"PROSECUTORIAL RACISM"

Defendant hereby moves to compel the video that has been lost due to the bad faith actions of DDA Nicole M. Hermann and the state of Oregon.     In an informal discovery demand, Defendant has demanded production of the video from Fred Meyer.  The history of this request is as follows:  On the day of the alleged incident, August 14, 2019, and in the days that followed, defense counsel met personally with and then was in communication with the lead police investigator Det. Tony Cobb, who was frankly very responsive.  In those first interactions at the scene, Cobb and defense counsel discussed the importance of certain pieces of video and the urgency in obtaining them.  The importance of the Fred Meyer video was discussed at that time.     From reports it is apparent that the task of obtaining the video was assigned to Gresham Police Detective Aaron Turnage who reported:     I drove to (Fred Meyer) and spoke to an unidentified member of management.  I explained I wanted to determine if any video was available for the evening of August 13, 20-19 and I provided the information from the receipt that was provided by the victim.  I was told that a member of loss prevention would contact me if video was available.  I was told loss prevention was not currently working and the members of management did not have access to the CCTV system.     I did not receive a call back from management or loss prevention.  I called the store on several different occasions and I was never able to contact anyone who could provide information; the business was not overly helpful or accommodating to my requests.     No video was recovered from this location. Turnage’s report regarding his efforts was not discovered until the end of November.  Up until then, the defense believed, based on Cobb’s testimony at grand jury, that the discovery of the recording was imminent.  Following receipt of Turnage’s report, defense investigator Frederick Gove easily contacted loss prevention at Fred Meyer Hawthorne on December 17, 2019.  He learned that Fred Meyer has a state-of-the-art system, that the video would have been available probably through October and that Fred Meyer policy is eager to cooperate with police.  Notably, if Turnage would have just gone to the store, they would have provided him footage.  The video was important to this case because Parris testified at grand jury that she and Kelley were in no way romantically involved on August 13, 2019.  This video would have demonstrated the falseness of this statement.  This discovery demand is made in anticipation of a motion to dismiss pursuant to Calfornia v. Trombetta, 467 US 479 (1984) and its progeny alleging that the spoliation of this evidence was in bad faith because the police were aware from the date of incident that the evidence was important, the police did not take even reasonable steps to secure it, that the government led the defense to believe that it was preserved, and that the government did not alert the defense when it became clear they were unable to secure it. CONCLUSION     The court should grant defendant’s motion to compel the production of the items listed on page one above.  Dated this 27 December 2019. MORE VIDEO FOOTAGE COMES UP MISSING!!!!!!!!!!                                      BARRY W. ENGLE PC  BELOW IS THE ACTUAL COURT RECORD CONVERSATION ABOUT THE "MULTIPLE"  MISSING VIDEO FOOTAGE 3 And then, finally, in regard to the 4 video surveillance, I told Your Honor that I've been 5 told that this video surveillance doesn't exist. 6 I've invited my investigator here, 7 Rick Gove, who is going to give us, I think, a 8 less-than-five-minute testimony about what he found 9 out about the Fred Meyer video. And, frankly, also 10 about the -- the 7-Eleven video that he went out and 11 investigated. 12 And I just want to make that part of the 13 record. And as I told Your Honor, you know, that's 14 fine if -- if we're being told that it's gone, that 15 we anticipate a motion pursuant to California v. 16 Trombetta talking about spoliation of evidence and 17 bad faith on the part of the -- on part of the police 18 or government investigators in that regard. 19 So I think I have to make a full -- a 20 full record regarding the motion to compel that we 21 took every step we could to get that and -- and that 22 it's not available. 23 So that's why I call Mr. Gove, is in 24 order to -- to complete that record here today. 25 That's what I have to say about the motion to compel. 20 1 I'd go ahead and call Mr. Gove if Your Honor's ready 2 for that. 3 THE COURT: Okay. He can come and sit 4 next to the DA and we can turn the microphone toward 5 him and we'll swear him in. 6 (Whispered discussion, off the record, 7 10:40 a.m.) 8 THE COURT: Please stand and raise your 9 right hand. 10 FREDERICK GOVE 11 Was thereupon called as a witness on behalf of the 12 Defendant; and, having been first duly sworn, was 13 examined and testified as follows: 14 THE CLERK: Thank you. 15 THE COURT: Okay. So, Mr. Gove. Oh, if 16 -- actually, if could state your name and spell your 17 name for the record. 18 THE WITNESS: Yes. Frederick Gove, 19 F-r-e-d-e-r-i-c-k, G-o-v-e. 20 THE COURT: And I'll hear your statement 21 regarding the video or if you want to ask questions, 22 you can do that. 23 MR. ENGLE: I'll just ask a couple quick 24 questions. 25 //// F. Gove - D 21 1 DIRECT EXAMINATION 2 BY MR. ENGLE: 3 Q So just tell us your -- your background and 4 your qualifications to be a private investigator. 5 A I have a juris doctor degree and I've been 6 a member of the Oregon State Bar since 1994. And I 7 got my investigator's license in 2001. 