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A federal judge properly disqualified noted cop lawyer Michael Rains from a high-profile prison guard trial because he had represented other officers in the same case, the Ninth Circuit U.S. Court of Appeals ruled Friday. The decision came in an unpublished decision upholding the criminal convictions of two former Pelican Bay State Prison guards, Jose Ramon Garcia and Edward Michael Powers. The panel — Ninth Circuit Judges Andrew Kleinfeld and Consuelo Callahan and Second Circuit Senior Judge James Oakes — wrote just four pages to settle both matters. A spokesman said the Northern District U.S. attorney’s office, which obtained convictions against both prison guards for conspiracy to violate prisoners’ constitutional rights, was “gratified” by Friday’s ruling. But the court’s treatment of the cases disappointed Dennis Riordan of Riordan & Horgan, who argued in September on behalf of both defendants. “I think that we’re going to ask for en banc [review],” Riordan said. By not publishing the matter, the court dodged two weighty constitutional issues, Riordan said. First, Northern District Judge Martin Jenkins excluded Rains after meeting with government prosecutors ex parte, which Riordan argued was a Sixth Amendment violation. Riordan said the Ninth Circuit has already agreed to take en banc another case dealing with the disqualification of counsel. He believes the judges on Friday should have held on until the matter was settled. There was also a “fruit of the poisonous tree” violation because Garcia was compelled to give a statement that, although not used at trial, was used to obtain evidence that was used against him, Riordan said. Riordan had hoped that a U.S. Supreme Court ruling from earlier this year, Missouri v. Seibert, 04 C.D.O.S. 5688, would have helped Garcia. In that case, the high court tossed a woman’s conviction because she gave a statement to police under Miranda only after she had confessed without Miranda. It’s not the first time Rains has had to contend with conflict-of-interest allegations in his work with law enforcement officers. Prosecutors in Oakland’s Riders case, involving allegations of police corruption and brutality, tried to bump Rains because he had represented police officers who would be testifying against his client. The federal case is different. Rains represented prison guards while they testified at a grand jury. The government then moved to bounce him before trial. Riordan said the guards all waived attorney-client privilege and would not be able to offer adverse testimony. Even then, only one was called during trial, he said. “I’m very disappointed,” said Rains, of Pleasant Hill’s Rains, Lucia & Wilkinson. “I was looking forward to representing Mr. Powers in a retrial, so this comes as a surprise.” Melinda Haag, who was the lead prosecutor, said the case was very hard-fought, but she believed justice was done and that the judges made the right decision. “The Ninth Circuit obviously considered those arguments and rejected them,” said Haag, who is now a partner at Orrick, Herrington & Sutcliffe. The cases are U.S. v. Garcia, 03-10067, and U.S. v. Powers, 03-10071.

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