Friday, April 20, 2007
Bar Court Rebukes Lawyer for Mishandling Capital Appeal
By a MetNews Staff Writer
A Sacramento attorney should be reproved and placed on probation for one year for failing to complete an appellate brief in connection with a capital appeal, the State Bar Court Review Department said yesterday.
The three-judge panel recommended that the state Supreme Court impose the penalty on Thomas L. Riordan for his mishandling of 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. He was
The State Bar investigated Riordan after the high court held him in contempt and removed him from the case in 2001 for failing 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.
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 is now with another Sacramento firm.
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 because 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.
Riordan could not be reached for comment yesterday evening.
Copyright 2007, Metropolitan News Company