IN THE NINTH CIRCUIT COURT

OF APPEALS FOR THE UNITED STATES

DAVID W. KORSEN,        )
                        )
Petitioner, Appellant,  )                 SUPPLEMENTAL UPDATE
                        )                 TO PETITION FOR WRIT
vs.                     )                 OF HABEAS CORPUS AND
                        )                 APPLICATION FOR BAIL
STATE OF IDAHO          )                 PENDING APPEAL
COUNTY OF ADA           )
                        )                 CASE # CV-00-715-S-BLW
Respondent, Respondent, )
                        )
________________________)

UPDATED CASE HISTORY

David W. Korsen is the natural father of Bryce and Stephanie Korsen. In May of 2000, Mr. Korsen filed for protection and custody of Stephanie, (age 2) and Bryce, (age 3). The reason that Mr. Korsen took these actions was because he and his children had been severely battered and mentally abused by the children’s mother, Melynda Paulsen, for many years. Abuse that resulted in the children being choked, burned with cigarettes, beaten, shaken, left alone and neglected. Just prior to Mr. Korsen’s filing for protection and custody, Ms. Paulsen’s drug and alcohol abuse and violent temper had escalated into a series of more and more frequent attacks on Mr. Korsen, his children and friends.

In early May 2000, Ms. Paulsen was arrested in connection with 4 batteries that she had perpetrated after forcing entry into Mr. Korsen’s friend’s home. Ms. Paulsen attacked Jolynn Clow and her son, then choked Bryce Korsen nearly to death; after finally releasing Bryce, she attacked Mr. Korsen and Stephanie. Police actually arrived while Mr. Korsen was still under attack. After the arrest, police told Mrs. Clow that Ms. Paulsen appeared to be "on drugs" but she was never tested.

Ms. Paulsen’s criminal history includes: 7 counts of battery, (5 on adults, 2 on children), attempted murder, D.U.I., reckless driving, welfare fraud, extortion, theft and a multitude of other acts she has not been charged with, nor punished for, due to the Ada County Prosecutor’s reducing or dismissing of said charges (See Appendix). Mr. Korsen had tried many, many times to help Ms. Paulsen during their 8 year relationship. He wanted more than anything to keep his family together. He and Ms. Paulsen went to 3 marriage counselors, 2 psychologists and even tried self-help programs but Ms. Paulsen would refuse to follow through on any of the recommendations or treatments required (See Appendix).

Mr. Korsen worked very hard and purchased everything that Ms. Paulsen told him would make her happy and content. He bought a brand new 5 bedroom home, filled it with new furniture and all the clothes Ms. Paulsen could wear, but even this did not bring her happiness. In fact, Ms. Paulsen’s behavior continued to worsen. When Mr. Korsen returned home from work, the children would have more unexplained bruises and abrasions. They also seemed to be afraid of their mother. Friends and neighbors began telling Mr. Korsen that Ms. Paulsen was neglecting the children and allowing them to run out into busy streets where they were nearly run over (See Appendix). Bryce and Stephanie were very good children but they were also very young and therefore could not easily communicate what their mother was doing. Bryce had told his father that Ms. Paulsen had forced him to lie about how and why she had burned him between the eyes with a lit cigarette. Mr. Korsen had tried 3 times before to get a protection order for he and the children but was turned down each time. He also tried to press charges hoping that the Court’s might order Ms. Paulsen to seek treatment for her alcoholism and violence. Mr. Korsen knew that he had to do something. He had become so afraid for his children’s safety that he began taking them to work with him when Ms. Paulsen was going through her violent periods.

One day in early May 2000, Mr. Korsen arrived home from work with Stephanie. He found that Ms. Paulsen had changed all the locks on his Meridian home. He could not get in and apparently Ms. Paulsen had another man there, so Mr. Korsen went back to his office (which is also a house in Boise). A few days later Ms. Paulsen took Bryce to a mutual friend’s house (Mrs. Jolynn Clow). Ms. Paulsen told Mrs. Clow to call Mr. Korsen and have him pick up Bryce because she didn’t want the children. She told Jolynn she only wanted to party with her new boyfriend. Mr. Korsen picked up Bryce and did not hear from Ms. Paulsen until about a week later when she broke into Mrs. Clow’s home by force and committed the 4 batteries (mentioned event earlier in this statement). The case number for the attacks is (M0005676). Police also issued a "No Contact" order against Ms. Paulsen in accordance with Idaho law.

