Crime

Modesto defense attorney wants to continue law practice while behind bars

Stanislaus County Sheriff’s Office

Modesto defense attorney Frank Carson remained in a jail cell Monday, and he and his co-defendants are expected to make their first court appearance Tuesday. They’re accused in an alleged conspiracy surrounding the disappearance and death of Korey Kauffman.

A judge hasn’t had a chance to set a bail amount for Carson, who has been held without bail since his arrest Friday. Nor have prosecutors formally charged the defense attorney, but they are expected to do so Tuesday.

Yet attorneys were arguing in court Monday whether Carson can continue to practice law while in custody or out on bail.

Eight defendants were arrested Friday and accused of involvement in the 2012 death of Kauffman. The 26-year-old Turlock man’s body was found in Mariposa County a year and a half after he went missing.

Those charged with murder in Kauffman’s death – including Carson’s wife, two Turlock liquor store owners and a former California Highway Patrol officer – were being held without bail. Carson’s stepdaughter and two CHP officers now on administrative leave, each charged with criminal conspiracy and being an accessory, have been released on bail.

Attorney has 71 pending cases

Carson, a prominent criminal defense attorney, has a long list of clients with pending criminal cases in Stanislaus County. The attorney also takes on cases for clients prosecuted in neighboring counties, such as Merced and Tuolumne. In Stanislaus County, Carson is representing 69 adult clients in criminal cases and two non-adult clients.

Percy Martinez, Carson’s attorney, appeared in Stanislaus Superior Court with two of Carson’s clients Monday morning. Martinez told Judge Thomas Zeff that he wants to speak with Carson about his pending cases to see if the attorney wants to remove himself from those cases or continue representing his clients.

Carson was scheduled to be in Zeff’s courtroom Monday to begin a two-day preliminary hearing for Gabriel Miranda, who is accused of murder in the May 2012 shooting of Simon White, 24, in Turlock. At the conclusion of the hearing, the judge would decide whether Miranda should stand trial.

Martinez asked Zeff to schedule a pretrial hearing Wednesday morning, when they should know more about the progress of Carson’s own murder case. Martinez also said he could know by then whether Carson wants to remain on Miranda’s case.

Then, Martinez went to Judge Ricardo Córdova’s courtroom to appear with defendant Juan Manuel Tello. He is accused of murder in the death of Robert Ruvalcaba. Tello’s first trial ended in June with a hung jury. Tello, on Carson’s advice, has refused to waive his right to a speedy trial, so his second trial has to begin this week.

Martinez told Córdova that Carson has done all the preparation to begin Tello’s second trial this week and that he’s ready to go, despite being incarcerated. He told the judge that Carson still has access to his case files while in custody, but he didn’t say how.

Proceed with trial while in custody?

Martinez asked the judge to allow Carson to appear in court Tuesday, presumably in shackles and a jail inmate jumpsuit, to speak on behalf of his client, Tello.

“I would need to get Mr. Carson here before the court, so he can speak on the record,” Martinez told the judge.

Deputy District Attorney Wendell Emerson strongly objected to Martinez’s request, telling the judge it would be inappropriate to give Carson a platform to “say whatever he wants to say.” The prosecutor said it would be wrong to allow an attorney facing a murder charge to argue in court on behalf of a client scheduled begin his own murder trial.

Emerson argued that if a jury were to convict Tello with Carson representing him, an appellate court would overturn that verdict based on the “ineffective assistance of counsel.” The prosecutor said he knows of no other case where an attorney was allowed to defend a client in a murder trial while also facing a charge of murder in a separate case.

Martinez argued that Carson is Tello’s attorney and that Carson should be allowed to represent him. He said a bail review hearing for Carson possibly won’t happen before the end of week, so he asked the judge to allow Carson to appear in court on the Tello case while in custody.

Prosecutor wants Carson off the case

The prosecutor asked the judge to remove Carson and appoint a new attorney to represent Tello, which would provide the legal grounds to delay the trial. Emerson suggested the court has the authority to notify the State Bar, which could lead to a suspension of Carson’s license to practice law while awaiting prosecution.

Córdova told the prosecutor he is only required to inform the State Bar of an attorney’s criminal conviction and not any time before that.

Martinez argued that Carson has not been convicted and that the judge should not remove Carson from the case without letting him speak in court first. “This issue is going to be decided, but it’s not going to be decided today,” Martinez argued.

It’s not clear whether the State Bar could suspend Carson’s license if he continues to provide competent legal services for his clients.

Laura Ernde, a State Bar spokeswoman, said that in general a criminal conviction would be grounds for discipline, up to and including disbarment.

“In addition, State Bar prosecutors have the ability to assume jurisdiction over a law practice if an attorney is incapable of handling clients and there is no other attorney to step in,” Ernde said. “That would require a superior court order.”

When that happens, State Bar prosecutors also can ask the State Bar Court to have the attorney’s license enrolled involuntarily inactive, so that an attorney would be ineligible to practice law. Assuming jurisdiction over a law practice does not necessarily require a complaint by a client, Ernde said.

John Sims teaches professional responsibility courses at University of the Pacific's McGeorge School of Law in Sacramento. He says attorneys charged with a felony, a criminal complaint or an indictment, are required to report the felony charge to the State Bar within 30 days.

Then, State Bar disciplinary officials can look into the matter and decide whether any action is necessary, Sims said.

On Monday, Córdova seemed to be caught off-guard by the attorneys’ arguments, telling them he’s never had a situation like this before and needs to research the issue. He also asked the attorneys to conduct their own research and find the legal authority to support their arguments.

Córdova scheduled the attorneys in the Tello case to return to court Thursday, but he didn’t order jail officials to bring Carson. If Carson is no longer in custody, it’s presumed he could appear in Tello’s case and ask the court to allow him to continue with the trial.

Rosalio Ahumada: 209-578-2394, @ModBeeCourts

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