Metropolitan News-Enterprise


Wednesday, January 16, 2019


Page 3


Court of Appeal:

C.A. Lifts Sanction on Attorney for Nondisclosure of  Witness

Streeter Says, in Case of First Impression, That There’s No Duty to Tell Prosecutor Of Person Who Will Testify for Separately Represented Codefendant


By a MetNews Staff Writer


The First District Court of Appeal has reversed a $950 sanction imposed on a San Francisco deputy public defender for supposedly violating a reciprocal discovery, declaring in a case of first impression that he had no duty to disclose to the prosecutor statements by a codefendant’s witness whom he didn’t intend to call and, in fact, only questioned on cross-examination.

The opinion by Acting Presiding Justice John B. Streeter of Div. Four was filed Monday.

Appellant Manohar Raju represented one defendant, Adrian Landers, in a two-defendant murder trial. His client’s codefendant was the principal actor.

Raju’s strategy involved relying on the principal’s self-defense argument and cross-examining witnesses, and he did not call any witnesses for Landers.

Streeter, citing the Penal Code section governing a criminal defendant’s discovery obligations, declared:

“Until our decision today, no case has addressed whether a criminal defense lawyer in a multidefendant case is duty bound to disclose under section 1054.3 a witness he claims he does not intend to call, but reasonably anticipates a codefendant is likely to call.”

Discovery Order

Assistant District Attorney Heather A. Trevisan, having received no discovery from Raju in a year-and-a-half after the case was filed, asked San Francisco Superior Court Judge Anne Bouliane to order counsel to produce all witness statements of which they were aware, and the judge obliged.

In her opening statement, Trevisan played surveillance video for the jury, alleging that a man in the tape was the victim and that they showed Landers chasing him toward his codefendant. In fact, as Raju knew from an interview with witness Talika Fletcher prior to trial, the man depicted was someone else.

Raju pointed this out in his opening statement, and later cross-examined Fletcher, who had been called by the codefendant’s lawyer, Mark Goldrosen. He exacted from the witness identity testimony helpful to his client’s defense.

Motion for Sanctions

After the jury found Landers guilty of illegally possessing a firearm but was unable to reach a verdict on any other counts, Trevisan moved for sanctions against Raju, arguing among other things that he should have disclosed Fletcher’s identity to her.

After an order to show cause, Bouliane found that Raju had indeed intended to call Fletcher at the time of the opening statements and had not told Trevisan her identity, in violation of the order.

The judge said that “this omission was designed to gain a tactical advantage over the People and was done without good cause or substantial justification.”

Code of Civil Procedure §177.5 allows for sanctions “not to exceed fifteen hundred dollars ($1,500), notwithstanding any other provision of law, payable to the court, for any violation of a lawful court order by a person, done without good cause or substantial justification.”

She did not reach the other 18 of Trevisan’s allegations that Raju had violated the discovery order, nor did she reach the issue of Raju’s alleged contempt, which the prosecutor had requested she find.

Sec. 1054.3

Streeter pointed to Penal Code §1054.3 which requires a defendant to give the prosecution, in part, “[t]he names and addresses of persons, other than the defendant, he or she intends to call as witnesses at trial, together with any relevant written or recorded statements of those persons, or reports of the statements of those persons….”

He wrote:

“We have no trouble concluding that reasonable minds could have differed about whether, in this multiple defendant case, Raju had an obligation to disclose Fletcher under section 1054.3, at the time he delivered his opening statement or at any other point in this trial.”

The jurist said that in light “of considerable uncertainty in the law,” Raju acted in conformity with the provision in the Rules of Professional Conduct—then Rule 3–200(B), now Rule 3.1, under rules effective Nov. 1—which bars presenting “ a claim or defense in litigation that is not warranted under existing law.” That rule, Streeter observed, “has always permitted attorneys to urge a good faith extension of existing law.”

He said that the revised rule now recognizes “expressly the ethical propriety of positions taken by a criminal defense lawyer in service of an effort to ‘defend the proceeding by requiring that every element of the case be established’—which is precisely what the record shows Raju was attempting to do here in his pursuit of what he called a minimalist strategy, without putting on an affirmative case.”

Streeter went on to say:

“In the end, Raju claims, he thought Fletcher was more helpful to Lemalie than to Landers. That gave him options. He could call Fletcher, or he could try to persuade Goldrosen to call her while continuing to investigate other leads. He chose the latter course, risky though it was. Ultimately, the call he made bore fruit.…We see nothing nefarious here. Instead, what we see is a typically fast-moving, fluid series of investigative events, requiring close judgment calls on less than full information in the weeks before trial and continuing during trial itself.”

Other Accusation Addressed

Despite the overturning of the sanction, Streeter declared:

“Judge Bouliane found in her sanctions order that what Raju represented was all he knew, in fact, was not ‘all the information he had.’…

“Any misrepresentation to a court by an attorney, affirmatively or by material omission, is wholly unacceptable, especially where it occurs in camera. But we have no occasion to address that issue here. Because we find the sanctions order is flawed on multiple grounds, legal and factual, we need not reach the question whether any statements or omissions by Raju during the in camera hearing violated his duty of candor to the court.”

The case is People v. Landers, 2019 S.O.S. 260.


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