This incident convinced Mr. Korsen to file for protection and custody, fearing that if he didn’t, Ms. Paulsen’s behavior might cause the children to be taken away by the State.

Mr. Korsen had tried very hard to document and make a record of Ms. Paulsen’s abusiveness because no one in the Court’s or child protective system seemed to believe that a woman could be the batterer- and the father and children- the victims. Ms. Paulsen rarely ever showed the outside world her true nature and the violent side Mr. Korsen and his children endured behind closed doors. Mr. Korsen had and was trying desperately to get help from police, prosecutors, judges and child protection services (or C.P.S.), but no help came. C.P.S. knew about Ms. Paulsen because they had been called to the Korsen home twice before when Stephanie had been nearly run over by passing cars on busy Ustick road in Boise. Ms. Paulsen had no idea where Stephanie was when police came. Other parents have lost their child over this type of neglect.

Ms. Paulsen had also disappeared for three months in 1998, with the children; leaving them with strangers or home alone while she went out drinking. Facts confirmed by her neighbors.

Mr. Korsen had resorted to video and audio taping his conversations and encounters with Ms. Paulsen’s violence; in an effort to prove to the court that he and the children really were victims in their own home. By May 2000, Mr. Korsen had more than enough evidence to prove his claims and he went to Ms. Paulsen’s lawyer, Dane DeVeau, to ask him to mediate some sort of compromise. Mr. DeVeau promised that he would help but he never did call Mr. Korsen back.

Mr. Korsen felt that he had no other alternative but to again file for a protection order. This time he had overwhelming proof and the order was granted by Judge Comstock of Ada County. He signed a 90 day protection order and Ms. Paulsen stipulated to Mr. Korsen retaining full custody in return for Mr. Korsen not playing the tapes of her confessions to filing false charges against Mr. Korsen; her confession to having committed welfare fraud and extortion; as well as, the video and audio tapes of her beating and burning Mr. Korsen in front of the children.

During the 90 days after the protective order went into effect, Ms. Paulsen ignored the order and violated it blatantly more than 20 times. Mr. Korsen called the police each time and police told him they had issued a warrant for her arrest under Boise Police D.R. #’s 025854 and 026659. She had been evading arrest for weeks after the violations and police never did end up arresting her, nor did they ever prosecute her for those violations. (A copy of the protection order is included in Appendix). Months of legally draining, confusing and highly emotional custody proceedings followed. Proceedings which were greatly aggravated and complicated by Mr. Korsen’s lawyer, John Sutton, and Ms. Paulsen’s lawyer, Dane DeVeau, whom she had begun dating some time in May 2000. Mr. Korsen believes this is the reason that Mr. DeVeau told the custody Judge, Michael Dennard, a series of lies about Mr. Korsen and his efforts to mediate the case with Ms. Paulsen. Mr. DeVeau had purposely misled both the Judge and Mr. Sutton during an in chamber meeting, saying that; Mr. Korsen had made no effort to contact Mr. DeVeau or negotiate settlement. Mr. Korsen had made audio tapes of his calls to Mr. DeVeau which proved otherwise, but Mr. Sutton never gave them to the court. This became one of the reasons that Judge Dennard began biasing his decisions in favor of Mr. DeVeau and Ms. Paulsen. Mr. Korsen had also worked out on paper a settlement regarding custody and visitation with Ms. Paulsen that neither of the lawyers ever showed to Judge Dennard (see Appendix). Mr. Korsen also entered motions to mediate in an effort to bypass unnecessary litigation and expenses. Neither lawyer made an effort to help the parties retain or meet with a mediator so Mr. Korsen sought one out on his own (See Appendix). However, those motions were dismissed and/or denied by Judge Dennard. Judge Dennard also denied a motion to compel Ms. Paulsen to be tested for methamphetamine and other illegal drugs that Mr. Korsen had seen her using at the time. Mr. Korsen even had himself drug tested to insure fairness, (See Appendix for his test results, Negative).

During this period between May 2000 and late July 2000, Mr. Korsen made repeated attempts to inform the court as to Ms. Paulsen’s illegal activities and her unfitness to have unsupervised visits with the children. She was refusing to seek any treatment for her behavior, as well. Mr. Korsen had also requested C.P.S. to investigate Ms. Paulsen with regard to her abuse of the children. But C.P.S. never came to Mr. Korsen to ask any questions about his allegations and they refused to see the children if Mr. Korsen’s lawyer was present for the meeting, due to their young ages.

