in 2006 which is exhibit 63?
A: I well my photocopies not so clear I can't read that.
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A: I don't know how why they can go back and so you didn't pay a
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ms.
year ago.
Q: Mr. Coughlin, please, answer the question. The question is as a
today's date have you made any payments towards the $720.
A: I'm not sure. I'm not sure if the damage deposit is applied
towards that or not, other than that no, I have not.
Q: Now there was another court case which is represented in
exhibit 60 and that is shipping services DBA Uni-shippers v. Zachary
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A: Well, I think it might have been for $5,000, the amount of over
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Q: Do you have any evidence with you of payment that you made
20
on that?
21
A: No.
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Q: Yet, you knew about that case as of March 18 th, 2005, correct?
23
A: I'm not sure, is that the date the case went to trial?
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Q: No, actually that's the date that you filed the letter with Judge
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my case though I was not present on the date specified in the order
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were aware that there was a case filed against you in this matter?
February 15th, 2007. Well does the application say something filed
Ms. Kagan: Well, let's read it, Exhibit 1 which we went over
ms.
you ever been a party to are you presently a party to any civil action or
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A: Yes.
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Q: And you didn't update that section until February 15 th, 2007
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correct.
A: Well as I mentioned before I referred to it on the phone with
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you.
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Q: So, why didn't you update if you knew about it since March
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2005 why did it take you approximately two years to update your
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sure things like you know if you got arrested you need to report that
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but this is something a bit more tenuous in a bit further into the fine
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this and then I wasn't sure whether I had received the final
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adjudication in that matter and whether or not that meant I could still
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appeal it and therefore not fit within what's called for by the
application. However as I read 11.2 it says have you ever been a party to
so I think that would mean whether or not I had any appeal that was
something that would have been needed to be reported and I don't think
amount of time. I think that was a subsequent thing that was added to
applications where maybe the rule went on to say 30 days you need to
ms.
aware of that and I should have reported it and I while I did refer on
the telephone to you and say that there are some things I need to report
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that was still pretty late in the game and pretty far out from when it
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Q: In fact you didn't report this until after the State Bar filed its
response setting forth this case correct?
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things we discussed on the phone and then at some point I guess you
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decided you had to get something filed so I wasn't maybe either giving
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enough.
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to discuss something other than the student loans under 13.5. do you
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owe any debts including students that are past due, you checked no
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past credit account balances. You see that's the part of it you checked
no?
A: That's correct.
A: Yes, I did.
Q: And that's on page starts with page 5 and goes through page
ms.
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eight.
A: yes.
Q: Ok so let's look at the first one of argon agency for 470 dollars
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past due October 2006. So February 2007 is the first time you have you
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A: I believe so yes.
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Q: Would it be fair to say that let's see the next one AFI $148 past
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A: That is correct.
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correct?
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discussed earlier and don't understand how there could be two months
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A: Yes.
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A: I believe so.
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A: Yes.
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A: I believe so.
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longer outstanding but if it doesn't then yes I believe most if not all of
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Q: I'm on this exhibit at page 5 under Section 13.5 past due debts
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mentioned in section 11.2. Steps taken to address the debts, I've tried to
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get my law licenses in California and Nevada so that I can repay these
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debts and to work my program of recovery towards the same goal. Was
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ms.
difficult to find work and for a time there I had gastritis so that made
it difficult, and then there's this proceeding, which I don't know if you
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don't know if you can really appreciate the extent to which it kind of
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involves your life and I think it's illustrative to look at when I got
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involved with dealing with the LAP program working with them and
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up, while, I've tried to find work, I've also realized that this hearing is
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A: Hale Lane.
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Q: Correct me if I'm wrong but weren't you are let go from Hale
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Lane and you were advised that it was not a good fit?
Mr. Coughlin: I object to that on the basis that I signed a
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Lane.
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Judge McElroy: Okay, but the question is just were you let go,
she's not asking for details, so I am going to overrule.
Mr. Coughlin: Yeah as far as I understand that, I was let go as far
as I understand.
Q: Yet, you testified at your deposition that you were let go and
you were told it was not a good fit?
A: Correct.
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gastritis at that time I know but I didn't get treated by Dr. Hinojosa
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situation where you know you could say well the LAP program is
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some instances-
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Kathy Crary from Zachary Coughlin and turn to page 3 of this letter
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Zimmerman and Scully in light my recent arrest and hope this letter
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A: Yes.
Mr. Coughlin: I'm not sure because I don't know exactly what
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my recent arrest and hope this letter complies with my duty to keep the
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Zimmerman and Scully in light of my recent arrest and hope this letter
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Mr. Coughlin: Okay, how would I read that that? It doesn't say
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Mr. Coughlin: In fact, I don't believe that was why they told me.
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2002, which I didn't get it until after moving there and starting work I
think was why they said well we need to let you go because you haven't
a Nevada license.
Q: So, they didn't let you go in light of your least recent arrest?
Q: In your opinion, what was the reason for them letting you go?
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why they let me go, you said, you wrote in light of my recent arrest,
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correct?
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about the Nevada licensing at that time or whether you wrote in light
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of my recent arrest.
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February 23rd, 2003 to the State Bar of Nevada. So, this is the same date
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as your update to the State Bar of California only this is to the State
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Bar of Nevada and in this letter you write: also I have been let go from
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let go because they need someone who is licensed in Nevada and that
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the Supreme Court's deferment order was too far out for them to keep
me employed, correct?
A: I believe so.
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Ms. Kagan: So on the same day that you wrote the State Bar that
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you were let go from that firm in light of your recent arrest you wrote
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to the Nevada State Bar stating that you were let go because they
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discipline, under this section have you been dropped suspended expelled
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academic performance and you check yes. if you have state the reasons
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fully below providing the name of the school the date and the reasons
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for discipline in the final disposition and you write I was fined $100 by
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A: True.
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A: So, yes I did write that and you are saying the incident took
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A: Yes.
Zachary Coughlin.
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A: Yes I do.
Q: Is that the hundred dollars that you paid for the computer
incident?
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A: yes it is.
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Judge McElroy: So, Exhibit 58 pages five and seven are admitted.
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student use we have two computer labs with over 30 computer stations
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longer functional and so when I called the tech support they told me
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I could start using the internet to get home and I couldn't, the only
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place I had to go get a copy when I could get on the internet was at
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school but I couldn't get a copy of that program because it was too large
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to save to it the floppy disk and we didn't have CD burners back then or
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that in the rooms that they're speaking of these computer labs but for
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some reason I wasn't able to get it to work there and so after trying that
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again I tried this other computer that was outside the computer lab and
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you know for about 10 minutes I need a monitor to use with the
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computer I brought from home to get on the internet and download this
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program so I can fix my computer and use it at home and I did that.
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purpose?
A: I don't believe.
Q: Did you ask anyone whether or not you can use it for that
purpose.
A: I don't think so. This was like six o'clock or so I think like on a
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ms.
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it.
Q: What about the fact that your letterhead is at the top of the
letter.
A: Well I don't know that that you know means it's definitely
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mine if it's that were the case anybody who put my letterhead atop of a
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letter could write any letter they wanted and and say it was mine.
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Q: Let's talk about March 19 2003 at that and that date did you
live at 1044 West first street Reno Nevada 89503.
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A: I think so and I'm the first page of that exhibit it's entitled
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the letter you referring to the same date as the title page 3/19/03.
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Q: Okay in this letter you write to the State Bar stating I have not
approximately two sentences from the bottom, I have not been referred
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A: That's correct.
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A: Correct.
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correct?
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A: That's correct.
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Q: Yet, in your March 19, 2003 update to the California State Bar
A: Objection, relevance?
ms.
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20, in the letter to Zachary Coughlin from Kathy Crary dating March 5,
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2003. In the letter it states please provide the following a copy of the
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police report from the arresting agency regarding your January 2003
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arrest for DUI. Please describe your relationship with alcohol and/or
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drugs. This should include when you started drinking or using drugs
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at what age and where and outline your current drinking habits and or
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A: Yes.
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Q: And is your March 19, 2003 letter to Ms. Crary a response to this
letter?
A: The one that had the police report that says that I had to go to
AA meetings, that one?
Q: No, no, no, I am talking about the March 19, 2003 letter.
Mr. Coughlin: That the police report was included with? Wasn't
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ms.
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Ms. Kagan: Well, exactly let's see what was included in the letter-
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Mr. Coughlin: To the extent that that that fits within a referral
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forth here.
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correct?
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question-at
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ms.
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envelope.
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meetings?
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spell that out I don't see that. A certified copy of the Minute Order is
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Q: Mr. Coughlin isn't it true that you told the Committee at the
A: No.
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what's included in that Minute Order, no I don't believe so. But, I would
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that it seems that you feel that the minute someone goes to an AA they
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informal conference in July 8th, 2004, on that date you made the
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A: I believe so.
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Q: Yet, you don't include that language in this letter did you? This
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can start going and not really be on board with it. You can just be
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going to see what you think about it, you know, and then, after the fact,
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say well okay I've been going, I wasn't drinking, so yeah, I guess I didn't
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really know at the time you know, but now that I look back on it, yeah
anybody in the history of recovery has just one day been like, oh, this is
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ms.
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relationship with alcohol and/or drugs. This should include when you
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started drinking and using drugs at what age and where and outline
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2003, correct? And yet nowhere in Exhibit 2 do you mention that you
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A: Well, actually if I'm giving you this in the police report that
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says I have the attend meetings, then I guess that would mean that,
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Q: Where in the police report does it say that you've been a sober
member of Alcoholics Anonymous since January 1st, 2002?
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Q: Where in the police report does it say that you have attended
Alcoholics Anonymous meetings in the past?
A: Where it says part of the condition for this dry reckless to go to
these meetings?
Q: I am talking about in the past before you were ordered to go.
A: I don't know why a police report would talk about that. I don't
know why you are asking that question as if there's a duty to say if
ms.
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ever goes to an AA meeting again, let's just get that out of the way,
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right, Susan, and then where do we go with that, you know? Judge
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out that I was not under the influence of any drug when I was pulled
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over for having my seat belt unfastened, I must admit that I had
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statement?
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A: I believe so.
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Q: Are you aware that the toxicology report found that you tested
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A: I believe so.
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Q: And yet when you were asked that same question regarding-
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you saying there's any sort of specificity to when it said I used it or you
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Ms. Kagan: I asked you whether or not you're aware that the
toxicology report tested positive for THC.
Mr. Coughlin: Right. Yeah, I'm aware that the report as I
positive.
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ms.
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statement. It's like telling someone you love them. Do you know
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something you have just kind of a gut feeling? You know? So if you're
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asking me, is that true or not, I'm telling you that that seems to
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Q: So, let's talk about your DUI arrest. You were arrested on
January 23rd, 2003 in Sacramento, California correct?
Mr. Coughlin: You are referring to my conviction for dry reckless
driving?
Ms. Kagan: I am talking about your arrest for DUI on January
23rd, 2003.
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Q: You were arrested for DUI, is that not true Mr. Coughlin?
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A: I think so I think.
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influence of any on drugs or alcohol the time you were arrested, Mr.
Coughlin?
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ms.
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Q: Well, isn't it, in fact, true that you failed every single sobriety
16
tests?
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Mr. Coughlin: In fact true? I don't know what you mean by that.
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A: Yes.
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Q: But the officer had the opinion that you failed the field
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Q: Did you have bloodshot, watery eyes at the time of your arrest?
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ms.
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arrest. I often wore the same sweater I was wearing the night I was
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thoracic and cervical pain would be unusually bad. This would help me
16
sleep and ease the pain. Since starting a chiropractic and physical
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Were those statements true at the time that you made them?
19
A: I believe so.
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Q: Have you ever kept pot in your residence since January 2003.
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A: Objection, relevance.
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Mr. Coughlin: This evidence you speak of, has it been propounded?
ms.
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movie theater I had entered the movie theater without paying, I have
18
no excuse for doing so, I was approached by two usher's at the movie
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theater and asked to join them in the hallway, whereupon I left the
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perplexed as to why they reacted so and ran. The ushers chased me for
22
nearly 1-mile. I was later told by the movie theater usher's that they
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who had committed a series of infractions at the theater and that they
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face was shown to the victims of the series of infractions, the victims
27
indicated that I was definitely not the person who committed the
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In the middle of the chase I ran into an area where several police
stopped running as soon as the adrenaline and the fear I felt from being
ms.
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A: I believe so.
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particular?
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A: I believe so.
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Mr. Coughlin: I would also object, I know that I've already entered
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this but the application as I read it wouldn't even, and I believe this
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something more beyond what the application calls for me to report, you
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know, and yet you you're saying I don't have candor. So here I am, I'm
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reporting something that, an arrest that all charges were dropped that
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question was why did he run away from the ushers. I asked whether or
ms.
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theater in 2001. Are you saying that he didn't report it? I don't think he
has to report arrests.
Ms. Kagan: Well, what I'm saying is that he did report it and he
was not honest in his reporting.
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Ms. Kagan: Isn't it true that the police officers actually yelled for
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adrenaline and fear I felt from being chased by two large men yelling
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A: Yes.
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Q: Isn't it true that you were actually tackled by one of the police
22
officers.
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to be tackled?
Q: But, you were tackled, correct?
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ms.
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A: I don't remember.
Q: And you wouldn't answer their questions when they asked you
questions, Mr. Coughlin.
A: I am not sure about that.
Q: Were you under the influence of alcohol the time of your
arrest.
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A: That's correct.
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didn't it.
A: That's something I'm unclear on.
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causing physical harm to another. Okay, so that's the one I'm referring
to.
ms.
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Mr. Coughlin: Why does it say P and R, and then it says P and Q?
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dishonesty did not occur... spoke with several students remember seeing
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you have the paper in class that day. I don't know because from what
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and then it was my understanding that they were alleging some sort of
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academic dishonesty. I wasn't sure that they were saying that the
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more to the computer thing but I don't know. I mean? I'm sorry, your
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question? To me, its like saying we're finding that you didn't do
24
anything and if you do that again, then you're in trouble. It's like:
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what? I don't get it, you know? You didn't do anything but don't do it
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again?
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referring to this moving the computer thing or? In which case that's in
that he quotes section 5 up here with the P and Q but above that he says
A: I believe I did.
ms.
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Q: And at the bottom of the letter it statesMr. Coughlin: And then it says: though I'm recommending this
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answer.
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informal basis you have 10 working days after receipt of this informal
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formal hearing. Did you ever request in writing that your case be
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A: I can't remember. It's possible I might have spoken with the Mr.
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indicating the they had, in fact, seen me turn in this paper? Was that a
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and it says: I've spoken with classmates from the class in question.
That is classmates: And they do remember seeing you have the paper
ms.
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signed affidavits indicating that they had in fact seen me turn the
paper in. Was that true?
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A: Yeah.
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in?
A: I remember arranging for several students to have affidavits
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signed, but I think there was something where a guy named Mike
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Destefano, was going to sign one but I think there was something where
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given the tone of his letter which mentions informality several times, I
don't know how that really fits in with your contention which I as I
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informally telling you well we didn't find you guilty of the academic
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wrongdoing, you know. I guess you can twist it around however you
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you and Mr. professor Tratos that is found in exhibit 5 to the State Bar
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did you?
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investigation correct?
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investigation into the computer to the State Bar of California, did you?
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Q: But you didn't provide any letters regarding that did you?
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ms.
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Q: Why not?
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A: That's their place to say what it's for. I would be guessing. I was
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Q: Did you take a cyber law class taught by professor Mark Tratos
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A: Yes.
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Q: And as part of that class was there a paper that was due that
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A: Yes.
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A: Yes.
correct?
A: I'm not sure about that I've heard conflicting reports on that
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ms.
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very.
Q: You heard conflicting reports whether or not Mr. professor
Tratos wanted a disk?
A: Yes.
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people were unsure of whether he wanted a disk or not. The very fact
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that there was any uncertainty over whether he wanted a disk or not I
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think would serve to alert you that it's possible and that you'd probably
15
be better off submitting the disk but it seemed like a good deal of the
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wanted a disk.
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saying that he wanted to post the papers on the class's website in which
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Q: You didn't turn in a digital copy of your paper did you Mr.
Coughlin.
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A: No, I wrote atop my hard copy that I wasn't turning and disk
website.
Q: You didn't put your name on your paper either did you?
other course I took in law school and this particular course was taught
ms.
where there is an employee in the class and I took care to put my social
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security number atop of paper and a note saying I wasn't turning in the
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the disk copy because I didn't wish to be put on the classes website.
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Q: Before you did that though do you get a permission from your
professor to do so?
A: I don't believe so. I wrote it on top of the paper and turned it in
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on the podium that he taught at, but in terms of did I get explicit
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say yeah I want a disk or whether he said I wanted to put it on the class
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Q: And the question was did you ask beforehand whether or not
you could be excused from providing a disk?
Mr. Coughlin: Objection, it's a leading question that it is
ms.
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Q: The question was did he before submitting his paper saying he's
not going to provide an online format or a disc did he get permission?
Judge McElroy: And your answer I'm going to ask you answer
that question.
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Q: Yet he did email you, turn to exhibit 5 page 8, he did email you:
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Zach, please send me another copy of your paper many thanks Mark G.
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Tratos correct?
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that implies he got one in the first place which I just don't understand
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you know? And in fact, this happened with another student because it
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was another student Jessica Wolfe in this course who he had said
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Q: Did you ever provide a final draft of the same paper that you
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meantime and I had also move residences and I just simply wasn't able
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Q: At some point did you come to find out that Professor Tratos
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final draft.
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September 2001 did you find out that Professor Tratos could not give
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you a grade in the class because he did not have your final paper?
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A: I believe so, yeah, because he wrote me like on, the paper was
copy of your paper like on September 7th and then I wrote him back
saying all I have is this rough draft you want me to turn in and he
writes me back saying yes turn it in and this is right around September
11th, 2001 so just to give you some context, but anyway so I turned that
in it's like I don't hear anything from him for awhile and the next
thing I hear which I believe was in October was we're starting this
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look at that we're just going to start this full-scale academic fraud
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investigation which by the way you need to report to any State Bar you
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subsequently applied to and that was the next thing I heard from Mr.
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Q: Does exhibit five contain all the emails between yourself and
professor Tratos regarding the paper?
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A: I don't know.
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that your email to Professor Tratos five page one yeah and in that
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email you write that you can't find a copy of the paper because your
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Q: And that you only turned in a hard copy with your social
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A: With a note requesting that the paper not be used for an online
posting and a reason being that I was taking the bar exam in a week
and that my paper had been really up to the quality I would want it to
be to be posted online.
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for the kind words we have no papers that were turned in without a
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student name on them at least of which we are aware. Perhaps you can
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help us out by providing us with some more clues what was the topic?
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What was the paper's title? what was the total number of pages? where
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A: Yes.
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copy of your paper and then now it's like well we didn't ever get that
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understand-
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in. Whether someone came in, you know, a fairy came in and flew away
with that I don't know but I know I turned the paper in.
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Q: And then you wrote back to Professor Tratos its page 3 exhibit
five September 7, 2001. Is that your email to Professor Tratos?
A: Yeah.
Q: And in it you describe the name of the paper and then you
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request whether or not the paper is worth fifteen percent or you can
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Q: professor Tratos writes back page 4, Zach thank you for the
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quick reply sorry you were misinformed, the paper represents forty
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Q: So, would you agree that the paper is worth forty percent of
your grade.
A: I don't know, you know, I'm sure it's worth whatever he wanted
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know the rest of the class was about whether it was worth fifteen or 40
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percent. And there was two people teaching this class to you know they
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A: Yeah.
Q: And at this point you were unable to find a copy of the final
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paper not be added to the firm classes website I could think of no other
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wrote that?
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A: yeah.
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Q: So did you believe that a digital copy was not necessary to turn
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in.
A: Like I mentioned earlier there was confusion amongst my peers
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in the class as to whether or not additional copy was was even being
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that you always have to find fault and everything make everything a
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prudent for all students to keep copies of all assignments that are to be
present such a copy that I've been asked to sometime sooner than a full
four days after grades were to be posted. so what was the purpose of that
statement?
Q: So, was it your opinion that it was Professor Tratos' fault for
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Transcript of 5/9/07:
Judge McElroy: Today is May 9th, 2007 and we're in the matter of
Ms. Kagan: your honor well I would request that we can take some
witnesses out of order. I have witnesses lined up since 930 this morning
when we were supposed to start trial and a few of them are flying in
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ms.
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maybe work you lunch today since we have such a short amount of
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Mr. Coughlin: Maybe if you just go with the stuff you have that is
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important and some substance to it not every little thing that you
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found.
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Judge McElroy: ok
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Ms. Kagan: thank you your honor okay and also one more point of
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have maybe an hour scheduled at another time for him to testify about
his report.
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Judge McElroy: No, you don't have to decide right now, you can
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decide by the end of the day if you would would agree to it.
Mr. Coughlin: For instance, I couldn't have done my deposition by
phone, right?
Judge McElroy: I don't know, I mean it depends on whether
parties stipulate.
Mr. Coughlin: Well, Ms. Kagan would not stipulate, so I drove
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down here instead of having to make her drive to Reno for the
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deposition.
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Judge McElroy: okay well this is a little different because it's the
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interview with him for three hours. Have you looked at his report?
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the phone or do you want to see him here? You can think on it.
Mr. Coughlin: Because I'm leaning towards not to go against
anybody's recommendation. Certainly if you think it's better...
Judge McElroy: I am leaving it up to you and it also depends on
when you can come back again. So it's up to you.
Mr. Coughlin: You'd like to do today, though, Susan? We were
talking about Dr. Tucker.
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have him come back in person rather than just do it the way you want
Ms. Kagan: I see. Your Honor, if Mr. Coughlin does not agree to
ms.
you'd have to come back for that, and I'll leave it up to him, but you
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person sitting back there is someone from the State Bar, so I just want
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Judge McElroy: Because he's from the State Bar. I presume that
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Mr. Coughlin: But he's not affiliated with the State Bar Court?
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Judge McElroy: No, he's not affiliated with the State Bar court.
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He's from the State Bar's office, the Office of Trial Counsel.
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healing.
Mr. Coughlin: Even though it is confidential?
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State Bar.
