Metropolitan News-Enterprise


Tuesday, June 1, 2010


Page 1


Ex-Prosecutor Charged With Rape Loses Bid to Change Counsel




The judge hearing rape charges against a former Bay Area prosecutor did not abuse his discretion by appointing counsel from a local conflicts panel rather than giving the job to the defendant’s former retained counsel, the First District Court of Appeal ruled Friday.

Div. One denied Michael Gressett’s petition for a writ of mandate that would have required the court to name Daniel Russo, a prominent defense attorney based in Vallejo, which is in Solano County, to handle Gressett’s defense.

Gressett, a former senior deputy district attorney in Contra Costa County, was charged two years ago with four counts of forced sodomy, four counts of forced sexual penetration, two counts of forced rape, one count of forced oral copulation, one count of false imprisonment and one count of making criminal threats.

Accusation Leveled

A former colleague, whose true name has not been made public, accused him of luring her to his residence and sodomizing her with an ice pick while holding a handgun to her head. Gressett, who headed the office’s sex crimes unit, claims the two had consensual sex.

Gressett was originally placed on administrative leave, but was fired last year after an internal investigation. He was initially represented privately by Russo and Michael Cardoza, but moved in August of last year to have Russo appointed to represent him at public expense.

Retired Alameda Superior Court Judge Carlos Ynostroza, who is hearing the case on assignment, denied that motion without prejudice, saying there was insufficient proof of indigency, and noting the public defender and alternative public defender had not declared themselves unavailable.

Second Motion

Gressett later made a second motion, and the judge found him indigent. After the public defender and alternative public defender both told the court that they had conflicts of interest, the judge asked the Contra Costa County Criminal Conflicts Panel to assign an attorney to represent the defendant.

The panel chose Michael Kotin, who prior to his retirement had been the county’s chief assistant public defender. Kotin appeared and said he was prepared to represent Gressett, but filed a motion on the defendant’s behalf to have Russo appointed.

That motion was denied by the judge on Dec. 7, leading to the writ petition. The appellate panel initially issued a summary denial, but was ordered by the California Supreme Court to hear the merits. The high court also invited the Contra Costa Superior Court to respond to the petition, which it did, urging that the judge’s exercise of discretion be upheld.

The Attorney General’s Office, which is prosecuting Gressett, took no position on the merits. Contra Costa County said it did not oppose the petition, given Russo’s willingness to represent the defendant at the same rates paid to members of the conflicts panel.

Justice Robert L. Dondero, writing for the Court of Appeal, said the trial judge acted within his discretion, citing state and federal cases holding that a defendant has the right to retained, but not appointed, counsel of his choice. The jurist also noted that under Penal Code Sec. 987.2, the order of priority for appointment of counsel is the public defender, then county-contracted counsel, unless the court finds good cause to appoint another attorney for reasons stated on the record.

Case Law Distinguished

Dondero distinguished Harris v. Superior Court (1977) 19 Cal.3d 786, where the state Supreme Court ruled that it was an abuse of discretion not to appoint Leonard Weinglass and Susan Jordan to represent Emily and William Harris on charges of kidnapping Patricia Hearst.

The high court noted that the two were already representing Emily Harris in a federal firearms case and in a Los Angeles Superior Court robbery case, that those two cases and the Hearst kidnapping case involved many of the same facts, and that Jordan and Weinglass were already familiar with the transcript of Hearst’s trial for having robbed a bank on behalf of the Symbionese Liberation Army, with which the Harrises were affiliated.

Russo’s activities in defense of Gressett were not nearly as extensive as those of the Harris lawyers, Dondero said Friday, nor did the facts of the case necessitate that an attorney from outside the county be assigned, as the defendant contended.

While Kotin supported Gressett’s preference for Russo, there was no indication that he had a conflict of interest or that there were any problems between them, the justice noted.

Dondero elaborated:

As we have seen, attorney Russo represented defendant for 10 months from the filing of the complaint until filing of the indictment. But nothing in the record suggests that his work during that time was comparable to the extensive involvement of the attorneys in Harris in related jury trials, appeals and other proceedings....Instead, the work performed by attorney Russo was no different than would be expected of any competent attorney, retained or appointed, who represented a defendant prior to superior court arraignment, and perhaps even less so given the fact that the case did not in fact proceed to a preliminary hearing. No prosecution witnesses, including the alleged victim, were examined by attorney Russo. No opportunity to assess demeanor or otherwise evaluate any witness under oath was experienced. And, there was no opportunity to develop a defense...

“The Harris standard is appropriately an exacting one....In our case the trial court properly noted and thoroughly considered the Harris factors, and denied the appointment of attorney Russo in the exercise of its discretion. To adopt defendant’s view in this case would require us to establish a rule finding good cause to depart from the legislative mandate of section 987.2 in any case of some notoriety in which a defendant hires private counsel and runs out of money before arraignment in the superior court. We decline to do so.”

The case is Gressett v. Superior Court (People), 10 S.O.S. 2950.


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