In July of 2000, Judge Dennard signed a temporary custody order that contained terms and provisions that Mr. Korsen had never stipulated to; signed off on; or in any way agreed to. This order was never served on Mr. Korsen either. (See Appendix for copy of order and service). Mr. Korsen had only agreed to the terms as set forth in he and Ms. Paulsen’s written agreement (See Appendix) and these were not at all the same as the temporary order. Mr. Korsen’s attorney refused to go back to court or motion for a hearing, so Mr. Korsen filed an appeal of the temporary order in August of 2000.

Judge Dennard had allowed Mr. Sutton to withdraw as counsel of record and Mr. Sutton refused to refund any of Mr. Korsen’s $2,500.00 retainer. Mr. Korsen believes this was in error because at the same hearing, a motion for contempt against Mr. Korsen was scheduled to be heard and Mr. Korsen had no counsel to defend him against the allegations of violating the temporary order of custody. Mr. Korsen was now without representation and financially unable to retain new counsel. He had even tried to get legal aid (See Appendix) to help him.

Much of the reason Mr. Korsen could not afford an attorney was because he had spent $2,000.00 renting an apartment for Ms. Paulsen so that she wouldn’t be homeless and could visit the children. This was part of their agreement to mediate (See Appendix). He did not know at the time that she had no intention of honoring her part of that agreement.

The contempt of court allegations stated that Mr. Korsen had not allowed Ms. Paulsen her visitation with Bryce and Stephanie for a 3 week period of time. However, this was false and misleading. The temporary custody order provided that; Ms. Paulsen could have every other week visitation if she set up a licensed daycare at which drop off’s could occur. The reason for this was that she could not come within 300 yards of Mr. Korsen and the children per the "No Contact" and protective orders issued against her. Neither Ms. Paulsen or her attorney ever set up any daycare drop-off location nor had they ever notified Mr. Korsen as to its alleged location. The fact is that it never did exist and therefore the order could not be complied with according to its terms.

Mr. Korsen cited this and many other very relevant objections in his appeal of Judge Dennard’s temporary visitation order. In fact, he proved that the order was issued without jurisdiction or authority to legally modify the existing custody of the children. This was due to Judge Dennard’s refusal to abide by the Idaho laws which govern a court’s authority to modify custody (I.E. Idaho Statute 32-717 and Rule 52 I.R.C.P.) Idaho Statute 32-717(B) Section 5 states definitively that; "There shall be a presumption that joint custody is not in the "best interests" of a minor child if one (1) of the parents is found to be habitual perpetrator of domestic violence as defined in section 39-6303." Furthermore, 32-717 directs the court to issue only those orders which are proven by a preponderance of the evidence to be in the "best interests" of the children. (See Memorandum of Law in Support). Mr. Korsen still believes that the ‘order’ was void on its face due to lack of jurisdiction, but he would have complied with it had there actually been a daycare facility at which he could have made the exchanges. It was never Mr. Korsen’s intent that Ms. Paulsen not have contact with the children and his record proves this to be the case.

On September 13^th of 2000, Mr. Korsen left his children with Mrs. Clow and Mr. Ricca, at his home in Boise, in order to appear at the show cause hearing that Judge Dennard had ordered. Mr. Korsen could not retain an attorney to assist him and he was very nervous because he now knew that Judge Dennard did not like him. Mr. Sutton had told him this before he withdrew and prior statements on the record reflected his bias. Mr. Korsen had never attended a show cause hearing before and he was unfamiliar with the rules in such proceedings. Ms. Paulsen was there with her attorney and she was questioned first by her lawyer and the Judge. She perjured her testimony on each question. She lied about her job. She lied about the daycare and she lied about her relationship with Mr. DeVeau. She said that she worked days as a secretary, when in reality she was working in a bar until 2 or 3 a.m. which made it impossible for her to have the daycare that she now claimed she had set up. Mr. Korsen’s memorandum in support of his appeal refuted all of her claims and he attempted to enter it as evidence supporting and showing cause as to why he was not in contempt.

