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

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.

In these cases we are asked to determine whether a public defender whose office has previously represented a witness for the prosecution is subject to automatic (or virtually automatic) disqualification for conflict of interest. Although we cannot establish a bright-line rule, we do hold that disqualification is not mandatory whenever the situation arises; further, that disqualification in one of the two cases before us was clearly improper.

The facts of the two cases are similar, although not identical.

Petitioner Rhaburn was arrested on October 8, 2003. After the usual proceedings and several continuances, a trial date of May 16, 2005, was set. The case continued to trail into July, and on July 7, the prosecutor filed a trial brief that included a request that the public defender's office be disqualified because that office had represented witness Cary Barnett, Sr. in a criminal proceeding in 1996. Although the brief was not very illuminating, at the hearing held that date the prosecutor explained that Cary had originally been charged with a crime of moral turpitude--to wit, misdemeanor spousal abuse under Penal Code section 273.5^[1]--but had eventually been convicted only of disturbing the peace. (§ 415.) The prosecutor correctly pointed out that the conviction, as a misdemeanor, could not be used to impeach Cary, Sr. (Cf. Evid. Code, § 788, on impeachment by felony convictions.) However, he reasoned that the underlying conduct could be used for impeachment if it involved 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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