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Judge Disqualifies Incoming Prosecutor As Defense Lawyer
By a MetNews Staff Writer
Los Angeles Superior Court Judge David R. Fields held yesterday that the man District Attorney George Gascón wants to serve as a special prosecutor, going after law enforcement officers who allegedly commit crimes, cannot continue to represent criminal defendants, booting him off a case when he would not provide an assurance that he will decline the job offer.
Gascón on Feb. 12 asked the Los Angeles County Board of Supervisors for authority to hire criminal defense lawyer Lawrence S. Middleton for a four-year term, at $750,000 for the first year and $1.5 million in each of the succeeding years. The board gave its assent on March 23, but Middleton has not yet signed the contract.
Deputy District Attorney Sean M. Carney on April 16, 2021 sent an email to Middleton expressing a concern over his continuing to represent Larthan Merriweather—charged in one complaint with carrying a loaded gun, not registered to him, in public, and in another complaint with three counts of grand theft and other offenses—while at the same time serving as a special prosecutor. In response, Middleton secured a waiver-of-conflict agreement, prepared by the Office of County Counsel, to be signed by himself, Gascón, and Merriweather.
Waiver Provision
The document recites:
“The DA waives any claim of a conflict of interest against, or seeks to disqualify Mr. Middleton in his representation in the Merriweather Matters and has no objection, nor will have any objection in the future against Mr. Middleton’s representation in the Merriweather Matters.”
Even if the document is fully executed, Fields ruled, it is ineffective.
“It is a conflict that cannot be waived,” he said.
The judge declared:
“I find this representation is prohibited by law.”
Government Code Section
Fields was persuaded by Carney’s memorandum of points and authorities that Government Code §26540 and Los Angeles County Charter §55 preclude representation by a prosecutor of a criminal defendant.
The Government Code section provides:
“A district attorney shall not during his incumbency defend or assist in the defense of, or act as counsel for, any person accused of any crime in any county.”
An attorney general’s opinion, Carney noted, says that prohibition extends to deputy district attorneys.
The charter section says:
“The District Attorney, Public Defender, County Counsel, and their deputies, shall not engage in any private law practice and they shall devote all their time and attention during business hours to the duties of their respective offices.”
Supreme Court Decision
Carney also pointed to the California Supreme Court’s 1974 opinion in People v. Rhodes which reversed a forgery conviction based on the defendant’s assigned lawyer also having been a city attorney. Then-Chief Justice Donald R. Wright (now deceased), writing for the 4-3 majority, said that “vital interests of criminal defendants and the criminal justice system are adversely affected when public prosecutors are permitted to defend or assist in the defense of persons accused of crime.”
He went on to say:
“[T]he nature and duties of a public prosecutor are inherently incompatible with the obligations of a criminal defense counsel. When a city attorney represents criminal defendants there arises the possibility that either the defendant’s interest in a vigorous and determined advocacy or the public’s interest in the smooth functioning of the criminal justice system will suffer, in addition, public confidence in the integrity of the criminal justice system could be adversely affected by the appearance of impropriety incident to a public prosecutor’s private representation of a criminal defendant. Thus, the interests of both criminal defendants and the judicial system require that city attorneys who have prosecutorial responsibilities not represent criminal defendants.”
Policy Concerns
Carney commented:
“[T]he concerns expressed by the Court in Rhodes are not obviated by the fact that Mr. Middleton has not yet signed the contract to be employed as a Special Prosecutor in the Los Angeles County District Attorney’s office. Mr. Middleton’s employment as a Special Prosecutor has been approved by the District Attorney and the Los Angeles County Board of Supervisors. It is a matter of public record. Thus, all the same pubic policy concerns expressed in Rhodes are already implicated.”
Michele Hanisee, president of the Association of Deputy District Attorneys, commented on the ruling, saying:
“That a conflict existed was apparent to any ethical prosecutor. It’s hornbook law that an attorney cannot represent both the prosecution and the defense.”
Middleton is also representing the defendant in a case in the Airport Courthouse, People v. Prince Selassie. The County Counsel’s Office also prepared a waiver for use in that case.
Selassie is charged with misdemeanor elder abuse and a refusal to give a blood specimen, saliva sample, or thumb or palm print impression, also a misdemeanor. A pretrial hearing before Commissioner James B. Cooper III is slated for June 23.
Copyright 2021, Metropolitan News Company