COMPLAINT AGAINST JUSTIN D.

WHATCOTT
PROSECUTORIAL MISCONDUCT COMMITTED BY SPECIAL PROSECUTORS
JUSTIN D. WHATCOTT AND JOSH TAYLOR
OF THE IDAHO ATTORNEY GENERAL'S OFFICE
RESULTING IN THE UNJUST CONVICTION OF AN INNOCENT MAN -
MICHAEL SCOTT MOLEN CASE NO. CR 2005- 1748

This complaint is supplemented and supported by the report on the “Prosecutorial Misconduct
Committed by Special Prosecutors Justin d. Whatcott and Josh Taylor of the Idaho Attorney Generals
Office Resulting in the Unjust Conviction of An Innocent Man Michael Scott Molen Case No. Cr 2005-
1748, submitted to the Idaho State Bar on 10/07/09.

This complaint is hereby formally lodged against Justin D. Whatcott in regards to the numerous
violationsof the Idaho Rules Of Professional Conduct and the blatent prosecutorial misconduct
committed while violating my Constitutional Rights to a fair trial. While lodging this complaint, I will
be referring to the report previously mentioned and provided.

In the fall of 2005, I was wrongfully charged with a crime based upon a false allegation and a false
medical report. On January 9, 2006, a preliminary hearing produced even more ridiculous allegations,
which resulted in amended charges due to t he alleged victims claims of more than ten instances of
sexual intercourse involving penetration. Based upon these false allegations, in which any oral or
manual touching was specifically denied, I was bound over for trial on one count of L & L by genital to
genital contact.

Lots of time passed between then and the trial. Lots of pre-trial hearing, many evidentiary hearings
where the prosecutions key witnesses were never held to account for disobeying court orders to appear
and explain why they refused to produce certain evidence. The prosecutor at that time was Theresa
Gardunia, who is now a judge. She offered me a deal of injury to a child with one year in jail which I
promply refused.

I'll start with the threatening and or intimidating of my witness, Ben Carmack. Pages 1, 2, 2 of my
report explain this situation somewhat (with exhibits). Exhibit-4 shows Mr. Whatcotts attempt to
explain how he knew aobut the fact that Danny Holt was under the influence of psychedelic
mushrooms at the time that I alledgedly admitted something to him.

The fact is, the defense never placed on the reocrd during a conference call with the court, the
substance of Ben Carmacks expected testimonoy. Where is this “on the record” conference call that
Mr. Whatcott is untruthfully telling the court occurred in his memorandum? (See Exhibit-4, page 6 and
7, underlined in yellow)

Where is Ben Carmack, for that matter? He is up north hiding, that's where he is, because he was told
he would be arrested if he testified to the truth of the situation.

Mr. Whatcott knows that there was no “on the record conference with the court and for him to claim
that this was his source of information is a lie and blatent misrepresentation of facts toward the tribual,
which is a direct violation of rule 3.3 Candor Toward the Tribuanal.

In my “Notice of Appeal”, I specifically requested this transcript of this imaginary conference call to be
included with all the other “on the record” proceedings of my case. For it not to included with all of
my other transcripts is my proof that what he claims to have occurred did not. (See attached Exhibits-A
and B) Exhibit-A is where I requested the transcript and Exhibit-B is the transcript of the only
telephonic conference call “on the record”. (court minutes, not transcripts.)

If this was his only violation, one could maybe excuse it as a mistake made by an over zealous
prosecutor. NO!!! I will go on th show that this guy lied and deceived over and over without obvious
fear of accountability. Please hold him accountable!!!

This next issue also falls under Rule 3.3 as well as Rule 8.4 ( a ), ( c ), and ( d ). The conduct I will
show you is intentional dishonesty, deceitful, and ourright misrepresentation, as well as conduct that is
extremely prejudicial to the administration of justice. Please see page 5 of my report along with the
specified exhibits 9 and 10 with the subject matter being high-lighted in yellow.

Mr. Whatcott straight up lied to the judge about a prior ruling from another judge, and the prejudice
which resulted is beyond tragic. Mr. Whatcott's deceit was not an accident and neither was the effect it
had on the jury.

Pages 6 and 7 of the report address the Brady violation. Rule 3.8 ( d ) mandates disclosure as does
Idaho law and the U.S. Supreme Court via Brady v. Maryland.

Is it any wonder that a paid validator, a nurse whose bread and butter depends on her ability to verify
abuse, would make up a story and not produce the photos that actually prove that the allegations by
both the alleged victim and the nurse are false! Mr. Whatcott had every opportunity as well as the duty
to produce those colposcopicphotos. After all of the court orders, discovery requests and discussions
with my attorney and my expert witness, he had the gall to tell them that no photos existed.

Those photos clearly show that the alleged victim has a perfectly intact and normal hymen with no
signs of abuse or penetration as was falsely alleged by the alleged victim, the paid validator and worse
of all the “Minister of (in)justice”, “special Prosecutor” Justin D. Whatcott. The intentional
withholding of this highly exculpatory evidence severely hindered my defense and prevented my
Constitutional right to a fair trial.

Page 7 of my report goes on to show the theme of my trial. To lower the burden of proof and convince
the jury that there was inappropriate touching gong on, which is not what was alleged or charged!

Please read page 8 & the Exhibits referred to. Mr. Whatcott's deceitful misconduct can be shown over
and over and WILL be addressed to the higher courts as the Idaho and U.S. Supreme Courts have ruled
that the tactics used by this man are repreehensible,misconduct and extremely prejudicial to the
administration of justice. (Rule 8.4)

At this time I will respectfully ask you to read the rest of my report with the attached exhibits which
will SUPER enhance the validity of my complaints against Mr. Whatcott.

While some of my report refers to Josh Taylor, Deputy Attorney General, and his misconduct,
I wish to address Mr. Whatcott's disregard for the truth and his lack of ethics.

