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C.A. Specifies Who Will Serve as Habeas Counsel for Inmate
Justices, in Case Termed ‘Highly Unusual,’ Direct That One or Both Lawyers Who Have Represented Inmate in Past, Are to Be Appointed to Pursue Remedies Under Racial Justice Act; Public Defender’s Office Is Disqualified
By a MetNews Staff Writer
Div. One of the Div. Four Court of Appeal yesterday took the unusual step—under unique circumstances—of dictating that one or both of an inmate’s chosen lawyers will represent him in pursuing a petition for a writ of habeas corpus.
Acting Presiding Justice Truc T. Do authored the opinion which directs the San Diego Superior Court to vacate its order appointing the county’s Public Defender’s Office to represent Terry D. Bemore in seeking relief under the Racial Justice Act (“RJA”), enacted in 2020, and to hire one of two San Francisco lawyers—Cheryl Cotterill or Pamela Sayasane—or both.
Bemore was convicted in 1986 of the Aug. 26, 1985 murder and torture of a store clerk during the course of a robbery and was sentenced to death. The Ninth U.S. Circuit Court of Appeals on June 9, 2015, granted a petition for a writ of habeas corpus, finding that Ervin had received ineffective representation of counsel at the sentencing phase.
Extensive Work
Do recited that “[a]s a result of the extensive work by Bemore’s habeas counsel—including a collective 18 years of service” from Cotterill and Sayasane—Bemore was resentenced to life without parole in 2016.” She explained that Cotterill has represented Bemore for more than 12 years and Sayasane for six years.
Now, he’s seeking relief under the RJA and wants Sayasane and Cotterill to act as his lawyers. But San Diego Superior Court Judge Polly Shamoon appointed the Public Defender’s Office to undertake the task,
Cotterill and Sayasane petitioned the Court of Appeal for a writ of mandate ordering ouster of the Public Defender’s Office and appointment of them. The Public Defender’s Office intervened as real party in interest and opposed Bemore’s petition.
The writ was granted yesterday. Do acknowledged that under Penal Code §987.2, the petitioner has no right to choose what lawyer will provide representation, but noted that the judge may appoint private lawyers if the Office of Public Defender is “unavailable.”
Remand Unnecessary
She wrote:
“Ordinarily, we would reverse and remand with directions to the trial court to assess in the first instance whether the Public Defender is available to represent Bemore, and if not, to appoint Sayasane and/or Cotterill. But after careful consideration we have determined that further proceedings are unnecessary because the Public Defender is disqualified from representing Bemore. By intervening as a real party in interest and asserting a position diametrically adverse to Bemore while maintaining he was a client, the Public Defender has breached its duty of loyalty. Consequently, the Public Defender is ‘unavailable’ for appointment within the meaning of section 987.2. We therefore grant Bemore’s petition, vacate the trial court’s order appointing the Public Defender as habeas counsel, and direct the trial court to appoint one or both of Bemore’s requested attorneys.”
Do said that Shamoon erred in placing the burden on Bemore, rather than the state, to show that the Public Defender’s Office was “unavailable.” Availability, she explained, connotes a readiness to proceed, pointing out:
“[I]t is essentially undisputed Sayasane and Cotterill would have a head start of more than a year and possibly two years over any attorney at the Public Defender in terms of preparing a successive petition for Bemore in a reasonably timely manner.”
‘Good Cause’
The jurist declared that there is a lack of substantial evidence supporting Shamoon’s determination that there is no “good cause” to appoint Cotterill and/or Sayasane, commenting:
“This is the rare and extraordinary case where Bemore’s motion overwhelmingly established an uncontradicted showing of good cause to appoint Sayasane or Cotterill based on ‘objective considerations’….Subjective considerations supported their appointment, too.”
Do went on to remark:
“In this highly unusual case, objective considerations supporting the appointment of Sayasane and Cotterill should have triggered a hearing by the trial court as to whether the Public Defender was unavailable in relative terms when compared to Sayasane and Cotterill….Our holding does not require trial courts to conduct a hearing to select counsel in all habeas proceedings where the right to counsel has been established….[T]he evidence of Sayasane and Cotterill’s prior representation of Bemore overwhelmingly established a showing of good cause to appoint one, or both of them, to represent Bemore if the Public Defender was unavailable. In most postconviction cases, by contrast, it will be readily apparent from a request for appointment of counsel that a hearing on the public defender’s availability is unwarranted. But that was not the case here.”
The opinion instructs that the Superior Court is to determine not only whether one of the two private lawyers or both are to be appointed but also “whether to compensate Sayasane and Cotterill nunc pro tunc for their work on the motion for appointment.”
The case is Bemore v. Superior Court (People), 2025 S.O.S. 384.
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