Thursday, October 25, 2007
Lawyer Disciplined by High Court for Mishandling Capital Appeal
By a MetNews Staff Writer
A Davis attorney was reproved and placed on probation for one year by the California Supreme Court yesterday for failing to complete an appellate brief in connection with a capital appeal.
The justices, at their weekly conference in San Francisco, unanimously adopted the State Bar Court’s recommended discipline in the case of Thomas L. Riordan.
They rejected a petition for review by State Bar counsel, who sought to have Riordan suspended for mishandling the appeal of Richard Turner, a convicted murderer sentenced to death in San Bernardino Superior Court in 1988.
Riordan was appointed to represent Turner in 1991. Ten years later, the high court held him in contempt, removed him from the case, and referred the matter to the State Bar for investigation after Riordan failed to file the opening brief despite being granted eight extensions of time in which to do so,
Following a hearing, State Bar Court Judge Joann M. Remke—now the presiding judge—recommended reproval, but no penalty beyond that.
State Bar counsel sought review, seeking an actual 60-day suspension. The Review Department, however, concluded that a six-month stayed suspension and one year of probation would be an adequate penalty.
The Review Department explained that Riordan, despite only minimal criminal law experience, none of it in capital cases, applied for appointment at the urging of a partner in the firm with which he was then affiliated. Several months after Riordan took on the case, the high court appointed Santa Barbara criminal law specialist Robert Sanger as his co-counsel.
The appellate record was certified in July 1999 and the opening brief was due in August of that year. In August of the following year, the high court granted a seventh extension but said no further extensions were contemplated, and when counsel asked for an eighth extension, the court ordered the brief filed by Dec. 12, 2000 and declared: “No further extensions of time will be granted.”
The brief was not filed by that date, and a ninth extension was requested. The high court denied the request, and on Feb. 21, 2001, with the brief still unfiled, Riordan moved to withdraw and have Sanger continue as sole counsel; the high court denied the request, ordered that the brief be filed by July 31, 2001, and warned Riordan and Sanger that they faced contempt or other sanctions if the brief was not filed on that date.
No Brief Filed
The brief was not filed by that date, and an OSC was issued on Aug. 15. In November, the court removed Riordan from the case; it subsequently found him in contempt and ordered him to repay more than $42,000 in interim fees and to pay a fine of $1,000.
Riordan’s then-firm paid the money, but asked him to seek employment elsewhere. He went to another Sacramento firm, but now lists a Davis address, with no telephone number, in State Bar records.
Sanger finished the brief and filed it in May 2002. The conviction and death sentence were affirmed in 2004.
In an opinion by Judge Madge Watai, the Review Department found that Riordan failed to perform competently, failed to comply with court orders, and committed a further violation by waiting more than three years to notify the State Bar of the sanctions imposed by the Supreme Court.
The Review Department rejected Riordan’s contention that he was not culpable because he drafted a proposed brief, although he did not file it after Sanger and the assisting attorney at the California Appellate Project both deemed it inadequate. The judge cited the attorney’s time records, which showed that he did little work on the appeal in 2000 or 2001; if he was in over his head, the judge reasoned, Riordan should have moved to withdraw earlier.
“Given the length of time respondent was involved in the appeal, it is simply inexplicable that he could not or did not either obtain adequate assistance or take timely steps to withdraw, particularly in a case involving the death penalty where diligent representation was of paramount importance,” Watai said.
The judge also rejected the argument that it was unnecessary for Riordan to self-report the sanctions because they had been reported by the clerk of the Supreme Court. The State Bar Act, she explained, imposes an independent duty on counsel to report contempt orders and sanctions.
In other action at yesterday’s conference, the justices:
•Agreed to decide whether a water right holder facing license revocation by the State Water Resources Control Board was deprived of due process of law when the revocation was prosecuted by the same attorney who simultaneously acted as legal advisor to the Water Board in an unrelated administrative proceeding. A Sacramento Superior Court judge and the Third District Court of Appeal both answered that question in the affirmative in Morongo Band of Mission Indians v. State Water Resources Control Board, C052177.
•Denied a request by the California League of Cities to publish the opinion of this district’s Div. Three in LHO Grafton Hotel v. City of West Hollywood, B191345. The Court of Appeal found that the city had adequately reviewed the environmental impacts of the Sunset Millenium hotel project, which has been aggressively challenged by the owners of a competing hotel, The Grafton on Sunset.
•Agreed to resolve a conflict in the Court of Appeal regarding the definition of “false compartment” in Health and Welfare Code Sec. 11366.8, which makes it a wobbler to use a false compartment in a motor vehicle “to store, conceal, smuggle, or transport conceal or transport controlled substances” and makes it a felony to “design[ ], construct[ ], build [ ], alter[ ], or fabricate[ ]” such a compartment in furtherance of a drug transaction.
The justices granted review in People v. Arias, A112810, in which the First District’s Div. Two ruled on July 25 that “false compartment” refers only to original factory equipment of a vehicle that has been modified. The panel criticized an earlier ruling, in People v. Gonzalez (2004) 116 Cal.App.4th 1405, in which the court held that a defendant could be convicted of violating the statute by placing drugs in a space in a vehicle that “was neither designed nor intended for storage or transportation of personal items, but is nevertheless used to conceal controlled substances, even without...modification of the physical configuration of the space.”
Copyright 2007, Metropolitan News Company