Fear Not Law Articles: GERALD v. THE SUPERIOR COURT OF THE COUNTY OF RIVERSIDE Part II

GERALD v. THE SUPERIOR COURT OF THE COUNTY OF RIVERSIDE

Filed 6/9/06; pub. order 7/5/06 (see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

GERALD ANTHONY RHABURN,

Petitioner,

THE SUPERIOR COURT OF THE COUNTY OF RIVERSIDE,

Respondent;

THE PEOPLE,

Real Party in Interest.

E038503

(Super.Ct.No. RIF115325)

The County of Riverside

OPINION

NOEL BAEZ,

Petitioner,

THE SUPERIOR COURT OF THE COUNTY OF RIVERSIDE,

Respondent;

THE PEOPLE,

Real Party in Interest.

E038620

(Super.Ct.No. RIF112459)

The County of Riverside

ORIGINAL PROCEEDINGS; petitions for writs of mandate. Robert J. McIntyre, Judge in Case No. E038503 and W. Charles Morgan, Judge in Case No. E038620. Petitions granted in part, denied in part.

Jeffrey Van Wagenen for petitioner Gerald Anthony Rhaburn. Gary Windom, Public Defender and Richard V. Myers, Deputy Public Defender, for Petitioners.

No appearance for Respondent.

Grover Trask, District Attorney, and Elise J. Farrell, Deputy District Attorney, for Real Parties in Interest.

Story continue from Part I â€¦â€¦â€¦

Thus, in the 25 years since the State Bar issued its opinion, courts have begun to develop flexible strategies for dealing with potential conflicts, and, in many cases, to reject automatic rules for disqualification. This has also proven true in the criminal context. We find a series of cases from our Supreme Court to be instructive. While we recognize that, as the People point out, these cases arose on appeal rather than before trial, we cannot blind ourselves to the plain import of the decisions.

First, in People v. Clark (1993) 5 Cal.4th 950, the defendant claimed that his Sixth Amendment right to conflict-free counsel had been violated because one of his attorneys, in his capacity as head of the public defender's office, had previously represented four prosecution witnesses. Counsel had personally represented one of the witnesses and the court assumed that he had, in fact, obtained confidential information from this witness. Accordingly, the court acknowledged that there was at least a potential conflict of interest.^[1] (Id. at p. 1002.) With respect to the other three witnesses, however, the attorney stated to the court that he did not possess any confidential information about

them and that his cross-examination would not be affected by the prior representation.^[2] The Supreme Court commented that, in the circumstances, â€

Description	Trial court should not automatically disqualify public defender whenever public defender's office has previously represented a prosecution witness. Instead, the Trial court should evaluate totality of circumstances in determining whether there is a reasonable possibility that the individual attorney representing defendant has either obtained confidential information about the witness that was collected by his or her office, or may inadvertently acquire such information through file review, office conversation, and or otherwise. In doing so, trial court should consider: 1) length of time that has elapsed since public defender's office represented witness, 2) nature and notoriety of witness's case, 3) whether attorney currently handling case was member of public defender's office at time of witness's case and whether attorney responsible for witness's case remains with office, 4) nature and extent of any measures or procedures established by public defender to ensure information acquired by deputy in a previous case is made unavailable to deputy handling current case. In a case that does not involve direct and personal representation of witness, courts should normally accept representation of counsel as an officer of court. This makes is so that he or she has not in fact come into possession of any confidential information acquired from the witness and will not seek to do so. The trial court erred in disqualifying public defender where public defender's office had represented prosecution witness nine years earlier. Records of the case were kept at an off-site unknown location to an assigned deputy who did not join the office until four years after the witness's case. The deputy said he did not feel the office's previous representation of witness would affect cross-examination and the defendant objected to change of counsel. Trial court erred in disqualifying public defender based on office's representation of victim/witness in the criminal proceedings over a decade earlier where the assigned deputy represented had no personal loyalty to the former-client/witness that would constrain an investigation or examination. The defendant objected to removal of counsel.
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