The Idaho Rules of Professional Conduct, as well as the Court rules and the Constitutional
requirements of a fair trial certainly pertain to Justin D. Whatcott, Special Prosecutor for the Idaho
Attorney General's office. One would certainly think that someone who represents the Idaho Attorney
General's office would be held to strict standards and ethics.

This complaint goes beyond standards and ethics. I implore the Idaho State Bar Association to hold
Justin Whatcott accountable. His blatant disregard for the rules has not only disgraced the justice
system and all who are involved with this man and the injustice he commands, but he has been allowed
to ruin my life as well as that of my family.

I am innocent of the crime of which I was convicted. The evidence in this case shows that I am
innocent. Mr. Whatcott's lies are not the evidence.

The following is taken from a quote used in an opinion reversing a conviction due to the misconduct of
a prosecutor.:

“A prosecuting attorney is a public officer, “acting in a quasi judicial capacity.” It is his duty to use all
fair, honorable, reasonable, and lawful means to secure the conviction of the guilty who are or may be
indicted in the courts of his judicial circuit. He should see that they have a fair and impartial trial, and
avoid convictions contrary to law. Nothing should tempt him to appeal to prejudices, to pervert the
testimony, or make statements to the jury, which, whether true or not, have not been proved. The desire
for success should never induce him to endeavor to obtain a verdict by arguments based upon anything
except the evidence in the case, and the conclusions legitimately deducible from the law applicable to
the same...

Prosecutors too often forget that they are part of the machinery of the court, and that they occupy an
official position, which necessarily leads jurors to give more credence to their statements, actions, and
conduct in the course of the trial and in the presence of the jury than they will give to counsel for the
accused.

It seems that they frequently exert their skill and ingenuity to see how far they can trespass upon the
verge of error, and generally in so doing they transgress upon the rights of the accused. It is the duty of
the prosecutor to see that a defendant has a fair trial, and that nothing but competent evidence is
submitted to the jury, and above all things he should guard against anything that would prejudice the
minds of the jurors, and tend to hinder them from considering only the evidence introduced.”
I, Michael Scott Molen, am writing this report to inform the reader of the immense amount of
misconduct committed in order to obtain my conviction. Unconstitutional and unethical means to
include misstating the law, facts, and evidence to the jury misstating facts the the judge in order to
convince him to rule in their favor, failing to disclose highly exculpatory evidence which showed that
witnesses were untruthful, lying the the court verbally and by way of memorandum, presenting
perjured testimony and having a witness threatened as well as allowing the tampering of one of my
witnesses are just a few of the terrible actions of these “ministers of justice”, Justin D. Whatcott and
Josh Taylor.

I will show numerous instances of misconduct which are violations of my Constitutional right to a fair
trial and violations of the Idaho Rules of Professional Conduct. I have proof of most of the accusations
as you will see. For some, there is no proof except emails, such as my witness being threatened and
intimidated at the direction of Justin Whatcott. But it is only because I cannot, from here in prison,
produce the witness whom I am referring to. I do have a recording of the interview taken by a licensed
investigator as well as em-mails from this witnesses brother in reference to the threats directed by Mr.
Whatcott.

Yes, I am extremely bitter towards these two men who at all costs and against all rules, have ruined my
life. I AM INNOCENT!

I am hoping that the Idaho State Bar will conduct a thorough and complete investigation based on the
facts of this report. Please, will somebody address the atrocities committed against me? I have never
seen such blatant disregard for fairness in a prosecution.

The judge bent to every whim of the prosecution, who continuously whined about prejudice to the
state, while any protection against prejudice to me was not allowed.

I will continue with the facts. The first issue I would like to address is the witness tampering, or rather,
the threatening of a key witness of mine. It will take some time to explain. Hopefully someone will
investigate this matter. When my witness can be guaranteed immunity, I am confident that he will
come forward again.

In October of 2006 I was talking to Daniel Carmack about the fact that Dan Holt had made a statement
that I had in some way “admitted” something to him while camping at Deadwood reservoir. I told
Daniel that Dan, his dad, Tom, and another guy were up there and were high on psychedelic
mushrooms and that that Dan Holt's statement could, in no way, be relied upon.

The next thing I knew, Ben Carmack, Daniels brother, came to me to say that it was HE who had
provided them with mushrooms and that he felt responsible.

My attorney Ron Christian promised, over and over, that he would contact Ben in regards to his being
an impeachment witness against Danny Holt, and that he would reassure him that he would not go to
prison for it.

Ron Christian, not once, tried to communicate with Ben. In fact, Ron Christian wasn't doing anything
to prepare for my trial which was coming up on January 10, 2007, so I hired a private investigator per
Mr. Christians suggestion. This P.I. Interviewed Ben Carmack. This interview was recorded as we had
the feeling that someone would try to dissuade him from testifying.
On January 4, 2007 my attorney finally filed a motion to enlarge time to serve supplemental disclosure
of defendants trial witnesses, in which he outright lied in claiming that Mr. Carmack was only recently
discovered and located. Mr. Carmack had come forward clear back on October of 2006. Maybe that is
why he never even tried to present this evidence. I will address Ron Christians lies and misconduct in
another report.

This motion, filed on January 4, 2007 was the only thing which was provided to the prosecution
regarding the impeachment of Danny Holt's testimony. No mention of the specifics which were that
Ben had provided Dan Holt's camping party with the drugs which would impeach the reliability of Dan
Holt's “story”. (See Exhibit 1).

The next Exhibit is the Idaho State Police's version of their interview of Ben Carmack. It is completely
bogus as you will see. First of all it is interesting that this interview was not recorded. It is obvious
that this is so they can say whatever they want to. I will get back to that in a minute.

This report (see Exhibit 2) states, “1. On January 3, 2007 State of Idaho Attorney General's Office
Investigator James Kouril telephoned me and requested assistance on interviewing...” This is
interesting because he wasn't even disclosed as a witness until January 4, 2007.

The false report of what Ben Carmack said is not so relevant here, though I can prove it was intended
to mislead.

