Just starting off in a new area and a new upward path to getting known and respected when all of a sudden things don’t look so good.
John T had a problem. It seemed he was accused of a serious charge, forceable attempted rape by gaining entry to a young lady’s residence and trying to force his attentions on her. He was referred to me.
His father, a fairly wealthy man, posted a large bail, and I was retained. Usual interview which revealed a complete denial, and a question of mistaken identity of the perpetrator who had a solid alibi.
Just before the case was to go to trial, I was summoned to meet with the two deputy DAs assigned to the case and was played a tape recording of the alibi witnesses (I can’t remember whether one or more of the witnesses were on the recording,) where they stated that the bottom line was the alibi was all created and false. The DAs and I talked and the blame was placed on the client’s dad. There was, after discussion, an offer of a plea with what is known as Penal Code 1203.03, where the court can send a convicted defendant to Atascadero State Prison for a diagnostic evaluation, and if the evaluation report is favorable, then grant probation and treatment to the offender after the 90 day observation period. Generally speaking, it is an unwritten rule that in most cases a positive evaluation generally ends favorably, with a sentence suspended and a probation grant, thus no prison time.
My next step was to gather all the witnesses, including the ones who changed their alibi position, and confront them with the new information. Arrangements were made.
One can never underestimate the value of a good investigator, and in this case it was John Oatley, a former Santa Ana Police officer who retired and became just a great investigator. He was what is known as a “self starter,” where you may give suggested directions on the extent of an investigation in a given case, but the investigator, on his own, creates and follows leads you as the attorney did not see. I have been successful in many defenses just on the information provided by John and other private investigators used on various cases.
So, John and I proceeded to the client’s residence to confront the parties with the new information. After arrival, with the parties all there, John smelled a rat, took out his tape recorder, placed it on the mantle in plain view of all parties, and we announced the proceedings were going to be recorded, and then, after discussion reconfirming the alibi, let everyone know what the DA was in possession of: the broken alibi recording. Bottom line: no changes and looks like a trial was to ensue.
Next day, just before the commencement of the trial, the client and his wife met with me. I cannot reveal the discussion, but the bottom line is I made a deal where the client would plead guilty, and the court, with the DA’s blessing, would send the client for the diagnostic evaluation with the understanding he would get probation if he got a favorable report, and the client could present himself to the State Hospital rather than being taken into custody and transported by the sheriffs to Atascadero State Prison Hospital, and a new date was set for the final disposition in Orange County.
Didn’t work out as expected. Before going to the evaluation, the client apparently met with one of the local psychs and was informed that he was to go the evaluation and deny everything, which apparently he did, and when he returned for the new date with a negative report due to denial of guilt, he hired another attorney, Sam Hurwitz, a long time local and powerful attorney in Orange County, who made a motion to withdraw the plea on the grounds I forced the client to take the deal, and the client was innocent.
Well, I had never ever been attacked by a client, and learned a lasting lesson; criminal clients will go after their lawyer to save themselves without a thought.
I was new in the defense business and struggled with what is known as attorney-client privilege regarding what was said at the meeting between the client and me before taking the plea deal, so I hired Howard Harrison, one of the partners in the Rutan and Tucker Law Firm I mentioned before and followed his advice, which, looking back, was safe and cautious, but if I had to do it over again, I would have been more aggressive in what I consider professional self defense. If attacked, then fight back, including revealing any conversations between the attorney and client.
So, now we have a hearing on the motion to withdraw the plea. One of the client’s contentions was that I bullied the witnesses, the client, and his family to get them to go along with the plea deal. Thank you, John Oatley, as I saw the other side neglected to inform their new lawyer that all of the proceedings at the client’s residence were openly recorded, thus no intimidation or anything like that ever occurred. When I was asked by the prosecutor at the hearing about attorney-client conversations regarding the plea deal, the client, through his new lawyer, objected, based on the attorney-client privilege, which I have later learned was wrong, but the objection was sustained. The bottom line is the motion was denied, and the client, through his new attorney, was sentenced to one to twenty years in State Prison.
The family was wealthy and, I was later told, paid Sam Hurwitz a very large fee, and Sam took the case all the way to the Supreme Court, where, of course, they lost there as well. People who were present during oral argument told me the Chief Justice, Don Wright, commented that he knew me personally from my days as a DA, and he would find it hard to believe I would ever pressure a client into a plea. And I tell you, the reader, I never would.
However, as one can imagine, it was stressful. Here I was pitted against a very politically powerful attorney in a new venue, just getting successfully started, and my very credibility was being attacked by a long-time well-known attorney, and thank goodness they were unsuccessful.
Every time I think of that experience, I get ticked off!
There are two types of criminal defense attorneys, both good. There is the bleeding heart who advocates, no matter what, do nothing to harm a client, and the other which is me: do good work but, when wrongfully and dishonestly attacked, don’t hold back.
Marshall
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