GERALD v. THE SUPERIOR COURT OF THE COUNTY OF RIVERSIDE Part II
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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