In this I.S.P. Report, the Summary Narrative, distinctly says that they were interviewing Ben Carmack
regarding his knowledge of alleged substance abuse by Danny Holt, a witness in this case at the request
of the Idaho Attorney General's Office. It is interesting how this report states that, “Carmack could
provide no direct information on the issue of Holt ingesting mushrooms”. I have a tape recorded
interview with Ben Carmack, by a reputable Private Investigator which proves different. (said
interview took place on 11/28/06 and is available upon request.)

The I.S.P. Report is untrue and inaccurate and it should have been recorded like their other interviews.
Funny how they left out the fact that they intimidated my witness, even threatened him. It was a nice
trick and so far it has worked. Ben Carmack is long gone. I have e-mails and a tape recorded
statement from Ben Carmack's brother Daniel that state that Ben was threatened. Remember that this
confrontation was initiated by the Attorney General's office (see Exhibit 3).

To Show one of many lies presented to the court by Justin D. Whatcott, please see Exhibit 4, page 6,
last paragraph, and page 7.

While Ben Carmack's tape recorded statement may be considered hearsay, what Whatcott and the State
Police “claim” he said is certainly hearsay as well as a lie! The tape recorded statements made by Ben
in no way reflect what the State Police and Whatcott would like you to believe.

Do you think that this “Special Prosecutor wouldn't lie? Think again” (See Exhibit 4). Again, where
is this “on the record” conference call he claims to have occurred? It does not exist! His lie on this
occasion directly reflects on the whole episode of the missing witness, Ben Carmack and Whatcott's
further attempts to cover his tracks. No one can produce or confirm the existence of or occurrence of
this fabricated conference call where this important information was supposedly give to the opposition.
As I stated, the I.S.P. Was directed by the A.G.'s office to Ben Carmack in regards to information which
was not even disclosed yet, much less his identity. Know why?

Many of the residents of Garden Valley knew that Danny Holt, his dad Mike, Tom Grosvner, and
Danny's uncle were at Deadwood Reservoir, high on psychedelic mushrooms when I was supposed to
have said I'd take a plea bargain. They also know that I had adamantly turned the “one year” deal down
several months before this liar invaded my wife and I's camping trip.

Everyone also knows why Ben Carmack has not been seen or heard from since the State Police were
sent to scare him off. Why would Whatcott's office call the State Police with this request the day
before he was even disclosed as a witness, much less without being told what his testimony would
consist of?

One can only guess what this “special prosecutor” did to obtain this information way before this
fabricated “on the record” conference call transpired. Like I said, everyone knew that Danny and his
“crew” were high on mushroom on that Deadwood trip and for the prosecutor to intimidate my witness
and present false testimony in order to “implicate” me by saying I had confessed to something I did not
do is misconduct. I hope and pray that the Idaho State Bar, or someone whose obligation it is to
investigate these types of misconduct will do the right thing and thoroughly investigate my claims and
not just look the other way as my appellate attorney has done.

Does the title “special Prosecutor” give this man license to lie to the court and to the jury, to present
perjury, and to condone, if not direct, tampering with witnesses? This and more was all committed in
my case and must be addressed. I can also prove by my trial transcripts that Justin Whatcott outright
lied over and over to the judge and jury. He presented perjury and false testimony, as did Josh Taylor.
How can anyone believe the witnesses the prosecution presents when they themselves lie over and over
again?

Now I will get to the meat of my complaints. The lies, the trickery and how it violates the Constitution,
the Idaho Rules of Professional Conduct and most importantly, how it violated almost every right I am
supposed to have as a defendant in this trumped up false charge, plagued with lies, withheld evidence,
destroyed evidence, perjury, and blatant Prosecutorial misconduct as well as the judicial misconduct
which will be shown.

I will begin with some false statements Whatcott made to the jury at the beginning of my trial during
opening statements. (see Exhibit 5), pg 245, lines 2-7. Whatcott states, “she will tell you...in his
bedroom, her bedroom, and in the living room, that he put his hands on her in places that he
shouldn't...put his mouth on her...” He later tried to get her to say these things, but she NEVER said
that I put my hands on her in places that I shouldn't or put my mouth on her. Yet in his closing
arguments he stated that she had testified that I did.

He did this over and over. When someone didn't say what fit HIS story, he later would lie to the jury
and say they had testified to something which they hadn't.

Again on pg. 246 (Exhibit 5) lines 4-6 Whatcott says, “she didn't even tell when her mother found
blood in her panties. She denied that it was her blood.” This is classic fabrication by Whatcott because
it fits HIS story, not the facts or the truth. His own evidence (the shady C.A.R.E.S. Interview, as well
as the alleged victim's testimony at the Preliminary hearing shows the opposite of what Whatcott tells
the jury. (see Exhibits 6, lines 1-12 and Exhibit 7, pgs. 41, 42, 43 and 44.
Then the alleged victims mother sent her back to my house the summer following this discussion???
That would make her mother a felon. So Whatcott gave HIS story, as he does consistently and
purposely, though it does not at all align with the facts or the truth.

Please also note that this “blood” the only blood EVER mentioned during this whole ordeal, happened
in Phoenix, Arizona, not in Idaho! And it happened right around the time that Savannah's mother had
reported her missing to police (see Exhibit 8).

These facts were never presented to the jury, along with much other evidence my attorney had in his
possession yet failed to present. It is obvious to the whole world that I was not afforded a fair trial
based on my attorney's incompetence alone. That, of course, is another battle, that if I were to present
it all in this report would certainly shock and awe the reader into blaming my attorney for my unjust
conviction. Yes, he is incompetent and he allowed this miscarriage of justice to occur, but the
purposeful and flagrant violations of my rights and the rules by the prosecution are what I am
addressing now.

Rule 3.3 Candor Toward the Tribunal:

(A) A lawyer shall not knowingly:

(1) Make a false statement of fact or law to a tribunal or fail to correct a false statement of
material fact or law previously made to the tribunal by the lawyer.

I have already shown the lie (false statement of fact) regarding Mr. Whatcott's imaginary “on the
record” conference call he claims to have occurred in his memorandum opposing my motion for a new
trial, previously referred to in Exhibit 4. This was a serious violation causing me great harm.