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office can sit in, other witnesses can't or other people from the public,
it's not open to the public.
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Ms. Kagan: Good morning Officer George, can you please state
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Ms. Kagan: How long have you been in that position I've been
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employed by highway patrol for 16 and a half years and I've been
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Ms. Kagan: And as part of your job do you have to make arrests?
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G: I do.
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Ms. Kagan: Have you ever made any arrests for DUI and how
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G: I do.
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process we were taught each of the thirteen steps we were taught what
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drugs have what symptoms you know symptomology to look for and
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how to administer a given set of tests that check for those various
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symptoms.
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arrest and also when I saw him today I remember him also.
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Ms. Kagan: Can you turn to exhibit 69 pleased that's in the binder
that's in front of you. Do you recognize it at 69?
G: Yes, The first page of the exhibit mark number 69 is the arrest
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County Jail. On the next page would be the probable cause declaration
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Bar it deals with convictions and we're talking about an arrest right
reported, right? If you had a conviction, you report the conviction and
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goes to what's reported, it goes to the issue of your whether you were
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candid.
Mr. Coughlin: Okay, so reporting something that didn't even need
to be reported does that show candor?
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reported, that shows, that might show candor depends on what you say
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about what you reported which is I'm assuming at this point, it might
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be the State Bar is presenting evidence that what you reported wasn't
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candid.
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Mr. Coughlin: Okay, so would one be better off not reporting this
arrest at all?
Judge McElroy: That is not an objection, so I'm going to overrule
the objection.
Ms. Kagan: sorry Officer George, can you continue to page 3 of
exhibit 16.
G: Page three would be referred to as a CHP 202 which is driving
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G: It was.
Ms. Kagan: Did you prepare exhibit 69 pages one through nine?
G: Yes, there are actually two separate reports, pages one through
four would be the driving under the influence arrest report, then there
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Mr. Coughlin: I'm sorry I'm not sure I understand your honor.
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charges that you were arrested for if those weren't didn't lead to
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conviction.
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that the grounds that I don't believe this is something that can be
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authenticated.
Ms. Kagan: Officer, did you have a chance to review this report
G: I have.
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G: They are.
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Ms. Kagan: And, can you describe how the arrest took place?
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Cottage Way without his seat belt on. I made a traffic stop and
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was stopped and during the conversation with Mr. Coughlin and I
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G: I noticed that his eyes were red and watery. I could smell a
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strong odor of freshly burnt marijuana inside his vehicle, when I had
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him to step out of his vehicle he was unsteady on his feet. I could smell
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the odor of the freshly burnt marijuana about his person, his hair, his
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pupils were dilated for the lighting conditions and slow to react to light
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G: A Romberg test.
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heels and toes touching his arms down at his side, to tip his head back
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initially, he did tip his head back, he did keep his arms down at his
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sides. He swayed with a variance of about three inches and during the
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30 seconds, slowly, slowly lowered his head instead of keeping his head
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back.
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Ms. Kagan: So would you say that he passed that test or failed?
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for divided attention impairment. I would say that he did not perform
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Ms. Kagan: What other tests did you ask Mr. Coughlin to
perform?
G: A standing on one foot test. That test consists of having Mr.
Coughlin from a position that he was previously in, put his feet
together, heels and toes touching, and raise one foot approximately six
inches from the ground, keeping his toe pointed forward, arms down at
his sides. He was instructed to look at his foot and count aloud from
1001 to 1030.
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having one hand held up, palm open using the thumb as a pointer
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touching it to the tips of the fingers starting with the pinky and
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counting each finger aloud with thumb to pinky being one, the next
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finger being two, three, four, then an open hand is five, then in a
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reverse order open hand again is five, four, three, two, and one.
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where he was given some additional tests as part of the procedure for
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A: I did.
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this is?
Judge McElroy: That is not an objection. What you need to do this
cross-examine if you have problems with it. It is overruled.
Q: Officer, what tests were given at that later time?
A: Again, he was given a Romberg test, he was given a walking
heel to toe test, a standing on one foot, and a finger to nose test
performance.
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A: I have.
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There's a test that we do as part of the eye evaluation, it's called a lack
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see that lack of convergence meaning that their eyes won't cross, one
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eye will generally kick-out, and that was present in this case. One part
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of the eye evaluation requires that you be taken into a dark room to
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not under the influence, their eyes would react one way. His eyes
we check would be we look in someone's mouth and pull the lower lip
down and look for debris in in their gums or teeth, stick out their
use and that would be indicated by the green that's in the marijuana
ms.
comes out and stains the tongue when people smoke it, so we checked
the tongue and in this case his tongue was coated with a great pastry
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film.
Ms. Kagan: Can you estimate based on your experience whether
Mr. Coughlin had ingested marijuana within the past 24 hours?
G: Again, based on my training and what I've been trained to look
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that you wouldn't necessarily see the indicators that he displayed to me.
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So, if I had to put a time estimate, I would say for sure within 24 hours
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and more than likely within four hours of the time of the arrest.
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an arrest and still shows signs that you were talking about that Mr.
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Coughlin exhibited?
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A: No. Let's say a daily user for marijuana, again, the signs of
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impairment are only going to last about four hours from the time you
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use, so if you had smoked a week prior he may come back positive for
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impairment.
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impairment at the time that you arrested him on January 23 rd, 2003?
A: Most definitely.
By Mr. Coughlin:
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A: I did.
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By Mr. Coughlin:
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A: I did not.
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Q: Can you describe what and how much college, what sort of
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highway patrol officer for 16 years he's made three thousand DUI
those...
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some four thousand others, where would that fall, where would that
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A: 16.
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Q: Okay, where's that fall? Are you are you like a hall-of-fame or
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different.
Mr. Coughlin: Yes, Your Honor. What if one officer made twenty
thousand arrests and another officer made five hundred?
Judge McElroy: You are not to ask the court questions you're
supposed to proceed as an attorney.
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Judge McElroy: Okay, and what I'm saying is the objection should
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Mr. Coughlin: Okay and her objection was relevancy and I'm
explaining why it should not be sustained...
Judge McElroy: And I have sustained it, so you need to ask the
next question.
Judge McElroy: you need to ask the next question, let's ask the
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next question.
By Mr. Coughlin:
Q: okay so is that is that high number of arrests for DUI? Where
do you compare to your peers?
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George you certainly went into a lot of detail and got to speak on pretty
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much whatever it is Miss Kagan asked you about so we got a good idea
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us to know.
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A: I do.
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Q: Okay, but she didn't contribute to this report. What was her
A: Cover.
A: Correct.
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Q: Okay, can you tell me during this arrest, you pulled me over
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have my seat belt off, you noticed as you were driving past me at a
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stoplight you noticed I have my seat belt off, you might have been
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driving and while that time if you were driving you notice somebody
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who's at a stoplight, so you turn around and pull me over, do you recall
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A: At which point?
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Q: That would be after you pulled me over while we're still on the
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Q: Any point?
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Q: A blood-blow test?
A: No.
Q: You didn't?
A: No.
get out of the car and take a blood-alcohol blow test and this was after I
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Mr. Coughlin: So you never? Why didn't you? You're saying you
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pulled someone over on suspicion of DUI and yet you didn't ask them to
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G: Well, that's actually incorrect. What I pulled you over for was
non-use of seat belt.
Mr. Coughlin: Okay, that was the pretext you pulled me over to go
ahead.
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Judge McElroy: I'm going to sustain the objection, let's ask a legal
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question.
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a field sobriety blow test in the field? And you were going into why you
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A: Okay, so the question was why didn't I have you take a blow
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but if you refuse to take this blow tests I'll just arrest you and then you
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A: No.
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the legal merits of asking someone to take a blow test when you have no
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A: No.
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you felt that because you were a law student that I could not prove that
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you were under the influence of anything and that you had not been
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drinking other than one glass of wine approximately four hours prior
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to being stopped.
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Judge McElroy: You're gonna have to let him finish his answers.
when you were asked questions and you wanted to explain I always
ms.
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Q: I asked why whether or not you you asked for a blow test and
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then I asked you if you remember the legal kind of discussion we had
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about why. I was asking you do you have a right to make me take a
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don't smell alcohol and all you have is you pulled me over for a seat
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belt and then you got mad that I would challenge your authority.
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Judge McElroy: Why don't you ask him the question, not ask.
What is your question?
Mr. Coughlin: I'm asking him explain why he was just saying
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what he was saying about I didn't have you take one in the field
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because you and I were having a conversation about the the merits of
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A: No.
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Q: Did we discuss taking a blow test in the field and did you get
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Q: Did you discuss taking a blow test in the field with me?
A: No.
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obviously we're talking, right? We were talking about law stuff and
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you were saying: you're a law student you think you can tell me what
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Wow, three years of law school down the drain, huh? No? You don't
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school?
was that you told me that you were in law school and that there was no
way you were going to get a DUI when you had not been drinking and I
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A: Yes.
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Q: Or at the station?
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questions, okay?
Q: Okay. So, in the field, we didn't talk about a breath test in the
field? That never came up?
A: Okay, again, I didn't offer you a breath test in the field because
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refuse.
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A: No.
Q: It wouldn't be?
A: Are you asking me the same question? Yeah, the answer is still
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DUI but you don't give them blow test, whatever-you-call-it, a breath
test?
A: I'm not sure that you have a comprehension of how this works.
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Again at no time during my contact with you did I suspect that you
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were under the influence of alcohol. That is why you were not offered
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A: I did.
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Q: Why?
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screening device.
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Q: Okay.
determining-
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this applies in your case you were not offered that test because I at no
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A: You did as part of the procedure for the drug evaluation, the
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A: Correct.
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A: Correct, because it's one of the process, it's part of the process for
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the drug evaluation. I knew that you were going to come back zero. You
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were not suspected of being under the influence of alcohol. That's part
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Q: We didn't discuss that you knew I was going to come back zero
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for alcohol?
A: No.
think it's clear he did not arrest you forMr. Coughlin: Your Honor, if I may just explain why I'm going
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ms.
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into this, because it's my belief that Officer George got upset with me
for taking issue with his wanting to do a breath test for me when I
knew that I-
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like that? 1, 2, 3, 4, 5?
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A: No, that would be the finger count test, not the Romberg test.
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Q: Okay on the finger count test, can you describe again how how I
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A: I did.
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Q: Because I don't see that. Can you explain that to me where that
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is?
A: Sure, okay, page three of the arrest for driving under the
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A: Correct?
A: Page three of the CHP 202 driving under the influence arrest
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report.
Q: Can you go by the bates stamps that are at the bottom? Oh,
okay, I see what you're saying.
Judge McElroy: What is your next question.
Q: Is that noted elsewhere in your report?
A: I'm sorry?
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I'm wondering how I would be able to stand up? Because it sounds like
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Q: Well that's what I'm asking. How could someone who's you
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Q: Able to function somewhat but failed every test you gave them
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type thing?
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they are not pass or fail. Divided attention impairment is the ability to
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Q: But you were giving me a pass or fail, weren't you? You weren't
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testimony again and again, it was either a pass/fail, it's not shade of
explained.
ms.
always described it as it was a question of, as I saw it, gray, and you
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question.
Mr. Coughlin: To what degree, though, is it noted? If you fell flat
on your face is that distinguished from swaying two inches?
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A: It would be.
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question that if that's the case, but if its the case that-
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Mr. Coughlin: We are able to look at what he's doing here and see
if he's just an officer who is kind of a rogue prosecutor like in the Duke
case, or what?
A: I did.
ms.
A: I did.
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Mr. Coughlin: Couldn't that go into whether or not you could tell
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if someoneJudge McElroy: You are the one that is on trial here, not the
officer, okay, so you need to ask a question.
Mr. Coughlin: If he is scared to answer that or if he is afraid of
looking like a hypocriteJudge McElroy: I made my ruling on the case, on the question so
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let's move on, let's move on. The questions need to be relevant to this
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hearing.
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pulled over, would you say I was argumentative? How would you
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A: Sure, like for example when I asked you where were are you
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A: No.
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A: I do.
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Q: And you can't remember whether you were driving or not that
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night?
Ms. Kagan: Objection that wasn't even a question posed, Your
Honor.
Mr. Coughlin: He did say he couldn't remember whether he was
the one driving or not.
Judge McElroy: I'm going to sustain the objection, this is totally
irrelevant.
Mr. Coughlin: That's an amazing memory, you can't remember if
you were driving but you can remember something like-
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Mr. Coughlin: I don't know how in the hell a guy can get up there
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A: Yes.
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Q: Can you describe that? When was that? A part of the training
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A: Yes.
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A: Yes.
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A: No.
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Q: How was it, how were they getting, they were just putting a
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flame to it?
Judge McElroy: Okay, I am not allowing this line of questioning
anymore it's totally irrelevant.
Mr. Coughlin: Sorry, Your Honor, so is there any question I can
ask that relates to-
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for her whole thing is what? She is not trying to to establish that I
pled guilty to a dry reckless. We didn't need to spend all this time and
taxpayer money collecting all this stuff if that was the point because I
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question.
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marijuana.
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had?
A: You had chronic back pain and you were taking prescription
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Lortab.
Q: Okay, now generally do you have people with chronic back and
neck pain stand back and look at the sky and have them count to thirty,
is that pretty normal for you?
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A: Well, first off, I believe my answer was that you said you had
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chronic back pain so I don't think we've established that you had neck
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pain also, and yes, that is a standard field sobriety test that is given.
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Q: Would you give that to someone who had one of those halos on
their head like one of those-
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Judge McElroy: I'm gonna not allow any more questions in this
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this area. I don't think it's relevant. What's the next question?
Q: Do you have some sort of performance incentive for the number
of DUI's you give, is there a quota?
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incentive?
Q: Yeah, like if, let's say you gave one DUI a year compared to a
guy gave 10,000, how would that be seen by your sergeant or whoever is
ms.
there a quota? No, there is not. They actually let us arrest as many
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Q: Do you give more arrests than your average officer for DUI?
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Mr. Coughlin: Do you give more or less? What if he's given more
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are going to take a brief recess at this point and I will talk to you. You
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Q: Officer George, can you tell me in your report bate stamp page
ms.
Q: So, somebody who who can close their eyes and without the aid
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of any mechanical device or watch, who can just count and know
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exactly how a long second is and hit it within say a tenth of a second
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Q: But we're not talking about that we're talking about this one
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part.
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question now?
that.
A: Okay you're not referring to the second test, which would be the
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walk and turn test you're, referring to still the Romberg test?
Q: Yes.
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Q: Yes.
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A: They're not pass or fail tests, I can't give you an answer for
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that.
Q: Okay, well what would not qualify as having an altered sense
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of time, because that's that's the buzz words you're using in this
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particular- I know you use a lot of buzz words, what will work, what
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be 30 seconds, however, that's not what this test is based on. It's not
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based solely on the seconds, which is what you seem to be hung up on.
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something where someone would perform this test and you would not
ms.
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A: I have had cases where the person did not sway and their time
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as?
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seconds.
A: Again, you would, based on the totality if you swayed it would
say the you swayed and how many inches.
Q: We are not talking about swayed, Officer George.
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Judge McElroy: Please, do not argue with the witness, his answer
is answer. Move on to the next question.
Mr. Coughlin: Did we even discuss seconds because he just
discussed swayed?
Judge McElroy: Mr. Coughlin, I am going to not allow you to ask
any more questions if you cannot act like a lawyer and ask the question,
a proper question.
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Q: If I took 31 and a half seconds can you tell me what would wind
up in your report?
A: Objection, relevancy.
Judge McElroy: I'm going to go ahead and let him ask that
question and that's the last question in this area.
A: Well the report would say the number of seconds that you
estimated 30 seconds in be it 29, 28, 30, 31, 31.
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estimating 31 and a half seconds in33 seconds? That's what I'm asking.
A: Okay, again I don't think you have an understanding of how
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the test works. Whether or not your time estimation is off, the test
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your head back and estimating 30 seconds. What I'm looking for is
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commendations, awards?
A: Yes.
ms.
A: Well, let's see, I received a master award for shooting I've been
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expertise and taking drug and alcohol impaired drivers off the road.
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A: Correct.
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A: No, it's actually not Officer of the Year, that would be separate
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and I have not received Officer of the Year, if that is what you're asking
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me.
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A: Correct.
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times?
A: I don't know if I can answer typical. There are several officers
that have been recognized more and there are several officers that have
been recognized less.
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A: No, for example this year there are 10 people from my station
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A: Correct.
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Q: And how many people are in your station that are eligible for
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the award?
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Q: Would you say they're giving out the five Mothers Against
Drunk Driving commendations just because you work hard and you are
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Q: You have been an officer for 16 years, what have you been
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CHP Office.
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Q: Now I notice when you say I swayed, and this is on your report
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from center, if someone who is 5 feet tall sways two inches is that
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Q: Oh, is it?
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ms.
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what would be, someone who is clearly not intoxicated, how would they
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sway?
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something that would fit in the range of this person is not getting
ms.
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Judge McElroy: And that's the way it is, what's the next question?
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Mr. Coughlin: You can't say because your whole thing is just
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baloney.
Ms. Kagan: Your Honor, I move to strike the rest of this
examination, is it a waste of time.
Judge McElroy: I am going to keep it on the record, okay? Move,
what's the next question?
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Mr. Coughlin: So we're not going to get any idea of how much one
can sway?
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ms.
A: I can give you a brief description that may or may not make
sense to you. Have you ever seen someone walk with flippers on, like
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Q: Yeah.
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A: Like that.
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A. Sure.
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Q: Floppy feet?
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something?
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Q: Objection, relevancy.
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question.
A: Are you asking me if that's a personality trait?
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Q: Yeah.
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answer that.
Q: Okay, but it made it in your police report under whether or not
I had been drinking or driving, right?
Q: I'm asking him what was in it. She asked me what was in the
ms.
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A: It can be.
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Q: Okay, well, let's speed this up. Let's boil this down for me what
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you are looking for. What's your top 5 hit list of why you think I was
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ms.
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gonna have you leave this courtroom if you don't behave. So, if you
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could give the court what made you think that he was under the
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dilated pupils that were slow to react to light stimulus, green coating
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on the tongue, odor of freshly burnt marijuana about your person and
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Q: That's five.
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G: Okay.
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question for a reason. The first one, I believe, was he said my physical
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characteristics?
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Q: Can someone have read or watery eyes, say someone who works
computer for 10 hours a day, would that give you read or watery eyes:
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ms.
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question, go ahead.
A: It could. It can also be an indication of marijuana use.
Q: Okay but there's a lot, I mean, how many allergies can give you
red or watery eyes?
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your eyes?
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A: No.
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Q: It doesn't? Opiates don't dilate your eyes? And your are a drug
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Mr. Coughlin: Please do, please do, I'd love to hear this.
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A: Soma can dilate your eyes but that's not what you were taking.
A: Correct.
Q: Okay so point one was we had red watery eyes, point two was
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ms.
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A: Refresh me.
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I don't know. I'm gonna say was the floppy feet thing, which could be
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kinda like a personality thing maybe one of these hip hop people who
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walk around with the floppy feet and their attitude like that.
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Q: Are all five of these things you said, could they all be described
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intoxication?
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Q: But not from where you are sitting? Red eyes can't be caused
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Judge McElroy: You are being argumentative, let him explain his
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answer.
A: Red eyes can be caused by a lot of things. Again, based on
ms.
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Q: So all five of these thingsJudge McElroy: Okay, I am not allowing any more questions in
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this area, this is, it's over with in terms of this area. So do you have any
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of redirect?
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her case as she wishes. Okay, you may step down, thank you.
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A: I am.
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A: A couple of years.
ms.
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A: About 22 years.
Q: Are you a licensed lawyer in California?
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Q: And how long have you been teaching those courses for UNLV.
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A: I believe since the second year that UNLV was open I began
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teaching there. I've also taught at Arizona State and I'm on the Boards
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aAngeles and I am the vice chairman of the board of visitors for the
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Q: You said that you had been teaching at UNLV law school since
the second year it opened?
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ms.
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had a difficulty I think at the end of the class with a missing paper.
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the class grade and it was part of the way that we got people to
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Q: Do you recall when that paper was due for that class?
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electronically as well.
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series of discussions about that fact that I had neither the paper copy
nor the electronic copy and I couldn't give him a grade until I had the
ms.
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seven page paper from him which I don't think he represented as being
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Q: But did you ever have his the final paper that he turned in, not
the draft, in your possession?
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Q: When did you realize that you didn't have that paper?
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remainder of the papers. I had graded papers, it was not one of the
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Q: Was there any other papers that you didn't receive from
students in that class?
A: No, that was the only paper I didn't receive.
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ms.
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email?
A: Well, sure he indicated to us he had prepared it. We take our
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one.
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Q: Now, Professor, at some point did you alert the law school Dean
about Mr. Coughlin's behavior in this, regarding the paper?
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Mr. Coughlin: I'm sorry your honor I'm having some bladder
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ms.
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problem.
Judge McElroy: I understand. Why don't we take a five-minute
break.
Judge McElroy: The record resuming with this direct of Mr.
Tratos.
Q: Professor, I believe my last question to you was at some point
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did you refer this matter with Mr. Coughlin to the Dean of the law
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school?
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his LAPtop, so I offered to pay for having his hard. As an internet and
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things and so we offered to help him retrieve the paper if that would
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A: When you just testified about things getting agitated, can you
go into a little more detail about that.
Q: Well, I understood that I had a student that was frustrated
that he was not getting a grade because I was not giving him a grade,
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and I appreciated his concern about that, at the same time I needed to
have the paper so that I can grade it. Because he hadn't sent me an
electronic version and I didn't have a paper version of the paper I had
least examine it. When he was unable to produce that then it made me
concerned as to whether or not the paper had in fact existed and as we,
you know went back and forth in this exchange of emails I simply
reminded him that in the class we requested that he send both with
ms.
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paper and electronic and then I haven't received either, and even if he
had turned in the paper, when I didn't have the electronic one. And,
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for him and that's why I think he got frustrated and I certainly was
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frustrated.
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A: Okay.
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Q: Yes.
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A: Yes, I did.
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very rough draft of the article that he said he had drafted or written
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and that's what I see in this exhibit and I guess it is page 9, 10, 11, 12, 13
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Q: Did you use that draft that Mr. Coughlin provided to issue a
grade for the paper in the class?
