The California Supreme Court has put a potential death penalty case on hold after a Superior Court judge in Riverside County removed the Riverside County’s Public Defender from the case and accused one of its attorneys of ineffective assistance of counsel. According to the judge, the deputy public defender on the case first inadvertently released secret defense information to the prosecution. Then, that information revealed what appeared to be impropriety by investigators working for the Public Defender. The judge’s ruling is now on appeal, and the Supreme Court has put the criminal case on hold while the issues are decided.

The case involves one of two young men accused of the robbery and homicide of and 85-year-old man from rural Riverside County in 2008. The two defendants, who were 22 and 25 at the time of the alleged crimes, were tried separately. The 22-year-old has been convicted, and jurors in that case on Wednesday recommended the death penalty.

In this case, when prosecutors realized that they had received privileged information from the defense, they notified the judge, who responded by dismissing the defense lawyer from the case and reporting him to the State Bar. “[T]he ultimate result,” of the accidental release of privileged information, said the judge, “is that [the defendant] has been denied the effective assistance of counsel.”

The judge was also concerned about two defense memos filed the court, each of which contained an interview report summarizing an interviews with a key witness in the case. Two separate interviews had been conducted in 2008 and 2011 — three years apart — by different investigators.

The witness allegedly told the first investigator that the defendant had confessed to the robbery and murder. In the second interview, from 2011, however, he said that the defendant had not known about the murder until he learned of it from the newspaper.

It is not uncommon for witnesses to give conflicting statements, especially when several years have passed. What caught the judge’s eye was not the apparently conflicting reports but comments made by the investigator in the first memo, in which he allegedly admits telling the defendant’s acquaintance that the defense hoped to prove it was the 22-year-old who had fired the gun during the robbery and homicide. If he did so, it could be viewed as an attempt to influence the acquaintance’s testimony.

The investigator allegedly also wrote to the deputy public defender, “Let me know if you want an ‘interview’ report and I’ll get you one, minus the confession.”

The Public Defender says that the comment was just an inappropriate joke — not an attempt to sway the witness or fabricate evidence. No memo “minus the confession” was ever produced. In fact, the two investigators don’t even work for the same branch of the Public Defender’s office. One works for the main section, while the other works in the capital defender, which handles only death penalty cases.

Nevertheless, the judge ruled that there was a “very real appearance that investigators employed by the Public Defender’s Office have engaged in conduct suggesting a willingness to fabricate or alter evidence up to, and including, the subornation of perjury, in an effort to mount a defense.”

According to the deputy public defender, he was unable to argue effectively about the memos because much of the information that would allow him to do so is subject to lawyer-client privilege. It is unclear whether he will have additional information to present on appeal.

Source: The Press-Enterprise, “Death penalty case on hold,” Richard K. de Atley, March 9, 2012