8 Q Are you currently licensed by the State of 9 Oregon to be a private investigator by the DP -- 10 DPST? 11 A Yes. 12 Q And, in that regard, do you -- do 13 investigations hired by me in regard to criminal 14 cases that I'm working on? 15 A Yes. 16 Q And did you do so in the case of Mr. 17 Kelley? 18 A I did. 19 Q And did you look into the availability of 20 video into both the Fred Meyer and the 7-Eleven 21 regarding this case? 22 A Yes. 23 Q And just tell us what happened, what'd you 24 find out, first in regard to the Fred Meyer. 25 A I contacted the -- the manager of their F. Gove - D 22 1 Loss Prevention Department at the Hawthorne Fred 2 Meyer on Southeast 39th. And he told me -- well, 3 first of all, I asked him if the -- I -- I talked to 4 him on mid-December, I believe December 17th. And 5 the incident date on this was August 13th or -- 12th 6 or 13th, approximately. 7 I asked him if that video would still be 8 available. He said it's not. It's only available 9 for -- for 45 to 60 days after the date of recording 10 and then it's written over or deleted. 11 I asked him if -- if someone had come and 12 asked for it, either a police officer or a private 13 investigator had come and asked for it in that time 14 period that it was available, if that would have been 15 something that they would have given. And he said it 16 would have been. 17 I asked him if he recalled if someone came 18 and asked for that surveillance. He said he didn't 19 recall because they get about one request per week 20 from Portland Police Bureau for surveillance. And he 21 said that they always comply. They never blow them 22 off or disregard their requests. 23 He said they reply with every request that 24 they get. And he did not recall any requests that 25 had come that they didn't reply to. He did mention F. Gove - D 23 1 that, at that time, they were understaffed in the 2 Loss Prevention Department and that it would have 3 been likely that if someone was just trying to call 4 them on the phone, they would not have received -- or 5 they would not have answered the phone because all 6 their staff were out on the floor. And he said they 7 don't really check their messages, so he said that 8 would not have been a good way to get in touch with 9 them. 10 And I asked him if they had come down in 11 person and -- and asked for a loss prevention 12 officer, if they would have -- one would have come to 13 meet them. He said absolutely, that they always do 14 that. So he said if someone had come asking for the 15 footage, they would have given it to them. 16 Q And can you describe what happened in 17 regard to the Plaid Pantry -- or I'm sorry, the 18 7-Eleven? 19 A Yeah. I -- I went out to the 7-Eleven just 20 a couple weeks ago. I've been trying to call them 21 without much luck and so I eventually went out there 22 and I spoke with a manager there. 23 He -- I asked him specifically if he -- 24 well, they -- the notes that I read from the police 25 officer or the detective who tried to find the F. Gove - D 24 1 surveillance said that they went to the store, but 2 were told that there was no surveillance cameras 3 operating at that particular time. 4 But they did have -- so of -- of the 5 exterior cameras, but they did have interior camera 6 footage, which was provided. So I wanted to 7 determine if -- if -- what the situation was with the 8 exterior footage. So I went and talked to the 9 manager. And, again, you know, we're talking about 10 four months after the fact. 11 So he didn't have specific memory, but he 12 did recall that at some point in the summer -- and -- 13 before I say that, he also said that they often get 14 police coming to ask for their surveillance there. 15 They're on a major intersection of Southeast Stark 16 and 168th, I believe. 17 So he said they -- the police had come at 18 some point and asked for their external footage. And 19 how he described it is their internal surveillance 20 footage is provided by the corporation. The external 21 footage is -- was put there by the franchise owner of 22 that particular store. 23 So the corporation controls the interior 24 and the franchise owner control the exterior, so 25 they're two different systems. And he said the F. Gove - D 25 1 exterior footage, the police had come and asked for 2 the entire computer that they had and they took that 3 computer. He said that they told him that they would 4 return that computer or replace it, but they 5 never did. 6 And then he said at a later date -- I asked 7 him if anyone had -- any police officers had come and 8 asked him for footage and he told the police that 9 they didn't have exterior footage, if that had 10 happened after the police had taken the camera -- or 11 the -- the computer. 12 And he said that that had happened, so that 13 computer was gone and then the police came and asked 14 for it and they had to tell them they didn't have it. 15 So, at that point, I don't know if that was the 16 situation where they came for the August 12th or 13th 17 footage, but it -- it seemed to comply with what was 18 in the officer's report. 19 Q In other words, you don't know if the one 20 where the took the device and didn't bring it back 21 was the Kelley matter or the one where they asked for 22 it and the other cops had taken it or if that was 23 completely two different machines? You're not sure? 24 A I'm not sure. And the -- the manager 25 didn't -- he didn't have any log information or any F. Gove - D 26 1 dates or any paperwork to -- to kind of pinpoint the 2 dates on it. 3 MR. ENGLE: That's all the questions I 4 have for Mr. Gove. 5 THE COURT: Do you have any questions, 6 Ms. Hermann? 7 MS. HERMANN: I don't.