A much more serious occurrence which involved serious misconduct by Judge George Carey:
Before trial at a motion in Limine, in front of Judge Stickland, we presented to the court that under
Idaho's rules of evidence and in order to receive a fair trial, (refer to the constitution) we were allowed
to present to the jury evidence that the alleged victim had been exposed to extreme sexual situations,
which would explain how she may have obtained the knowledge needed to describe her allegations,
other than to let the jury assume or infer or be led to believe it was from me. This U.S. Constitution via
the U.S. Supreme Court.

Justin Whatcott did what he does best and convinced the judge to rule against me. But the judge
specifically allowed me to present only one small morsel in regards to allowing us to present testimony
that the alleged victim was attempting to french kiss members of the family, which is significant
because in her interviews she was claiming that I had attempted to french kiss her and that she was
disgusted by it. (see Exhibit 9) pg. 52, lines 6-14) It is clear that the judge allowed this. Justin
Whatcott in attendance.

Now at trial, here came Whatcott's lies and deceptions to the judge and the jury in order to seriously
discredit the defense and thwart the truth. Judge Carey joined in and made improper untrue statements
as well, compounding the damage. Then in argument to my attorney's truthful statements that this
testimony was indeed specifically allowed, Whatcott continues to lie, saying that this had never been
brought up before (see Exhibit 10) pgs. 637-638)
So the jury heard from both Whatcott and the Judge that the court had previously ruled that this
evidence was “inadmissible and inappropriate” and that we were trying to sneak in evidence! The
judge then, wrongly, supported Whatcott's lie by stating “You're right!”

You should have seen the effect this had on the jury. I saw it and so did the “special prosecutor”. No
wonder I was wrongly convicted. The jury was just “shown” that the defense was trying to be
untruthful which is totally incorrect, prejudicial, unethically and morally wrong!

Does Rule 3.3 apply to “special prosecutors”? This unethical, dishonest behavior is not an isolated
incident. I can and will show that Justin Whatcott and Josh Taylor will say and do whatever necessary
to get a conviction. This is wrong and I am pleading with those whose duty it is to address these issues
to do the right thing and command some respect for the law, the truth, and the judicial system.

Not only did Whatcott obviously cause extreme harm by his deceit before the court, but the violation of
the Idaho Rules of Professional conduct demands that someone hold the prosecutor accountable. Who
is this someone? My appellate attorney obviously should have demanded accountability. He refused to
do so, even though Idaho courts have ruled that antics such as the blatant misconduct committed by
Justin Whatcott are unacceptable.

Brady v. Maryland is Constitutional and disclosure is mandated by Idaho law as well as rule 3.8(d) of
Idaho Rules of Professional Conduct, under “special responsibilities of a prosecutor”.

Even after all the demands for discovery and even a motion to dismiss or in the alternative to demand
that C.A.R.E.S. Of St. Lukes turn over any and all evidence regarding this case which was as it should
have been, ruled in our favor, we were not provided with the colposcopic photographs that prove the
alleged victim's story was false.

Even after the prosecutor, Justin Whatcott, had assured my attorney and my expert witness, Dr. Ed
Freidlander, that there were no photo's to inspect, three days into my trial my attorney pulled the
information out of the state's witness, Alisa Ortega, that indeed these photographs DID exist. (see
Exhibit 11, pg. 475, lines 5-25 and pg. 476, lines 1-20.

Dr. Freidlander had only 45 minutes to examine the photos. By his own words he was not adequately
prepared to prove that the alleged victim's claims or the “nurses” endorsement was physically
impossible. (see Dr. Freidlander's and Dr. Guertin's affidavits (Exhibits 12,13, and 14) and that no
notches were present.

Of course Whatcott pleaded ignorance yet he told us all that photos existed. (see Exhibit 15, pg 506,
lines 9-11, and Exhibit 16, especially pg 2, second paragraph. This proves ZERO due diligence on
Whatcott's part. Why would he make the statements that NO photos existed unless he checked first to
see if they did? The answer to this is a no brainer. He is deviant and he knew he would get away with
it.

Either Alisa Ortega is either unqualified to correctly perform that exam, or she lied. I claim both are
the case.

Nevertheless, Whatcott's non-disclosure prevented the defense from preparing an adequate defense as
those pictures were highly exculpatory evidence which shows positively that the alleged victim has a
perfectly normal hymen, contrary to what that nurse and Whatcott falsely presented to the jury.
The law refers to non-disclosure of exculpatory evidence by good or bad faith. It is more than obvious
that this is an EXTREME case of Bad Faith. See State v. Johnson, 120 Idaho 408, 816, pg 2a 364 (CT
APP 1991) REQUIRES REVERSAL OF CONVICTION.

As does “Delayed Disclosure” which prejudices the defendants preparation or presentation of his
defense, thus preventing him from receiving his Constitutionally guaranteed Fair Trial” State v. Olsen,
103 Idaho 278, 647p.2d 734 (1982), State v. Pizzuto, 119 Idaho 792, 810p.2d 680 (1991)

Justin Whatcott's violations need to be investigated, Please! My claims are all true. My appellate
attorney Justin Curtis refused to address the numerous serious instances of misconduct. My appellate
attorney should also be investigated as well.

Rule 3.3 (8) Misconduct

It is Professional Misconduct for a lawyer to:

(a)Violate or attempt to violate the Rules of Professional Conduct.
(b) Commit a criminal act that reflects adversely on the lawyers honesty, trustworthiness, or fitness as a
lawyer...
( c) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
(d ) Engage in conduct that is prejudicial to the administration of justice.
(f ) Knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of
judicial conduct or other law.

The commentary on this rule explains it all. Dishonesty and serious interference with the
administration of justice was unbridled by these “special” prosecutors, as evidenced by reading the
transcripts as outlines in the exhibits provided.

One would think that these men who represent the Attorney General's office should be men with
impeccably high standards, not dishonest, deceitful, and willing to win at all costs, and able to because
no one will address the tyranny.