A: I did.
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turned in.
A: Assuming at face value it was the original early draft, rough
draft and not the final paper it was a good initial draft.
Q: Was there any language in the draft that you recall that you
found to be out of place for a paper for law school?
A: Well, it was, it had some colorful language in it, on page 14,
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let's get pissy over the meaning of revision I thought was probably
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Q: I would like you turn to page 21, bate stamp page 21 of the
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directly , and maybe it's the next page. Yeah, I recognize the next page.
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response.
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ms.
so in others.
Q: How would you describe the content of the emails that Mr.
Coughlin sent to you regarding the situation?
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any law student or any student at any institution that I taught at ever.
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mean that that they were just the kind of communication that I don't
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Q: Now you testified earlier that you referred this matter to the
Dean of the law school, correct?
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never had the situation before. What would I do with this, how would I
concern any faculty member to to think that that was what was
ms.
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A: I am aware, I'm aware that they had already had a file on Mr.
Coughlin and theyMr. Coughlin: Objection, Your Honor, he is not answering the
question. Relevancy.
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A: I was told that they had already begun a file on Mr. Coughlin
on other matters and they would add this to it.
Q: Did you ever advised Mr. Coughlin why you were asking for
another copy of, or a copy of his final draft?
A: Sure, because in most instances that I've experienced in
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that might be useful to us later on. So, it was standard practice to, if,
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something and you want to be able to read a nice legible one, it's not
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uncommon to ask for a second copy. In this instance, the course had
Q: Yes, Your Honor. Mark, can you tell me how did you make this
ms.
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front of the classroom saying let's make sure that you get me an
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on vacation.
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Q: Okay, so when you were making the syllabus, did you know
that you were going on vacation?
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Q: So you maybe didn't put the thing about the digital because you
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explain.
A: I believe it was likely to be in the syllabus. If it's not in the
syllabus, I know I expressed it in class.
Q: So, since its not in the syllabus, the only way somebody in the
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ms.
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class would know that you wanted this digital copy is that you
expressed it in class.
Ms. Kagan: Objection, speculation.
Judge McElroy: I'm going to go ahead and overrule the objection,
go ahead.
Q: Can you tell us how, did you make this announcement at the
beginning or end of the class? Was it, did you know?
A: Zach, my policy typically is as we're getting ready to get papers
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turned in, I'm mentioning it several times during each of the class
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week in class.
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Q: What is it?
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Q: I asked you about the digital copy and when you announced the
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semester and as the paper came to the time it was due, I would have
Q: Said what?
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ms.
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semester, at what point did you schedule your vacation which would
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have necessitated this hard copy? Was this earlier on in the semester?
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A: Zach, the-
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A: The norm was to have had the paper copy, not the digital copy.
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What was unusual here was that I was asking also for the digital copy-
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A: I don't recall-
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Q: Because that was the whole point, right, as you said, in asking
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Q: So, at what point did you decide you were going on vacation?
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A: I did.
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Q: You did. So, it was at some point in the semester that you knew,
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okay I'm going to go to- and how long did you go to California for?
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Q: Okay, so class ended in July and you're going to bring your- and
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grades are due on September 5th, right? That means the grades are-
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okay?
Judge McElroy: Okay.
Judge McElroy: Mr. Coughlin, here's the problem, the State Bar is
ms.
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this point it's not really relevant in terms of you know where he spent
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his vacation and what he spent his vacation, it's whether you
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outcome.
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why Mr. Tratos would be loading papers onto a, to grade 5 days after
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all this.
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announced to the class a digital copy was due. Somehow we made that a
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Q: So at some point in the semester, you decided I'm going to- this
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Q: At some point in the semester that end of July 15, this is got to
be a couple months beforehand, right? You said, you know what? I'm
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A: The class is going on, as the papers get near I remind the class
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several times that the papers are due. It's gonna be forty percent of the
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grades. I want them in both paper form and in digital form. The
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interesting thing here is, the paper form was never turned in, and that's
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in.
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question.
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answer. I think you're you really don't understand what the point of
this hearing is and I think you're not getting it. The point is is that you
was completely resolved in your favor. You need to focus on that issue
Mr. Coughlin:Okay.
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A: I probably did.
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A: I believe he was.
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class.
Judge McElroy: Remember the issues is your misrepresentation
about the outcome.
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Mr. Coughlin: Right, well but this goes this goes to why my name
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wasn't on the paper, Your Honor. Why I put my social security number
on the paper because he's got an- one, that is what we did in every class,
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did turn this paper and let's just let's just go ahead and assume that-
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that doesn't matter? That doesn't? Is that what you are saying?
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is the outcome that matters, then why did we go into the arrest? You
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know, because we could have just looked at the outcome and you say:
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okay, we got a dry reckless, you reported it-boom, you're done. But
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Mr. Coughlin: Now, if the outcome is the only thing that matters,
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why are we looking at theJudge McElroy: You reported that the investigation was resolved
completely in your favor. That's the alleged misrepresentation.
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Q: So, I passed the course. Would you usually pass people who
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dishonesty?
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Q: If you're aware of it, no you wouldn't. Okay. Why did you pass
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me in this course?
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Q: You don't give the grade, the pass/fail grade? Because that's a
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new one to me. I thought the professor did give the grade.
Judge McElroy: The question is: why did he pass you? If you will
allow him to answer the question.
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T: Go ahead-
had written your paper on a computer, and even though your computer
was still available to you, and even though I had offered to pay to have
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the paper retrieved from your computerQ: The one file, not the whole?
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face value had nothing to do with the fact that the computer itself
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might not have contained it. I took at face value you're submitting
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grade in the class. I doubted sincerely your explanation, but I did not
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sit as a judge.
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Q: Is that all one needs to do is not have you sit as a judge to pass
your course?
Judge McElroy: I'm going to sustain it, so, let's move on to the next
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question.
Q: You passed me. So, I pass the course, right? If I would have
been guilty of academic dishonesty could have I passed the course?
Ms. Kagan: Objection, asked and answered.
A: I wasn't involved in evaluating whether you were engaged in
academic dishonesty. I turned that matter over to the law school.
Q: Okay, but you passed me, right? So, if the law school- somebody,
at some point, they wouldn't have passed me if I was guilty, right?
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Judge McElroy: Go ahead and ask the question, although the fact
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of it is is that youQ: All right, there's more interesting stuff to get to here. Whether
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Mr. Tratos can tell me why I passed or not, we will move on from.
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A: Threatened by you?
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Q: Yeah, threatened?
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A: No.
A: Certainly.
Q: How so?
A: You have a line in one of the emails, early emails that you sent
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papers.
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A: I don't know.
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because I was concerned, not because I was threatened. You said that
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earlier today.
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Q: My question is why, earlier today, on the stand, did you say you
weren't threatened, and then now you're saying you were threatened,
and then in another email here you said: I just got your threatening
email.
Q: Well, let me go back to your email where you say: I got your
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wasn't threatened?
Judge McElroy: Okay, I will let you ask that question one more
time, let's put it on the record.
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A: I guess-
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talking about.
A: Zach, yes, and I've made a distinction between being physically
threatened and being threatened, and there is two different states.
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threatened.
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Judge McElroy: Let's ask- its sustained, let's ask another question.
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Q: Right. Right. Can you tell me, what's the first time you
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Judge McElroy: I'm going to go ahead and let you ask the question.
Can you tell him the first time, if you can recall.
A: I believe I completed grading everybody's papers, had come to
the conclusion that yours was not in the group, and wrote you an email
correspondence after class had ended between yourself and me, right?
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said: why did you 'say send me another copy of your paper', you said:
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you, then why would you say another? Because I had never said I had
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T: Thank you.
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recommendation?
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Judge McElroy: We're back on the record and the court has taken
you cannot ask the question again the next time, number one. Number
two, the issue in this case is not whether in fact there was a paper that
existed or that the professor had the paper and that's not the issue. The
ms.
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issue is your representation to the State Bar about what was the
outcome of that investigation. You are not helping yourself to argue
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with this professor about the actual paper. You- the State Bar has
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alleged that you said it was completely resolved in your favor- there's
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some information that they're saying it wasn't resolved, that there was
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a formal letter of warning. That's really the issue, not all this other
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arguments that you are getting into. You would do best to let him go,
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Judge McElroy: Its not. That was never an issue, you opened it up.
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Mr. Coughlin: I said it was resolved but there was this thing
where I had to pay a hundred dollars, right?
Mr. Coughlin: They are in the same letter. The same exhibit deals
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with both incidences, the exhibit where she's sayingJudge McElroy: All I'm trying to tell you is this it is not helpful
for you to go into the details of whether there was a paper or not, how
he regarded-
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so I'm not gonna take a lot more time. A little more time with Mr.
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Tratos.
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Judge McElroy: Okay, so let's have Mr. Tratos come back in and
conduct yourself properly.
Mr. Coughlin: Your Honor, for the sake of this trial, if we could
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just take a second, if that is the issue, the how I characterized this
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confusing, right?
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reconsidered.
Mr. Coughlin: I don't see anything about the academic dishonesty
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now.
Judge McElroy: You are arguing your case. Right. That is. The
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point isMr. Coughlin: I'm trying to help this case find out where it needs
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If the nexus is as you said, if the key inquiries is as you say, how I
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this is their star witness in that, and what they're coming with, the
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which say: okay, yeah I had to pay $100 for moving this computer, and
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they're talking about Mark Tratos, I don't know who they're talking
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Judge McElroy: All I'm saying is you needMr. Coughlin: If you can tell me, if I'm acting stupid on purpose,
tell me.
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Mr. Coughlin: If you can read this and tell me, great, but I can't
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understand what they're saying, you know, because I don't think they
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in and proceed with cross-exam. I've told you what the issues are and
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you need to confine yourself to the issues and not widen this case.
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told me that you had lost other people's papers in the past.
Q: So, you're saying there's never been an incident while you were
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home test or whatever came up missing. Think hard, Mark, think hard
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Judge McElroy: I'm gonna go ahead and let him ask it one more
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time.
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Q: Be sure that nobody who used to work for you knows about this.
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commit perjury.
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Q: Didn't arrive?
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A: Right.
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Q: And did the student say: No, I did turn that in?
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then-
Mr. Coughlin: One of his former associates has told me that he has
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area.
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A: I can't.
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question.
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requesting my email address to talk about this missing paper, you also
ask for Ms. Wolfe's email address to talk about her missing paper-
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Q: Do you recall not having Jessica Wolfe's paper for this very
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same class?
Ms. Kagan: Objection, the witness has already answered this
question.
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A: I don't.
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recall.
Mr. Coughlin: I'd like to take judicial notice that within the file
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for UNLV on this matter there is a paper that says please give me
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A: Correct.
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with your class, wouldn't they need to communicate with you a little
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A: Not right.
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investigation or not?
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Q: So, that call really didn't have much to do with, like, you know,
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you couldn't have turned that over to them, and I object to your
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Q: So, just to make sure- so after you turn in these emails which,
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from what I guess you said is that was our only contact was these
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emails, the only thing that could have been threatening, Mark. The
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only thing, right, is these emails? Okay, so they turn those over, you
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turn those over, and after that you didn't have any sort of involvement
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A: Other than they're the same people that I deal with at the law
school on a relatively regular basis as I teach classes.
Q: I mean any involvement, any communications in conjunction
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investigation?
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A: I don't.
Q: Okay, can you turn to Exhibit 53, please? But, at that time-
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A: All right.
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Q: Okay, can you tell me what the final resolution was of this
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matter?
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question if he knows.
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that if you were found responsible for similar violation of the student
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Q: Okay, can you tell me the phrase that says: it appears that
academic dishonesty did not occur. It says that, doesn't it?
A: Where are you looking, sir.
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A: I see that.
Judge McElroy: I'm gonna go ahead and let him answer the
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question.
A: I believe the issue was one of whether or not your conduct was
appropriate as we, you and I, communicated regarding the paper, and I
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think what was disturbing to me was, what I'd raised the attention of
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the University about, and that was that your conduct seemed to be
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rather unusual in the way you handled yourself with respect to the
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paper.
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A: That's correct.
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Q: One man turned over some emails another man sent him.
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A: That's correct.
Q: Okay, so you don't know this, this investigation that you didn't
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bring, you were just kind of in the periphery, you don't know how it was
resolved, you don't know what it was about, whether it was about
academic dishonesty or whether it was about someone's conduct not
being how you like it.
Ms. Kagan: Objection, Your Honor, mischaracterizes the
testimony.
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Q: If I had gold teeth and corn rolls would you report my conduct
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as well?
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Q: Would you?
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Judge McElroy: Okay, I'm going to stop this at this point, if you
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can't ask a proper question, I'm not going to allow you to cross-examine
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anymore, so.
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involved in things of this manner, you should take a little bit more
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interest in them.
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write this letter, okay, no more questions on this letter, he didn't write
it. You need to cross-examine the witness that wrote the letter.
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Judge McElroy: Okay, I'm gonna go ahead and let him answer this
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question.
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the State Bar that the academic dishonesty investigation was resolved
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Q: In a box?
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A: I always speak from the middle of the classroom. I use the same
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A: Correct.
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A: I did.
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A: No.
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A: No.
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Q: Okay. I'm talking about the one whose grades are mentioned on
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the question.
Q: So, these papers were all turned in and you collected yourself
and you put them in your car?
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it?
Q: For that class, you recall specifically that none of the papers in
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paper that said I'm not turning this paper in in a digital copy because I
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don't want this paper posted on the class's website as you indicated you
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A: I don't.
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Q: Do you recall telling the class that you're going to post their
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there were good papers we may do that, but I don't ever make a
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Q: Okay, so and you didn't have us- did you have a class website for
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Q: Okay, but did you tell the class that they would be?
A: No, I didn't.
A: No I don't.
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A: That's correct.
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Mr. Coughlin: I'm asking the questions, you just answer them,
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okay?
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Q: Yeah. So, it's just common courtesy you could take a student's
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work product and post it on your firm's website if you wanted to,
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Q: But you said before it's just common courtesy whether or not
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Q: On the class website? So, on the class website, you can do it?
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asking them?
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this area.
Q: Do you recall getting a paper the day papers were turned in
with a note atop of it that said I'm writing my social security number
on here rather than my name because that has been the practice in all
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it. The paper gets graded, all of those grades then get turned into the
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Mr. Coughlin: Okay I'm just asking if there is blind grading and
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Q: So, if a student can put their name on it, then its not blind- if a
student worked for you put his name on it, if he could then it's not blind
grading.
fundamental mistake was the exams were part of the grade sixty
percent. Forty percent was a paper. I don't know who gets what in
terms of the exam grades and all I can do is essentially say on this
particular portion of the class that I graded, I don't grade the exams
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exams are typically graded at the law school level if they are multiple
choice and if they're an essay then I grade those, but there's never a
name on them, so I could never-
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A: Pardon?
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A: Always.
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Q: Except for your papers in the class with your student who is
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your employee.
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A: Absolutely not.
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A: Absolutely not.
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Q: Do you have any knowledge about this paper that I turned in?
I'm talking about the hard copy the day it was turned in in class. Did
you hear anything from any of your employees or anybody in the world
that, whoa, you know anything? Maybe we found that paper behind a
A: No.
ms.
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A: Yes.
Q: Okay, before when you were describing that you turned in
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a student who should have maintained a copy of this paper who should
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electronic file from his destroyed hard drive and offered to pay for it
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the offer-
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cross-examination, period. You are it's over with in terms of Mr. Tratos,
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because we're not getting anywhere and you don't seem to know how to
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allow you one or two more questions and then we need to wrap this up,
okay?
A: I did.
A:No.
ms.
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A: No.
Q: Okay, do you still have those papers or where they turned back
to students?
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back?
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Q: And when you turn these over, you indicated that you had no
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discussions about the investigation that was to take place, but you had
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dishonesty investigation.
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paper, you asserting that your hard drive was destroyed, me offering to-
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there's nothing I can do at that point. At that point in time when I've
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made every effort to try to help you get a grade in the class to get you
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graduated but you refuse to give me the opportunity to even help you
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administration and say tell me what to do. Okay, tell me what to do.
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Q: Do you recall having a discussion about you would only pay for
to have that one particular file retrieved?
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whether or not you could have me construct your entire hard drive, and
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Judge McElroy: Wait, will you let him finish the question, okay?
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I am warning you.
A: What was appropriate was for me to help you retrieve this
paper which is the subject.
Q: The one file, right? That you would pay for the one file to be
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retrieved. Do you know of any companies that will retrieve only one
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Judge McElroy: Okay, I'm gonna allow you to ask, answer that
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A: I don't.
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reconstruction?
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A: depends on how much damage there was and I don't know about
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Judge McElroy: Okay, well I'm giving you another 10 minutes and
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Q: Did I ever say no you cannot just retrieve this one file.
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retrieved?
A: As I recalled when I made the offer to you instead of accepting
ms.
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the offer and helping me help you get the job done, we had ongoing
difficulties.
Q: I'll draw your attention to the exhibits where I, in fact, accept
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his offerJudge McElroy: Give us the exhibit, and the page, and ask him if
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retrieve individual files but would rather only do the entire retrieval
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in bulk.
Ms. Kagan: Your Honor, I request to have the entire paragraph
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read.
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Judge McElroy: Okay, well, what I will do is why don't you ask a
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question?
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retrieval aspect where it says in this email that you got it says in
conclusion all have OnTrack go ahead and send you a bill and I will
ms.
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fax over a contract for you to sign though I do not believe is legally
necessary to have you retrieve this data. I clearly accept your offer for
you to retrieve this.
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sat here today saying I refused to do that, but yet, here it is.
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A: No, because-
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A: Yes.
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Judge McElroy: Okay and let him answer and please do not
20
interrupt him. If you interrupt him, I am not allowing you any more
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questions, okay?
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retrieve the material setting the price they wanted to use that's not
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what my offer was. My offer was I was going to help you since we were
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Mr. Coughlin: I'm just asking him to refer to where they are in the
emails.
able to point to it and not paraphrase it, that's the beauty of email,
Mark.
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ms.
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A: Zach, your email goes on for several lengthy lines and you'll
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paragraph, you're talking about things that you believe are legally
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dollars. What you had turned a simple effort on my part to help you get
17
your grade by getting a paper into me you turn it into some kind of
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reconstructed. I don't know, to this day, Zach, I don't know what was
20
the problem with your hard drive or if you ever had a problem with
21
your hard drive. Honestly, I don't know. But it's a very unusual for a
22
student rather than help his professor try to get him the grade that he's
23
looking for so he can graduate it's very unusual for you to act this way.
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And, later on, Zach, you did call me and you did apologize to me and in
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that you are in a 12-step program and part of your obligation was to
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even, absolutely even footing and your conduct today suggests to the
contrary.
Q: I'm sorry, so you admit that I go ahead and say okay you can go
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ms.
do it your way?
A: It doesn't say that it said you were gonna do it with OnTrack.
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Q: Okay, but did you ever write back to say, fine let's do this, but
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Judge McElroy: I'm gonna go ahead and allow one more question
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in this area.
A: I'm not sure exact but I think you already had a grade by this
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time. I think you had already sent me your paper and I had already
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2nd.
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T: Okay.
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Mr. Coughlin: This is like October 10 th, so at that point, no, this is,
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chronology, class ends July 15, you write me July 7 th, you write the
grades were still out, he's still doing thisJudge McElroy: So the question is did you ever follow up on this
ms.
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email?
A: I don't recall because I think on September the 13th, Zach sent
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me an apology and Zach specificallyQ: Can you show this in the exhibit rather than just trying to
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remember it?
A: Sure it's on page bates number 0009 of Exhibit 5 and there you
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attached-
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A: That's correct.
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Q: Okay, but the letter you were talking about was from October
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10th.
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A: That's correct.
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pass or fail. Because I had a paper, I graded the paper, I said you're
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going to pass and the question at that point was were you going to be
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able to graduate from law school, I believe. Okay, so after I had already
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given you a passing grade then you were then asking me to spend
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Judge McElroy: You have like two minutes to ask your questions.
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only have this draft right do you recall that? And then you say okay
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give me the draft, and I turn the draft in then next thing I know a
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couple weeks goes by and then I get a letter on my birthday from the
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there?
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From there, when I do what you said, was that like a little trick or
something?
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Ms. Kagan: May I have one moment to talk with the witnesses?
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Judge McElroy: Yeah, but we can go off the record, wait, just a
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Ms. Kagan: Your Honor, the State Bar calls Christine Smith to
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the stand.
(The oath was administered to Christine Smith.)
By Ms. Kagan:
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Affairs.
Q: how long have you been in that position?
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responsibilities are?
A: On the student affair's side, I supervise the offices of admission
ms.
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A: yes.
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school.
Q: I would specifically like to talk about three different topics
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professor Tratos' cyber law course. there was a paper due in that course.
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Zachary had claimed that he had submitted that paper for the course
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the paper. there were emails that went back and forth between Zachary
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unprofessional and the matter was sent to me and I met with Zachary
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and spoke with Professor Tratos and others and I submitted the case to
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Philip Burns who was the Student Conduct Officer for the University.
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at that time the law school did not have its own honor code
established yet because we were a new law school and all of our Honor
or not there was cause and then I would forward them to the office of
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Q: regarding Mr. Coughlin, did you find that there was cause for a
referral?
A: I did.
Q: and what was the basis for that decision?
A: Um, the basis for that decision? You know what, Lynn took all
my papers.
Ms. Kagan: Did you bring something that would refresh your
recollection?
A: I had sent a letter over to Philip and I can't remember since it
was six years ago specifically what that letter said, so.
Q: can I direct your attention to the witness binders in front of
you, if you can turn to exhibit 5. do you recognize this exhibit?
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A: I do, yes.
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affairs Rebecca Mills and Philip Burns, the Student Judicial Affairs
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A: yes.
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A: Yes.
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ms.
A: I really don't recall specifically but I can tell you that based on
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officers.
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fair to say that that was before your letter to the student official
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and I wrote the letter and sent it to Dr. Mills and Philip Burns on
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that Mr. Burns found that there was not academic dishonesty but there
ms.
