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Calif. Justices Back Right To Counsel In Prosecutor's Appeal

By RJ Vogt | March 31, 2019, 8:02 PM EDT

An indigent woman accused of driving under the influence won her case at the trial level after a California public defender got key evidence thrown out. When prosecutors appealed the evidence issue, an important question emerged: Did Rosa Lopez have the right to court-appointed counsel on a pre-trial appeal?

According to a California Supreme Court ruling issued Thursday, the answer is yes. Though a panel of seven judges punted the issue of whether the appellate division must appoint a new attorney to represent Lopez, the judges unanimously agreed that a pretrial prosecution appeal of a suppression order is a critical point “at which the defendant has a right to appointed counsel as a matter of state constitutional law.”

Brett Williamson of O’Melveny & Myers LLP, who represented The Innocence Project in an amicus brief, told Law360 on Thursday that the decision is a crucial step toward “making sure there are procedural protections to ensure that innocent defendants aren’t wrongfully convicted.” He added that suppression rulings are a key way for innocent defendants to exclude dubious evidence.

“There's a real need for recognition in the law for pre-conviction rights that will keep innocent defendants from having to worry about pursuing post-conviction remedies,” Williamson said. “A suppression hearing is obviously a critical part of a defendant's protections, especially someone who's been wrongfully charged.”

In Lopez’s case, the DUI charge came after a traffic stop that was later deemed to be a warrantless search. The trial court ruled there was no probable cause to stop the car in the first place, suppressing the evidence of her high blood-alcohol content because it was seized as a direct result of the unlawful stop.

Without evidence, the case was tossed, saving Lopez from what would have been her second DUI conviction. When the prosecution filed an interlocutory appeal over the suppression order, Lopez’s public defenders argued they were no longer obligated to represent her and asked the appellate court to appoint new counsel.

But the Court of Appeal rejected the request, finding that California law only provides for appointed appellate counsel for an indigent criminal defendant “convicted of a misdemeanor.” Lopez was ineligible, the court reasoned, because she had yet to be convicted in the underlying case.

In addition, the appellate court cited federal case law in noting that people only have the right to counsel in nonfelony cases if they face “actual imprisonment.” Because a decision on the suppression order wouldn’t directly put Lopez behind bars, the court held that she wasn’t owed a court-appointed attorney.

The California Supreme Court, however, based Thursday’s decision entirely on the state constitution, which guarantees a right to counsel “in all felony and misdemeanor proceedings whether actual imprisonment is to follow or not.”

Public defender Stephan Willms told Law360 he believed the federal actual imprisonment standard would have been met anyway, considering the importance of the suppressed blood alcohol evidence and the fact that, in California, a second DUI conviction mandates jail time.

But the high court judges seemed intent on keeping the case firmly inside the Golden State, according to Willms, because they wanted to prevent any further appeals up the chain.

“If the state Supreme Court issues a decision based on the federal constitution, that would give the government here the opportunity to petition the U.S. Supreme Court,” he noted.

Williamson agreed, adding that he thinks the state high court understands the importance of its role as an independent source of protection for the rights of the accused.

“They’re not blind to what is happening at the federal court, most importantly at the U.S. Supreme Court,” he said. “The court was cognizant of wanting the buck to stop at the highest court in California.”

Though Thursday’s ruling means Lopez will have counsel on the appeal, the question remains as to whom it will be. When Willms argued the case before the state’s high court in January, much of the discussion centered on why his office couldn’t simply continue its representation of Lopez from the trial level.

He pointed out that public defenders at the trial level have a different skill set — and typically less experience — than appellate lawyers. They’re also already strapped for time.

“Our young misdemeanor attorneys, they’re racing from courtroom to courtroom every day,” he told the court on Jan. 8. “It’s a hectic practice.”

After Thursday’s decision remanded to the appellate court the question of whether Willms’ office would be required to continue representation, he told Law360 his office maintains the position that it should have discretion on whether to represent the defendant on an interlocutory appeal. If the trial lawyer decides not to continue representation, Willms said lawyers from the appellate court's private counsel panel should be appointed.

The alternative — in which an already overburdened public defender’s office might be required to represent its clients against a prosecutor’s appeal — could create a resource issue, Willms said.

“If we’re put in a position where suddenly there’s a flood of interlocutory appeals, and we’re having staffing shortages … quite frankly we never have enough attorneys as it is,” he said. “Where we’re digging our heels in on is that we need to have discretion.”

A representative for the California Superior Court, the respondent in the case, did not immediately respond to requests for comment.

--Editing by Kelly Duncan.

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