Back to the facts...

Early in the trial the trickery began (see Exhibit 16, pg 110, lines 1-5) Josh Taylor told the jury
(incorrectly) that “...he is alleged to have inappropriately touched his wife's granddaughter...in the
summer of 2004”. This statement was incorrect. I was not alleged to have inappropriately touched
her. In fact at no time did she ever testify that I had “touched her inappropriately”. I was alleged to
have forcibly raped her by having sexual intercourse more than “ten times” as evidenced by the
preliminary hearing transcripts, the hearing that bound me over for trial. In fact, the alleged victim
specifically testified at that hearing and during trial that NO touching or “oral” activities occurred.

For those prosecutors to push the “touching” allegation is extremely improper as it allowed them to
lower the burden of proof and straight up lie about the facts. This was VERY WRONG!!!

My evidence is supported by the record. These “special” prosecutors both knew that if they can
convince the jury that some kind of touching was going on that they would believe that I was guilty as
charged.
Though I was not accused nor charged with “touching” both the State and the Judge erroneously
conveyed to the jury that “touching” was enough to convict and even though the alleged victim never
testified to touching the State kept hammering it in that she did. Since the Judge wrongly lowered the
burden of proof by instructing the jury that what the alleged victim claimed to have happened
(penetration with no clothes on ) need not be shown. Touching through the clothes was specifically
denied by the alleged victim. The withheld photos proved that the allegations and the charges, which
were based upon those allegations were FALSE!

Justin Whatcott suborned perjury. Even the alleged victim, when confronted under oath about prior
untruths admitted to have not told the truth. Yet during closing argument Whatcott lied telling the jury
that she had NOT lied nor faltered in her testimony. That too is in the record (available upon request –
see Exhibit 26)

Exhibit 17, pg 663, lines 11-25, through pg 665, line 17 shows the Whatcott's deceit, making statements
that were not in evidence, in order to rebut my testimony. This is misconduct and Whatcott knew
exactly what he was doing and he knew that he would get away with it over and over again.

Notice that Whatcott was getting too close to the truth so he changed the subject and, of course, by then
the damage was done.

Exhibit 18, pg 669, lines 15-25 shows more prejudicial antics and untrue statements by Whatcott to
make me look bad. Again on pg 671, lines 1-25 (same exhibit) his lies and disparaging comments are
meant to unfairly prejudice the jury against me. The fact is that I have never been to trial before, nor
have I ever been accused of a sex crime. But even though my lawyer objected and the judge scolded
Whatcott, the damage was done and the prosecutor committed MISCONDUCT.

On pg. 672, lines 7-25 and pg 673, lines 1-15, first of all he was putting words in my mouth. I never
testified that I wanted to talk to the police. The rest of his comments on this subject are a direct
violation of my Constitutional right to remain silent. What is not supposed to comment on my choice
to remain silent. The Fifth Amendment states such.

On pg 673 (Exhibit 18) Whatcott claimed that I told the alleged victim that we had a special girlfriend-
boyfriend type of relationship (lines 24-25 and pg 674, lines 1-2). Then on pg. 674, lines 3-11 he states
that I made her “pinky swear not to tell anyone. Not only is none of this true, it is all HIS story, not
fact which was ever put into evidence. All of this is MISCONDUCT.

Exhibit 19, pg. 720, lines 11-25 and pg. 721, lines 1-14 show Josh Taylor lying to the judge claiming
that the proffered evidence had been ruled “not relevant” by the prior judge, (following Whatcott's
footsteps). In order to get a favorable ruling. Lying to the judge is MISCONDUCT and a violation of
Rule 3.3 of the Idaho Rules of Professional Conduct.

Exhibits 20 and 21, pgs. 754-758 show Mandi Smith, my stepdaughter, telling the jury of her sister, the
alleged victims mother, trying to get her to testify falsely. This DID occur several times. As evidenced
on pg. 758 lines 12-15 and exhibit 22, my attorney informed the prosecutors office of this attempt by
Tiffany Davidson to tamper with my witness. Yet Whatcott did everything he could to convince the
jury that this did not happen.
Mandi tried to tell the truth of who DID molest her and Whatcott objected as irrelevant. As usual the
judge sustained him. (see Exhibit 20, pg. 754, lines 20-25 and Exhibit 21, pg. 755, lines 1-17.

The “relevance” is that the company Tiffany keeps are molesters and druggies and that is what Mandi
would have testified to...THE TRUTH!

For Tiffany to try to convince Mandi to say that I had molested her is a lie and a crime! This is witness
tampering and was allowed by the state. Whatcott helped cover it up.

On cross examination by Whatcott, (pg. 756, lines 13-18) Whatcott asked Mandi if, when she was
asked to testify untruthfully, she called the police. She said, “no, I didn't”. She didn't because Ron
Christian told her not to and that he would tell the prosecutor to insist that Tiffany back off. Whatcott
knew this was happening, yet he encouraged Tiffany to lie about it on the stand, to go as far as trying to
convince the jury that Mandi was retarded. He is an evil man. Mandi knows what Tiffany was doing
and that it wasn't right. Mandi does not lie.

Exhibit 23, pg. 779, lines 12-22, Whatcott once again misstates the facts to the judge in order to get
him to rule in his favor. He is arguing to the judge trying to convince him that the alleged victim didn't
say that she'd been penetrated ten times and that defense counsel was able to confuse her and get her to
say something which was inconsistent with what she had said before, implying that he had tricked her
and that she had never said these things before his trickery.

The preliminary hearing transcripts CLEARLY show the alleged victims false claims of penetration
“more than ten times” and the trial transcripts CLEARLY show that upon refreshing her memory of her
prior statements under oath that contrary to Whatcott's lies and trickery, my lawyer did not deliberately
or otherwise to any such thing as to confuse the alleged victim. All he did was tell the truth which is a
subject Justin Whatcott is neither familiar with nor concerned about. All he is concerned with is
winning.