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and in that situation Mr. Burns did find that there was a code of
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conduct violation and he had Mr. Coughlin pay $100 restitution to the
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University.
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Q: I would like to discuss that matter in just a minute but can you
refer to exhibit 53. do you recognize exhibit 53?
A: this is the letter that Mr Burns wrote to Mr. Coughlin after his
investigation of the honor code matter.
Q: did you receive this letter at some point during the
investigation.
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A: yes.
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Q: And, do you know what happened after this letter was sent, do
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you know?
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A: no.
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by Philip Burns?
A: Not to the best of my recollection, no.
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A: Yes.
exhibit 58?
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ms.
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A: yes. this is a memo that I wrote to Dr. Mills and Philip Burns
notifying them that Mr. Coughlin had disconnected the computer in the
microphones room of the library at UNLV.
Q: was the computer that was disconnected for student use?
Mr. Coughlin: Objection, your honored, relevance. I don't see what
11
is the point at issue or the relevancy. we're talking about the computer?
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was dedicated specifically to the microforms area and it was for patrons
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both students and the general public to use when they were looking at
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Q: let me go back and just ask you is are the statements that you
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situation?
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Matthew Wright had gone into the micro forms room on the evening of
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October 11, 2001 and noticed that the computer was not there. the
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computer, the mouse and the keyboard that they were not there so he
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was concerned and he went for a walk through the library to see if he
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the library using that computer and keyboard for his own personal use.
A: No.
A: No.
A: No.
ms.
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Mr. Coughlin: but didn't we say in the last thing with Tratos,
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that when the question was asked have you been dropped, expelled, or
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otherwise disciplined by any school for any reason other than academic
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performance. you marked yes and then replied I was find $100 by
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01, 2002?
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that he was fined because he had violated the UNLV code and I'd have
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$100. I think it had something to do with the fact that staff time was
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taken to first of all find the computer and then to have to put the
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computer back in its proper spot. and then there were also some re-
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settings that had to be done to the computer because the settings were
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off from what they should have been at that particular station.
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Q: when you testified earlier that the law library employee found
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Mr. Coughlin in another part of the library. can you explain where he
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was that the microforms computer was in sort of a isolated room and
the computer was taken out of that room and moved to another room in
the library. There in that same library, very near to this area was an
area for student use. the student computer lab that was specifically for
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ms.
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Q: that was nearby but that's not where Mr. Coughlin was found,
or was it?
A: I don't believe he was found in the computer lab. I believe he
was found in a nearby room in the library.
Q: Did you ever do any independent investigation into either the
incidents with Professor Tratos or the computer incident?
A: well my investigation in connection with the matter in Mr.
Tratos'
cyber law class was that I spoke to Mr. Coughlin and I spoke to Mr.
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the class.
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Wright who was the law library faculty member who discovered that
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the computer was missing. I also spoke with Mr. Coughlin and I spoke
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with one of our IT staff members Donald Castle and I spoke with Mr.
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Burns.
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three pages because there's a front and back to one and two. do recognize
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exhibit 18?
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A: I checked yes.
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ms.
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other situations besides the situation with Mr. Tratos and Mr. Wright
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connection with his employment in the law library, there was another
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Judge McElroy: why don't we recall the incidences and then ask
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more questions.
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by Professor LaFrance, can you explain what the behavior was by Mr.
enrolled in that course because the matter with Professor Tratos was
ms.
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still pending. he wasn't sure if he was going to pass that course. he took
professor LaFrance's course in the instance that he might not pass
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Tratos' course and then he would still have enough credits to graduate
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attendance policy and he had already missed several classes. the result
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from her class. but in the process of that happening he had sent at least
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Professor Stemple?
A: we have a requirement at the law school that each student,
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Mr. Coughlin: if we're going to go into all these, can I go into the
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ms.
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thing. because you forgot to mention it Christine, and go into the five
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other things.
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Mr. Coughlin that there were substantial deficiencies with that paper.
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he had sent him a memo that outlined the deficiencies and he had asked
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memo, and it took several weeks, possibly even months for that whole
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Professor simple in what I would call you know just disagreeing with
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the the quality of the paper and whether or not it fulfilled the writing
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requirement-
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Judge McElroy: This is not going to the truth of the matter, so I'm
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Judge McElroy: Yes, because as explained it's not for the truth of
the matter, its to explain her opinion as to why she was concerned
library. you mentioned that was something that also caused you
concern. I believe that the law library faculty could better address-
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ms.
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Judge McElroy: The problem is its hearsay only if it's going for
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the truth of the matter. this is to explain why her opinion is that you
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because there was a paper due and I had some discussion about what
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A: Yes.
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they were overdue. a library staff member called him to tell him they
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were overdue and request that they be returned to the library and he
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swore at that staff member and there was another similar incident over
overdue books.
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A: no.
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ms.
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By Mr. Coughlin:
Q: Dean Smith did you go to law school?
A: No. I did not.
Q: But you are the Dean.
A: I am the Associate Dean for Administration and Student
Affairs.
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A: I am not a lawyer.
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Q: And you didn't go to law school, but you're the Dean of the law
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school?
A: I am not the Dean of the law school. I am the Associate Dean of
the law school. there's a difference.
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Q: Were you ever any other kind of Dean besides Associate Dean
21
at UNLV?
22
A: No.
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Dean of Student Affairs later on. werent' you originally like the Vice
25
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A: yes and then as the school grew and an Associate Dean for
where there I did a paper, wasn't quite what he wanted and we went
back and forth over what it needed to have for a while and then I
turned it in the paper was done. I really didn't see where you were
ms.
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going with? Where that was all that incendiaryMs. Kagan: Objection, is there a question pending?
Judge McElroy: There's gotta be a question pending, and quit
editorializing.
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A: my concern was there are email notes in the file from you to
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had it in my folder that Lynn has right now. if it's in one of these
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A: I can't tell you for certain items. I don't know what is here in
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front of me.
Judge McElroy: Your questions should be addressed to the
witness.
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about Stemple in hereJudge McElroy: Mr. Coughlin, I should warn you that you should
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be happy that it's not. The more you bring out the worse the case gets.
You need to focus on the issue at hand here and notQ: I noticed you mentioned like five things. you mentioned
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enrolled in a class and then later not dropping the class or not taking
ms.
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the class or something like that. but you didn't mention anything
regarding professor Anson. can you explain that Professor Anson
situation, why that didn't come up when you were talking?
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don't-
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A: yes.
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Q: was he fired?
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A: yes.
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received from professor Anson. he was later terminated from the law
ms.
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nothing I did related to the Anson or my meeting with you about him
11
was unprofessional?
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Judge McElroy: Mr. Coughlin please let her explain her answer.
go ahead if you can explain.
A: I have a hard time remembering any interactions with you in
which you were professional.
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answer that.
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Q: Yet, you remember the specifics about a paper that was due in
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Stemple's class? This is a guy who got fired and you don't remember
Stemple?
ms.
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Anson.
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A: Objection, relevance.
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trial?
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Q: I noticed you said I believe you said you didn't speak when you
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were investigating this academic dishonesty bit? you know the thing
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here-
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Q: I notice you said you didn't speak with other students about
this. You said I spoke with Don Castle and maybe somebody else and
somebody else-
ms.
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Mr. Coughlin: Well, then, can you please clarify what your
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testimony was?
Judge McElroy: I'm going to sustain the objection. ask a question
that comports with what her testimony is.
Q: did you say something about whether or not you spoke with
17
students in the cyber law class related to the paper incident involving
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Mark Tratos?
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Q: yes.
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Judge McElroy: Did you talk to other students regarding this? it's
pretty simple.
Q: Well see but it's interesting. she can't quite remember what she
said and then now she wants to hear it back and-
Q: Did you ask other- They are certainly editorializing when they
ms.
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are going into all these peripheral incidents withJudge McElroy: Mr. Coughlin, you cannot seem to ask a direct
question.
Q: did you speak to students in the class? the cyber law class
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A: I don't recall.
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Judge McElroy: okay she said she didn't recall. ask the next
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question.
Q: ok why earlier did you say that I didn't speak to other students
in the class?
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Q: so now okay-
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students.
Judge McElroy: Okay, so she doesn't remember. Ask the next
question.
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A: not always.
ms.
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can remember.
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Q: Did you ever talk to the students who I mentioned saw me turn
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A: Not always.
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there was cause for me to forward your case to Mr. Burns and Mr. Burns
24
is the person who would speak with you and would speak with the
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ever apply to, you might not know that because you didn't go to law
school-
Judge McElroy: Can you please show some respect for people in
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ms.
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this court?
Mr. Coughlin: As soon as someone shows some to me. In the course
of doing that you didn't speak to any of these students? you escalated it
onto the official level-
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thing was supposedly moved, was it in the same, did it have the same
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Judge McElroy: Will you just ask the question? Ask the question.
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Q: Was it in the same room, same four walls containing the room?
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Q: okay then if you don't know then why earlier were you able to
Q: If it is in the same area or if you don't even know what area it's
in how can you describe whether it's in the same area or another area?
ms.
A: the way that the library was laid out, it was a very big space.
the particular room that the microforms was in, was a room not much
10
larger than this room. there were rooms, larger rooms adjacent to that
11
particular room. I don't know whether you were in that very same room
12
or if you were in the next room. but I do know that Mr. Wright had to
13
go looking for the computer so it wasn't right next to its proper spot.
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and told him I had the computer when I saw him approach the
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Q: Because it was just the monitor and the mouse that were moved.
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A: No.
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and I'm saying do you recall this email to you where it says
ms.
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Q: Can you tell me what it means when it says I ran into Zach.
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Does that mean I came up and approached him and said look I used this
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A: Well as I read this memo it's Mr. Wright says I entered the
thought they were stolen. I looked and wandered around when I ran
ms.
9
into Zach. Zach had disconnected the monitor, keyboard, and mouse. so
when he says he ran into you-
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moved them into one of the carrels in the microforms room? Is that the
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matter I'm going to tell you if you interrupt a witness and the middle of
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witness and I mean it. so you need to wait and listen to the answer and
17
not interrupt and no more editorializing or you will not be asking any
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Judge McElroy: So, if it happens again you're out of here. now ask
21
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a question.
Q: Does this letter from Mr. Wright indicate that I had moved
23
these materials into one of the carrels in the micro forms room? is that
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A: Yes the memo that I'm reading now says that you had moved
microforms room.
ms.
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Q: okay, so if it was moved from one wall to the next it was moved
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A: in this letter from Mr. Burns he says that you are to consider
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Q: and what was the violation I was found, does that mean I was
1
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was one to begin with, so what was the one to begin with? what was the
violation?
8
ms.
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one
12
of.
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occur? that didn't, like as in, that didn't occur, I'm going to warn you to
15
not do that again. don't you not do that again, Mr. Coughlin.
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let it be no compoundA: I'm sorry, I've read farther into the memo, and farther into the
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A: I don't recall.
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ms.
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Q: okay but we're not talking about the computer thing anymore,
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we're talking about the the Tratos thing right? because that's what the
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whatever the first section I guess section P although he's got Q's and
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then he's got, so I don't know what he's talking about. but somehow this
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first section deals with the professor Tratos thing, yet there seems to be
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harm to another? and so later on down the page he goes in the matter of
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saying academic dishonesty did not occur and you know elsewhere in
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this letter talked about how this is an informal resolution, yada, yada.
ms.
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A: that's right.
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Judge McElroy: you have got two minutes to finish up your cross-
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examination.
Q: It doesn't say anything about me assaulting, striking or
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Q: My question is what does this say, even. what are you saying I
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did and what are you saying you found me guilty of?
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matter of your remarks has been informally resolved between you and
your instructors. in addition it appears that academic dishonesty did
not occur.
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Judge McElroy: I'm gonna go ahead and let her answer the
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question.
Mr. Coughlin: I thought that was the whole point of this as Judge
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this.
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Ms. Kagan: objection, first of all the witness doesn't even know
what Mr. Coughlin reported to the Bar regarding this incident.
Mr. Coughlin: She doesn't need to know. she's not the witness. just
let her be that.
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accurate?
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A: Yes.
Q: Let me read you these statements and you can tell me whether
or not these are accurate. these are what's at issue, this is what I said to
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Mr. Coughlin: so, I'm never actually going to get told what they
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thought I did?
Judge McElroy: The truth is you got the best answer you could
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from her. she said that there was not academic honest dishonesty
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found. ok I mean how much more do you want? And that was the
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right?
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Q: Can you tell me what it was that made you think there was
academic dishonesty present in the first place such that you brought an
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sent to faculty and staff, because of the various incidents that I had
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problem.
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Q: so does anyone who has any problem with any of your faculty
or your staff have a substance problem?
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A: No.
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incident to a State Bar that I would have been accurate for me to have
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told the bar, given what you know about this situation as I did in my
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took place when in exhibit 1, believe it's page thirteen, under this
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reason other than for academic performance and I'll note that-
Judge McElroy: please read the whole sentence, Mr., yes, its your
ms.
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question.
Q: To attach my computer for an hour in December 1st, 02
University of Nevada Las Vegas.
A: I can't testify to the distance that you moved the computer
because I didn't see it.
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feet it was moved? Is that what it comes down to, how many feet it was
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moved?
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testify to the distance that you moved the computer because it's not
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A: Yes.
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Q: when when was I told that I was going to pass the cyber law
course?
A: I don't know.
Judge McElroy: her answers was I don't know. what's the next
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question?
Q: Mr. Burns' letter is from November 27, 2001. Would have I been
able to have known if I passed the course or not before then?
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A: I don't know.
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Q: Wouldn't his report need to have been issued before you could
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report?
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A: not entirely, no. what if you didn't pass some of your other
courses.
Q: ok but aside from that. Assuming I passed every other course
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and this was the only course still out there, was this what was holding
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up? you couldn't have given me a grade until this was out right?
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A: Right.
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A: You would not have received a grade in the cyber law class
until you had submitted a paper to Professor Tratos for his review and
for him to grade. I don't know when he received your final paper, which
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Judge McElroy: okay I'm going to overrule the objection and she
has said she doesn't know the answer to that question so let's move on to
something she knows.
Q: that's a tough one. did Mark Tratos request contact information
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for any other students whose papers he had lost in the cyber law
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Judge McElroy: okay I'm gonna go ahead and let you and ask that
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Wolfe.
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you gave me, included with the other emails to Professor Tratos, the
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first one was from Professor Tratos to you or your assistant. Do you
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recall him asking for emails for Zach Coughlin and Jessica Wolf?
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Judge McElroy: well then, don't ask about it. what's the next
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A: Yes.
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certain that she took that course or her transcript and I don't have
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By Ms. Kagan:
Q: Officer Cho, are you currently employed.
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policing.
Mr. Coughlin: His whole point in being here. What's the relevance
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interrupt me, I will ask you to leave the court room and the witness can
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testify without you being present. do not interrupt and when I make a
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Judge McElroy: No. I'm not going to allow you to ask questions.
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A: I remember-
ms.
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just wondering for the flow of the trial, with the last point we dealt
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with it helped me because you spelled out what we were looking for,
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and that was whether or not I reported accurately to the State Bar, so
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what I'm trying to do is focus my mind on what are we looking for here-
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Judge McElroy: Allow him to testify and if you feel that there's a
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A: I'm sorry.
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Zachary Coughlin?
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A: yes, I do.
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Q: can you explain that contact that you had with Mr. Coughlin,
back in 2001?
A: yes, I was working the Las Vegas Strip on bike patrol at the
time. I was riding with my sergeant that day. riding south bound, I
looked over towards the left and I noticed a security officer running
after Mr. Coughlin. there was another police officer that was running
with the security officer after Mr. Coughlin. so I road down to assist
ms.
him we're police officers and to stop. he didn't listen to us. he turned
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wear bright bright canary yellow uniforms that says metro police on
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myself and I think it was Officer Jordan tackled Mr. Coughlin to the
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ground and as he got to the ground he was lying prone. he put his arms
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in into his body and he would not cooperate with us. it took
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approximately four officers to basically get his arms to his side and
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the officers asking him why are you running, what's wrong with you
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and he basically repeated why are you running what's wrong with you?
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he asked again, what's your name and Mr. Coughlin asked the officer
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what's your name, and just kept repeating what the officer had told
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Q: were you present when Mr. Coughlin was asked his name?
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A: Yes I was.
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and I didn't know what his name was. but I also do remember, I
remember what the officer stating at that time, because I think one of
the other, another officer had gotten a subpoena for the case, and I
remember none of us got a subpoena for it and that officer wasn't the
ms.
he would have never gotten arrested on that day but he spent so much
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of our time and we couldn't identify him, so that's the only reason why
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he got arrested.
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how much they know the law. I remember him saying I know the law,
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another state or doing anything like that with our profession, why
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would he do something like that? So, when I got this for subpoena for
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arrest in this matter or was he very helpful with the police and listen
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would have been arrested. I don't think he would have gone to jail .
By Mr. Coughlin:
Q: hello Officer Cho.
ms.
A: hello.
Q: Can you clarify what that last point was about we wouldn't
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A: okay, like for , my wife and I went to Utah last week. we got
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pulled over. I was cooperative with the officers knowing that I'm an
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does the job that I do. I think being an attorney is a high profession just
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get the respect when we make contact with them. that's what I meant
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by it.
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A: I didn't only feel that, all the other officers did. when somebody
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is, the number one thing that we learned in the Academy is the most
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dangerous thing of anybody's body is this, the hands, because you could
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have either a gun, a knife, or whatever . we'd like to see the hands.
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What you did when you were lying prone and none of us was on top of
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A: well after you were tackled, we were on top of you, and then we
moved away, and we said put your arms behind your back. I remember
one arm being held, the other are being held by another officer because
we know well enough that your arm is not going to move when
somebody's on top of you. we kept telling you to put your arms, take
your arms out, let me see your hands, let me see your hands. you didn't
do that.
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something like what are you doing and I said I was putting my hands
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behind my back?
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number one about halfway down the page beginning with: Officer Cho,
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Officer C. Jordan badge number and myself gave chase and tackled
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ignored orders to stop resisting and put his hands behind his back.
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says he put his, or it says and put his hands behind his back?
ms.
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Mr. Coughlin: No, no, it's right there in those books for you.
A: Oh.
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behind his back. I think the way he worded, it because we were asking
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you to stop resisting and put your hands behind your back. When I
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A: this is the first time I've seen it when I got it. when I read this
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report it didn't make sense to me on certain parts but you know what,
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when I now read it, that's how I remember a lot of it, you know so that's
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Q: okay do you remember anybody's saying why did you put your
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hands behind your back like that? we thought you were reaching for a
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hands behind my back so you guys would know I didn't have anything
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Judge McElroy: Wait, you can not talk over the witness.
your side basically to put you finally into handcuffs. I remember that.
ms.
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A: Ha. Sigh.
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resisting- Oh boy. and put. stop resisting and put his hands behind
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A: yes.
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Judge McElroy: I'm gonna go ahead and let him ask that question.
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by weather citing the person or not citing the person, discretion. In this
case, since we work the strip when we have tourists and stuff like that
Vegas Strip are mostly out-of-towners. we don't cite them. That's just a
ms.
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wallet and identification if you have them handcuffed and you're able
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A: Go ahead.
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minutes. Okay, like I said I remember all of us, all of us trying to get
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your hands behind your back and before getting your wallet, we asked
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questions and you continuously spoke back, and basically repeated the
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Q: But, I must have done more than that because we talked about
the law and stuff. That, this. we talked about the things that, that-
Q: ok, we didn't just talk about, I didn't just repeat things, did I?
because we talked about the law and things that made you later say I
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ms.
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A: well this was later on with the officers talking. this is after
you've already been arrested. we spoke about that.
Q: ok, so I'm just trying to understand. I don't understand how it
takes so long to get identification.
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Q: what kind of stuff did we talk about the law? what kind of
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stuff are we talking about? Were we speaking about the law and?
A: I just remember you saying that you were an attorney student
and you knew the law. that's basically what I remember.
Q: Something like that. something like is this a Terry stop? or did
you have some sort of you know cause to arrest-
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Q: but you don't like it when people say stuff like that, do you?
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Q: Well earlier you said that you didn't like it when people try to
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and do that?
A: Sigh.
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analogous to what's going on here, because it's not cop and a cop, right?
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A: Sigh.
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Mr. Coughlin: Spent Officer Cho's time to bring him here to ask
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him about something that'sJudge McElroy: it's part of her case in terms of good moral
character. move on.
Q: so, Officer, I was running when when I first saw officers, I was
already running, right?
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A: yes.
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kept running.
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Q: To stop on a dime?
next question.
Q: if someone's already running and an officer say stop, that
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person isn't going to stop on a dime, right? I mean that's not like
ms.
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Judge McElroy: why are you asking a question that Ive already
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Judge McElroy: You can't, it's not, it's the same. ask another
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civilians and a police officer sees this and says stop running, would you
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expect that it would take the person a certain length of feet or time to
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Q: how far did I run after you would have expected that the
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reasonable person would have been able to slow their original pace and
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A: The distance you ran, you ran from the Polo Towers, from
where I saw you to where I stopped you, which is the shopping center, is
remember Officer Jordan asking you about running and stuff like that
later on and you have stated something about the movie theater. you
were sneaking into the movie theaters and that's the reason why you
ms.
thought security was chasing you because you were, you don't pay to go
into the movie theaters but you're watching movies without paying for
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southbound from the polo towers on towards the shopping center. the
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movie theater is at the South. you were actually running towards the
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movie theater on the north of where you were running from. that's
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A: how could you still be running? No, you went to the ground.
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Q: you don't remember that all? I'm confused because one second
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ms.
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ago you don't, he said I don't remember if you were still running, and
then in the next sentence he said you were still running and I tackled
you.
A: I'm confused because you're changing the words around. you
were still running when I tackled you. you did not stop and do this.
Judge McElroy: Okay, so it's clear to the court-
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Judge McElroy: You did not stop and raise your hands. you were
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tackled while you were running, okay? I don't need to hear any more,
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move on.
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Q: didn't you just say that you were not sure whether or not I was
running before I got tackled?
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o'clock.
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A: no, I don't.
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A: No, I don't.
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Q: You don't recall her making jokes about my shoes and the way I
ran?
A: No.
