California Supreme Court
Feb. 9, 2012
High Court weighs whether gag order on lawyer was harmless error
The state Supreme Court Tuesday seemed ready to apply a harmless-error test to a judge's gag order that prevented a defense lawyer from talking to his client about a key witness statement in an attempted murder case.
Daily Journal Staff Writer
The state Supreme Court on Tuesday seemed ready to apply a harmless-error test to a judge's gag order that prevented a defense lawyer from talking to his client about a key witness statement in an attempted murder case.
Defense lawyer Marc J. Zilversmit pleaded with the justices not to "jump off a cliff and say this is not structural error." The U.S. Supreme Court has held that blanket court orders restricting attorney-client discussions violate a defendant's Sixth Amendment right to counsel and require automatic reversal. Geders v. United States, (1976) 425 U.S. 80.
But neither the state nor federal high court has ever weighed in on what should happen when the restriction is limited to a particular topic or piece of evidence.
At oral argument Tuesday, the justices considered that question in the context of a 2007 attempted murder case against Jacob Townley Hernandez. Prosecutors asked Santa Cruz County Superior Court Judge Jeff Almquist to seal a sworn statement by co-defendant Noe Flores, whose jailhouse safety was in danger after he accepted a plea deal in exchange for his testimony.
Hernandez' defense lawyer at trial, Arthur Dudley, was allowed to see the statement, but he wasn't allowed to talk about it with anyone, including his client.
Deputy Attorney General Amy Haddix conceded that the gag order was a mistake, but she said it wasn't constitutional error because it didn't hurt Dudley's ability to represent Hernandez.
Haddix argued that Dudley was able to cross-examine Flores and use the statement to impeach his testimony. In the statement, Flores said he was wearing a red-and-black checked shirt - the same color the shooter wore - but on the stand Flores insisted he was wearing black.
There was other evidence pointing to Hernandez as the shooter, Haddix said. Other witnesses testified Hernandez was wearing the red and black shirt, given to him by his girlfriend. His hands also tested positive for gunshot residue.
The justices seemed to be persuaded by Haddix. Chief Justice Tani Cantil-Sakauye asked her whether the Supreme Court could find harmless error or send it back for an analysis by the 6th District Court of Appeal, which found it to be structural error.
Zilversmit argued that it would be difficult to determine whether the error was harmless because neither Dudley nor himself has ever been able to discuss the statement with Hernandez.
"When you seal the lips of counsel, you can't assess prejudice," he said. "Nobody knows a case better than a defendant."
Zilversmit repeated a number of times that the prosecutor had emphasized that the statement was crucial to her case. But Justice Carol A. Corrigan wasn't buying it, pointing out that the statement was insurance that Flores wouldn't change his story for the trial.
"This isn't about the prosecutor. This is about what happened at trial," she said. "It seems to me it's kind of a straw man."
When Justice Goodwin Liu pointed out that the U.S. Supreme Court case involved a complete deprivation of attorney-client discussions, Zilversmit said, "In my mind this is a much more egregious violation because it lasted for the whole trial."
Liu also pointed out that when prosecutors fail to turn over crucial evidence, courts are allowed to apply a harmless error test. In this case, the defense had the evidence.
A decision on the case is due within 90 days. It's People v. Hernandez, S178823. href="mailto:
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Laura Ernden
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