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The Ninth Circuit U.S. Court of Appeals on Tuesday announced that it would rehear for the third time a case involving a man who claims his burglary conviction is flawed because his trial court attorney faced drug charges by the same district attorney’s office prosecuting his case. The en banc order came two years after the California attorney general’s office’s 2002 request for it, and the case has a new twist. A judge who sat on the original three-judge panel, Michael Daly Hawkins, has recused himself from being considered for the 11-judge rehearing. The pivotal issues underlying the order in Campbell v. Rice, 04 C.D.O.S. 9536, have changed since it was first argued. In 2001, Walter F. Brown Jr., the Orrick, Herrington & Sutcliffe partner appointed to represent Anthony Alexander Campbell, argued that his client’s representation by an attorney facing drug charges in Santa Clara County represented a Sixth Amendment violation of Campbell’s right to effective counsel. After initial failures at the state court level, the argument found traction with the Ninth Circuit. Attorney Maureen McCann, the court wrote, “suffered from a potentially serious conflict of interest that was brought to the attention of the trial judge, who failed to make an inquiry into the conflict.” According to State Bar records, McCann received a public Bar reproval in 1996, but remains an active member. The Ninth Circuit reversed the district court’s denial of Campbell’s writ, and the case was remanded with instructions to grant his petition. That order was stayed at the request of the attorney general’s office, in light of a pending U.S. Supreme Court case, Mickens v. Taylor. Mickens effectively raised the bar on Sixth Amendment conflict of interest arguments, requiring a defendant to show that legal counsel’s conflict of interest adversely affected the attorney’s ability to represent his or her client. Taking that new standard into account, the Ninth Circuit once again took up the case, this time agreeing that Campbell had not proven that his attorney’s conflict adversely affected her representation. The court opted to remand and partially reverse the lower court’s decision on new grounds: that Campbell’s due process right to be present at any “critical” state of his criminal trial was violated when his attorney, the prosecutor and the trial court judge discussed his lawyer’s potential conflict without his presence or knowledge. The latest hearing will now turn on arguments by the attorney general’s office that even if Campbell should have been present for the in-chambers hearing, his omission constitutes a minor error, rather than a “structural” error undermining the entire trial. The 2002 Ninth Circuit opinion stated that Campbell’s exclusion did constitute a structural error. In her 2002 petition for rehearing, however, Supervising Deputy Attorney General Peggy Ruffra argued that the panel had “failed to apply the appropriate tests” for determining the seriousness of that omission. In particular, Ruffra argued that federal standards for granting a due process writ on such grounds “may be granted only where authorized” by Supreme Court precedent. She also argued that the Ninth Circuit’s decision “directly contradicted Supreme Court precedent,” and she raised the question of whether Campbell could even have realistically “influenced the process” when his attorney’s potential conflict was discussed. Brown disagrees. “Our argument is something that cuts to the very heart of the proceedings,” he said. “It was a structural error, and it could result in a reversal.” Brown also said there is evidence that McCann may have pulled her punches when defending Campbell to curry favor with the prosecutor to help herself — a premise that lower courts reviewing the case have rejected. Campbell, who was originally convicted by a Santa Clara County jury in 1996, has completed his prison term but is currently in custody for parole violations, according to Ruffra. In addition to Hawkins, two more judges have recused themselves from participating in the rehearing — Diarmuid O’Scannlain and Johnnie Rawlinson. The reasons behind the recusals are not known.

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