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I was TRAUMATIZED... by the "VIRUS" of "FALSE ACCUSATIONS","GRAND JURY PERJURY""PROSECUTORIAL RACISM" and "REPEATED" SLANDER COMING FROM THE MEDIA. I am only one out of many that this has happened to! BLACK PEOPLE DESERVE BETTER THIS!!! And,everyone also deserves their fair day in court. IF YOU ARE SOMEONE WHO WILL WRITE ANY "BLACK PERSON"OFF AS GUILTY, SIMPLY BECAUSE THE " WHITE" OWNED AND RUN MEDIA SAYS THEY ARE, " you are just as much a part of the problem as they are. Themba

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To this date Themba Hasaan Kelley (Temba Spirit) has NEVER been convicted of a sex-offense according to Oregon Law. Nonetheless, the local media has NEVER reported that legal reality. What they have done is reported the "racially biased" AND ILLEGALLY MALICIOUS STATE sanctioned narrative that they have received from Multnomah County's District Attorney's office. This is how they deceive " WE THE PEOPLE" and also inject the disease of racism into the subconsciousness of the gullable community. THE DEFENSE TEAM never has the chance to report their side of the story; which in it self PROVES THE POINT! Do you get it ??? The first and only narative that hits the ears of the public comes from the arresting police and the district attorney's office. Consequently, this is how Black Men are repeatedly traumatized and also crucified by and in the eyes of the community. The media has been used in this racist way ever since it has been erected. The deceived population does not seem to understand that what is written by the media and what is presented as actual EVIDENCED REALITY in the court room, are 2 different things. For example: In 2014, The Honorable Judge Kathleen Dailey ( A WHITE FEMALE JUDGE) ruled that Temba ( A Black Man) WAS NOT a sex-offender and therefore WAS NOT required to register. This was after he was accused of having a highly charged sexual conversation with a Baskin Robbins store manager. The plaintiff was in the store by herself at 9:45 PM counting money, cleaning up and preparing to close. Themba allegedly entered the store and had a highly charged flirtacious conversation with her. He admittedly was heavily intoxicated and homeless. After Themba left the store he went to a bar up the street. The police then pulled into the lot as Themba was on the back smoking a cigarette with a bartender. Not thinking they were there for him, he didn't feel the need to run, nor was he alarmed. The police just sat there. Themba then got back on his bike and attempted to leave the lot. The police stopped him and asked had he just left Baskin Robbins? He then replied yes, "what is the problem, I was just flirting with a female in there?" The officer then replied, " did you know she was 16? " Themba then replied again, " she was managing the store? How would i have known that!? " Not having anything to charge him, they then had him sit outside for about an hour before they arrested him. Note: according to Themba's attorney Brianne Sponcee's, it was not the girl at the store who called the police. Because she was a little late getting home, her mom called her concerned. She explained to her mom that she had been speaking to this Black guy and her mother called the police. The local media reported the story as if Themba had been lurking outside of high schools hoping to violate the pristine pure under age sexual "whiteness" of Portland's females. How utterly racist. In truth, he was homeless and had been up for days and was in a state of diminished capacity intoxication. Prior to him bicycling passed the Baskin Robbins, he was at a another bar. Do people hang out at bars after hours who are lurking around for under age females? Of course they don't! Nonetheless, the DAs office was determined to use this accusation, "luring a minor" as ammunition to make Themba have to register for the rest of his life as a S.O. HOWEVER: The Honorable Judge Kathleen Daily ( a White female Judge) wasn't having it! She saw through the DA's office's nonsense. After, Themba plead put to the "luring" his attorney discovered away that the "s.o" registration could be challenged. His defense team was able to bring the case back up under senate bill 30. It was tried and on that day Themba