Metropolitan News-Enterprise


Tuesday, November 12, 2013


Page 3


Court Overturns Disqualification of Attorney for Murder Suspect

Potential Conflict Based on Lawyer’s Consultation With Potential Witness Years Earlier Held Waivable


By JUSTIN LEVINE, Staff Writer


A defendant in a murder case has the right to retain his chosen counsel and waive a conflict of interest stemming from the fact that the counsel had previously advised a witness after she was arrested on separate charges, the Third District Court of Appeal said Friday.

The court, in an unpublished opinion, said David Weiner can remain counsel for Todd Winkler, who is charged in El Dorado Superior Court with having murdered his wife.

The court granted a writ of mandate after the trial judge ruled that Weiner had a disqualifying conflict because Dean Essenmacher, who had once consulted Weiner about an unrelated matter, was identified as a potential witness in Winker’s murder trial.

Essenmacher reportedly spoke to Winkler’s wife the night before she was killed and was told by her that she feared Winkler and was planning to send divorce papers to her lawyer the next day. She also allegedly told Essenmacher that she thought Winkler had killed his second wife and felt that she needed to get a restraining order against him after he told her that she would “end up” like his previous, deceased spouse.

An appearance of conflict resulted, the judge said, because over eight years previously, Essenmacher had paid Winkler and met with him for approximately 30 minutes after being arrested for sodomy in concert and anal and genital penetration.

Winkler received no confidential information from Essenmacher and did not have any further meetings with him after their 30-minute consultation. Essenmacher was never charged in the case.

Winkler signed a waiver stating he “waive[d] all conflicts and the right to separate counsel.” Despite the waiver, the prosecution moved to remove Weiner from the case, stating that they had “no beef” against him but feared that any “appearance of impropriety” could potentially “come back on appeal.”

The judge explained that even though Winkler wanted to retain Weiner as defense counsel, “the conflict potential cannot be waived.” The judge reasoned that if Winkler were convicted of the charges, the situation would potentially allow him to argue that Weiner was ineffective by failing to cross-examine Essenmacher vigorously enough.

Through his appointed counsel, Winkler sought a writ mandating that Weiner be reinstated as his chosen representative.

The Court of Appeal granted the writ, stating that because Weiner had not acquired any confidential information from Essenmacher during his previous representation, there was “no evidence of a potential conflict of interest.”

Justice Ronald Robie said the “presumption in favor of [defendant’s] counsel of choice” should only be overcome by demonstration of an “actual conflict” or “serious potential for conflict.”

Robie further observed:

“Here, retained counsel specifically stated he had no confidential information about Essenmacher. And the People alleged only there was an ‘appearance of impropriety’ based on the People’s concern that future appellate counsel for defendant (if defendant was convicted because of the murder charges) would simply say that retained counsel did not go after Essenmacher vigorously enough. However, there is nothing in the record to show that retained counsel could not effectively cross-examine Essenmacher. Indeed, retained counsel had no confidential information acquired during the former representation.”

The case is Winkler v. Superior Court (People), C072569.


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