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At the Lectern

Supreme Court affirms death penalty despite misgivings about defense counsel’s ethics

April 2, 2020

A unanimous Supreme Court today affirms the death sentence in People v. Fayed for the defendant’s paying to have his wife murdered.  The court’s opinion by Justice Ming Chin rejects numerous claims for reversal, but the decision is most notable for its discussion of a unique attorney ethics issue.

After the trial, a prosecutor who put the defendant on death row joined the law firm representing the defendant.  The court asked for briefing — and raised questions at oral argument — about whether the attorney’s move violated any laws, including Business and Professions Code section 6131, which provides for misdemeanor liability and mandatory disbarment in certain situations where an attorney acts both in the prosecution and the defense of a case.  (See here, here, here, here, here, and the oral argument video at 5:22:00.)

The ethics issue is complicated by defendant’s assertion on appeal that the prosecutor committed misconduct during closing argument, a claim the court finds valid, although also concluding the misconduct was harmless.

The court said the information before it was not enough to prevent deciding the appeal.  It nonetheless called the prosecutor’s change of sides “troubling” and an event that “gives us great pause.”  The court stated, “We underscore that our resolution of defendant’s appellate claims in this case does not in any way endorse or sanction this posttrial partnership.”

The court also suggested that, because “relevant facts relating to any conflict of interest issue are not part of the record,” the defendant could raise the issue with a fuller record in a later habeas corpus petition.  (Note:  different counsel — the California Appellate Project — filed a habeas petition last month.)  Additionally, although not mentioned, the opinion doesn’t seem to foreclose any criminal or State Bar investigation of the relevant facts.

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