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A: No, I don't.
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A: yes, I did
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right?
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A: Ha.
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tackle people, right? Its not like you are living out high school football
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again, right?
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A: Ha.
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A: Ha.
people?
Judge McElroy: it's sustained. move on. don't argue with me.
ms.
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Officer Cho in the first place, soJudge McElroy: So then why don't you just quit asking questions
about it? Why are you emphasizing?
Mr. Coughlin: can you tell me why and maybe then if I have any
important questions I'll ask themJudge McElroy: No, you are an attorney. You are a Nevada
attorney, you should know better.
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Judge McElroy: Okay, anyway are you finished with your cross-
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examination? I'm going to say you have. Do you have any redirect?
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Judge McElroy: Okay, you may step down. Let's see if we have any
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5/10/07 Transcript:
Coughlin case number 06-M-13755 and today's date is May 10 th, 2007 and
it is the third day the hearing and are you ready to call your next
witness?
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ms.
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By Ms. Kagan:
Q: Morning Mr. Toms, are you currently employed?
A: Yes.
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Q: Where?
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to that I was a criminologist for six years at the Santa Clara county
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a-half years.
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court-
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Blood, urine, biological tissues and fluids and solids or substances for
ms.
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Mr. Coughlin: All right. Can I go on and on with stuff and not
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show you what I am doing with it forJudge McElroy: You can do whatever you want when your turn
comes up, which is known as cross-examination.
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we don't know where its going and take up a lot of time that wayJudge McElroy: My sense is you have no idea how to act like a
lawyer, but let's go on.
Mr. Coughlin: Well, I did go to UNLV, so.
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as well.
marked as Exhibit 68, it's a two-page exhibit could you look at both
A: yes.
ms.
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A: It's a toxicology report and the alcohol analysis report from the
laboratory forensic services of Sacramento County.
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hydrocodone.
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A: 11-nor-
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body converts it into so the person would have had to have ingested
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compound.
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Q: Can you tell from this report when the person ingested
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marijuana?
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A: No.
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ingest?
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ms.
A: No, you wouldn't be able to tell the amount all you could do is
talk about the range of time that a person possibly used within.
Q: What is that range of time?
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are lipophilic drug means that it likes to store in fat in the body fat so
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Q: You said someone would have had to ingest marijuana, can you
tell me what that means?
A: They could have eaten it or smoked.
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could have a level of that but the scenario that was performed was
unrealistic, it was several people sitting in a car sized area, and there
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A: Because it was so much smoke pumped into the room that they
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weren't smoking that they weren't actively like puffing on they were
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A: No but their eyes were irritated and that's why they they
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requested goggles.
Q: Would their eyes have gotten red? Is that what you mean by
irritated?
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A: yes certainly.
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know how much smoke was piled into this small area, which makes it
A: I have no idea.
Judge McElroy: Overruled. It's already come in, the answer he had
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A: I don't know if there was cigarettes being smoked in the car but
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asking let's say there is not marijuana in the car and they're just for
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people in a car and some of them are smoking. Would you have
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the record.
A: Well if they put enough smoke in there that would irritate the
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eyes of the people and they requested goggles I would I would tend to
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that just saying there's this chemical in this person's urine, or is that
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A: Not on this report but I did bring the chromatogram that has
the quantitative value.
Mr. Coughlin: Ok, was this chromatogram propounded earlier to
hearsay.
ms.
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Judge McElroy: What's your question? You are the one that asked
the question and you got an answer.
Mr. Coughlin: And he responded referring to a document
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far as I can tell it hasn't been propounded, it hasn't been put into
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the trial.
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A: Do you want me to give you the complete packet or just the one?
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Judge McElroy: What are you referring to, what did you?
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Mr. Coughlin: Good use of time, good use time and money. That's
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good.
Ms. Kagan: Your Honor I would ask that Mr. Coughlin be
refrained from making some remarks (laughs) other than his
questioning.
Judge McElroy: Mr. Coughlin, I asked you a number of times to
refrain from making remarks.
Mr. Coughlin: And I ask that Ms. Kagan be refrained from
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Mr. Coughlin: Can we? Can we? Thanks. I just don't understand
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why he's being called. What did that accomplish? It took 30 minutes.
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Judge McElroy: For the record it's accomplishing you had you had
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you asserted in your application that you were not under the influence
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say that you were under the influence of marijuana, it's quite simple.
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Mr. Coughlin: But that didn't prove, that didn't speak to that at
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did not enter into a stipulation. When parties don't enter into a
stipulation, then the State Bar has to put on all their witnesses as you
do too, okay?
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Mr. Coughlin: But I'm not asking for her to be on trial. So I won't
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By Ms. Kagan:
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A: I am not sure.
Q: Isn't it true that you told up the LAP program that the last
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Ms. Kagan: No, I'm sorry, you didn't stipulate. It has been
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Mr. Coughlin: Okay so we're just doing? Your honor, I'd like to
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entirety.
A: yes, I am.
Q: Under section F, it says I've been sober since January 28 th, 2003
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correct?
A: I believe it says that. So what page is that?
Q: Page 52. So let's just get this straight pages 31 through 57 is
that your LAP intake questionnaire?
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correct?
Mr. Coughlin: Right, but I don't know that you haven't doctored
this or done something else with it.
Ms. Kagan: Well, at the top it says: note, please use with typed
responses on separate pages, correct?
Mr. Coughlin: I can't read that. The handwriting is kind of
sloppy.
Ms. Kagan: And its dated 6/28/05, please tell us about yourself
name is Zachary Coughlin, correct?
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A: I am not sure.
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Q: Okay, if you could just review that document first and let me
know whether or not that's something you turned into LAP, and then I
will go on to something else.
A: I'm not sure whether or not this something I turned in to LAP,
Susan.
Q: Okay I'd like you can turn to Exhibit 49 very quickly and
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A: I believe so.
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Q: And this says at the top: I, Zach Coughlin hereby authorize the
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results and or diagnosis and treatment with the State Bar of California
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A: I'm not sure this says it's good for one year from 6/24/05, so I
guess it's no longer good or?
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Q: But was it good at the time that you signed it, Mr. Coughlin.
A: I don't know.
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Mr. Coughlin: Well, I just don't see a release for all this
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Mr. Coughlin: So, I don't get to know where the release is?
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Judge McElroy: No. You need to figure that out on your own.
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confidential program?
Judge McElroy: I'm not answering the question. I'm not here on
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trial.
Mr. Coughlin: Okay, so just let the record state that we don't know
where the release is.
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Ms. Kagan: Mr. Coughlin, are you stating right now that you
didn't provide a release dated April 20th, 2007 to the State Bar.
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terms ofQ: Now I pointed you to some language on page 52: I've been
sober since January 28th, 2003. Was that a true statement when you
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Mr. Coughlin: And, can you define what you mean by sobriety?
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A: I am not sure.
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Q: Did you drink alcohol- well let me let me go through this for a
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second. You lived atMr. Coughlin: Objection your honor if I tell her I'm not sure and
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repetitive?
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alcohol in it, if you consume that, and if it seeps into the membranes in
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Mr. Coughlin: Not to say I did that but Id like to know whether or
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A: I am not sure.
Mr. Coughlin: So, I don't even get to say what the basis is? That's,
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constitutional right.
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Mr. Coughlin: Say, if she asked me: did you murder this person? To
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Q: In the past four years, did you keep any alcohol in your
residence?
A: I can't remember.
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residence.
Q: You lived at 1255 Jones Street Apartment 132 in Reno, Nevada
from October 2004 through April 2006, correct?
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exhibit?
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Mr. Coughlin: No, why don't you just go ahead and read it for me?
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Q: Well this is your update to the State Bar dated February 15 th,
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2007, and on page 2, it says October 2004 through April 2006, 1255 Jones
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number 132 Reno, NV 89503, and that's under residents history. Was
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A: I don't know that you could say that, I had people stay over at
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different times.
Ms. Kagan: Mr. Coughlin, when I asked you that same question
your deposition you testified that you lived alone at that address.
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page 108 when you're asked about the unlawful detainer actions that
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took place on Jones Street. Question: did you have a roommate at the
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Q: Now, I'd like to talk about the eviction that took place at 1255
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Mr. Coughlin: But that certainly doesn't mean that I don't have
people over-
A: No.
A: I am not sure.
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Apartments-
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Mr. Coughlin: Its Nevada. Can you say that? Can you make those
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Mr. Coughlin: Where was this? What state was this in?
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do not act and comport yourself in accordance with a lawyer then I'm
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going to ask that you be- I'm going to remove you from this courtroom,
Mr. Coughlin: I'm not sure I know what you mean, your honor, but
okay? Its like the standard for obscenity, you kind of know it when you
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Mr. Coughlin: and walked in with gold chains then they would
not be a lawyer right?
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Q: Now, you already testified earlier that you were I mean there
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notice of this unlawful detainer action or eviction, but you had to leave
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on the 19th when an officer came to your residence to evict you correct?
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Judge McElroy: Could you read into the record the deposition
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transcript?
Ms. Kagan: Yes, I'm sorry it is line 19 question what happened in
the process of the eviction answer I was evicted question were you
premises and told me I was being evicted which I didn't that was the
first I heard of that I didn't know that something happened with the
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notice such that I didn't get it or wasn't aware I hadn't opened the letter
I'm not sure and so on the nineteenth of that month when the officers
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showed up and said you're evicted I did have to leave on that day
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question and this is going on to page 100 starting line 5 was that the
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same residence that was the subject of two unlawful detainer actions
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against you answer I believe so yes question and those and are those the
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page 101 starting on Line six when did you first become question when
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did you first become aware of the judgment answer I'm not sure I don't
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know that by being aware that I'm evicted I know that there's a
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filed that was probably the first time I was aware that there was an
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actual case number and that they had won a judgment against me. Now
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I'd like to return back to page Exhibit 63 and on page four are you
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A: Yes, Susan.
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Stroess being first duly sworn deposes and says that affiance is a citizen
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April 19th, 2006 time 12:41 pm Mr. Coughlin was that notice which is
reflected on page two of the same exhibit posted on your door at 132?
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Mr. Coughlin: But why isn't it in here? I see N and O, but I don't
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Mr. Coughlin: I object. How can you not provide this stuff and
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Ms. Kagan: Let the record reflect that I am showing Your Honor
Exhibit 73A. Mr. Coughlin, let the record reflect thatMr. Coughlin: Why didn't I get a copy of these exhibits that you
keep bringing up? Why didn't I get a copy of them?
Judge McElroy: You are getting a copy now, you're looking at it.
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Ms. Kagan: Actually that's the original, I will give you a copy.
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Mr. Coughlin: Eventually? After the trials over, maybe I'll get a
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copy to prepare for it? Is that, is that the case? Good, that sounds fair.
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Ms. Kagan: Let the record reflect that I'm giving Mr. Coughlin a
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Mr. Coughlin: For the first time on the third day of trial?
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Ms. Kagan: I'm showing you what's been marked as Exhibit 73B,
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let the record reflect I am showing Your Honor. Mr. Coughlin, this is
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Exhibit 73B and in this exhibit of the inside of Apartment 132, there's a
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book, you can see a binder with the name of Hale Lane on it. Do you
Mr. Coughlin: Which one one here? Can you do these by number?
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them.
Ms. Kagan: Mr. Coughlin, I'm showing you the original they are
marked on the back.
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A: No. Well, I mean, I was just provided with it, I don't know how
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Judge McElroy: Why don't you take some time to look at it.
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A: No.
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Q: Is your apartment?
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Q: But you do see that there's a Hale Lane booklet in the picture,
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on the table?
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Q: But you did work at the law firm of Hale Lane, correct?
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A: Yes, I did.
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Mr. Coughlin: How can they be presented if they have not been
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Ms. Kagan: Let the record reflect that I'm showing Your Honor
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Exhibit 73C. Mr. Coughlin, I'm showing you what's been marked
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Mr. Coughlin: I see empty bottles, see a drum set. I don't know
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Ms. Kagan: Well you have it right in front of you now. Was this
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kept in your apartment at 1255Mr. Coughlin: I don't even know that this is my apartment, this is
some picture-
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Judge McElroy: The record should reflect he's denying it's his
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apartment-
Judge McElroy: So if you want to put those into evidence they are
authenticate them.
Ms. Kagan: Let the record reflect I'm handing the originals back
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of this trial.
Mr. Coughlin: So you just don't? Okay, so I can show something to
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not be part of the evidence, it's not admitted into evidence and unless
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Mr. Coughlin: Well, I do need to use it, so, if there is some point in
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Judge McElroy: Okay, let's push it. What's the next question?
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long.
Judge McElroy: Five seconds.
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8.1 credentials and licenses, you state three lines down: licensed as a
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Judge McElroy: Okay, she hasn't put it into evidence. You need to
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you even know what a patent attorney or agent is? Is there a bar to
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authenticated.
Q: As of October 2007, Mr. Coughlin are you registered as a patent
attorney or a patent agent?
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a website and printing off something on a website and acting like that
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is law, it's ridiculous. Your like the rogue prosecutor in the Duke
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Ms. Kagan: Your Honor, I move to strike these comments that Mr.
Coughlin is making disparaging my character.
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Mr. Coughlin: Don't have the character you have if you don't want
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paragraph states I'm writing to inform you the status of your client's
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Mr. Coughlin: Does is say and whatever the hell else you want to
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look at?
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Mr. Coughlin: I'm sorry I couldn't hear if you said requires that
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Mr. Coughlin: Did it say alcohol abuse and whatever the hell else
it is you want to poke around in?
Ms. Kagan: Let's look at Exhibit 38, page 2Mr. Coughlin: Because I didn't see that part if you can point that
out to me.
Ms. Kagan: Its already in evidence, Mr. Coughlin, its a stipulation
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7/9/04, correct, this is something that you signed? Page 2 of Exhibit 38?
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order to evaluate his recovery from alcohol abuse, period. I don't see
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where it goes on and says plus we'll ask you questions about your
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Mr. Coughlin: Yeah, I don't see where it says I'm enrolling in LAP
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in here.
Q: Mr. Coughlin, that wasn't the question posed, the question is do
you recognize, did you sign this document?
Mr. Coughlin: I think so.
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processMr. Coughlin: And that's a full year later! Isn't it? Because this
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was signed in 2004, so why did it take a year for them to do their
telephone intake?
ms.
Judge McElroy: Mr. Coughlin, when you present your side of the
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22nd, 2005 and has completed the telephone intake process, correct?
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know how this could be accurate. I don't know why they decided to take
intake interview.
you were accepted into the LAP program on August 18 th, 2005, correct?
Q: Let's turns to the same exhibit page 22 that is Exhibit 72, page
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participation-
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your recovery-
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agreement for review and signature. Please sign within five business
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Ms. Kagan: And then I just want to get down to paragraph 3, the
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agreement.
Mr. Coughlin: Objection, relevancy. Where are we going with
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this?
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Q: And this participation plan had two parts. Part A had nine
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conditionsMr. Coughlin: But, I had already signed one of these plans like
months beforehand.
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correct?
Mr. Coughlin: Let me review this first. I see were it says you can't
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Q: The question is Part A has nine conditions and Part B has nine
conditions, correct?
cooperative effort with the LAP, I agree to follow the conditions I will.
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And then it sets forth the conditions, correct? The conditions we just
discussed?
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Q: You agreed to follow the conditions that are set forth in Part A
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Q: Did you agree to follow the conditions set forth in Part A and
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Q: You agreed to follow the conditions set forth in Part A and Part
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outcome. To date we have not received any information from you but
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and appear not to have gained insight regarding your alcohol abuse. In
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Ms. Kagan: We hope that you will choose to pursue recovery and
ms.
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items are not received by this office by close of business on December 1 st,
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Ms. Kagan: But you didn't give me another one until April 20 th,
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2007, correct?
Mr. Coughlin: Well, you didn't give me a lot of the damn exhibits
until the third day trial, so what's your point, Susan?
Ms. Kagan: Just answer the question, you didn't give me an
authorization until April 20th 2007, correct?
ms.
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January 3rd, 2007 to Mr. Coughlin and encloses the a LAP authorization
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form. Please sign and date the form returned to me by close of business
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signature?
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of information form.
authorization form.
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LAPsed and that was inconvenient for you to get another one. Which
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Q: Let's see, Mr. Coughlin, you were deposed on March 2 nd, 2007,
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correct?
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questions.
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into evidence at this point I think what you need to do is read into
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The answer about convictions. So why are we spending all this time on
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question what I'd like to do is turn back to the last going on to page 11
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line one page of Exhibit 1 and in second paragraph of that page about
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five lines from the bottom this is actually discuss the arrest that took
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officer. Can you go into a little detail about the actual arrest answer no
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answer well I'm going to object to that question what's your basis
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answer well given the language and the other sections of this
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believe it's 12.1 this is an incident for which I'd be under a duty to
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take it to the court and see whether or not you're going to be ordered to
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have to read the deposition transcript. Since you can't recall anything
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that you've ever done this is why it's taking so long. let's go ahead.
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questions so let's certify the question just to set the record straight is it
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true that you are now refusing to answer any questions regarding your
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the fact that your own application says that those arrests that don't
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true?
A: Well that's a similar instance where I asserted that your own
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question given that the academic dishonesty investigation did not lead
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character application didn't lead to any censure yada, yada, yadaQ: Mr. Coughlin, the question was you refused to testify about the
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A: I asserted a privilege.
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any questions regarding your alcohol use or the LAP program, correct?
A: No, that's not correct, in my opinion, we talked a great deal
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Q: Page 29.
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true that you actually attend Alcoholics Anonymous answer I'm going
to object to that question what's the basis for your objection answer
privacy grounds and the fact that the second word in that is
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about alcohol for a long, long time. You asked me this and that the
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other and talked about you know me going to AA meeting since I was
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like three years old and all sorts of stuff like that so.
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meetings as a child, so. question why was that answer I don't know
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question you're handing me back the exhibit you don't know why you're
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Ms. Kagan: 31. answer I'm not sure question are you currently
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question starting at page 32 did you attend all the meetings that are
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question are you currently sober answer yes question how long have
down to line 22Mr. Coughlin: Do you have a question or you just illustrating your
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disgust for the Fourth Amendment and any privacy rights individuals
in this country might have that might conflict with your making
money as a prosecutor?
Q: Skipping down to line 20 of the same page-
ms.
Ms. Kagan: When is the last time you had an alcoholic beverage
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answer I'm not sure and I'll objected on privacy grounds as well
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question starting on page 33 if you don't want the State Bar to know
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your relationship with alcohol why did you include this information in
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your application update answer I'm going to object to that question and
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the way it is phrased. I believe its leading and you're saying if I don't
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want the State Bar and that's not something I said that's something you
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record.
Mr. Coughlin: Is she going to read the whole thing into the record
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orJudge McElroy: whenever you deny that you said it, she can
impeach you with the deposition transcript.
Mr. Coughlin: I am not denying that this is a record of the
deposition.
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that you're refusing to testify about your relationship with alcohol and
when did you first start going to Alcoholics Anonymous answer I'm not
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sure can you define going question when did you first start attending
meetings of Alcoholics Anonymous answerMr. Coughlin: Can I use the restroom, Your Honor? I really need
to use the restroom.
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was three years old so question what about in the last five years have
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you been attending Alcoholics Anonymous meetings for the last five
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years answer I'm not sure can you just define attending for five years?
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Does that mean once in five years or a hundred times in five years
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continued on page 34 question at any any any at all did you ever go to
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Alcoholics Anonymous meetings in the last five years answer, I'll object
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reasons also get you have a problem with alcohol answer object to that
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that you couldn't tell me whether or not you recognized or had the
email address of zanzibar2@hotmail.com?
Mr. Coughlin: I'm not gonna answer that.
Q: You couldn't tell me whether or not you drafted emails to Unishippers which isMr. Coughlin: And I am not going to answer that, either. Am I
allowed to do that?
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those. You can't just say no I'm not gonna answer and have it reflect on
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your candor. You said, your order was that you have to answer that.
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your candor, I'm letting the record speaks for itself. What's the next
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question.
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correct?
Mr. Coughlin: what's your question?
Q: You attended a deposition, testified at a deposition on April
26th, 2007?
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A: In KayLAPhone-ya, Yes.
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courtroom and at this point. Mr. Coughlin has said that he cannot, he's
not sure of the date of his last sobriety, he's said it four or five times. I
don't think we need to go into this area anymore. So, I'm going to ask
that we move on to another area. He's not sure whether he had alcohol
in the last four years. He's not sure whether he had it in 2005-2006. He
doesn't know his sobriety date, the court knows it. So let's go on to
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cooperation in this matter, not necessarily what his answers wereMr. Coughlin: I believe the judge has ruled.
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Ms. Kagan: Yes, your honor. Mr. Coughlin, are you employed
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currently?
Mr. Coughlin: I'm going to object to that. That's not something I
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Mr. Coughlin: But, earlier I could say no I'm not going to answer
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that?
Judge McElroy: Mr. Coughlin, the objection, I've overruled, your
objection.
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Q: Have you had any employment between February 15 th, 2007 and
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today?
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didn't you?
Mr. Coughlin: Did I?
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Cingular and that you were terminated because you missed two days of
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that.
Q: And also in 2006, you worked at Albertson's for approximately
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because you were told that the company didn't feel you were cut out for
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long were you employed there answer I would say roughly two months
question how many answer roughly two months questions did you have
any other employment at that time answer I'm not sure it's possible I
did a research assignment for Tom Hall question why did you leave
recall that the manager mentioned to me that he didn't feel I was cut
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were employed at Men's Wearhouse for a week and your duties were
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Q: And you were let go because you might have been told it was
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stand when I was in third grade, too? How far back we gonna go, is what
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I want to know?
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for Martha Stewart in Ecuador when I was in second grade can go back
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Q: Mr. Coughlin, and during that same year you were employed at
the law firm of Hale Lane for approximately five months correct?
Q: And you were let go from that position because as you testified,
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this?
Q: Yet, you testified about it at your deposition.
Mr. Coughlin: I think I mentioned that very same confidential
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didn't seem to follow but I'm a man of the law, so I'll go ahead and try to
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Mr. Coughlin: I think you have that agreement so if you can read
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it and tell me where it says I can comment on this then fine but.
