Tuesday, May 1, 2018
Page 1
Court of Appeal:
Judge Appropriately Dumped Retained Counsel In Criminal Case Over Defendant’s Protest
By a MetNews Staff Writer
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DANIEL EVERETT Attorney |
The First District Court of Appeal has held that a criminal defendant’s retained counsel was doing so shoddy a job that the judge was justified in firing him over his client’s objection.
Div. Four, in an opinion by Acting Justice Ethan P. Schulman, a San Francisco Superior Court judge sitting on assignment, on Friday denied a petition filed by rape defendant Eudoro Magana who contested the power of the trial court to remove his lawyer, Daniel Everett.
Proceedings in the case took place in San Mateo Superior Court. Everett, who was repeatedly late to court, made his fifth motion to continue the trial date but failed to show for the hearing on the motion, resulting in the case being sent out for trial. He used a peremptory challenge to disqualify the judge to whom the case was assigned, Steven Dylina, resulting in a reassignment, and he then tried to challenge peremptorily the next judge to get the case, John L. Grandsaert.
Code of Civil Procedure §170.3 permits only one peremptory challenge. Everett next filed a motion for “recusal” of Grandsaert pursuant to §170.1, but then withdrew it, but later filed a second untimely statement of disqualification which was stricken. On the second day of trial, the lawyer asked for appointment of a crucial expert witness.
The prosecution asked that Everett be yanked from the case and Dylina granted the motion, explaining, in part:
“The other most incriminating evidence is the defendant’s confession. It was clear from a cursory review of that confession that the defendant’s first language was Spanish and that there were language issues that could be raised surrounding the interrogation.
“Yet, despite the passage of two years, Mr. Everett on the fifth date set for trial made his first request for an expert on the issue of culture, and language, and false confessions. Mr. Everett told the court that this was, as he maintains again today, the most important issue in the case. Yet, his brief filed on the date set for trial, the fifth setting, asking for an expert was completely unbased on any kind of citations applicable to the issue of false confessions. Instead, it was based on false identification cases. It couldn’t be more clear to the court as the trial judge that I could not make a ruling on this motion in light of the fact that Mr. Everett’s advocacy on this issue was completely inadequate, and incompetent, and showed no diligence whatsoever.
“I was forced to continue the case once again. The alleged victim, the people, and the defendant even were denied their right to a speedy trial.
“I have no confidence that anything is going to be different. Defense counsel has told me today that it is the duty of every defense attorney to seek further continuances. He advises me that he’s ready. I don’t believe that that is the case. I had signed no paperwork with reference to an expert. If an expert was independently obtained, it certainly was not listed on the witness list. I have no faith that this matter will proceed to trial on a timely basis based on the activities of Mr. Everett in this case.
“Mr. Everett, you are removed from this case.”
Appeals Court Opinion
Schulman wrote:
“[A] trial court has authority to remove defense counsel to ensure that adequate representation is provided, and to prevent substantial impairment of court proceedings. While such authority is to be sparingly exercised and reserved for only the most exceptional cases, the trial court did not abuse its discretion in finding that this is just such a case and removing counsel.”
The jurist said Grandsaert’s order had two solid bases: that Everett was not presently ready for trial and that there was no reason to believe he would become ready in a timely manner.
“We recognize that the trial judge removed Everett as counsel against defendant’s wishes,” Schulman noted.
He said a criminal defendant’s choice of a retained lawyer will generally be honored, but that Grandsaert “in this case struck the proper balance in light of the competing concerns at stake” by disqualifying Everett.
State Bar Alerted
Schulman went on to say:
“We believe that the misconduct at issue here is sufficiently serious that the State Bar should be made aware of it.”
Aside from matters that prompted Grandsaert to remove the lawyer from the case, Schulman pointed to Everett’s efforts to disqualify judges in sworn statements for the apparent purpose of delay.
He declared:
“[O]f most serious concern to us is Everett’s conduct in repeatedly accusing the experienced trial judge and several of his colleagues of racial animus toward him and his client, and in utilizing those accusations as a basis for seeking to disqualify those judges from hearing the case, without any apparent good faith basis for doing so.
“Like any other verified pleading, a statement of disqualification under sections 170.1 and 170.3 must not be presented primarily for an improper purpose, such as to cause unnecessary delay, and its allegations and other factual contentions must have evidentiary support….Here, the record strongly suggests to us that neither requirement was met.”
The case is Magana v. Superior Court, A153981.
Disciplinary Charges Pending
Everett is already facing possible State Bar discipline based on 2016 charges. It is alleged that in one case he failed to perform competently, disobeyed four court orders, and failed to report sanctions to the State Bar; in another, that he appeared for a client while on inactive status; and in a third case, refused to return a client’s file after his employment was terminated.
A trial in State Bar Court was slated for April 10. It has been delayed pending interlocutory review of his motion to disqualify the hearing judge.
Everett was an unsuccessful candidate in 2012 for San Francisco supervisor. Among his stances was that public nudity should not be banned in the city/county.
He is host of a weekly radio show in San Francisco, “Folk Law.”
Copyright 2018, Metropolitan News Company