Appeal Says Defender Had No Duty to Reveal Mix-Up of Suspects

A defense attorney had no duty to disclose that the wrong suspect was present in court before a police officer wrongly identified him as the dealer who sold him drugs, according to Orange County Public Defender Ronald Y. Butler.

Butler’s deputy, Leroy A. Towne, knew about the mix-up, according to papers filed Thursday by the public defender’s office. But Towne said he couldn’t make up his mind whether to tell the judge before the police officer, under oath, identified the wrong man.

Towne was held in contempt of court and sentenced to five days in jail or a $500 fine last week by Orange County Municipal Judge James M. Brooks.

Might Compromise Defense

In the appeal filed Thursday in Superior Court, Butler’s office suggested that Towne might have been guilty of unethical conduct if he had said anything because that might have compromised his client’s defense.

Towne had been representing Alfredo Gutierrez, who had been charged with a felony cocaine sale, at a preliminary hearing. Because of a mix-up, bailiffs brought a different man into court, Pedro Rodriguez, who sat next to Towne.

Towne realized the mistake, but “having never been in such a situation, I was momentarily at a loss as to what to do,” according to court documents.

Towne, a 22-year veteran in Butler’s office, was “contemplating my competing obligations to my client and the court” when the Santa Ana police officer mistakenly identified Rodriguez as the man from whom he had bought drugs.

Towne “does not believe that a duty exists requiring him to ‘speak up’ on the facts of this case,” according to Butler’s appeal.

Did Not Mislead Court

“He made no representation which could have misled the court. He, therefore, had no duty to immediately educate the court,” Butler argued.

Lawyers are barred by state statute from intentionally misleading or deceiving a judge. “But silence does not violate the code sections,” according to the appeal documents.

In fact, an opinion by the State Bar last year held that a criminal defense lawyer who disclosed certain facts about his client was guilty of unethical conduct. In that case, the attorney violated his duty to his client by disclosing a prior conviction when the judge was unaware of it, according to the appeal filed in Towne’s case.

The appeal was filed with Superior Court Judge Myron S. Brown, who stayed the contempt sentence until after a hearing next month.