Judge Dennard would not accept it and then he began to interrogate Mr. Korsen, asking him where his children were at that moment. Mr. Korsen told him that the children were at his home with Mrs. Clow and Mr. Ricca, but the Judge kept asking him the same questions. Mr. Korsen sensed the displeasure and accusing manner of Judge Dennard and asked if he could have an attorney. Judge Dennard said no and then Mr. Korsen said he would like to invoke his 5^th Amendment until he could have a lawyer because he had told the Judge all he knew and it seemed as though the Judge was trying to entrap him. Mr. Korsen knew he had the right to have a lawyer in court with him. Judge Dennard then had Mr. Korsen arrested and held without bail on a charge in direct contempt of court. A charge that does allow bail and a criminal trial. Mr. Korsen was not given either bail or a trial.

Every few days after that, Judge Dennard brought Mr. Korsen back to court and interrogated him without allowing him to have a lawyer present nor appointing him one. Judge Dennard violated the following Idaho laws by the illegal manner in which he charged, arrested, jailed and convicted Mr. Korsen; 8-101, 8-102, 9-1302, 9-1303, 9-1304, 18-1501, 18-1801, 18-2604 as well as 18-2901. Mr. Korsen knew his rights were being violated so he filed a Petition for Writ of Habeas Corpus and 22 days after his arrest he was given a hearing in front of Judge Bail (Ada County 4^th District Judge). She affirmed Mr. Korsen’s claims and Judge Dennard was subpoenaed to testify. Judge Dennard got very angry at the process server and rather than testify, he dismissed all the charges he had brought illegally against Mr. Korsen. By that date, October 4, 2000, Mr. Korsen had been unlawfully imprisoned without bail or trial for 22 days, during which time he was not told where his children were. That afternoon Judge Dennard went to Prosecutor Roger Bourne’s office and demanded that he summon a grand jury and indict Mr. Korsen on charges of Second Degree Kidnapping even knowing that he had just been forced to drop kidnapping charges earlier that day due to illegal arrest. Roger Bourne told this story at Mr. Korsen’s arraignment.

The grand jury was given the same perjured testimony that Ms. Paulsen had given on September 13, 2000 during the show cause for contempt, due to the fact that both charges alleged the same exact elements of the proposed crime. Mr. Korsen was not allowed to be there or cross examine any witnesses per the grand jury rules. The indictment handed down did not say where the alleged crime took place (because it never took place) and therefore the indictment was void for lack of jurisdiction. The Grand Jury was not told that Mr. Korsen was in jail during the alleged dates of the crime, due to Judge Dennard’s illegal arrest of Mr. Korsen. The prosecutor’s purposely withheld exculpatory evidence which they knew would prove Mr. Korsen innocent (especially evidence showing Mr. Korsen’s compliance with Idaho Statute 18-1501 as a complete defense).

The prosecutor also withheld all evidence regarding Ms. Paulsen’s recent history of violent acts on Mr. Korsen and the children (acts specifically noted as defenses to the crime in 18-4506). The prosecutor did not even tell the grand jury about Idaho Statute 18-1501 or the fact that 18-1501 makes it a felony offense for a parent not to protect his or her child from any situation that may bring harm to the child.

Mr. Korsen faced up to 20 years in prison if he knowingly allowed his children to be further abused by Ms. Paulsen or anyone else. The grand jury was also not informed that Mr. Korsen had a ‘No Contact’ and ‘Protective’ order against Ms. Paulsen. They were not told that the children were always in Boise with their father prior to his illegal arrest on September 13, 2000. None of this obviously vital information was supplied to the grand jury. In fact, it was purposely withheld in order to obtain a false indictment issued completely in opposition to the true facts of the case. Mr. Korsen believes that the prosecutor’s motivation for this was to cover up for the multitude of unlawful acts and misconduct committed by Judge Dennard and Roger Bourne, as well as, the child protective systems failure to help Mr. Korsen and his children. At the time of the grand jury indictment, Roger Bourne definitely knew about Ms. Paulsen’s criminal history of battery because in 1997 he had reduced a charge of battery, against Mr. Korsen by Ms. Paulsen, down to disturbing the peace. Mr. Bourne had a known conflict of interest but despite that fact, he dropped the 4 battery charges that Ms. Paulsen was due to face trial on just within days of the grand jury indictment. He did this to avoid the obvious conflict in prosecutions. This was selective prosecution and blatant discrimination but nevertheless, it’s exactly what happened. (See Appendix for supporting documentation).