(See Exhibit 24, pg. 989, lines 1-21) again on this subject during closing arguments Whatcott mis-states
the facts, implying that my lawyer had tricked her into inconsistencies. He completely misstates the
facts regarding her testimony and cross examination which indeed, she wavered extremely from her
stories both in the C.A.R.E.S. Interview and more importantly her lies under oath at the preliminary
hearing. (See exhibit 26 Cross Examination of S.Z.).

Then on line 17-18 he is vouching for her which is misconduct in and of itself.

If you read everything that Whatcott says, then go back and read the transcripts. He either lies or
severely twists everything so that it fits HIS story and it in no way represents the actual evidence (or
rather lack of evidence) presented. Josh Taylor is just as bad. (Exhibit 25, pg. 906, lines 12-17.

Savannah did NOT testify to “lots and lots and lots of instances of touching. In fact NO instances of
inappropriate touching were ever testified to and were specifically denied at the preliminary hearing.
So why does Mr. Taylor lie about Savannahs testimony? Well,the man does it over and over again. In
fact he isn't truthful about anybody's testimony, but on this occasion, he needs to convince the jury that
some kind of inappropriate touching was going on, as first of all, the judge had mis-instructed them that
“touching through the clothing” was all that was necessary to find me guilty.
Also Taylor needed to have things fit what HIS expert said, that there is a “touching” phase which
occurs prior to the intercourse, which sounds like it makes sense. What doesn't make sense is that
absolutely no inappropriate touching was testified to, so the theory which was presented was either
flawed or the whole story was just that...a story. The withheld exculpatory evidence (colposcopic
photos) show that the alleged victim's accusations of penetration did not occur. So to win at all costs
Taylor continued to falsify facts in order to fit a theory of “phases” to convince an already biased jury
to convict with absolutely NO credible evidence. This being the case he continues to lie about
evidence.

See Exhibit 25 again, pg 907, lines 23-24. She did not testify that “his private part was hairy”. Then
on pg. 908, lines 13-20 she did not at any time say that there was a time when she was being touched
and the truck was stolen. This has always been HIS story. In fact, after being reminded of her previous
stories and how this story didn't make sense, she changed her story again. (See Exhibit 26, “Cross
Examination of S.Z.). Especially pg 28, lines 5-25 and pg. 29, lines 1-23).

On pg. 902, the ridiculousness of it all starts to show when Taylor says on lines 1-13, “We're essentially
talking about what happened on that day during the summer of 2004 and 2005. And...the date alleged
does not have to be specific; it can be on or about.” There is a real FLAW in that. How can ONE
charge occur in 2004 AND 2005? It is all a part of the prosecution's deception.

See pg. 904 (Exhibit 25, lines 10-15) Taylor is mis-stating the facts, telling the jury that my wife and I
had testified that we had decided completely against wanting to adopt Savannah. (This fits HIS story,
not the facts). Lines 16-20 is Taylor incorrectly trying to apply a “theory” to an already duped jury. As
on lines 21-25 he again outright lies again about Savannah's testimony. She never testified that I had
told her that we had this “special boyfriend-girlfriend relationship”. Again, it fit HIS story. Whatever
it takes, right? The hideous deception presented by these special prosecutors is not an isolated
occurrence, not can it be construed as some sort of mistake or misunderstanding. It is obvious beyond
a joke, that they were out to win, no matter what the cost. And they did!

PROOF; (Exhibit 27, pg 909, line 7 and lines 10-12 Taylor is going on about how this (his lies) fits
with what Mydell Yeager testified to that happens in these type of cases. Everything that comes out of
his mouth is either twisted or an outright lie. (See pg. 910, lines 5-11) No consistency at all, especially
on the subjects he is presently referring to. The transcripts are facts and he is straight up lying about
the facts in order to convince the jury of HIS story.

Pg. 914, lines 17-25 is all incorrect.

See Exhibit 28, pg. 917, lines 16-21. Taylor: “does it make sense...that he would just drop it, as he said
he did, that he never had another conversation with Danny Holt?” I never said that! Taylor: “Or is it
what Danny Holt said that he called the defendant on the phone and they had a confrontation?” Danny
Holt did not say that he called me. The fact is that I called him. This may sound trivial except that it's
all about what really makes sense and the facts are that these “special” prosecutors keep misstating the
evidence in order to present THEIR story, not the testimony which was actually presented, which if it
was accurately examined by anyone with any reason, would not make a bit of sense and reasonable
doubt would be obvious. This is certainly why both Josh Taylor and Justin Whatcott lie about the
evidence and testimony over and over again. Again on pg.920, lines 17-20, Taylor lies about Connie's
(my wife) testimony saying that she had testified that she couldn't remember a time when the defendant
was alone with Savannah. This is a lie! She, in no way, testified to that and the record proves the
continuous lies and deception.
Pg. 923, lines 9-15, Taylor again misstates testimony and tells the jury, “Isn't it interesting that also one
of the things Savannah remembered was the incident where she was being touched and the truck was
stolen.” SAVANNAH NEVER SAID THIS!!! She specifically denied it during cross examination after
being reminded of her previous stories and testimony. Then Taylor tried to correlate HIS story with
something Mydell Yeager said again, totally distorting the facts.

Exhibit 29, pg 968, lines 17-23. Whatcott tells the jury that Mr. Christian told them that even if they
believe that this really happened, they still have to acquit his client. This is flat wrong! That is NOT
what Mr. Christian said. Then Whatcott rambles on about the truth and how the jury gets to decide
what the truth is. Then he spends an hour or so misstating the facts, the evidence, and the testimony
presented in order to convince the already biased jury that lies, his and his witnesses, are the truth.

