‘Defense Attorneys Under Siege’ : Stinging Debate Triggered By Indictment of Lawyer

The term “adversaries” has taken on a new and bitter meaning in the traditional battle between federal prosecutors and criminal defense attorneys practicing in the U.S. District Court in San Diego.

In recent weeks, defense attorneys have been fuming over the decision by U.S. Atty. Peter K. Nunez to indict and prosecute local attorney James Warner. Barry Tarlow, Warner’s attorney, said Warner was indicted for telling a grand jury witness to plead the Fifth Amendment and to seek legal counsel.

Tarlow said that Warner’s advice to the witness was proper and legal. Nunez and federal prosecutors argued that Warner encouraged the witness to lie to impede a government investigation of a drug ring.

Although Warner was acquitted in a trial, his case has opened old wounds in the local defense bar and led to new allegations by lawyers of prosecutorial abuse and vindictive prosecution. The animosity between the local defense bar and Nunez goes back to April, 1983, when his office conducted a search of the office and home of San Diego attorney Phil DeMassa.

A federal judge later said the search was not unreasonable but he ruled it unconstitutional because the government’s search warrants failed to specify what materials should have been seized. Since the search of DeMassa’s office, defense lawyers have also complained of:

- Nunez’s decision to prosecute local attorney Frank Prantil on perjury charges. Prantil’s conviction was reversed by the U.S. 9th Circuit Court of Appeals one day before Warner’s acquittal. The appellate court said the prosecutor’s behavior at the trial prejudiced Prantil’s right to a fair trial.

- The indictments by federal prosecutors last month of 98 people, most of them North County residents, on drug charges. At a press conference announcing the indictments, Nunez said the defendants were part of a massive drug ring responsible for smuggling as much as 25% of all the cocaine used in the United States. Federal officials later admitted that the amount of cocaine smuggled by the ring was nowhere near the amount originally announced. This prompted allegations by defense lawyers that Nunez sensationalized the case, thereby prejudicing the defendants’ chances of getting a fair trial.

- The use in Warner’s prosecution of an informant who had acted as a potential client seeking legal advice. Tarlow said Warner was “targeted” by federal prosecutors, who equipped the informant with a microphone and instructed him to try to “lure” Warner into breaking the law. Government officials “created the crime” with the use of the informant and then charged Warner, Tarlow said.

Nunez said the indictment of Warner unleashed a barrage of protest letters from criminal defense lawyers nationwide. In addition, the judge who presided at Warner’s trial received about 20 advisory briefs in support of Warner from lawyers and lawyers’ groups from around the country.

San Diego attorney Michael Pancer said Warner’s indictment is part of “a national trend to get lawyers.” Pancer’s position is echoed by Edward F. Marek, the federal public defender in Cleveland, who said in a telephone interview that “defense attorneys are under siege by federal prosecutors.”

Nunez denied that his office or the Justice Department has initiated a policy of targeting lawyers. Instead, Nunez charged that the defense bar is looking for preferential treatment for lawyers who violate the law.

“What I see from them is a nationwide campaign to make defense lawyers immune from criminal prosecution, and that isn’t going to happen,” Nunez said. “Then there are lawyers who take the position that this is personal, that the government is out to get them. That is absolute nonsense. An honest and ethical lawyer has no more to fear than an honest and ethical citizen.”

In an interview at his downtown office, Nunez was just as critical of the defense bar as some lawyers were of his office. Defense attorneys, he said, are motivated by profit. Unlike the government, defense lawyers “have no obligation to make sure the guilty are convicted,” Nunez said.

“Lawyers that are in private practice are there to make money. They are not altruistic. They are generally not there to do good for society. If they wanted to do that they would be prosecutors, doing good for society,” Nunez said.

It is Nunez’s view of the criminal justice system, and particularly his view of the role played by defense lawyers, that prompted Warner’s indictment, Tarlow said. Warner previously had represented several defendants in a major drug- and gun-smuggling ring that was uncovered by federal investigators.

In interviews with The Times, Warner and several other lawyers charged that Warner’s prosecution stemmed from his success in defending accused drug dealers. Warner’s indictment, they say, was nothing less than vindictive prosecution.

“I got restraining orders removed that the government had obtained against some properties seized in a drug investigation and we sold the properties. I honestly think that’s why the government targeted me and indicted me,” Warner said. “The government did not like the fact that I was representing people they considered big dope dealers.”

That opinion was echoed by American Bar Assn. official Tom Smith in Washington, D.C. Smith said that some defense attorneys are now being targeted by federal prosecutors because of the type of clients represented by some attorneys.

