thousand and fifteen on an unrelated homicide case in spokane county when i first met him we learned that we both from florida we both moved to the natural for per year period of time he had been represented by others in a law firm where i worked in one actually and he had a section for bruce lee and i had a karate studio so it worked quite diligently to establish a rapport with him and in august of two thousand and fifteen i was surprised to learn i'd been moved to the isolation floor looking county jail and when i asked him why he said something to the effect that he had been in a cel and had been dismantled and it appeared someone had been trying to escape so because he was also in jail in florida on an armed career criminal sentence and  was involved in the johnson read that and saying he had a plan for how we were going to handle the murder case and it at one point involved in getting in touch with a nice attorney's office to make sure that if he did substantial time on the state murder case that they would stay out of the way and not charge him with an escape and i contacted the office and the office mr ahmed said we don't really have any interest in that because the other person that was in the cell that night was being held in spokane county on federal charges for conspiracy to murder and it was the government's intention attempt against mr henderson that he had a guilty conscience as the government's move forward seeking the guilty conscience by counsel saying you can't use that having sex against henderson because mr brown has taken complete responsibility for this case well the government did not get that information they were not  use the escape attempt against hundreds and almost immediately thereafter i get an e mail from the government say brian there are no more agreements and we're going after brown and it comes money t sends me to you and sure enough let's stop right there what case are you relying on to say that charges in this instance not an escalation of charges but just an initial charge would be vindictive it's not a case per se because i understand the filing of the charges in of itself is not a vindictive process it the prosecutor can't be found to be vindictive simply by adding charges to a case or now i've decided that i would do this but in this case this is a case that is known specifically to the government they have a particular avenue that they're going to take and when that avenue falls apart they now take what is i refer to as a personal and vested interest in we are now going to punish mr brown specifically in retaliation for this act right now i appreciate where you're coming from i mean this report is said we have to give prosecutors a lot of deference in charging decisions and here i don't believe they had the letter attached to those court filing and when you had that conversation with them initially did they best correct i mean that's i mean i feel bad feel bad you kind of god bushwhacked by another defense attorney who maybe i'm at this a little bit outside the case but well they didn't get it my client mailed my kind provided so he did not seek my advice or counsel he wrote the letter he didn't tell me about the letter i but did they contact him to get the letter no he just did  asking you for your privilege discussions i appreciate that you know i think it my client has some he's a very focused individual i would say i think would be fair to characters characterize him as institutionalized to some extent and perhaps he thought there would be some long term benefit to himself or counsel why doesn't why doesn't the submission of the declaration of the court change everything i mean now the government has in its possession basically an admission to the crime thereby just to find a completely different view of the desirability of prosecuting him i don't know how you can if you're are you suggesting that the sequence you describe it is is either direct evidence of addictive motive or the circumstances you describe would justify a presumption of indictive source the government now has to overcome what it what are you trying to suggest with that sequence that you outlined your honor i think the latter that the sequence shows that there there was there was this is not an investigation that lands on a desk and then charges are filed this is this is someone these events are brought to their attention as a prosecutor and they make them see a fact that i'm not going move forward and then when he in how he wants to use the information the end information is then specifically used against my client that is not an objective prosecutorial flow that is not someone who is involved in a case and says you know i have you on fifteen counts of uttering counterfeit obligations i'm going to charge you with one but when you decide to go to trial i charge other fourteen because those facts all exist at the time the charging this from my perspective is that the charging decision was made that we are not going to move forward things changed impeded impeded the government's position in a different case and then in retaliation the new charge these charges were filed so i think under the specific circumstances that that action could be characterized as wanted to do you want to the united states position is clearly that the timing in this and the timing of the defendant's letter that basically confessed to the crime of escape completely distinguishes this case from the jenkins case in which the court defined prosecutorial vindictive prosecution the bottom line is that at the time of the escape which was  or the attempted escape i should say and that's very important because obviously if it was an actual escape the case would be much obviously because the defend it would be outside of the facility i think it's still pretty good right it is pretty good but it wasn't it wasn't good at the time of august twentieth but we were two thousand and fourteen before what are the biggest problem in that case is i think the court would appreciate is you have two people one cell one bed sheet and both people are denying what occurred since that time and as the court found that unlike the other cases this is a case in which new evidence came to light that really  made the case unlike the jenkins case in which it was involved a woman that had confessed to smuggling aliens at the time of her arrest where the court said that the united states had all of that information and it disposal at its hands at the time of the initial charges the united states did not have i would say did not have enough for prosecuting cuticle case at the time of the escape in terms of any conversations that had been made with counsel i was not counsel at the time but my complete review of the record would suggest to me that none of the e mails or conversations were presented in any way to the district court and i think that's important because when this case was presented to the district court under the vindictive prosecution issue that the court specifically found that the defendant had not proven in any direct any direct vindictive prosecution any evidence of that nor had the defendant presented any evidence that rose to the presumption of potential vindictive prosecution for the united states to rebut so the bottom and in this case is that if this is decided on the merits of the case then this case is completely distinguishable from jenkins in the very matter of the fact that the evidence necessary to actually pursue the case did not come until the defendant had admitted that he was solely responsible for the attempted escape can so to you refresh my memory please liz henriksen actually charged game i don't believe so your honor at the time hendricks henriksen was facing murder for hire federal murder interstate murder for hire charges ultimately a very few thousand sixteen but ultimately he was convicted received six life sentences so i think that at that point any decision to follow up with attempted trial and ultimately in response i think that that motion in limine ian hendrickson case defense counsel for hendricks and then attached this letter that mr brown and written why mr brown felt motivated to do that later in the right to counsel the i mean mr brown's initiative did frustrate the government in its attempt to use this to scape evidence of i can answer for trial counsel from my own perspective i would have been surprised if it would have been granted under those circumstances unlike i mean i'm going off now kind of in a hypothetical but i'm like running away from law enforcement at the time of an arrest i think that good argument could be made that trying to escape from custody may just mean that the person doesn't want to be custody and may not have the same may not have the same level of guilt of running away so quite frankly i would have been surprised if it would have been granted but i think it was a legitimate motion to pursue  i'm sure that any time pretrial in the united states is limited in its evidence that it wants to present it i think it's fair to say it's not happy with limitations but i don't know that it really fresh alternately frustrated the case