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Sacramento attorney Thomas Riordan didn’t know what he was getting into in 1991 when he agreed to handle death row inmate Richard Dean Turner’s appeal. He had never tackled a death penalty defense, but chose to participate in a novel state Supreme Court program that assigned civil lawyers to capital cases in hopes of reducing a huge backlog. Riordan floundered, even with assistance from experts in the field. When the opening brief had not been filed more than 10 years later, an angry and unsympathetic Supreme Court held him in contempt, fined him $1,000 and ordered the repayment of more than $42,000 in fees. On Aug. 2, Riordan faces more repercussions from the Turner case when he goes to the State Bar Court in San Francisco to defend himself against charges he performed incompetently. He will make the simple and compelling argument that in some ways, he was the victim of a Supreme Court program that never really worked. He plans to show that he was in way over his head and that the Supreme Court contributed to his failure by refusing to release him from his commitment. “Some attorneys, despite their best efforts, will be unable to get up to speed on a case,” San Francisco solo practitioner Jerome Fishkin, who represents Riordan, wrote in court documents. “Their duty at that point is to recognize the problem and withdraw. “Mr. Riordan recognized the problem and sought to withdraw,” Fishkin added. “He was denied permission, then held in contempt for his inability to perform. This is not a case that should result in discipline.” Riordan, on the advice of Fishkin, declined to comment. State Bar prosecutors are recommending that Riordan, a 1982 Boalt Hall School of Law graduate, be publicly reproved. That’s far less serious than disbarment or suspension, but it’s still a punishment that would permanently scar his previously unblemished Bar record. “It’s public discipline and it’s serious,” State Bar Supervising Trial Counsel Donald Steedman said Tuesday. “[It's] not a good thing.” Riordan was tapped to defend Turner while working as an associate at what’s now Sacramento’s Hansen, Culhane, Kohls, Jones & Sommer. Desperate to cut back on a growing capital case backlog, the high court in the early ’90s began recruiting civil attorneys at large law firms to take cases, with the knowledge that they would be assisted by attorneys with the California Appellate Project, a San Francisco-based group that serves as a resource for lawyers tackling direct death appeals or habeas corpus proceedings. The experiment was largely a failure, with the big firms mired in cases requiring considerable time, money and manpower and the individual lawyers finding themselves overwhelmed and lacking the skill to produce a quality death-case brief. “It didn’t seem to be working all that well for a variety of reasons,” Beth Jay, principal attorney to Chief Justice Ronald George, said Tuesday. In the past year, the Supreme Court has been trying to woo big firms back by limiting their commitment to two years in the habeas corpus proceedings and to offer additional resources that include not only the full expertise of CAP, but San Francisco’s Habeas Corpus Resource Center and former state Public Defender Lynne Coffin. Pillsbury Winthrop Shaw Pittman and Bingham McCutchen immediately stepped forward. “The changes that HCRC, CAP and the court have made, with support from legal experts, has made a 100 percent difference,” Bingham McCutchen partner Nora Cregan said late last year. “People would have been loath to take on another commitment like we did 15 years ago.” Berkeley solo Wesley Van Winkle, an experienced death-case defender, said that “lots of people” warned the high court in the early ’90s that dropping civil lawyers into death penalty cases “was not a great idea � that these folks just didn’t have the experience. “People took these cases and got into them and found out it was much more than they anticipated,” he added. “And the court sort of said, ‘Sorry, too late now.’ It was almost like a bait and switch.” In softer language, Fishkin said that’s essentially what happened to Riordan. “He tried to do the right thing,” Fishkin said Tuesday, “and he got caught between two impossible situations” � in that he wasn’t allowed to quit the case, but also knew that he wasn’t capable of filing a brief that would pass constitutional muster. According to court documents, after he was denied the right to withdraw, Riordan � now of counsel at Sacramento’s Weintraub Genshlea Chediak Sproul � co-counseled with Robert Sanger, a well-known death-penalty defender. But even with Sanger, a partner in Santa Barbara’s Sanger & Swysen, on board, the opening brief was filed much later than the court desired. Sanger, who had been handling Turner’s habeas corpus case, was briefly held in contempt by the high court in March 2002 after taking over Turner’s direct appeal. The high court later lifted that sanction, following a barrage of complaints from the death-penalty defense bar, but not before Sanger was lectured harshly by the chief justice. Turner’s opening brief was finally filed by Sanger on May 7, 2002. His death sentence � for murdering Merle and Freda Claxton in their San Bernardino County home in 1979 � was affirmed on Nov. 1, 2004. State Bar prosecutors weren’t required to file charges against Riordan, but decided that he not only performed incompetently, but also willfully disobeyed the Supreme Court’s orders on filing a timely brief and also failed to report to the State Bar that he had been sanctioned. Fishkin hopes to get the punishment reduced to a mere admonition, if not dropped completely. “He’s already been held in contempt by the Supreme Court,” Fishkin said. “What else does the system need to do to someone who tried his best?” The trial before State Bar Court Judge JoAnn Remke is expected to last no more than two days. The case is In the Matter of Riordan, 02-0-11078.

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