Gag Order on Defense Results in Reversal of Conviction

Tuesday, November 10, 2009

Page 1

Gag Order on Defense Results in Reversal of Conviction

By KENNETH OFGANG, Staff Writer

An order barring a defense lawyer from discussing with his client a declaration by an accomplice who incriminated the defendant and received a plea bargain violated the Sixth Amendment, the Sixth District Court of Appeal ruled yesterday.

The court, on rehearing, ordered a new trial for Jacob Townley Hernandez. The defendant was convicted of premeditated attempted murder in the 2006 shooting of Javier Zurita Lazaro. The defendant, who was 17 at the time of the shooting but was charged as an adult, allegedly had three accomplices—Ruben Rocha, Jesse Carranco and Noe Flores.

There was testimony at trial that Carranco belonged to the Norteno gang, and that the victim, although not a gang member, was wearing a sweatshirt that was blue, the color of the rival Surenos. The victim was hit five times in the shooting, which took place near his Santa Cruz apartment.

Flores and Nash negotiated agreements in which they were allowed to plead guilty to reduced charges in exchange for their declarations under penalty of perjury, which implicated Carranco and Townley Hernandez, who was convicted and sentenced to life with possibility of parole for attempted murder, plus an enhancement of 25 years to life for personal use of a firearm causing great bodily injury.

Flores and Rocha entered their pleas in closed proceedings, with the transcripts being sealed by court order. The prosecutor said Flores would be allowed to serve his sentence in another state “because he was previously stabbed in the jail” and there were “very serious concerns” he might be attacked again.

As for the declaration that Flores signed, Santa Cruz Superior Court Judge Jeff Almquist ruled that defense counsel could examine it but were “prohibited from discussing the contents or the existence of the document with their client or any other person” or from possessing a copy. Defense efforts to lift the gang order before trial were unsuccessful.

Flores was called as a witness at trial—Rocha was not—and the judge allowed defense counsel to use a copy of the declaration for purposes of cross-examination, reiterating in a closed-door session that the copy was to be returned and not shared with the accused or anyone else, including the defense investigators. The judge also reiterated that the action was being taken “for protection of Mr. Flores.”

The Court of Appeal earlier this year affirmed in an unpublished opinion, but subsequently granted rehearing in order to further consider the validity of the gag order. In an opinion yesterday by Justice Franklin Elia, the panel concluded that the order went further than necessary to protect Flores and infringed unnecessarily upon the attorney-client relationship.

The justice cited Geders v. United States (1976) 425 U.S. 80, which held that an absolute ban on attorney-client communication during a 17-hour overnight recess between direct and cross-examination of the defendant deprived the defendant of the right to counsel.

Elia distinguished Morgan v. Bennett (2d Cir. 2000) 204 F.3d 360 and Alvarado v. Superior Court (2000) 23 Cal.4th 1121.

Morgan upheld an order barring counsel for a defendant charged with murder, and with the attempted murder of a potential witness, from informing the defendant that the witness was likely to testify the next day. The reason for the order was that the witness had complained of being threatened by associates of the defendant.

Alvarado upheld an order allowing prosecutors to withhold witnesses’ identities from the defense in a case where multiple defendants were charged with what was apparently an organized jailhouse murder of a snitch ordered by the Mexican Mafia.

Here, Elia noted, there was no evidence that the attack on Flores was connected to the defendant, or to anyone associated with him, or with a gang. The prosecution’s assertion that Flores would likely be injured or killed if the contents of his declaration became known to fellow inmates “is an attempt to create a record that was not made in this case to justify a restriction broader than the one upheld in Morgan,” the justice reasoned.

In any event, he went on to say, the order went further than necessary to fulfill the interests the prosecution asserted. The court, Elia reasoned, could have prohibited disclosure of the declaration without prohibiting counsel from discussing the matter with the defendant.

“[The order] was not carefully tailored to serve the objective of keeping ‘paperwork’ out of the hands of prison gangs,” he wrote. “Instead, it appears to have been tailored to allow the prosecution to produce trial testimony that was a surprise to Townley, if not his counsel. It was also tailored to impede counsel’s investigation of the accuracy of the declaration, as he was prohibited from discussing its contents with Townley, his investigator, and anyone else.”

The justice went on to say that the error was structural and thus required reversal without a showing of prejudice. While the Supreme Court has not expressly ruled on whether Geders error is structural, other courts have held that it is, consistent with other holdings involving the absence of counsel or restrictions on counsel assisting the defendant at critical stages of the proceedings, Elia pointed out.

The court, however, rejected a number of other contentions by the defense that could have affected the case on retrial, including the claim that Flores’ testimony was “tainted” by the plea bargain. Elia explained that the agreement did not require the witness to testify consistent with the declaration, only to tell the truth, as the declaration averred.

The jurist distinguished cases in which accomplices were granted concessions that were expressly contingent on their not contradicting their statements inculpating the defendant when they testified at trial, or on the defendant being held to answer.

The case is People v. Hernandez, 09 S.O.S. 6388.