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Ms. Kagan: Line 5, question why did you leave that employment
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answer I was told I'm not sure questions did you voluntarily leave that
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employment answer I'm not sure question were you fired answer I'm
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not sure question what was the reason that you were provided and so I
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Mr. Coughlin: Can I just aimlessly bring up things too for hours
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on end? If you had something worthwhile I don't think you would need
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to, you know, dig in to a hundred different little things and try to make
regarding the emails that you sent to Professor Tratos, the contents of
those emails you testified that the only thing that you would change
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specific questions do you believe I would like you to describe what you
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answer I'm not sure I don't know quite what you mean by professional
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question-
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from question and describe that what do you mean you learn from
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that you need to have respect for the process regardless of whether you
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think that you should be accused and that I need to choose my words a
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lot more carefully I was 24 when this was going on question would you
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handle this differently today answer yes I believe I would question how
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so answer they would be a lot shorter question the emails answer yeah.
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Mr. Coughlin: And your question earlier was was whether that
was all I had to say about that?
Ms. Kagan: My question was I believe when asked about what you
would change about the content of the emails you say that they would
be a lot shorter.
Mr. Coughlin: It's kind of leaving out a few things. And that's
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why I say a rogue prosecutor like the Duke Lacrosse case because
there's just a reckless disregard for my rights-
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Mr. Coughlin: Nifong was the guy's name. They are disbarring
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him now.
Judge McElroy: Mr. Coughlin, I would ask that you not speak
until you're spoken to.
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Ms. Kagan: Your Honor, I don't think I have any questions at this
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point.
Judge McElroy: Mr. Coughlin, you may step down. So in terms of
witnesses do you have any more witnesses?
Ms. Kagan: I have two witnesses from the State Bar just to
authenticate documents.
Mr. Coughlin: Your Honor, I would like to call Susan Kagan to
the stand.
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Judge McElroy: you're not allowed to call her and you will not be
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Ms. Kagan: Lynn Thingvold, she's a paralegal with our office and
Mr. Coughlin: I'd like to call myself and speak in the narrative
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too.
Ms. Kagan: Thingvold would be testifying about the photos that
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Ms. Kagan: I can look and see if they're in the office I told them
around two if they could be available then.
Judge McElroy: Okay and then we have the psychiatrist that's
coming on Thursday?
Q: I'm hoping that he is coming he said he was available that
week.
Judge McElroy: because you understand that he's not agreeing
that he can testify over the phone he wants him here in person.
Ms. Kagan: from what I understand from Dr. Tucker's message to
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me he was available all week so I'm assuming that that means that he's
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Ms. Kagan: I'm hoping to find out today whether or not he can
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Coughlin. We are going over the records that have been admitted into
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evidence the court has admitted only one through six then it has been
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through 30 admitted.
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admitted, 58 would be pages 5 and- that was admitted the whole thing
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was admitted, Exhibit 57 only the pages that have been referred to in
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testimony, pages 10 line 25, page 11 see page 11, lines 1 through 25, page
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12.
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29 line 7 through 24, page 31, line 10 through 25, page 32 and page 34,
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page 78 lines 5 through 13, page 73 lines 14 through 23, page 60 line's 21
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to 25 and page 61 the entire page, those are the ones it's going to be so
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60
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Exhibit 62 and 63 are judicially noticed 65, 66, 67, and 68 are judicially
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Judge McElroy: what pages? I don't have the pages that were
admitted.
Ms. Kagan: I don't believe I read any pages from that that
deposition on to the record.
Judge McElroy: ok so then it's not admitted. Exhibit 71 what is
that? That's not been admitted yet and then 72 was admitted in its
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Judge McElroy: ok page 101 line 6 to 13. so that's fine that's all we
have right?
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we're back on the record before we took a recess the State Bar indicated
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person who actually took the photographs because if you don't then I
putting someone on who says I got the photographs from the landlord.
Ms. Kagan: Okay we've tried to subpoena the person who took the
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photographs however they are in Nevada and while they did promise to
come they never returned the subpoena and then stopped returning our
calls.
Judge McElroy: Ok so I don't think then you have the evidence in
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terms of the Exhibit 74 the patent agent exhibit here's the problem
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with that Mr. Coughlin has always been listed as an agent and now he
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that since he has been barred in Nevada that makes him an attorney
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patent attorney.
Ms. Kagan: Right, says he is licensed as a patent agent since May
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2003.
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attorney.
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all.
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Ms. Kagan: The fact that he has only listed as an agent and he has
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been listed as an agent since being licensed in 2003 but now claims to be
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an attorney?
Judge McElroy: unless you can have someone come in and say that
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attorney.
Judge McElroy: He says may now be. He doesn't, I mean, its so
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case.
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Ms. Kagan: Well, your honor, there are two different distinctions
Ms. Kagan: Right, and, and, but from this document itself it shows
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that he is holding, well claims to be anJudge McElroy: No, he is saying he may now be classified.
although he may now be classified as a patent attorney. It's
meaningless that statement to me. It just is. So, anyway.
Ms. Kagan: Well, uh.
Judge McElroy: He's listed as an agent, he's agreed that he's listed
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as an agent I don't know why you need any more evidence to come in
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listed of his at this point. I don't know whether you become one
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automatically or if there's some process you need to report that to. But,
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something off the internet she found when she did something like a
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Google search for something I just don't think that that really rises to
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and testify and then I have to look at it under evidence code section
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5052 but the point is, I'm saying, I don't know what the point of it is I
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just don't see the point. He was listed as an agent he says he's listed as
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USPTO website and gives you his number! He's an agent. I just don't.
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Judge McElroy: I just don't see why this is being belabored. he's a
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Ms. Kagan: I-
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Ms. Kagan: And he just said right now he doesn't even know what
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he is listed as.
Judge McElroy: Document number three is admitted into
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evidence, he has said that he's an agent. The court understands him to
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a website that he's already admitted that he's an agent that's fine. I
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Mr. Coughlin: Because she might come back with some line about
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that later, you know so. he's just an agent he said, whatever.
(The oath was administered to Bill Stephens.)
By Ms. Kagan:
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presenting them.
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A: 23 years.
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A: Yes.
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Q: and as part of your work on this matter did you contact the
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A: I wrote a letter.
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Mr. Coughlin: I'm just being given this now on the third day trial?
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Judge McElroy: Mr. Coughlin, I've made my ruling. Please let her
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Ms. Kagan: Let the record reflect I'm handing the applicant
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Exhibit 77.
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A: yes I do.
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Q: and how do you recognize it because I'm the one who received
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Mr. Coughlin: Objection, relevance. but let me just say your honor
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prove with this perhaps I could just admit and we could not spend an
Judge McElroy: The time for admitting was two weeks ago.
ticket six years ago and that's the whole reason for bringing Mr.
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Judge McElroy: So at this point you will stipulate that you had
speeding ticket?
Mr. Coughlin: I want to see what she's trying to prove.
Judge McElroy: ok so let her prove it okay go ahead.
Mr. Coughlin: If you're asking me will I stipulate to having a
speeding ticket, as long as I had one.
Ms. Kagan: If he doesn't object to Exhibit 64 then we don't need
Mr. Stevens testimony regarding this matter.
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Judge McElroy: okay 64, look at it. If you want more details to
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Mr. Coughlin: No. But even if all this can be proven true, does
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five years and going through law school because he had a speeding
ticket?
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some of the nefarious tactics that the State Bar has shown. In the LAP
program, the combative Sipowicz like NYPD Blue type behavior that
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evidence.
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with the U.S. Patent and Trademark Office and what was the results of
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that investigation.
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Q: Can you please turn in the witness binder to Exhibit 74, a two-
page exhibit first page is dated May 7, 2007 the memorandum Susan
Kagan from bill Stevens and the second page is a United States Patent
and Trademark Office print out. do you recognize Exhibit 74, Mr.
Stevens.
ms.
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overruled.
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Mr. Coughlin: Good afternoon Mr. Stevens how are you? Mr.
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Stevens, what would you say the point of your testimony was today?
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Q: Mr. Stevens what did you understand you were coming here to
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A: I am not sure that correctly states what we've just gone over.
ms.
was authenticating certain documents the DMV ones which are 77 and
76 and then 74 the US patent trademark office memo and print out do
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we?
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earlier aboutJudge McElroy: Its your case, you need to do what you need to do.
I'm not here to be your lawyer.
Mr. Coughlin: okay did we established that the patent matter
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attorney?
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A: No.
A: Yes.
ms.
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A: Yes.
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A: No.
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Q: did you make any direct contact with something you could
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A: interact?
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A: No.
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didn't do something.
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A: No.
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A: No.
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Q: Can you tell me did you get paid for working on this?
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Mr. Coughlin: Am I not able to ask him any questions about his
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compensation?
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to ask him?
Judge McElroy: that's correct. I've made my ruling. what's the
next question.
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Mr. Coughlin: can you tell me does that DMV printout say I got a
speeding ticket or?
Judge McElroy: I'm gonna go ahead and let him ask the question.
Mr. Coughlin: Sure, Mr. Stevens I will repeated it. does that DMV
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Mr. Coughlin: you don't know if I got a speeding ticket? can you
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give me your recollections about what you do know about me and this
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Mr. Coughlin: okay, but earlier you said what were what we're
right?
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Judge McElroy: I have done more than help you with this case
and it's as far as I'm ready to go at this point. You are a lawyer.
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Mr. Coughlin: Mr. Stevens did you tell anyone that you thought or
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investigation?
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Judge McElroy: I am going to let him ask the question. I know it's
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beyond the scope of direct but he can put him on his own witness and
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this is to save time what's the question did you tell anyone in the course
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indicates that you think or someone else thinks that I'm an alcoholic?
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can speak for themselves. I don't recall the exactMr. Coughlin: I don't have the memos Mr. Stevens so perhaps you
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Mr. Coughlin: sure. Well, how about tailored to what I asked you
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originally?
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Nevada's version for physicians of what we call The Other Bar and he
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volunteered some information about you. I spoke with Mr. TorsonMr. Coughlin: we're talking about what you volunteered about me
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sir.
S: I'm sorry, I can't remember. I ask a lot of questions in the course
of an interview.
Q: So you never asked do you consider Mr. Coughlin to be an
alcoholic?
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Mr. Coughlin: okay we're there any were there any steps you took
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to maintain my confidentiality?
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A: yes.
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to LAP and to the State Bar in general and asked only those questions
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of such people that could answer them with the knowledge of the
release.
A: all of them?
Mr. Coughlin: yes, unless there was just a whole big giant list of
people but-
ms.
applications such as Mr. Tratos, Ms. Smith Mr. Staheli, the Nevada Bar
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State Bar, Bar Examiners of the State Bar. I don't know if thats an
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Mr. Coughlin: ok thank you. can you tell me what in the course of
your investigation would you say was the most damaging materials?
Ms. Kagan: objection, relevance and also your honor, this goes
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beyond the scope of direct, if Mr. Coughlin wants to call Mr. Stevens he
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Mr. Coughlin: I was told that all witnesses and exhibits that were
listed by the State Bar would be available to me.
Judge McElroy: They are not available to you, but since he's here
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you can call him as your witness why don't you call him as your
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witness?
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Judge McElroy: sure. But, I can advise you that this witness is not
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helpful to you and the more you go into it, the more detail that wasn't
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ever even presented is now being presented. you have opened this case
wide open.
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Mr. Coughlin: But not so far that I can't go beyond what was in
direct?
Judge McElroy: I understand that. What I'm talking about is in
the overall case.
Mr. Coughlin: well that's candor, isn't it? to put the case wide
open, isn't it? Does that display candor? isn't that the issue in this case?
ms.
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character?
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character, right?
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Judge McElroy: Mr. Coughlin, I'm not going to argue with you
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anymore. I told you it's beyond the scope of direct. I've given you a lot of
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leeway in terms of the direct and going beyond the scope of direct.
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Judge McElroy: I've given you more than I should have, so at this
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Mr. Coughlin: and so even going into what those documents say, is
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ms.
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Mr. Coughlin: Okay, your honor. I'd agree with you and I have no
more questions. Thank You Mr. Stevens. can I call Mr. Stevens
directly, then?
Judge McElroy: sure he's here you can call him as your witness
and you're gonna have to proceed with no leading questions.
Mr. Coughlin: Mr. Stevens, did you find any exculpating type
material in your investigation?
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Judge McElroy: I'm going to go ahead and let him ask that.
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Q: did you find any material that would tend to hurt your case?
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A: no.
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Q: No? So, was your communication with Mr. Torson such that
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A: no.
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Q: but the people who you work for and who pay you, their case?
A: No.
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ms.
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Q: right, and that's where I'm saying if you found something that
maybe wasn't neutral to Ms. Kagan's stance where, you know, she wants
to paint me with this brush, right?
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Q: she's got a side, right? she's got an agenda that she's putting
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forth and you're getting paid by her or her employersMs. Kagan: Objection. and I'm going to sustain the objection this
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question is going nowhere. Q: Can you tell me what Mr. Torson told you
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believe he said he felt you're a good guy. that he may have known the
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member of the Nevada State Bar Association ethics Committee that you
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know.
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Mr. Coughlin: It's not trying to prove the truth of the matter
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irrelevant.
Mr. Coughlin: It goes to my candor.
ms.
Mr. Coughlin: But its not being offered to prove the truth of the
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matter asserted.
Judge McElroy: Then it's not relevant at this point, move on.
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dad told him, but he can't talk about what an exculpating witness tells
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him?
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Judge McElroy: I didn't hear him say anything about what your
dad said.
Q: Mr. Stevens, if you found something that was exculpating,
would it be your responsibility to present that?
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A: yes.
A: Yes.
Q: and did you tell Ms. Kagan about Mr. Torson, and what he told
you?
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spoke with?
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A: yes.
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Q:you did? was there any other individuals? I'm not talking about
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entities like the DMV or this this bar that bar, I am talking about
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individuals that perhaps Ms. Kagan was given the contact information
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investigating?
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S: I'm sorry to say this again, but I couldn't distill what the
question was of that.
S: Other than?
Q: For instance, how did you get Mr. Torson's contact info?
A: He provided to us.
Q: He provided it to you?
A: Yes.
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Q: As in he sent a letter to you or to Ms. Kagan orA: He sent a letter to the State Bar Association. Its in the file.
Q: And that was what spurred you to go and call him? You made a
call, I assume, to him?
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A: yes.
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A: yes.
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Mr. Coughlin: I don't need to know about the DMV and- I recall
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you saying-
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A: I listed them a few minutes ago. I can go through the list again.
Mr. Tratos, Ms. Smith, Mr. Staheli, the Nevada Bar Association, the
Examiners. it's not an exhaustive list but that's all I can remember off
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A: No.
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Mr. Coughlin: Did you make any attempt to- I notice you called
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A: Yes.
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Q: who?
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A: yes.
Q: okay, and did you contact the Second Judicial District Court
Q: Okay, that is kind of like with the patent thing where you
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Q: Okay, so here you have a district court judge and you have an
opportunity-
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as I am concerned.
Q: So, why didn't you try to talk to a district court judge and get
his opinion about my character?
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Mr. Coughlin: You don't need to tell me whether you can answer
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California State Bar and as such is required to keep his phone number
current with us. Any attempt I made to contact him would have
included his membership records phone number with the State Bar of
investigating a case.
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Q: this case?
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negative?
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Judge McElroy:.Sustained.
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which appears to beJudge McElroy: At this point I'm going to stop you from asking
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irrelevant, and we're not getting anywhere. So, I'm going to exercise my
right to limit your cross-examination, at this point, unless you can get
to the point.
Mr. Coughlin: yes, your honor, can you tell me-
Judge McElroy: that means I will give you another five minutes.
ms.
Q: yes, your honor, thank you. can you tell me why you didn't
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Ms. Kagan: And the State Bar will call Lynn Thingvold to stand
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next.
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Ms. Kagan: The State Bar calls Lynn Thingvold to the stand.
By Ms. Kagan:
A: yes.
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A: a paralegal.
Q: how long have you been a paralegal with the State Bar?
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A: Approximately 19 years.
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A: Yes.
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from either you or Mr. Stevens, I can't recall at the moment, and it
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Q: I'd like you as part of the witness binder Exhibit 77, do you
recognize it?
A: Yes.
Q: How?
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the Department of Motor Vehicles from Novato and down at the bottom
are there different citation and conviction dates for, I guess,
convictions.
Q: was that the letter that you're referring to that spurred you to
write another letter to the DMV?
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A: Yes.
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handing Mr. Coughlin a copy of Exhibit 75. And I am giving the court
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a copy of Exhibit 75. And the original to the court administrator, and a
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Mr. Coughlin: objection, your honor, on the basis of this only being
given to me right now.
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letter dated September 19, 2006 from Nevada DMV to Lynn Thingvold.
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A: correct.
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A: I do.
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A: I believe so.
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responding to that.
Q: And that would be a driver's license data ten year record?
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A: Correct.
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A: yes.
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A: correct.
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A: correct.
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A: correct.
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A: yes.
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Exhibit 64, a 14-page exhibit the first page State of Nevada Department
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Exhibit 64?
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A: yes I do. I believe this is what they sent back. I received back
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evidence.
Mr. Coughlin: yes, your honor. hello Ms. Thingvold. How are you
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feeling today?
A: I'm okay.
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Judge McElroy: I'm going to go ahead and let you ask the question.
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I'm going to overrule the objection. I'm going to a little detection I'm
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sorry state the question again for me can you tell me what this
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basically what this DMV record says? Basically, what was I convicted
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of.
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A: No, I can't tell you what it indicates that you may have been
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convicted of, but I did notice at the bottom of this page there was a
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number. so now I can't tell you what you were convicted of.
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Q: So, if this was a charge for driving 10 miles over the speed
limit, you would not know?
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A: No.
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A: I don't know.
Q: you don't? Okay, did you not follow up on that with the DMV
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citation?
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begins: I'm requesting the following documents from your agency and
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3/1/07 from 1/9/03. in Exhibit 64, would that be the the citation
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00982687?
Mr. Coughlin: well actually, perhaps, but I was referring to the
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one that ends in 317, hat's right above that R115317 and, prior to that, it
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speeding.
Mr. Coughlin: we're going to put these into evidence, right? and we
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Judge McElroy: I think the court knows what they are for. So, I
don't need any help.
Mr. Coughlin: Okay, so can we stipulate that these are basic
speeding citations? speeding tickets, no more.
Judge McElroy: No, Exhibit 64 is in evidence and it speaks for
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in it. There is citations, and if you want to go into it in detail and- You
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knowledge.
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085B and one ends in 085A. Are those related to the same ticket?
Ms. Kagan: objection, beyond her personal knowledge, beyond the
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the A and B ones, both stem from the same date, 5/31/01 and the 87A
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stems from 2/24/00? Those are the dates of those, correct? so the are
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Judge McElroy: Its sustained and it's also irrelevant. the issues is
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you didn't report these failures to appear and were supposed to report
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Mr. Coughlin: because the application says for sure you have to
report a speeding ticket?
Mr. Coughlin: Okay, but does it say you have to report a speeding
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ticket?
Judge McElroy: Mr. Coughlin, it says what it says. let's move on
and ask the next question. I'm suggesting that you might want to go to
what's relevant.
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report?
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you should include all such incidents and convictions. this is in the
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Mr. Coughlin: I'm just telling you what this is from. This is from
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the State Bar's application to practice law, moral character. it's under
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the sections which direct you what convictions you need to report. it
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says in answering the following questions you should include all such
incidents and convictions no matter how minor the incident, and it goes
you are here to verify, do those speeding tickets qualify as any of those?
ms.
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Judge McElroy: The issue is- I'm going to sustain the objection.
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and I don't think it it's relevant in terms of coming from this witness.
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Q: Ms. Thingvold, can you tell me what type of work you did on
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this case?
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Q: Can you tell me how you would describe the purpose of your
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Judge McElroy: it's not all the same but you know what? you need
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to appear, that one can pay a late fee or fine for failing to appear and
taking care of whatever underlying citation there was and then that
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Judge McElroy: I'm gonna go ahead let her look at look at page
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three, and.
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Judge McElroy: Why don't you give her an opportunity to read it.
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suspension of one's driving privilege, one need paid the fine related to
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A: I believe it says you can prevent the suspension if you pay the
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court fine and obtain a clearance from the court before 6/27. I think
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Q: Okay, thank you. and on page 4, can you tell me, dealing with
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citation 085B, which is mentioned in your letter of Exhibit 75, does that
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A: it appears to.
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Q: Okay, so, the failure to appear then would be for not paying the
fine and presenting proof of insurance on time.
supposed to report it to the State Bar. you did not report it to the State
ms.
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don't need to be on the application, right, your honor? those aren't listed
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why are we talking about speeding tickets when they're not even
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convictions.
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Mr. Coughlin: Half of this day was spent showing speeding tickets.
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question.
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these charges were for. Exhibit 64-page 8 indicates the one ending in
and say you were convicted of these three things and have no idea what
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and failure to report. Okay, so, Mr. Coughlin, do you have any other
witnesses?
Ms. Kagan: Your Honor, the only other witness I have is Dr.
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17th.
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Ms. Kagan: I've yet to here back from him, I've left two messages.
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Judge McElroy: Okay, and Mr. Coughlin, do you have any more
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evidence?
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Judge McElroy: you're not going to be allowed to call her. So, any
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other witnesses?
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Judge McElroy: yes, you do. Yes, you can and also you are under
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point out some things that were reported. Your Honor, every arrest I
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had was reported promptly to both state bars and the things that Ms.
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where one has reported something far more serious, the court has
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as not having proof of insurance or being late to pay the fine for proof
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conviction for a dry reckless and has reported the movie theater arrest,
which didn't even lead to a conviction. I point out that under page 12
not be reported. So if that doesn't go above and beyond what's called for
in terms of being having candor and being forthright with the bar, I
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Mr. Philip Burn's, the Student Judicial Affairs Officer UNLV, his one
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page, and I believe this is the exhibit that we looked at with Dean
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ruling says. In that I quote from Exhibit 1, page 25, this is paragraph 3
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after this the bottom of it: after the Student Judicial Affairs Officer
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part. How Ms. Kagan can try to turn this into I somehow didn't report
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Mr. Coughlin: one other thing, and I'm just trying to stick to
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things that really stand out to me and not take up any more of your
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time with things that I don't have a good faith belief are important to
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this case is the LAP program. I don't know if you've ever seen a LAP
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program brochure like those that are out in the hallway before your
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program is and I would say that I have trouble understanding how this
with the State Bar which called for and Ill quote verbatim the LAP
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myself and the State Bar dated July 2004. that would be Exhibit 38,
ms.