became the first person in the history of Oregon Law, to beat the charge " failure to register " as a sex offender after Your Honor Dailey determined that he was not a sex offender! HOWEVER: NOT ONE LOCAL MEDIA OUTLET REPORTED THIS GROUND BREAKING VICTORY! Probably because, at that trial, Temba, (a Black Man) became the first and only person in the history of Oregon Law to beat the charge "failure to register as a sex-offender," after Judge Dailey ruled that Temba WAS NOT a Sex offender and therefore DID NOT have to register. The mere fact that A WHITE "FEMALE" Judged ruled in A BLACK MANS FAVOR, particularly where alleged sex crimes were involved, ought to make a person with "common sense" question the whole got-damn thing! ALL the other judges Themba was in front of were WHITE MALES. NOTE: At some point during the so-called "luring" case, Themba's attorney Brianne Sponcee's had the person who wrote the statute for the charge "luring a minor" review Themba's file. After thoroughly reviewing Themba's file, the person who wrote the luring statute determined that THEMBA DID NOT COMMIT THE CRIME "LURING". After Themba's attorney discovered this, he contacted Themba and told him this and because of his discovery insisted that they go to trial. The local media never reported any of this. AND HERE IS THE SIMPLE QUESTION??? Why do the Multnomah county media outlets still have Themba listed as a Sex Offender WHEN HE IS NOT??? It's simple: They are more concerned with sensationalism and abusing their write to "freedom" of the press then they are with exposing the truth. Moreover, they also know that the average citizen does not have the financial leverage to sue them, nor to properly defend themselves in court. They report whatever they want in order to traumatize Black people and control the minds of the public. If you cannot see the racism in that, your common-sense faculty's have been thoroughly corrupted. And its even deeper than that! After Judge Dailey ruled in Temba's favor, She pulled both Themba's attorney Lee Wachoki and DA Christine Mascal into her inner chambers. She then looked directly into DA's Mascal's face and said, " PERSONAL VENDETTA'S NEVER WORK DO THEY?". In other words , Judge Dailey considered the prosecution to be personal, biased and not Constitutional. And get this! DA Mascal is no longer a DA. She is now a criminal defense attorney. FACT CHECK THAT! In fact, she just recently defended a Black Man who was falsely accused of sex crimes and they won! It seems DA MASCAL learned her lesson. That is the power of Love working through Justice and Justice working through Love.( L.A.W) LAST! Why would a Black community, or even a CONSCIOUS White Community, EVER ASSUME, that an ALL-WHITE OWNED AND RUN MEDIA , WOULD "EVER" REPORT the LEGAL REALITY ABOUT ANYTHING ASSOCIATED WITH A BLACK PERSON??? Would a White community "RELY" upon a ALL BLACK OWNED AND RUN media to report the legal reality about them??? HELL NO THEY WOULD NOT! CASE CLOSED! CASE DISMISSED...... L.A.W Feel free to call officer Dale in the sex registration office @ 503-934-1258 to confirm that Themba Kelley IS NOT A Sex offender. IN CONCLUSUION: The Multnomah county's DA's office has lost all prosecutorial credibility. The initially tried to accuse Themba of sex crimes associated with teens; THAT DID NOT WORK. After they failed there, they upgraded and attempted to use a 43 year old white female meth/ heroine addict to get their malicious job done. That failed! The DA's office's extreme level's of intentionally condoned false accusations in the Wendy Parris racist rape case, allows us to easily see that they have not prosecuted Themba with equal justice in any of the cases. THIS IS NOT ROCKET SCIENCE: Way back in 2014, did a Judge reprimand a DA in Themba's situation for prosecuting him vindictively. This calls into question EVERYTHING that has occurred since then. Mutlnomah county's DA's office has lost all prosecutorial credibility. Hopefully the new head DA Mike Schmitt will remedy this severely concerning issue.

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THE W.HAYWOOD BURNS INSTITUTE HAS VERY SUCCINCTLY DOCUMENTED THE "PROSECUTORIAL RACISM" COMING OUT OF THE DA'S OFFICE IN MULTNOMAH COUNTY.

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