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Judge Terrell Asked to Boot Deputy PD From Acting for Prosecution in Sentencing Matter
Former Head of ADDA Urges Terrell to Weigh Disqualifying Diana Teran, Gascón’s Special Advisor
By a MetNews Staff Writer
A former president of the Association of Deputy District Attorneys is asking Los Angeles Superior Court Judge Michael Terrell to determine if it’s ethically permissible for a deputy public defender who is on loan to the District Attorney’s Office to be representing the People in a proceeding to determine if the 27-year sentence of a woman who pled no contest to voluntary manslaughter should be shortened.
A hearing is scheduled for Monday.
Retired Los Angeles County Deputy District Attorney Marc Debbaudt has presented an amicus curiae brief requesting that Terrell, on his own motion, “conduct a hearing to determine whether a conflict of interest exists, the extent of the conflict, and whether such conflict is waivable.”
Previous Effort
Debbaudt is taking exception to participation in the proceeding by Diana Teran, a deputy public defender who is an acting prosecutor and “special advisor” to District Attorney George Gascón. A like effort to disqualify Teran by victim rights attorney Kathleen Cady of the Dordulian Law Group, acting on behalf of the children of persons who were slain during a robbery, was rebuffed in September by Los Angeles Superior Court Judge Roger Ito.
Unlike Deputy District Attorneys Tiffiny Townend Blacknell, Shelan Joseph and Alisa Blair, who were allowed to laterally transfer from the Public Defender’s Office to the District Attorney’s Office at their same grades without taking a Civil Service examination—which is being challenged by the Association of Deputy District Attorneys (“ADDA”)—Teran has not left the county’s indigent defense office.
Gascón is an adherent of the theory that shorter sentences are more productive than longer ones and has embarked on a campaign to minimize prison confinement.
Debbaudt’s Position
Debbaudt argued in his brief:
“Diana Teran’s position as a deputy public defender acting as a deputy district attorney is an inherent conflict of interest. This dual loyalty to adverse parties is an actual conflict because she is employed and paid by one party and purports to represent another. Further, by statute a district attorney is prohibited to act as a defense lawyer. Lastly, this dual role erodes public confidence in the integrity of the criminal justice system. The mere appearance of a defense attorney whose office has cases before the prosecution acting as a prosecutor creates the impression of double dealing.”
The ex-prosecutor pointed to Government Code §26540 which provides that the district attorney may not “defend or assist in the defense of, or act as counsel for, any person accused of any crime in any county” and Government Code §27706 which says that the “public defender…shall defend” defendants who lack funds to pay for legal representation.
No Resignation
With reference to §27706, Debbaudt asserted:
“While there are occasions when a prosecutor has resigned from the District Attorney’s Office and began representing criminal defendants, or when a criminal defense attorney or deputy public defender resigned from their position and became employed by the District Attorney’s Office, that is not the present situation. Ms. Teran, without resigning and thus disavowing her obligations pursuant to section 27706, now purports to represent the People in the same jurisdiction in which she is being paid by the Public Defender.”
He specified:
“This is not a case in which Ms. Teran has repudiated her role as a Deputy Public Defender. According to the agreement of being ‘on loan,’ she, the Public Defender, and the District Attorney have demonstrated an intent that she will, in the future, return to her work at the Public Defender’s Office.”
Supreme Court Decision
The lawyer cited the California Supreme Court’s 1974 decision in People v. Rhodes. There, then-Chief Justice Donald Wright (now deceased) declared that the felony conviction of the defendant for forgery had to be reversed because he was defended, in his private capacity, by the city attorney of Hanford—the county seat of Kings County and site of the trial—notwithstanding that the City Attorney’s Office only prosecuted alleged violations of city ordinances.
Wright said:
“[V]ital interests of criminal defendants and the criminal justice system are adversely affected when public prosecutors are permitted to defend or assist in the defense of persons accused of crime. We accordingly conclude that it was contrary to public policy to appoint Hanford’s city attorney to represent defendant and that defendant’s conviction must therefore be reversed.”
Inherent Incompatibility
The chief justice elaborated:
“[T]the nature and duties of a public prosecutor are inherently incompatible with the obligations of a criminal defense counsel. When a city attorney represents criminal defendants there arises the possibility that either the defendant’s interest in a vigorous and determined advocacy or the public’s interest in the smooth functioning of the criminal justice system will suffer. In addition, public confidence in the integrity of the criminal justice system could be adversely affected by the appearance of impropriety incident to a public prosecutor’s private representation of a criminal defendant. Thus, the interests of both criminal defendants and the judicial system require that city attorneys who have prosecutorial responsibilities not represent criminal defendants.”
Debbaudt asserted:
“The reverse is true here. Ms. Teran, by being a defense attorney who is acting as a public prosecutor, is faced with an inherent conflict between an obligation to represent the People to the best of her ability and, on the other hand, a natural inclination not to anger her actual employer to whom she wishes to return. Such a conflict of interest would operate to deprive the People of the State of California of the undivided loyalty to which they are entitled.”
Appeals Court Directive
Monday’s hearing before Terrell will be held pursuant to a July 7 directive from Div. Three of this district’s Court of Appeal. Justice Luis Lavin said in an unpublished opinion that Terrell abused his discretion in declining to receive evidence that Carter wanted to submit in support of a Jan. 9, 2020 resentencing request by the then-secretary of the Department of Corrections and Rehabilitation, Ralph Diaz.
Carter had been sentenced by then-Los Angeles Superior Court Judge Shari K. Silver following the defendant’s 2008 “no contest” plea to voluntary manslaughter. Diaz asked that the sentence be shortened in light of the inmate’s exemplary conduct behind bars.
He acted pursuant to Penal Code §1170(d)(1) which says that upon request of the secretary (or the Parole Board or the district attorney), “the court may…at any time recall the sentence and commitment previously ordered” as to a state inmate “and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence.”
Terrell initially responded to Diaz’s request by letter, denying it. He later permitted argument by counsel, but then advised that he “did not view this case as a case in which a resentencing was appropriate even given Ms. Carter’s stellar record while she’s been incarcerated.”
Carter, who was initially charged with murder, pled no contest pursuant to a plea bargain. She admitted personally discharging a firearm and having been convicted in 2002 of robbing two banks in Detroit.
ADDA’s Lawsuit
In the case brought by the ADDA contesting Gascón’s appointments, Los Angeles Superior Court Judge Mitchell Beckloff will hear arguments Wednesday on a motion for a preliminary injunction to bar bringing other county defense lawyers into District Attorney’s Office service without subjecting them to a Civil Service exam and to invalidate the hiring of Blacknell, Joseph and Blair at their Public Defender Office levels.
Gascón, on Dec. 7, the day he took office as district attorney, announced policies aimed at blocking deputies from seeking boosts in sentences through allegations and mandating efforts to backtrack on such efforts under his predecessor, Jackie Lacey. Some of the policies were derailed by a writ granted by Los Angeles Superior Court Judge James Chalfant, halting implementation of Gascón’s directives, with that decision now on appeal.
The ADDA is not involved in the proceeding before Terrell.
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