Additionally, both Roger Bourne and Judge Dennard were well aware of Mr. Korsen’s excellent history of outstanding care for his children. This history was well documented in Mr. Korsen’s appeal of the temporary visitation order. The evidence included statements from daycare providers, a doctor, relatives, friends and acquaintances (See Appendix). The custody case file was replete with proof of Mr. Korsen’s attempts to follow the law, protect his children and work with Ms. Paulsen, yet none of this information was given to the grand jury.

Later at Mr. Korsen’s arraignment, Ms. Paulsen’s lawyer was allowed to tell the Judge that "Mr. Korsen is just like Randy Weaver. He doesn’t believe he has to obey the law." Mr. Korsen has nothing remotely in common with the Weaver case, but in response to his malicious lie, the court raised Mr. Korsen’s bail from $10,000 to $150,000 and then to $250,000, an amount that made it impossible for Mr. Korsen to post bond and obtain resources that he needed to defend such a complicated case. Mr. Korsen requested a speedy trial but was forced to wait, in jail, for 14 months to have his trial. A trial that was unnecessarily postponed from January 2001 until November 2001 in opposition to Mr. Korsen’s numerous pleadings for his speedy trial. Mr. Korsen was beaten by a guard in jail; deprived of medical and dental care and medication; and refused effective counsel for months.

While remaining in jail, Mr. Korsen lost his home, 2 businesses, valued employees and his precious children. Ironically, Ms. Paulsen was even arrested and jailed on a battery charge while Mr. Korsen awaited trial. However, she was released and her charges mysteriously dropped. See Appendix for copies of letters from the prosecutors falsely claming lack of evidence to prosecute Ms. Paulsen for batteries that were witnessed by police. Ms. Paulsen has been effectively immunized from prosecution for any of her many crimes against Mr. Korsen and his children. (See Appendix).

After Mr. Korsen’s first defense lawyer, Mr. Humiston, took Mr. Korsen’s $5,500.00 retainer and withdrew, the Public Defender was appointed. The Public Defender refused to meet with Mr. Korsen and within one week of trial he had not filed any pre-trial motions not subpoenaed any of Mr. Korsen’s witnesses. The Public Defender had not even reviewed the case file and he was completely unprepared for trial. Mr. Korsen’s parents were worried about their son not receiving an adequate defense and hired a private lawyer named Mike Wood. Mr. Wood postponed trial for three months citing the Public Defender’s failure to prepare for trial. Prior to the trial, the prosecutor offered to let Mr. Korsen out of jail if he would plead guilty to misdemeanor child custody interference. Mr. Korsen declined the plea bargain because he knew he was not guilty. The prosecutor had filed a Motion in Limine requesting the court to suppress all evidence and testimony pertaining to Ms. Paulsen’s abuse of Mr. Korsen and the children; her criminal record and any other documentation detailing her violent history as well as her drug/alcohol abuse. Judge Michael McLaughlin granted the Motion in Limine denying Mr. Korsen a necessity defense (I.E.18-1501), which effectively directed the outcome of his trial. Mr. Korsen proceeded to trial even knowing the Judge had denied him his 6^th Amendment right to present witnesses and evidence in his own defense. Those witnesses would have included police officers who witnessed Ms. Paulsen’s abuse and neglect of the Korsen children and Mr. Korsen; the father of Ms. Paulsen’s oldest child, Ashley, both of whom she had also abused and/or neglected; 2 mutual friends Ms. Paulsen had attacked and battered; and several eye witnesses to Ms. Paulsen’s abuse or Mr. Korsen and his children. Other evidence included video and audio tape of Ms. Paulsen beating Mr. Korsen and audio tape of Ms. Paulsen confessing to filing false charges against Mr. Korsen and trying to extort money from him. Ms. Paulsen had also lost custody of her oldest daughter, Ashley, due to neglect. Mr. Young, Ashley’s father, would have testified to this.

Mr. Korsen was sentenced to 15 years in prison. He prays this court will grant him relief from the injustice he and his precious children have endured for almost 3 years. The events described in this pleading are a condensed version. Much of Ms. Paulsen’s history of abuse has been left out in order to save the court time. Likewise, Mr. Korsen has not detailed all the misconduct he has been subjected to by the State of Idaho, Ada County, Boise City and the Child Protective System.