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SAN JOSE — Santa Clara Superior Judge Kevin Murphy wants to stop the private defense bar practice of handling cases through the preliminary examination and then punting them to the public defender. So Murphy — who took over as supervising judge of Santa Clara’s criminal division in January — is denying motions to withdraw as counsel. Prosecutors and public defenders are supporting Murphy’s tougher interpretation of the law. They contend that private defense counsel all too often take a client’s life savings, do the easy work up through a preliminary hearing and then walk away, usually leaving their clients broke and facing more charges. The Santa Clara public defender’s office estimates that it picks up 200 cases a year from private defense lawyers. “We have been encouraging the court for years to take a strong look at those motions,” said Assistant Public Defender Ronald Norman. “Any public defender’s office is not going to be happy with private attorneys who withdraw in the middle of a case — especially when the case is in a worse position than it was before.” But private attorneys are fighting back, saying they often take partial retainer fees because clients don’t have enough money up front to pay for their services. “Many DAs and public defenders have skewed opinions,” said Dennis Lempert, a Santa Clara defense attorney. “Most of those people have never tried to go out and earn a living representing private clients. Right now many of the deputy DAs make $150,000 or more with no overhead or debt collection problems.” The chairwoman of the Santa Clara Bar Association’s private defense bar committee met with Murphy, and Lempert filed a writ Tuesday with the Sixth District Court of Appeal after Murphy repeatedly refused to let him withdraw from a case. Lempert wants to withdraw as counsel for Robert Campbell, who is charged with two counts of rape and kidnapping in the course of a rape. Campbell, who has a prior strike and faces life in prison, is set to go to trial March 17. Lempert has asked the Sixth District to stay the trial to determine if he can withdraw because his client is out of money. Lempert said it’s very common for private defense counsel to be retained to handle a matter from arraignment through the preliminary hearing. “The vast number of felony cases are resolved at or before the preliminary examination,” Lempert said. “[Up to preliminary examination] it’s a pretty easily determined amount of time you put into the case. If it goes to trial it could be a very time-consuming case. . . . Judge Murphy is saying if you come in the case at all you are in case for the long haul.” On Jan. 27, Murphy denied Lempert’s first attempt to withdraw, a two-page motion that said Campbell was indigent and could not afford to pay for private counsel through trial. Murphy denied Lempert’s request for reconsideration on Feb. 7. Deputy DA Robert Baker said at one hearing Judge Murphy asked the defendant what he wanted and Campbell indicated he would like to keep Lempert on the case but could not pay him. Lempert said he asked the court to pay for his services, but his request was denied. Murphy said he could not comment about ongoing matters, but Assistant PD Norman said that with consolidation of municipal and superior courts, it’s now much easier for judges to deny withdrawal motions. With all matters handled by a unified court, attorneys can no longer agree to represent a client only in municipal court. In his writ, Lempert argues that consolidation doesn’t change his ability to withdraw. “The Penal Code,” he wrote, “still provides for two distinct proceedings in a standard felony prosecution, first proceedings on a complaint before a magistrate and second, if an information is filed, proceedings on the information before a magistrate.” Lempert, of course, isn’t the only defense attorney feeling Murphy’s sting. Oakland Defense Attorney Stephen Naratil on Wednesday asked Murphy to reconsider allowing him to withdraw from representing client Jack Phouc Le. Naratil, with The Chase Law Group in Oakland, represented Le through preliminary examination. Le was initially charged with assault with a deadly weapon, but prosecutors upped the charges to attempted murder after the preliminary hearing. Le now faces life in prison. When Naratil’s motion was called Wednesday afternoon, Murphy had a deputy public defender review the case file. The PD determined it would take four to six months to prepare for trial. “Do you have an opinion if I should relieve your attorney?” Murphy asked Le, who is a minor. “I notice you are consulting with your attorney,” Murphy added when Le turned to Naratil. Le told the judge his family may have hired a new attorney, but he could not identify her by name. Murphy agreed to continue the motion. Outside the courtroom, Naratil said that when he first tried to withdraw in January, Murphy gave a short speech in court saying, “This practice in this county used to be common. We are putting an end to it.” Naratil said he understood the judge’s position, but that it was unusual. “In most counties, it’s not a problem after arraignment of the information,” Naratil said. “On the eve of trial, that’s another story.” But San Francisco criminal defense attorney Jeffrey Schwartz said this sort of change has been expected since consolidation. “Before that, there were always separate courts. Judges were frustrated over the years. Now the judges have the advantage of saying it’s all one court. I don’t agree with it, but it’s been a long time coming,” Schwartz said. Schwartz said the policy will cost the county money because private attorneys handling early case work save public defender resources. “In this budget crisis, it’s foolish for a judge to do this,” Schwartz said. “Cases settle early in Santa Clara because the best offers come early in that county. If a private attorney is any good he will get the same deal or a better deal than the public defender because he has more time to spend on the case. You take all that away, the public defender has more cases.”

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