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Criminal defendants who exhibit a pattern of seriously threatening or attacking their lawyers may forfeit their constitutional right to counsel, a state appeal court ruled Wednesday. But rather than a setback for criminal defendants, defense advocates view the ruling as a big victory because it also sets out extensive due process protections that must be followed before forfeiture, as a last resort, can be declared. “It’s a good decision,” Paul Gerowitz, executive director of the Sacramento-based California Attorneys for Criminal Justice, said. “I especially like the recognition that the lawyer has a duty of loyalty to the client and, therefore, shouldn’t be arguing against the client’s interests.” The ruling by Sacramento’s Third District Court of Appeal arose out of the case of Johnny King, an inmate at Folsom State Prison who attacked or threatened four court-appointed attorneys before Sacramento County Superior Court Judge Tani Cantil-Sakauye ruled he had forfeited his state and federal rights to counsel. King reportedly head-butted his first lawyer, Sacramento solo practitioner Paul Comiskey, and threatened the lives of three others — Sacramento solos Michael Long, Michael Aye and Donald Dorfman. All four lawyers withdrew as counsel. At the time, King — sentenced in 1981 to life in prison for kidnapping, robbery, rape and assault with the intent to commit murder — was on trial for the 1999 battery of a non-inmate. Charges of assault against Comiskey and making criminal threats against Long and Dorfman were later added. King argued on appeal that the ruling forfeiting counsel violated his constitutional rights to counsel. But the appeal court disagreed. “Where defendant engages in a course of misconduct towards counsel that is unprovoked and intended to cause counsel to withdraw and to delay or disrupt proceedings and it reasonably appears that measures to curtail the misconduct are inadequate or futile, the right to counsel may be forfeited,” Justice Fred Morrison wrote. Justices Consuelo Callahan and Daniel Kolkey concurred. But the justices also emphasized that judges should rarely resort to forfeiture, doing so only after all other measures — such as physically restraining the defendant or removing him from the courtroom — have been tried. The justices also said a hearing into the matter is required, the defendant must be given notice that his conduct could place his right to counsel in jeopardy and that any judge’s forfeiture decision be supported by factual findings based on clear and convincing evidence. “At the hearing,” Morrison wrote, “defendant is entitled to be present, to have the assistance of counsel, to present evidence and to cross-examine witnesses.” Morrison and his companions also stated that a defendant’s lawyer has an “overarching duty” of loyalty to advocate the client’s cause. In King’s case, the court said that the hearing into forfeiture was defective on several grounds, but preeminently because of the absence of effective assistance of counsel. “While King nominally had counsel at the hearing,” Morrison wrote, “counsel not only failed to represent King’s interests, but actively argued against him and in favor of forfeiture.” That lawyer was Dorfman, who argued at the hearing that King presented a legitimate threat, and while under cross-examination testified that he asked to be relieved as counsel and that no other lawyers be hired because King was dangerous. The appeal court reversed the finding of forfeiture and remanded the case to the trial court for a proper hearing. Sacramento-based Deputy Attorney General Paul O’Connor, who represented the state, could not be reached for comment Wednesday. But Stephen Greenberg, a solo from Nevada City who was appointed by the court for the purpose of appeal, said he was “guardedly happy” about the ruling. His client gets an opportunity to argue for retention of court-appointed trial counsel, and in addition the due process protections outlined by the court will make forfeitures hard to come by. “There is a risk [for defendants], there is a danger,” Greenberg admitted. “But the message to trial court judges is that [forfeiture] cannot happen lightly, that the judge is going to have to go overboard in protecting due process rights.” He also said he has a “great relationship” with King and, while they’ve never met in person, he would have no fear doing so. The case is King v. Superior Court (People), 03 C.D.O.S. 3052.

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