Pg. 971, lines 3-6 Whatcott improperly vouched for the alleged victim, which is misconduct. Pg.971,
lines 20-25 and pg. 972, lines 1-6 Whatcott untruthfully and improperly tells the jury that Dr.
Freidlander's testimony was for sale and that he was not qualified to testify as he did.. This is
REBUTTAL. Yet in his argument to the judge against my Motion for a New Trial he lied and said that
Dr. Freidlander's testimony was NOT rebutted by the state. (See Exhibit 30, first paragraph) He claims
the same LIE during the hearing on this motion for a new trial as well as rebuttal as: “To present
opposing evidence or arguments, as in a legal case.” He did this more later on in his closing arguments
which I will show in a moment.

Back to Exhibit 29, pg. 972, lines 16-19. Whatcott is claiming I said on the stand that the alleged victim
was lying and “...she's the one who is lying”. Not only did I NOT say this, the evidence SHOWED that
she was lying. She even admitted to it.

Pg. 982, lines 2-10, of Exhibit 31, Whatcott commits misconduct when he misstates the law and tells
the jury that in order to find me not guilty they have got to find that all of his (Whatcott's) witnesses
were lying. This statement alone has caused the reversal of convictions in so many states, yet Whatcott
says it twice in his closing arguments as if he knows that nobody will address it, which so far nobody
has.

On the same page, lines 11-14 he falsely claims that you have to believe that she is sophisticated
enough to come up with a story that fits the fact that she had physically trauma to her vagina, inferring
that her story fit with the medical facts. So, he is totally misstating the truth as her allegations of
several accounts of “penetration” in no way fits the FACTS of a perfectly normal and intact hymen.
Then on lines 17-23, he is inferring once again that her story matched the FACT that she was at the
defendants house during this time, sophisticated enough to match the fact that she had blood in her
underwear. She had the foresight to come up with a story that fit all of those things. What a total lie.
NOTHING FITS!

Her original story was that it happened in our house in June of 2004. When we showed the state that
we didn't live in that house at that time, then stories changed again.

Common sense shows that penetration, even once, would leave no hymen. Yet even the state's witness
in her report noted a fully intact hymen. Experts have testified and provided affidavits that stated NO
trauma is evidence to the alleged victims hymen. The “blood” story, in no way, matches any facts
except the fact that it supposedly happened in Phoenix, Arizona, right around the time a missing child
report was filed on Savannah while I was hundreds of miles from there, at home in Garden Valley,
Idaho.
How does any of the TRUE facts match up with anything that either Savannah or Justin Whatcott
proposed? This prosecutor at NO time is trying to get to the truth or present any truth to the jury. The
state spent all of their energy in getting a conviction no matter what. THIS IS WHAT FITS WITH
THE FACTS, as proven throughout the transcripts, which I will be happy to provide in their entirety to
anybody willing to do something about the injustices committed by these supposed “ministers of
justice.”

(Same Exhibit, pg 983, lines 20-21) Whatcott tells the jury that “The fact is Tiffany Davidson was not
even around when these allegations came to light.” According to S.Z.'s testimony, the only “evidence”
used to bind me over for trial, under oath, she testified, while holding her mothers hand that these
allegations had come out before she even came back to Idaho in 2005. She testified that she told her
mother that the blood in her underwear was from the terrible things I had done to her. (See Exhibit 7
pg. 41-44). The FACTS support what the defense presented, NOT what Whatcott untruthfully and
deviously presented.

(Exhibit 31, pg. 985) Whatcott totally mischaracterized the testimony in relation to some alleged
“confession” to Danny Holt. Then on pg. 986, lines 4-6 Whatcott incorrectly stated that “defense
counsel” tried to suggest that C.A.R.E.S. Was in on this conspiracy. These are disparaging remarks
toward defense counsel and is considered Prosecutorial Misconduct.

Then again on pg. 986, lines 17-24, Whatcott misstated the law and said: “In order to believe the
defendant did not commit this, you have to believe that each one of those people were lying, each one
of those people is part of this big conspiracy against Scott Molen..”

According to the Illinois Appellate Court (amongst others) “for a prosecutor to inform a jury that in
order to believe the defense witnesses, the jury must find that each of the states witnesses were lying, is
such a misstatement of law as to prejudice the defendant and denying him a fair trial.”

Pg. 986, line 25 and pg. 987, lines 1-2, Again Whatcott said that physical evidence existed. NO, the
evidence, (the colposcopic pictures) prove this is a lie! These photos were withheld for over two years
despite subpoena's and court orders to produce them. These photos were withheld by the same nurse
who took those photos and incorrectly validated the alleged victims ridiculous claims, then under oath
admitted that her findings come under a classification of “indeterminate”. This fools funding comes
from her verifying abuse. She is an advocate and in total cahoots with the “special” prosecutors as
evidenced by her testimony and her failure to produce the photos which totally prove that she was
wrong. Why did she not show up to court under the numerous court orders? Why was she never held
accountable for such contempt for court orders? The answers are obvious.

Pg. 987, lines 2-25, and pg. 988, lines 1-5, Whatcott runs our EXPERT witness, Dr. Edward
Freidlander through the mud telling the jury that he was paid to say that Alisa Ortega was wrong. He
said it was bias because he was paid by Scott Molen. I don't believe what he said about Dr. Freidlander
was legal. If for no other reason because what he said was not only untrue but inaccurate. Very
inaccurate because to date, Dr. Freidlander has still not been paid for coming to testify. One more point
on this is once again Whatcott's rebutting Dr. Freidlander's testimony in which I have proof of at least
two times he is telling the court that “at no time did the state rebut Dr. Freidlander's testimony”. LIES,
LIE, and MORE LIES!

Pg 988 lines 9-23 Whatcott goes on to mischaracterize the evidence by trying to minimize the alleged
victims inconsistencies as if they only happened at the preliminary hearing and that she answered “yes”
to all of the questions and that she was asked bad questions. This child was inconsistent all through
this ordeal, not only at preliminary by making up stories which when proven could not or did not
happen, were recanted. Her credibility issues went way beyond the Preliminary Hearing and her yes or
no answers. Whatcott knows it and the records show it.

(Exhibit 32. pg. 989, lines 1-21) Whatcott completely misstated the facts and the evidence blaming my
lawyer for tricking her and falsely claiming that she never wavered from her story. He says that she
was never inconsistent on the stand. This is incorrect. Her stories never made sense and they changed
every time she told them.

