Metropolitan News-Enterprise


Thursday, April 10, 2003


Page 1


C.A. Overturns Ruling That Defendant Who Struck, Threatened Lawyers Forfeited Right to Counsel


By a MetNews Staff Writer


A defendant who attacks and threatens his or her appointed lawyers may be deemed to have forfeited the right to counsel, the Third District Court of Appeal has ruled, but only under narrow circumstances.

“Balancing the great importance of the right to counsel against the need to protect counsel and the orderly administration of justice, we conclude an accused may forfeit his right to counsel by a course of serious misconduct towards counsel that illustrates that lesser measures to control defendant are insufficient to protect counsel and appointment of successor counsel is futile,” Justice Fred Morrison wrote Tuesday for the court.

While the justices adopted the general proposition that forfeiture was possible, they overturned Sacramento Superior Court Judge Tani Cantil-Sakuye’s ruling that Johnny King, a prison inmate charged with multiple counts of battery and aggravated battery, was no longer entitled to court-appointed counsel.

The trial judge, they said, erred by taking away King’s right to counsel without establishing that less-drastic measures had proven ineffective and without affording the defendant a hearing that complied with due process.

King is presently serving a life sentence based on his 1981 convictions for kidnapping, robbery, rape, and assault with intent to commit murder. In 1999, he was charged under the Three-Strikes Law with two counts of battery on a non-inmate and two counts of aggravated battery by gassing on a non-inmate.

At arraignment, he head-butted his court-appointed lawyer after he waived reading of the information over King’s objection. The attorney was relieved and King was charged with a fifth count of battery.

After two more court-appointed lawyers were relieved of responsibility after King threatened them, the judge appointed a fourth lawyer, Dan Dorfman, held an ex parte hearing, and heard testimony from the four lawyers, whom she allowed the defendant to cross-examine. She also reviewed King’s criminal and prison records—the prison file contained 115 incident reports—then relieved Dorfman and ruled that King had forfeited the right to counsel.

A redacted transcript of the hearing was sent to the district attorney, who charged King with threatening Dorfman and another one of his ex-lawyers who testified. After being denied counsel for his preliminary hearing, King petitioned for a writ of mandate.

The Court of Appeal initially denied the writ summarily, but was ordered by the state Supreme Court to hear the merits. Attorney Stephen Greenberg was appointed to represent King in the Court of Appeal.

Morrison acknowledged that the right to counsel is not absolute and may be waived or forfeited by affirmative misconduct. But “forfeiture of counsel is rarely the most appropriate response,” the justice said.

Generally, Morrison said, the trial judge should attempt to control the defendant, first by a warning, then by using restraints. If none of those measures work, a hearing on removal of counsel is appropriate.

The trial judge was correct, he said, in holding a hearing without the prosecutor present, just as the prosecutor would normally not be present during a Marsden hearing on whether to remove appointed counsel due to attorney-client conflict. But the judge erred, the justice explained, in allowing Dorfman to serve as defendant’s counsel at a hearing in which he was acted as a witness—and divulged confidential information—against the defendant’s interests.

“Since Dorfman completely denied King effective assistance of counsel, it was as though King had no counsel at the forfeiture hearing,” Morrison wrote. “The denial of the assistance of counsel at a critical stage of the proceeding is reversible per se...Accordingly, the finding of forfeiture of counsel must be reversed.”


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