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A defendant does not have a due process right to be present when his attorney discusses a potential conflict of interest with the prosecutor and judge, a divided en banc panel of the 9th U.S. Circuit Court of Appeals ruled Friday. The 9-2 decision in Campbell v. Rice, 05 C.D.O.S. 4252, tosses a three-judge ruling from 2002. That earlier decision worried the state attorney general’s office because it said a defendant’s not being present constituted structural error and required reversal. “That was the part of the holding that we felt conflicted with Supreme Court law and why we petitioned for rehearing en banc,” said Peggy Ruffra, the supervising deputy state attorney general who argued the case. The new holding could affect other due process claims pending in the circuit, including Hovey v. Woodford, 03-99001, a death penalty case. Friday’s decision was based on the Antiterrorism and Effective Death Penalty Act of 1996. The majority said it needed to defer to state courts, which had rejected Campbell’s appeals. “Any error resulting from petitioner’s exclusion from the in-chambers meeting was not a structural error but was, instead, trial error subject to harmless-error review,” according to the opinion, which was written by Judge Richard Clifton and signed by Chief Judge Mary Schroeder and Judges Pamela Ann Rymer, Andrew Kleinfeld, Barry Silverman, Susan Graber, Kim Wardlaw, Ronald Gould and Jay Bybee. Senior Judge Warren Ferguson and Judge Stephen Reinhardt dissented, calling the case “astonishing.” “Campbell was unconstitutionally deprived of due process and as a result unconstitutionally denied his liberty and right to select other counsel of his choice,” according to the dissent. “The error was per se prejudicial and structural as defined by the Supreme Court and four circuits.” Friday’s ruling also vindicates San Jose defense attorney Maureen McCann. In 1996, she was defending Anthony Alexander Campbell on burglary charges. But then she allegedly brought a baggie of methamphetamine into a San Jose courthouse, and the Santa Clara district attorney’s office began prosecuting her, creating a potential conflict. She was arraigned on felony drug charges two days before the start of Campbell’s burglary trial. Santa Clara prosecutor Ralph Dixon disclosed the potential conflict created by McCann’s arrest in a chambers meeting on the eve of trial. The judge ruled there wasn’t a problem. Campbell was convicted and sent to prison. He was since released, but last fall was in custody again on a parole violation, according to the state AG’s office. His current status is unclear. State courts denied Campbell’s appeals, but in 2001 the 9th Circuit granted his habeas corpus petition. A three-judge panel found a conflict of interest. But then the circuit had to take up the case again in light of a 2002 U.S. Supreme Court case, Mickens v. Taylor, 122 S.Ct. 1237. The three-judge panel then granted the habeas corpus petition based on the due process claim. McCann has been disciplined by the State Bar, but is still licensed to practice in California. She declined to comment Friday. Defendant Campbell was represented at the 9th Circuit by Orrick, Herrington & Sutcliffe’s Howard Ullman and Walter Brown Jr. Ullman declined to comment because he hadn’t read the ruling. Brown wasn’t available.

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