Whatcott then goes on to improperly vouch for the alleged victim on pg. 989, lies 17-21. “We know
that a lot of what Savannah is telling you is the truth.” That statement alone is pretty darn lame, sort of
like being “kind of pregnant”. “We know that a lot of what Savannah Z is telling you is the truth. We
know it by her testimony. We know it by that CARES interview. We know it by all the evidence that's
been presented in this case.” WHAT EVIDENCE??? Her “testimony”? Are you kidding me? None of
her testimony at trial or at the preliminary hearing showed anything except for her inability to tell the
truth or discern fact from fantasy. And the CARES interview is made and presented for “effect”.

Dr. Esplin, forensic psychologist, the expert who testified in regards to the poor interviewing
techniques and the unreliability of the CARES interview has impeccable credentials in developing
accurate interviewing techniques and protocol all over the U.S. And Israel. So, contrary to Dr. Esplins
professional opinions, Justin Whatcott told the jury how much that preposterous CARES video shows
that what Savannah has said is the truth!. This pathetic man knows not the meaning of truth. He spent
many hours and days convincing twelve jurors and the judge that his story was fact and that his version
of the facts were the truth. And despite the fact that someone testified one way, because the “special
prosecutor' says so, that's what happened even when the RECORD SHOWS HE IS A LIAR!!! The
record also shows that I was NOT afforded a fair trial and the record also PROOVES that both of these
special prosecutors did everything they could to prevent me from receiving my Constitutionally
guaranteed fair trial before, during and after said trial.

Whatcott say's in his “Salem Witch trial” manner, in which he had the jury mesmerized, “It's time to
see justice. It's time to speak the truth.” AMEN! This evil man has no idea what the truth is!

The jury was surely fooled by the talents of these special prosecutors. Please will somebody study and
address the atrocities committed by these men whose jobs are to insure justice?

In this role as ministers of justice, prosecutors have the responsibility “not simply of an advocate, but to
adopt a somewhat neutral stance, to see that the defendant is accorded procedural justice and guilt is
decided upon the basis of the sufficient evidence.” (Model Rules of Professional Conduct R.3.8 cmt.
1(2003). See also United States v. Kalfayan, 8 f.3d 1315, 1323 (9th cir. 1993) stating that prosecutors
“serve truth and justice first, and their job isn't just to win, but to win fairly, staying well within the
rules”

Even if public support for protecting the accused is ambivalent or weak, the Supreme Court has
acknowledged that “the moral force of the criminal law relies on safeguards that keep the innocent
from being convicted (Winship, 397 U.S. 358, 364, (1970) In this role, the prosecutor has a duty to
ensure that police investigators and government witnesses act properly and testify truthfully. When
prosecutors do not critically examine the evidence against the accused to ensure its trustworthiness, or
fail to comply with discovery and other obligations to the accused, rather than act as ministers of
justice, they administer injustice. If a prosecutor ignores legal and ethical obligations in order to gain a
conviction and that misconduct occurs to frame an innocent person, it is corrupt. It is still inexcusable if
it is instead designed to facilitate the conviction of a person the prosecutor believes is guilty. It is
wrong because each act of Prosecutorial misconduct is a rejection both of the prosecutors oath of office
to uphold the law and oath as a lawyer to adhere to ethical responsibilities. It is wrong because
Prosecutorial misconduct undermines the due process afforded to the accused. It often results in
relevant evidence being kept from the fact finder and contributes to wrongful convictions. It is also
wrong because placing the thumb on the scales of justice not only invades the province of the fact
finder but, if the prosecutor is mistaken, it may result in an innocent person going to prison.”

WHICH IS WHAT HAPPENED IN MY CASE!!

“When a prosecutor states or argues facts not in evidence, the jury hears and considers this information,
yet the defendant has no opportunity to cross examine or challenge the allegations because no witness
was ever called to testify. This very harmful Prosecutorial misconduct violates the defendants right to
confront his accuser.” Douglas v. Alabama 380 U.S. 415 (1965). See also United States v. Brisk, 171
f.3d 514 (7th cir. 1999).”

“Simply stated “society wins not only when the guilty are convicted but when criminal trials are fair;
our system of the administration of justice suffers when any accused is treated unfairly.” Brady v.
Maryland, 373 U.S. 83,87 (1963).”

“Conversely, “intentional wrong doing in court by perhaps the most critical member of the government
law enforcement team (the prosecutor) calls into question the fairness and integrity of the trial. Paul J.
Spiegelman, Prosecutorial Misconduct in Closing Argument: The Role of Intent in Appellate Review.
1 J.app. PRAC & Process 115, 131 (1999)”

The truth is I could go on and on showing the gross misconduct committed by both special prosecutors,
Justin Whatcott and Josh Taylor. Conduct that violates the United States Constitution Idaho Rules of
Professional Conduct and the Ten Commandments!!!

Once more I am pleading with the Idaho State Bar, the Attorney General, the Governor of Idaho and
anyone else whose duties may include addressing and upholding the law and the rights of citizens as
well as court rules, to please look into my claims as they may be numerous but they are not frivolous.

I assure you that I am innocent of this charge and when I am afforded a fair trial I will prove it,
although all it takes is a careful examination of the evidence actually produced at trial, not the states
incorrect version, and you will see that the alleged victim in this case is not credible nor are her mother,
her mothers friends, the “nurse” and interviewer for CARES, the deputy who destroyed evidence and
straight up lied on the stand about that and about her qualifications and training.

If one is to look at the defense's witnesses and their true reputation for truthfulness and credentials and
qualifications, and the apply some common sense to weigh the actual evidence, not what a couple of
special prosecutors misstate the evidence to be, I am quite sure that you will see that Savannah's story
is quite unbelievable. Yet the purpose of this report is not to convince you of my innocence. It is to
show the corrupt and unfair prosecution of my case.

Thank you for your time. Sincerely, Michael Scott Molen