Monday, April 28, 2014
Attorney-Client Conflict of Interest Requires Dismissal, C.A. Rules
Improper for Lawyer Facing Charges to Represent Defendant Prosecuted by Same Office, Panel Says
By KENNETH OFGANG, Staff Writer
The Court of Appeal for this district Friday ordered dismissal of drug charges against a defendant whose lawyer, unbeknownst to him at the time, was being prosecuted by the same District Attorney’s Office.
Setting aside the information charging Melvin Harold Harris Jr. with possession of a controlled substance for sale, the court said there was no other possible remedy for the conflict. Justice Victoria Chaney, writing for Div. One, said in a footnote that the court was expressing no opinion as to what procedures, if any, would allow Harris to be re-prosecuted.
Harris was arrested on May 19, 2012, and arraigned five days later. His attorney at the time was Gustavo Diaz, a Lancaster lawyer who—according to State Bar records—was subsequently disbarred for failing to appear in court for the reading of a verdict and failing to cooperate with the State Bar’s investigation of that incident.
Diaz represented Harris at the June 8 preliminary hearing, which resulted in Harris being held to answer on the possession charge. On Aug. 1, the court removed Diaz—who could not be located at the time—as his attorney and appointed Peter Swarth.
Motion to Dismiss
Prior to a scheduled pretrial conference, Swarth moved to dismiss, saying Harris had learned, after the information was filed, that Diaz was himself facing charges of theft, embezzlement, taking a vehicle, and vandalism, for which he had been held to answer. In fact, Diaz and Harris had been arrested, in those separate instances, by the same deputy sheriff, with the attorney’s arrest coming about six months before Harris’ preliminary hearing and the case against Diaz having been pending at the time.
Prosecutors responded that there was no basis for dismissal, but that they would not object to a new preliminary hearing.
At the hearing on the motion, Los Angeles Superior Court Judge David Walgren verified that the facts of the case were as set forth in the motion, but denied it, saying the irregularity could be cured by sending the case “back to the magistrate,” to which the prosecution did not object.
Harris then petitioned the Court of Appeal for a writ of mandate, arguing that Diaz’s representation of Harris, to whom he did not disclose the fact that he was himself being prosecuted by the same agency in a case where the deputy who arrested Harris was a witness, denied Harris his constitutional right to effective assistance of counsel. He also argued that the prosecution committed a Brady violation by not disclosing the conflict.
Lack of Prejudice Argued
The district attorney responded that the conflict wasn’t prejudicial because the evidence of reasonable cause was overwhelming, that Diaz performed competently at the hearing regardless of the conflict, and that there was no duty to disclose the conflict under Brady v. Maryland.
Chaney said the defense was correct; the defendant is entitled to a dismissal.
The conflict of interest was real, the justice said.
“The fact that during Harris’s preliminary hearing Diaz faced criminal prosecution by the district attorney of Los Angeles County, the same entity that was prosecuting his client, and the fact that Diaz had been arrested by Deputy Sheriff Busch, the same officer who had arrested and was testifying against his client, could reasonably be thought to exert a conscious or unconscious influence on Diaz’s own judgment and conduct in representing Harris’s interests.
“As a criminal defendant, it can reasonably be assumed that Diaz had an interest in maintaining a cordial and cooperative (if not even subservient) relationship with the district attorney’s office—a relationship that might be beneficial to Diaz in achieving a favorable disposition of the charges facing him. But Harris had no interest in achieving a beneficial disposition of the charges against Diaz. And Diaz’s duties with respect to the charges simultaneously facing Harris almost certainly called for a different—perhaps somewhat less conciliatory and more adversarial—relationship with the prosecutor’s office, were it not for his own contrary self-interest.”
‘Cannot Be Discerned’
The conflict-of-interest finding, she added, is not dependent on a showing that the attorney’s performance was actually affected, since the conflict may have affected the attorney in ways “that cannot be discerned from any transcript or record,” and that may even “be beyond the conscious awareness even of those who have been influenced by the conflict’s existence.”
Chaney went on to say that dismissal is required by U.S. Supreme Court precedent, and does not require an affirmative showing of prejudice. The conflict rendered the preliminary hearing invalid, she explained, and since a valid preliminary hearing is a prerequisite to the filing of an information under Penal Code §738, the court has no alternative but to order dismissal.
In a footnote, she said the court was leaving the Brady issue unresolved because there was no need to decide it.
Attorneys on appeal were Swarth for the defendant and Deputy District Attorneys Roberta Schwartz and Ann H. Park for the prosecution.
The case is Harris v. Superior Court (People), B251071.
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