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in bar journals and the like and can result in someone like myself
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biggest Catch-22 in the world? Where we're going to say we are such a
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confidentiality-
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whereupon I entered into an agreement with the State Bar which says
that my recovery and I'm quoting from Exhibit 38 page two paragraph
an agent from the LAP program. how that can turn into getting all my
medical records and presenting them to the bench? how that can turn
into having that in an opinion? how that can amount to if you look at
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the LAP's- and in this goes to something we spoke about in one of our
teleconferences, Your Honor wherein, you said thatJudge McElroy: Please. The issue is whether you have the
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now does speak to thatJudge McElroy: A waiver of confidentiality has nuthin' to do with
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it.
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Mr. Coughlin: does it have to do with one's candor? if one has been
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be all that candid? if one has no faith in the people who are-
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Judge McElroy: Okay, what's? come on, let's move on with your
testimony?
Mr. Coughlin: well, it's you need to show candor, but is that in a
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vacuum or does that depend who I'm talking to? you know, if I'm
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question.
Judge McElroy: Then, please, testify.
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Judge McElroy: I understand that, move on. Okay, I'm giving you
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and you.
Mr. Coughlin: So, I get 15 minutes but we can take an hour and a
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be reported?
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Mr. Coughlin: Okay, I just want to be sure. So, I'm still confused as
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about. just please testify as to rebutting the State Bar's position that
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that's what you're on trial for, what you are on the stand for right now.
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That is not evidence. Don't tell me you're confused or that you don't
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Mr. Coughlin: I feel that the State Bar's assertions that I don't
have this character that they speak of are without merit. chief among
ms.
moved it. the only real issue we seem to have is how far I moved it. I
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said 10 feet. the witness says it's in a room that's all oblong, that's no
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larger than this room. so to say I somehow didn't report that I think is
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where there's an issue with that at all. so that will lead to the State Bar
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which Mark Tratos' testimony was to speak to. well I direct the court's
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attention to Exhibit 1, page 25, wherein if you consider the last two
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paragraphs, and this goes to candor and rebutting the State Bar's
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know Ive already hit on this, but I just want to take one second to point
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able to get the story from someone besides me, you know? so largely just
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straight out of Mr. Burn's report. I'd also like to mention that I'm not
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entirely sure that I didn't provide that report to the State Bar. That is
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State Bar.
Mr. Coughlin: but did you ever prove that you did or that I didn't?
Mr. Coughlin: I don't recall it ever being proved how they got a
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hold of that report and whether or not itJudge McElroy: The question is did you give them this report? did
you give them this report?
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Mr. Burns's opinion letter on this says the same thing. so where the
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gather it's from the sentence that says there was a formal letter of
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that a formal hearing take place, all sanctions offered through the
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informal process will be void, the formal hearing Committee, yet you
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know and it goes on. so that language to me certainly sounds like this
addition, it appears that academic dishonesty did not occur. I'm sorry,
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years of fighting this battle with the State Bar and their deep pockets
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and I think what I need to do is direct your attention to what the court
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okay? I've heard enough evidence on that. The issues here are the
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the failure to appears. There's also the civil judgment and defaults that
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you didn't report. there's also your employment history, your address
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history and your financial obligations that you didn't report. you
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issues. they were not reported. they were material omissions that were
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pertinent?
Judge McElroy: you can testify to whatever you want to testify to.
all I'm saying is that they're not on your application and they're not
were not on your application, why they were not given an update until
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Mr. Coughlin: so we can't we can't ask her that? Ms. Kagan is not
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Mr. Coughlin: Okay, and that's true even when Ms. Kagan came
into the picture?
Judge McElroy: that's true even when Ms. Kagan came into the
picture.
Mr. Coughlin: so anything I report to her cannot be said to have
been reported to the State Bar? So, in essence, if I didn't send my update
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to the State Bar, I still haven't reported it to them, right? about the
financial stuff?
there's nothing until Feb, or September 15, 2007. prior to that it wasn't
Mr. Coughlin: And September 15, 2007 is the update I sent? The 30
to 40 pages with the something like 800 AA signatures that show a one-
hour meeting for each signature? of course the phone call with Ms.
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Kagan would have taken place prior to this. I find the fact that Ms.
Kagan is not acknowledging this, or appears not to be acknowledging
this further proves-
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been in business for yourself you reported that you were in business for
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Kagan was not even on the case. why wasn't it reported in 2003 that you
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were, in fact, an owner and operator of your own business when you
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were supposed to report it? those are the kind of issues I'm interested in.
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I'm not interested in a diatribe against the prosecutor. you are the
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person that is sitting here on trial. so you need to address those issues. I
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would suggest that you stay away from impugning Ms. Kagan. that is
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not helping your case. you need to take responsibility for your material
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reporting the financial debts I owed earlier. for not reporting the
business, although I can't say I knew I had to report that, I know there's
language that says you have a continuing duty and if you look at this
application. you know and you read it verbatim and you can
of this stuff then you might say well yeah I do because right here in
page 30 you know paragraph 2 sub 1 it says you need to report. But, I'm
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afraid I only reported the things that really I was quite sure needed to
be reported. things like being arrested things that stood out as having
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you know a salient quality to them within this application. I've seen
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reported something more serious, like an arrest and the court took note
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found something like not reporting failure to appear that stems from
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getting a law license after going to law school and passing the bar exam
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issue here, I think a certain amount of, I don't want to say common
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sense, but I think a certain amount of- that's just, that's just too harsh.
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we're going to turn this guy's law license down because he didn't report
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he had a speeding ticket? that's a little harsh I think and I think that
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sends a bad message out to people about this profession and sends a bad
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about reporting that I was in business for myself. with regard to the
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some point probably after Ms. Kagan indicated that to me. I didn't
realize that there was case numbers and cases against me. I thought I
had been evicted, I didn't realize the implications of that. if there was
some hearing that took place later I didn't know about it and so
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application backwards and forwards from what I can tell and perhaps I
could have somehow known that. But, I don't see- I don't know that we
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against me. I think we can prove that I had been evicted, but I don't
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know about if those are the same thing. maybe they are, but that's a
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reported, however I can say that at the time that judgment occurred
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and just by way of reference, I was terminated from the LAP program
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I've been terminated from the LAP program, I don't know.. and even
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prior to that I don't know that I have a duty to report something. now
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there might be a rule saying just this but that I have a duty to report
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something after the State Bar has turned me down as well. at that
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application from 02 I don't believe the State Bar has shown that there
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somehow misleading about. all the issues the State Bar is taking is
reported. at that stage of the game, I'm in litigation with the State Bar
or earlier than that I had an attorney, Mr. Fishkin. Mr. Fishkin knew I
tell him not to report. I would submit to you that I did make mention of
ms.
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this litigation and that Ms. Kagan indicated me that I would have an
opportunity-
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Mr. Coughlin: I'm not able to say what she said to me?
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Judge McElroy: okay it's not going in for the truth of the matter
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stated, it's going to, it's relevant to your state of mind, ok Ill let it in.
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have an opportunity to update the State Bar with regard to the things
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point Ms. Kagan must have changed her mind because she filed her
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application which-
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it's relevant to his state of mind and how he. I will go ahead and let him
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testify.
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late 06 and if the judgment didn't come until I believe around either
that need to be reported. I don't know that and if indeed I did become
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something one needs to report I can't say that I knew that I wouldn't
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that I was sure that my appeal avenues had been exhausted in that
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regard. as far as not reporting stuff that's pretty much all I wish to say
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about that.
I can think of some other things I would go on about but if there's
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something you could direct my focus toJudge McElroy: No, I think you've covered the issues in terms of
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it?
Judge McElroy: yes. you have reported the law school computer.
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you have dealt with that issue. dealt with the employment history and
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your termination. You- we, you dealt with the U.S. Patent and
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Trademark Office.
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Judge McElroy: you dealt with the issue of the U.S. Patent and
Trademark Office. you dealt with the substance abuse issue. You dealt
with the conviction issue, and now you've dealt with the material
omissions, issue.
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reporting. Okay, and we have dealt with the civil judgments in default.
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Mr. Coughlin: I would like to make a few statements about the not
reporting of things like the address, and-
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you can tell, and in fact my reporting arrests that didn't even need to
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reporting of the DUI to dry reckless conviction arrest, you see a trend
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here. It's anything that, that you know, obviously needed to be reported
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like a DUI or didn't report this or that and got away with it and that's
that has a LAP program in its infancy that perhaps hasn't gotten all
the kinks out yet. So, to me there's so much candor going on here that to
try to say that that's undone by not reporting an expired license plate
ticket failure to appear doesn't seem right to me. but also just what I
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really wanted to get at was, okay, they are saying you're not really
keeping us updated in the way we'd like to see an applicant do it. you're
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reported, but things like . and I can say, absolutely, I agree with you, I
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should have done a better job of that. I should have been more
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thing like this with three different state bars. and it's been longer than
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five years, because all this, what you see in these exhibits started to
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occur and late 2001. and so now we're in May 2005, or 2007. So that is
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something like six years and change of going through this. and that's on
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top of taking and passing three bar Exams, getting out of law school,
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but through a great deal of student loans, and saving, and sacrificing.
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And, so you know, for a lot of people that's tiring enough, just doing
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that, and then going starting a job where you get paid a good deal of
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money is tiring.
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Well, I didn't do that. I did all that and then I got three and a
half years of waiting and litigation with Nevada bar. I got to go to, I'm
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back and neck pain, ADD, and perhaps some other issues that I would
ask if you have the time please review my doctors records that are
trouble to pay all these people to make these records on my dime, in,
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you know, which if we get into the LAP stuff will show a LAP
statement where they say nobody will be turned away because they
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can't pay. We will pay for you if you need help with the LAP. that
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wasn't the case with me because I wound up paying all these doctors for
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their reports and and a lot of stuff. so my involvement with LAP and
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physical problems I face on a daily basis like chronic back and neck
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pain, ADD and you know whatever other issues we want to talk about.
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and I'm certainly not going to get into alcohol related things because of
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honest discussion about that with the State Bar. but all that in total
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can wear you down a great deal. and so you may not be on top of your
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game and you not might not be reporting where I lived from when to
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when to the State Bar as promptly as you should. but I would just ask
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that you try to give that some consideration. and other than that I don't
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think I have a great deal to say other than, I think it's a shame if
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someone like Judge McGee, a district court judge, doesn't get have an
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opportunity to-
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screen taken at this independent medical exam. we're still going to get
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Mr. Coughlin: If the court doesn't mind, I'd like to have the
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day?
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Judge McElroy: Notify the court as soon as possible and also the
applicant. We are off the record.
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5/22/07 Transcript:
Judge McElroy: This is a matter of Zachary Coughlin. Today's
date is May 22nd, 2007 and it is the fourth day in the trial matter
Coughlin is not here. this is their fourth day of the trial and it's the
fourth day that he's been late and we have waited 45 minutes. other
times we waited an hour, and other times we waited an hour and a half.
ms.
Mr. Coughlin called the court at a quarter to nine and said that he was
10 minutes away. the court called him again at 9:45, excuse me 9:30 and
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told him to be here. he said that he was the 10 minutes away. and he's
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still not here. So, we're going to resume without him, okay?
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A: yes.
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Q: can you just explain what the field of addiction medicine is?
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interested in the biology and what's going on in the brain and the body
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A. yes it is.
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Judge McElroy: 71A is moved into evidence and the record should
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reflect that Mr. Coughlin has entered the court at ten to ten and we
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have started with the direct examination of Dr. Tucker. Did you have a
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A. Yes.
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psychiatry.
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A. yes.
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A. yes.
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Ms. Kagan: So what was the purpose of the report, Dr. Tucker?
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A. Yes.
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Q. Can you explain a little bit about what took place in the
A. Sure, we met for three hours and ten minutes in my office and
here at the beginning of my report. So, I was familiar with this case
and some of his background, which would have been contained in these
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could. I asked the issues that are meeting up to this evaluation as well
as more broadly his psychiatric and substance abuse history,
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him and thought about the report and dictated this report.
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A. Yes, I was.
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A. well I have that my opinions break down into four areas. the
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first one really is titled violations really more just a summary of the
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about his substance abuse and the foundation for that. The third area
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opinions with the foundation for them. Then finally starting at page 4,
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Q. If you could turn to the top of page 3, the report states at the
last sentence of the first paragraph, an additional test for the presence
report. Have you since received the results from that test.
A. yes, I have.
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A. no, it doesn't.
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transcript of Mr. Coughlin that was taken on April 26 th, 2007 before
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document which you sent me late in the game that I did not list here is
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K. Yes, was there a deposition transcript that was sent to you the
morning of your evaluation?
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March 2nd which I got, and when there was a deposition part two of Mr.
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A. I did.
Q. Did that change the opinion that you came to in your report?
A. no, it didn't.
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in this case.
A. no, I currently would stand by my opinions as expressed in this
report.
Judge McElroy: Any objection?
A: I now request to have Exhibit 71 moved into evidence.
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the diagnostic criteria for alcohol and marijuana abuse. And that
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lifelong diagnosis. you can be in remission meaning that you are not
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currently using substances, but once you've met the criteria for that
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A. That is based on what he told me, which was that he's not used
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it. This is the basis, he's an expert and experts are allowed to rely on
hearsay information.
Mr. Coughlin: Okay, but for instance, a statement Dr. Tucker is
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attributing to me, that isn't necessarily the same as if I had said yes I
had said yes, I had, in fact, said those exact words.
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actually said. it's just something that Dr. Tucker is saying I said?
Judge McElroy: Is basing his opinion on. Dr. Tucker says that you
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said.
Q: So, the testing. Is there a way that you can tell how long the
testing would be able to track any alcohol or drug use?
A: yes, the testing, the urine toxicology screens would be giving us
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information just for the previous several days, three days or so, the
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were consuming alcohol, and the liver function tests which I looked at,
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weeks. So, I would say it doesn't go back for more than several weeks.
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A: Yes.
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week, still experiencing rare cravings for alcohol, he says, when his
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pain worsens, but also still not sure if he has any problems with
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describe here. when you say need treatment, I don't believe that he
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I think the court or professional bodies might have some opinion about
interfere with his life and the fact that the quality of his life and the
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it's up to him.
By Mr. Coughlin:
Q: Yes, thank you, your honor, I apologize for being late to Your
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Honor, Dr. Tucker, and Ms. Kagan. Dr. Tucker if someone an alcoholic
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and they drank for a week up to a test, wouldn't the tests show that
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drinking a week before a test would still show something that a non-
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involved, because I only did liver function test, that somebody could
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that would not be reflected in the liver function tests. they could
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they stopped a month, you know, a few weeks, a month before hand, that
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Q: I notice you went into in your report, not just alcohol abuse or
recovery therefrom but also into mental health issues, things of that
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sort, and you also went into the use of marijuana. In fact, I believe in
here you also said I meet the diagnostic criteria for alcohol and
the bar court, I was asked to I'm do a forensic clinical assessment which
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abuse. Also, you had a DUI related to marijuana. So those would be the
primary reasons.
Q: Okay, so when you say I had a DUI, can you tell me what that
means?
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marijuana. pled guilty to a dry reckless driving charge and you were
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Q: So, when you say had a DUI, would you distinguish between
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A: I would say just that you were arrested for a DUI is what I'm
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referring to.
Q: Okay, so based on being arrested for DUI and what else led you
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making a diagnosis here, but led you to say that I appear to meet the
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marijuana use. You told me that you first smoked marijuana during
and that this escalated after you moved to Sacramento. got to once or
twice weekly, and that was related to your chronic pain, and this
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Q: So all told though, just from what you're basing that on, that
could add up to less than, smoking marijuana less than 20 or 30 times,
right?
A: I actually haven't done the math.
Q: I didn't do the math, either, but I'm guessing from those brief
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should call it a diagnosis? Perhaps, if you have a term that you think is
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fitting for what you are saying here, then, by all means, please suggest
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it. But from what you are saying for this, someone could meet that
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criteria if they had had say drank alcohol, say, three times in their life?
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drink, and only drank three times but each time they had an escalating
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problems and they continued to drink despite that, I'd frankly, that's a
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bizarre hypothetical, so I don't know what to do with it. I can say I have
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the number thirty. I haven't done the calculations, I'm not sure that
just listing to me what you based it on, it sounds like it was a, you
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the time I was living in Sacramento, which the record shows I only
lived in Sacramento a couple months, maybe a little more, you know,
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once or twice a week? So, that could not add up to more than say, thirty,
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really. So, you are basing a finding in your report that supports
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finding that one had smoked marijuana, say, more than 30 times? so
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from there, you are saying a hypothetical of having only drank three
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times would be bizarre, but it's not that far from thirty, is it?
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is the marijuana with the alcohol. he didn't say alcohol three times. it
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was marijuana. you were talking about marijuana and then all the
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Mr. Coughlin: I'm not sure I understand, Your Honor, why would
it matter if I was switching?
Judge McElroy: because I would assume that there's a difference
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with this.
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Judge McElroy: I'm gonna sustain the objection. Ask the question
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again, and don't confuse the two in terms of marijuana and alcohol.
Mr. Coughlin: I'm not confusing, I'm purposefully interchanging
them like that to highlight some of the-
ms.
Q: Okay. Then, let's just stick with drinking. someone could drink
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about drinking and you had only the information you based your
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roughly thirty times in one's life. Could you do such a thing when
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marijuana?
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that it's about mathematics. I'm actually looking at what the numbers
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are. Your early twenties, you're born in 76, so early twenties might be
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six years and at 12 times a year that is 60 or 70 plus the amount of times
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that. If it was only once a month and as you said it was approximately
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tend to underestimate the amount that they use. So when someone says
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arrested for a DUI with that, clinically I will often that may be
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may hurt their position legally? Now, would it be fair for a judge to say,
well, that person admitted that one thing, I am going to go ahead and
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some sort of quotient and coming up with what you believe is accurate?
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from the central point. So, I would not have gotten into a quantification
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all of the sudden we had this marijuana issue popping up. And none of
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the exhibits or literature we have looked at before had brought that up,
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so, at this late stage of the the game, we're coming up with a marijuana
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Q: Dr. Tucker you mentioned that I'm not currently taking any
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A: Correct.
medications?
Q: when you say the other you're implying something apart from
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ibuprofen?
A: Correct.
Q: And do you remember when I stopped taking those pain
medications?
A: yes, it looks like the Adderall was discontinued in September
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2006 and that you also took Clonidine for two years. I am not sure you
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told me the exact date that that was discontinued. you also mentioned
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that you were treated with for narcotics for your pain including Lortab
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and Oxycontin-
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A: I believe so. I don't see that right here in my report, but you
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told me about issues with your father and the California LAP. You
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decided the risks and problems associated with narcotic treatment were
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about some of the bias and prejudice I felt I faced from various
A: Yes.
A: Yes.
Q: Do you recall discussions concerning the LAP program that
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A: Yes.
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specialist?
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A: No.
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rays.
Q: Is there an x-ray that can tell you whether or not you have
chronic pain, or ADD, or alcoholism?
A: No, per se, but they can be important supporting information
for a diagnosis.
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with Dr. Otterness, the psychologist who was there that day and others
attending that, that they told me verbatim that we don't feel you are
Mr. Coughlin: It is not for the truth of the matter asserted, its just
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Q: Telling me that you are not sober because you are taking these
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Q: Do you have any concern with the fact that the LAP program is
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making such bright line statements related to one's medical care and
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prescription medications?
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Judge McElroy: Okay, I guess the first question is, does he know
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Q: Dr. Tucker, are you familiar with the Bar's LAP program?
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the program.
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A: Not directly.
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Q: Indirectly?
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program, or were being considered for the program, or who had been in
initiated by the Bar. And I want to say it was the Character and
Fitness program, but it could have been other departments within the
California Bar.
A: I don't believe I have been in trials such as this one with the
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Bar.
Mr. Coughlin: And, so, Your Honor, would you say that is
sufficient to-
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Judge McElroy: I don't even know what question you are referring
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for, say, the radiologist to be telling someone that they are not sober
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Q: Why?
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suggesting.
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who have both pain, or who have pain, mood disturbance such as
opinion that narcotics should never be used with chronic pain patients
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inappropriate approach.
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with this approach include jeopardizing one's medical care and health?
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not being one not having a great relationship with the LAP program.
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Q: So you are familiar that I have had some problem with the
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LAP program?
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about the radiologist, can you see where that would affect one's
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A: Yes, I can see how that would affect your feelings towards the
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Q: Can you see that it is very possible that this type of situation
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provider, one who happens to be a specialist in the area for which the
treatment is sought, could you see where that could lead to the
applicant's health being compromised?
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Judge McElroy: You need to call the LAP people as your witnesses
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is.
Judge McElroy: They are experts in the issue of whether you have
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been terminated from LAP and that is an issue here, but Dr. Tucker
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doesn't know, other than the fact that you have been terminated.
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Judge McElroy: Don't argue with me. Ask the next question.
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which you told me had been more effective in the past than ibuprofen,
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the past.
Q: Your Honor, I am just having a little bit of a problem
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other drug abuse dependencies and your treatment and also he is here
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such that you can become a member of the State Bar of California.
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Judge McElroy: And that is true, that wasn't your reason you
were hired, uh, employed by the State Bar. Its really to address the
issues of abuse and alcohol, but he has, in fact, opened it up, and what
this court has to consider is whether he has rebutted the State Bar's, uh,
whether the State Bar has rebutted his case that he is rehabilitated and
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being here today, and chief among them was, as I understood it, was to
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the big reasons for you being here today, then I would be interested in
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I would feel that it is very important, I would not say that you are
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important for you to have the kind of treatment that I described, and
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the attention deficit disorder, the chronic pain, the character issues,
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substance abuse. I think that all of these are still clinically significant
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practicing law? I have to admit that I have not sat down and addressed
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that, that would be something I would want to spend a little more time
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on and confer with one of the attorneys here as to what are the actual
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against. But, just clinically speaking, I would say that you are not
your functioning and that you would benefit from that treatment and I
also think that those would interfere with your ability to practice law.
