Are unsworn assertions sufficient to overcome clear and convincing evidence of illegal search and seizure?

QUESTIONS PRESENTED 1. Are unsworn assertions in a response brief sufficient to overcome clear and convincing” direct evidence that prosecutor illegally searched and seized seven attorney-client privileged oe phone conversations prior to trial or is this a per se violation of the Fourth, Sixth, and Fourteenth Amendments to the U.S. Constitution? . a. Where no physical or direct evidence of guilt exists to bear the heavy burden borne by prosecutor in convicting a person presumed innocent of committing a crime, is a ; : warrantless search and seizure presumptively prejudicial when attorney-client privileged conversations are illegally recorded and downloaded by prosecutor prior to trial? . b. Is the intentional intrusion into attorney-client privilege per se prejudicial requiring a : new trial or is a criminal defendant entitled to an evidentiary hearing as a matter of law ; once prima facie evidence of intentional intrusion is demonstrated? : 2. Can the Fourteenth Amendment tolerate a State criminal conviction obtained by the calculated and capricious employment of false evidence, repeated improper remarks during summation, and manifest misconduct by prosecutor, or does this deprive defendant of Due Process and constitute a presumption of prejudice that the fundamental fairness of the trial was unquestionably undermined according to Donnelly? ; a. Does the intentional suborning of perjured testimony by the State’s representative and subsequent use during closing argument as evidence of guilt presumptively undermine the , ' fundamental faimess of a trial, particularly where prosecutor’s remarks on evidence not of record and defendants’ silence as evidence of guilt were all in the same closing argument? | 3. Is a State court’s Ake error of refusing to appoint an independent psychiatric expert-to the ; | defense for examination and assistance in presenting defense (or allow rebuttal examination once ; State obtained its own evaluation and report) structural error requiring dismissal of indictment? 4. Is a waiver of fundamental constitutional rights and protections valid where itis neither | knowing or voluntary? i ce nt ee in sat tanner eect ata oy al jiPage | t | t . . i 5. Is Montana Code Annotated §46-14-202 facially vague and unconstitutional as applied? . 6. Does a State courts deliberate disregard for its mandatory obligations (where the plain , language removes discretion) or gross misapprehension of facts and the effect of the evidence before it presumptively violate the Fourteenth Amendment or is the Montana Supreme Court’s absolute refusal to apply, fulfill, or enforce its own precedent or statutory requirements a clear case of inadequacy requiring this Court’s intervention to prevent a gross miscarriage of justice? a. Is a High Courts’ refusal to take judicial notice when State statute mandates theydoso a per se violation of Due Process.and Equal Protection? -_ : . b. Cana challenge to the constitutionality of a State statute be procedurally barred or is a High Court required to entertain such a challenge under the Fourteenth Amendment? . c. Can a High Court that clearly and unambiguously holds a lower court has no discretion — to refuse to hold a hearing to address a particular issue later overlook or deliberately disregard the indisputable fact that the lower court did not conduct that hearing for which it . had no discretion to refuse to hold? : 7. Does the loss of alibi and exculpatory evidence due solely to IAC that could have been . ; prevented by the trial court require a hearing under the Fourteenth Amendment or is dismissal of the indictment proper considering spoliation should ‘be imputed to the State? a. Similarly, is the spoliation of alibi and exculpatory evidence due solely to counsel’s failure to investigate or obtain it a presumption of prejudice for purposes of ineffective : assistance of counsel claim or structural error where trial court had opportunity to prevent i its loss? . i 8. Does a self-repre