Q: Okay, now, you are compensated by the State Bar for your
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Q: Dr. Tucker, in your review for this, for your testimony and for
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your report, did you see the packet of AA signature sheets I had
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and on?
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A: As you described it. All that I reviewed for this report would
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be the documents listed here. With the addition of, I think, the
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transcript I was given the day we met, which was your second, part two
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Q: And, Dr., were you familiar with the judge's order directed to
what you were to review in preparation for your work on this matter?
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A: Yes.
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Q: And you had a good idea of the acceptable subject matter the
court had spelled out?
A: I think that when we met you were very concerned about the
actually get a copy of it and look at what was authorized. So, in terms of
the specific verbiage, we did need to get a copy of the report, but
asked to do.
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Q: But, in fact, when we did review it, there was some things in it
that surprised you?
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A: Is that a question?
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Q: Do you recall being surprised that the court's order call for you
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indicate that I will not give a copy of the report to the applicant or
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evaluee, and that the court order said, may have, may have contradicted
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that, in which case I would have said, we will do whatever the court
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order said. But, I don't remember the specific discussion about that.
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Judge McElroy: And what the record should reflect is that these
are your attendance at AA meetings?
his opinion?
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understood from you that you had been to many AA meetings and had
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Q: Okay, now does someone who has gone to the trouble to gather
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these lists, is that different from someone who has done these things or
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be different if we had all the same other facts, but for the fact that one
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guy got some 30 signatures pages dating back to 2003, and the other guy
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just said yeah I went to a bunch of meetings? Does that enter into the
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actually, I was not doubting you about that. I think I was giving you
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earlier question, it seemed as though you said you don't feel that I am
A: Correct.
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Mr. Coughlin: So, its that Dr. Tucker's opinion is not relevant?
Judge McElroy: No, I don't.
Mr. Coughlin: On that matter? I am just trying to understand
because we have him here?
Judge McElroy: I don't think that Dr. Tucker knows what it takes
to be a member of the bar.
Mr. Coughlin: Well, I wouldn't expect him too, either, but it seems
like that is kind of what he is here for todayJudge McElroy: No, he is here to give the court some indication of
whether you currently suffer from alcohol abuse issues.
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alcohol abuse issues such that- I don't know how I can phrase this
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question? Such that I can be admitted to the Bar? Such that you would
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have reservations giving whatever sort of input to the Bar that you are
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able to, or that would be appropriate, such that would feel comfortable
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A: I did, and then I got distracted, but I think that I can respond.
not you are currently or recently using, renders you vulnerable to the
Mr. Coughlin: Sorry to interrupt you there, Dr. Tucker, but the
judge had said alcohol abuse, and now you are saying alcohol and
marijuana abuse-
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pieces of paper from this Court, or the Bar, or the LAP program saying
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the issue is alcohol abuse and then at other times the issue becomes
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substances.
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abuse?
Judge McElroy: Mr. Coughlin, this is a moral character case. And
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you have indicated that you have good moral character. The State Bar
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has a right to introduce evidence that you do not have good moral
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picture here.
Mr. Coughlin: Your Honor, can you see where it is problematic to
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with the LAP program or with this Bar that were related to monitoring
recovery from alcohol abuseJudge McElroy: Well, if you had complied with the program, we
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Judge McElroy: So, and you have already opened up the issue.
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Mr. Coughlin: No, I don't. But, one of the two of us has actually
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that?
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Judge McElroy: At this point the court can not advise you. What
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you needed to do in this case was get an attorney to present your case.
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allowing me to do that because you don't have an attorney and you don't
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Q: Dr. Tucker, from what you know about this case, do you see
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anywhere where you feel that the LAP's approach was problematic?
Ms. Kagan: Objection, relevance.
Judge McElroy: Sustained.
Mr. Coughlin: I don't understand what I can ask Dr. Tucker that
is relevant?
Judge McElroy: Well, first of all, it has been asked and answered
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and I have a sense of what Dr. Tucker knows about the LAP program. I
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don't think we are going to get anywhere here because he doesn't know
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exactly what went on between you and LAP other than your self-
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reported.
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Mr. Coughlin: So, no more LAP? We are not going to talk about
LAP with Dr. Tucker?
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Judge McElroy: Right, you need to get the LAP people in here.
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Mr. Coughlin: So what can we talk about with Dr. Tucker then?
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Mr. Coughlin: But how does that affect what we are looking at
here today? We are looking atJudge McElroy: Well, maybe you don't need to cross-examine him
anymore, maybe enough has been accomplished that you are not going
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bunch of exhibits.
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Judge McElroy: exactly. why don't, let me, i have 13 was that
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withdrawn?
Ms. Kagan: I believe there was a question that I did quote into the
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ms.
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possible?
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Ms. Kagan: I believe that was admitted. That was the testimony
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Mr. Coughlin: ok because you did say you were going to call Ms.
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Ms. Kagan: I don't know exactly what I said. what I did say was
that Ms. Poley, she may be a witness in this matter if necessary.
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Judge McElroy: I don't know how you get that in without calling
that person.
Mr. Coughlin: Okay, so your honor if they're not being offered to
prove the truth of the matters asserted within the letters?
Judge McElroy: you just need to call them as a witness. it's
hearsay she's entitled to cross-examine them.
Mr. Coughlin: but we introduced those photographs into evidence
and I wasn't-
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Mr. Coughlin: but they were they were paraded before the court
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though right?
Judge McElroy: and i totally ignored them. They are not into
evidence.
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Mr. Coughlin: Can you read these and then totally ignore them?
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Mr. Coughlin: I don't know, what was the point of showing the
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photographs to the court? I would at least like whatever chance she had
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by showing those to the court to have you read these and try to ignore
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Mr. Coughlin: you read all of these letters of rec? There is like
seven of them.
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state senator in Nevada whose work with the State Bar of Nevada for
20 years he's on their board and he-
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Judge McElroy: I've read the letters but I they cannot come into
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Mr. Coughlin: ok Your Honor can I ask you to what extent is this
suggestion that I somehow didn't do what LAP told me to doJudge McElroy: You need to call them. you may have a reason for
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not doing what LAP wanted you to do but you have to call them in as
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witnesses.
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Mr. Coughlin: okay and I'm not even saying I didn't do what what
they wanted me to do and i have not seenJudge McElroy: You were terminated from LAP, okay. that's the,
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that is the only thing the court knows at this point is you were
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terminated from LAP. and that's why the Committee could not make a
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have.
about your failure to cooperate with LAP. that was a condition of you
being admitted.
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Mr. Coughlin: and all they said so far was thatJudge McElroy: you were terminated.
Mr. Coughlin: I was terminated?
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trial is what I'm takin' into consideration. One, that you were
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Mr. Coughlin: And that's it? We don't know why we, don't know if
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it's because I looked at them the wrong way or if I failed twenty drug
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tests or what?
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Judge McElroy: That is something you can argue. you can put it,
you can argue.
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agreement you had or the stipulation you had with the Committee.
Mr. Coughlin: Shouldn't part of the burden be that they have to
show why I was terminated?
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burden of presenting that you have good moral character. they rebut
that. They rebutted it, and now you if you have witnesses can rebut
their rebuttal.
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Judge McElroy: ok, but you know what they say when you
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represent yourself.
Mr. Coughlin: well I don't know if the person who came up with
that saying ever got to be a part of thisJudge McElroy: Believe me, in my practice I've seen it and I agree,
so you need to determine whether you've completed your case or not.
Mr. Coughlin: and i did have an attorney as a matter of fact, you
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know? The State Bar's dragging this procedure out in concert with the
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LAP program has made it so that I don't have an attorney anymore, but
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Judge McElroy: okay well you don't now, so let's make a decision.
what do you want to do.
Mr. Coughlin: I wish to put on testimony related to why I was
terminated from the LAP program.
Judge McElroy: that's fine and you can put yourself on.
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deal with that now orJudge McElroy: You can deal with it if that's how you want to
deal with it. but we need to put yourself on as a witness. that's fine. you
understand that you're still under oath.
Mr. Coughlin: yes. i would like to testify with regard to a few
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the LAP program. At this point, I don't know why I was terminated
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from the LAP program. I was never given any anything telling me
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why, other than any one sentence that was pretty vague, something
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like you haven't fulfilled the terms of your participation plan. you're
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was terminated and if that's a big part of the decision you'll make in
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factor much into your decision at all, then fine, I don't need to spend a
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expansive and invasive entity has poked around in your life you might
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you might wish to get some feedback as to why they chose to terminate
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you after looking into every corner of your medical records, psychiatric
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profile, asked you questions about your economic life, asked you
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questions about your sex life, which I will note, your honor, in one of
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that for whatever reason I was terminated from LAP I'm not sure but if
exhibit 52 to say that I made myself available to take any test the LAP
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conversations and letters with Ms. Poley that indicate that if there's a
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test I need to take i would appreciate her letting me know when and
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where-
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Mr. Coughlin: No, well okay exhibit 52, at least speaks to that
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issue though, Your Honor. I'll note on the second paragraph, its my
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attorney at the time Mr. Fishkin is expressing to Ms. Poley that it's his
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demonstrates that I don't know what test she's talking about or where
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to get such a test done. And Ms. Poley- and I'll note the late date. this is
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Judge McElroy: okay in terms of exhibit 52, i will say that it's not
hearsay, if it's not coming in for the truth of the matter, and it's
corroborative evidence that you might want to know what a test, what
Judge McElroy: I'll let it in not for the truth of the matter but as
some corroborative evidence that there was a test they wanted to take.
ms.
assert that this letter is dated February 6 th, 2006. This abeyance period
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August of 06? That was the date of my original meeting with the LAP
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in February of 06 about taking some test, then that would suggest and
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and I would corroborate this with my own statements, that Ms. Polly
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never even made any effort to get a test taken until nearly the end of
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direct issue that you said you were going to be giving direct
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terminated from LAP. i don't know that you could figure that out just
from this letter alone. and I believe this letter alone is all I got myself
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after three years of dealing with the LAP program and spending a lot
of money to jump through different hoops that they required and
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objection. that's the basis for your termination from LAP. that's what
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you're saying.
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Judge McElroy: That you didn't like the report from a radiologist.
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Mr. Coughlin: No, what I like and what I don't like I don't think
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said you were putting yourself on the stand for it in terms of direct
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Mr. Coughlin: So, I'm asking you to take a look at exhibit 6 and-
Mr. Coughlin: and from exhibit 6, I still don't know why I was
beyond exhibit 6 to tell me why I was terminated from LAP and so it's
kind of hard to address why I was terminated from LAP, you know I
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mean?
Judge McElroy: yes.
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Mr. Coughlin: because I haven't been told why. And then I'm
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pointing to this exhibit 52 to show that the even if LAP wants to say it
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was over some testing that they wanted done, we made efforts to, we
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have written evidence here you know showing the we made efforts to
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comply with them. i don't see any evidence from them pointing to the
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contrary, so.
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Mr. Coughlin: They did say to me that you're not sober because
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you're taking these medications. i can tell you that can throw, can be
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Judge McElroy: Okay, so this is not going in for the truth of the
matter stated. this is going into show your state of mind. that's it.
Mr. Coughlin: okay, well, so it can't be going in to say I heard
them say this?
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number one, which is why it's part of the reason that it's hearsay is it's
not reliable testimony. But, I'm letting it in to show your state of mind.
but it's not hearsay if it's not going in for the truth of the matter and
ms.
Mr. Coughlin: okay, I would like it in for the truth of the matter.
Judge McElroy: Well its not because its hearsay. If it were going
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in for the truth of the matter, it would be hearsay and it's not reliable.
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that's why hearsay evidence is not allowed into evidence is because it's
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not reliable.
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Mr. Coughlin: But if someone is testifying that yeah this guy told
me he killed that person they are able to-
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the truth about that is that they're jeopardizing people's health care by
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Mr. Coughlin: thank you. and I'll take this opportunity at this
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trial to say that my experiences with the LAP in that regard were very
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that as you earlier suggested, if I had just done what they said,
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everything would have been all fine, is something like I cannot agree
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with. Because you've got people who five minutes after meeting you are
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fact in telling you what is acceptable medical care and what is not and
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the consequences of that are that they're not going to give you a
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for that you've taken out maximums of student loans for, that you
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passed the bar exam for, you took the bar exam to why for, you know? so
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the the LAP program has a pretty heavy hammer that it wields and I
wish to illustrate that in this setting and hopefully get that into an
opinion because I'd like that to be known. I think that power that is
unchecked leads to bad things. and right now as I see it the LAP has
unchecked power and that's real serious when you're talking about
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if you can divorce it from some of the prejudice and some of the politics
that go along with things like substance abuse or chronic pain or ADD,
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something like that and if you had a diabetic or someone like that come
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into the LAP and for them say we don't think you're sober because
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you're taking insulin, so stop taking that insulin the results of that
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that i can't think of another disease, and the AMA does characterized
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other disease that receives the treatment that this one receives from
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this bar. there's no other disease where the bar is able to do the things it
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chronic pain, there's politics that surrounds that that enables the State
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Judge McElroy: I am going to let it in. this is his belief, but let's
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not admitting into evidence these letters aren't really purporting to say
anything of truth, its just giving these peoples general yeah this guy's
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you know someone who I could hire something like that. it's not saying
yeah we saw this guy do this at this date. So, I don't know why there's
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letters.
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to?
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Mr. Coughlin: no, I'm just asking you as a judge, is there anything
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a member of the bar and address the rebuttal that was given.
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State Bar's rebutting of that and the State Bar's rebutting of that
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or attorney-
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Judge McElroy: But, i mean let me just put it this way, what
you're doing now is really kind of getting into argument. what we need
is direct examination.
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honor i think you had an opportunity to see everything about this case
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and I don't know that there's anything I could I could at this point that
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Judge McElroy: well let me just kind of focus your attention. good
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obedience to the laws of the state, and respect for the rights of others
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and for the judicial process, and that's what you need to address. and
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that means what you would have to do is look at what the State Bar has
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Zimmerman & Scully. your US patent and trade and trademark office
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didn't report to the State Bar on page 12. to report all failures to
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Ive given you enough in terms of what you need to focus in on.
Mr. Coughlin: Your honor, I want to talk about those things first,
things showing that I don't have good character and then we've got the
list of things the State Bar presented to show that I don't have good
character. I want to talk about those first, the things showing that i
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don't have good character. Because, really, in reality, we don't even get
into this list ever until we get into this list in this process. that is the
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they don't have good character besides not have this list. And it's only
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once you have a list of these things that you have to go above and
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beyond that as i understand it, beyond just not having such a list. you
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about whether I'm a patent attorney or agent. it seemed that you pretty
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much through that issue out or said that it's not overwhelmingly
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the law library for six months or less or more and i would say that from
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the testimony offered it's still not clear whether I did work there for
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more or less than six months. we still haven't established that. and I'd
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also say well, let's say I worked there for six months and one day. is that
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really such a strong point in the State Bar's case? it's clearly close
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whether or not i worked there for six months. it's not like I worked
there for three years and omitted it. i don't think there's any question
that it's not long related employment. it's a job as a clerk at a lobby in a
library. it's not law related. Im not researching anything for any
partners. I'm not even filing anything for any attorneys or any legal
entity. so i can not see denying someone a law license based on that.
Next, we have the academic dishonesty issue. well I think it's pretty
clear that I both reported that correctly and was cleared of any
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told it was anything other than that. Then, somewhere along the line in
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we are clearing you of that but we're going to warn you about
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something we're not really sure just don't do it again, whatever it is you
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didn't do. So I think that's where the murkiness comes into this, but it's
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clear Mr. Burn's letter says no academic dishonesty took place and it's
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clear from my update to the State Bar that I reported that as such. So,
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again I don't see what the State Bar is resting its case on with that
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issue. so they are 0 for 3 as far as i can tell so far. And these first three
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were the chief transgressions that the State Bar was leading with,
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highlighting in their case and all three have fallen flat. So, the ones to
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come after these three are of even lesser importance. with regard to not
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fulfilling- i believe the language about the LAP program that State
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Bar gave was that I hadn't gained insight according to the LAP and I
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interesting with the LAP, it's such a strange kind of reality. you get
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make them far from recommendations. so it's kind of like no you can't
just say it's your requirement? it's like saying it's a confidential
program why say it's confidential why do you put that on? confidential
lawyer assistance program? this is out in your hallway out here. This
again. I don't see how its confidential. I have had areas of my life
trotted out before this court that otherwise I wouldn't have ever
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support undermining the public's trust in the LAP program. i think the
LAP needs to be straight about what it's doing.
It's like i said in my Pre-Trial Statement. It is fostering an
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it's not easy. it's not an easy problem in our society, dealing with
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temper any criticism I have with that by saying, yes it's a hard
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problem. far be it for me to act like I know how to deal with it exactly.
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but I can say that I feel as someone who's gone through this through
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was like.
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anything more than hearsay with regard to what other activities we're
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and and I don't know that they formed any foundation in the State
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Bar's original denial of the application. so i don't know how i can speak
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something Christine Smith, a Dean at the law school was talking about
with a paper with a Professor Stemple that was due for a writing
requirement that we had, some questions about what its content needed
I'd note know when we're talking about whether or not i did what
the LAP program asked me to do, your honor? I'd note that my
experiences with the LAP program, to give you some context, is that I
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about a year-and-a-half of back and forth over whether or not the LAP
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program can get my medical records it was decided that they can get my
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able to go and get whatever medical records they want. So, once they
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ADD and chronic pain treatment. that's also where the LAP program
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gave me their treatment plan for me for the next six months, during
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my evaluation.
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Ms. Kagan: I object to this on the basis that it's not in evidence.
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activity once a day for 180 days straight and gather proof of that. in
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once a day for a hundred and eighty days straight, that's six months, no
for six months despite the fact that you've already shown them several
we- what exhibit are we referring to? i need to see if it's in evidence? I
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180 meetings in 180 days. there's beenJudge McElroy: Well, there are the signature pages that he went
to the meetings, okay, so.
Mr. Coughlin: there's actual pages from LAP saying here's your
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evaluation plan for the next six months you have to do all these things
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and it's like three pages of stuff and I had to get it notarized and had to
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and I'm addressing these 14 points by showing you not only have i
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gathered these signatures, not only has exhibit 52 shown you that we
made ourselves available for whatever test Ms. Polly wanted me to take
Concerned for Lawyers meeting once a week, the Nevada Bar's analog to
the LAP program or The Other Bar, so I don't know at what point in
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Judge McElroy: Okay that's your argument. So, let's go on. let's
move on.
Mr. Coughlin: I haven't been able to locate the Pre-Trial
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Statement and I think that would be beneficial for addressing all that
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issues you highlighted. I don't believe that the pretrial statement for
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Judge McElroy: I'm gonna give you another 10 minutes. You need
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and I don't mean that whatever to say I don't respect the process and
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that I didn't ultimately pay those tickets, I just mean I don't think it's
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worth five years of interacting with the California Bar and this stage
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civil cases judgments and defaults related to the River Arms and Uni-
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certain things, i said i could have done some things better and I was
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already covered the law school employment. the fact that the State Bar
employment until it doesn't say when? But the State Bar certainly had
exhibits. to say it was not until May 14 th, 2004 that applicant told us
about his business? Well, I don't think that business got off the ground
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until sometime in early 04, so I certainly don't feel that that's too late
to report or to update this moral character application. Certainly,
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sitting in this room now looking at it and seeing the court requirements
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one can look at that and say yeah that's something he should have
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done, but I would submit that a lot of this involvement with the LAP
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program and a lot of the recovery based activities that were salient in
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me this is so obvious, but I don't know how obvious this is to people who
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haven't lived through it. But, you certainly don't become a member of
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AA overnight. and you don't become sure you are a member of AA and
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that you are going to stop drinking or what have you and then the the
that's not how it works, and the bar's statements in this regard
in 2002, I think just serves to show that the bar could use some
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alone, it's like the third biggest killer, or death due to alcoholism or
recovery from. So the State Bar's shame based approach with regard to
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well you went to an AA meeting in 2002 and then here you said you
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thought you were only a social drinker and then later on you're saying
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no I- To me it's shameful.
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The Patent and Trademark Office issue I've feel has been
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addressed. financial obligations? yes, i had some things, still owe some
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like to pay back, yes. i would like to come back and hopefully Ill be
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able to do so, but what can i say? the rule says you're supposed to report
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those things. I didn't report those things until sometime in 07, so.
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the arresting officer's report. Well, I guess that would mean I had
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police report is taken as gospel and not as some buzz words that an
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officer who has been celebrated five times by MADD? And given out
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hardly that many days in an 11-year period, to give out that made DUI.
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witnessed some of these trials would know that that's not true.
discipline. we went into to this thing about the computer. i really don't
know what to say about that. I reported it. its it's in my application, the
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language about it. to me, now, it's all coming down to well how many
feet did you move this computer? into the same room that it was
already in.
academic dishonesty investigation? We already talked about
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you sign this letter saying yes I'm aware I'm being investigated for
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you a warning about what? I'm still not sure what they're warning me
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five minutes after meeting you and dangling your career as a carrot or
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wielding the not having a career as a hammer to get across their own
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political agenda which is frankly laden with religiosity and a real old-
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relates to chronic pain or ADD from people who don't even practice in
that field. who want to- Its just shameful. it's like a bankruptcy judge
say that I don't have anything further to add other than I appreciate
your listening to me your honor and the care that you gave to this case
because i have felt that my case has been heard and appreciate that.
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cooperate he has demonstrated that he has not met his burden to prove
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that he has the requisite good moral character for admission to the
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State Bar. The State Bar has admitted evidence unrebutted evidence of
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respect to his arrest in 2001 after the movie theater incident, his DUI in
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substance abuse and his termination from the Schuering law firm.
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Mr. Coughlin lacks the requisite character for admission to the State
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Judge McElroy: Okay, thank you. So, at this point the case is
closed and it will be submitted today, okay. thank you
(End)
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