For the government to establish its case against Warner, prosecutors wired a government informant who was a potential defendant in the drug case and who sought legal advice from Warner. The meetings between Warner and the informant, Point Loma real estate agent Frank Trent, also included two defendants in the case who later pleaded guilty to charges that they encouraged Trent to lie to prosecutors.

Frank Vecchione, a San Diego criminal defense lawyer, said that Warner’s indictment has made him and other attorneys unduly cautious when dealing with a client.

“Most of us saw Warner’s indictment as a message to defense lawyers. Now when you sit down with a client you have to be careful not so much about what you say but how you say it. And some nagging questions have arisen. Is the client an informant? Is he or she wired?” Vecchione said.

Vecchione’s remarks were a reference to transcripts of the taped meetings between Warner and Trent that federal prosecutors submitted at the trial. Warner and his defense lawyers complained that the transcripts contained several errors. Most of the errors were minor, but some were significant, Warner said.

Warner and his attorneys said that on two occasions he is overheard on the tapes urging Trent to tell the truth if called to testify before the grand jury. These remarks and others were excluded from the government’s transcripts.

Assistant U.S. Atty. Edward Weiner said that both sides worked on correcting “unintelligible” parts of the recordings. Weiner said that the government’s 75 pages of transcripts “did not include” those comments because “that simply was not heard on the tapes.” Both versions were made available to the judge, but it is not known which version was accepted by the judge because the transcripts were not entered as evidence, only the tapes.

Warner’s trial is only the latest issue to increase tension between criminal defense attorneys and the U.S. attorney’s office. Prantil’s perjury indictment stemmed in part from testimony he gave to a federal grand jury about his knowledge of the whereabouts of a fugitive wanted on federal drug charges. While a fugitive, the man hired Prantil to represent his wife and son, who were also charged with violating federal drug laws.

In reversing Prantil’s conviction, the 9th Circuit Court criticized Assistant U.S. Atty. Charles Gorder for prosecutorial misconduct and took the unusual step of naming him in the 23-page decision.

Gorder was criticized for refusing to excuse himself from the case after it had become apparent that he should have been a defense witness for Prantil. The court said Gorder had become a witness by negotiating directly with Prantil for the fugitive’s surrender. And in his closing argument to the jury, Gorder called Prantil “sleazy” and “dishonest,” remarks called “improper” by the court and which the justices said “materially affected the verdict.”

Local attorneys say the 9th Circuit’s reversal of Prantil’s conviction was a warning to some prosecutors in Nunez’s office. These prosecutors, say the attorneys, are motivated not so much by seeing justice done, but by personal considerations.

“This is not to say that everybody over there is a bad person. There are a lot of good people in that office, but occasionally some of them pull stunts they later regret,” said San Diego attorney Charles Sevilla. “But the 9th Circuit was sending a message to the office that they aren’t going to tolerate that type of personal animosity in the courtroom. It demeans the process and detracts from the jury’s obligation to give the defendant a fair trial.”

Nunez rejected the idea there was any message to his office in the decision. He suggested that if there was a message, it was to U.S. District Judge Gordon Thompson, who heard the case.

“The court of appeal reversed because they said Gorder should have been a witness,” Nunez said. “The trial judge made a mistake by not throwing Gorder out so he could testify for the defense.”

In a telephone interview from his Los Angeles office, Tarlow said that Nunez’s remarks show that he is unwilling to assume responsibility for his prosecutors’ mistakes. Tarlow, who is also representing DeMassa, charged that Nunez’s office is “totally out of control.” DeMassa is under two indictments for his alleged role in a drug conspiracy involving the “Coronado Company.”

“The prosecutors over there are undeterred by their ethical obligations and constitutional restraints. Their attitude is that the ends justify the means, no matter how illegal or unethical they may be,” Tarlow said. “When you send in wired people into a lawyer’s office, there’s something morally wrong with that. What about the lawyer-client relationship?”

Tarlow said that he has seen conduct in Nunez’s office that is “dishonest, unprofessional and unethical.”

As an example, Tarlow referred to the Coronado Company case. According to documents filed in the case, Robert Lahodny, who is a drug defendant represented by Tarlow, was approached by Assistant U.S. Atty. Douglas Hendricks, who urged Lahodny to plead guilty and become an informant. Tarlow charged that Hendricks violated the bar’s canon of ethics by talking to Lahodny without clearing it with Tarlow.

In a telephone interview from a federal prison in Lompoc, Lahodny said he was also encouraged by other federal officials to fire Tarlow and get another attorney. Lahodny refused, and in an affidavit filed in federal court, Lahodny said Hendricks suggested a meeting in the law office of San Diego attorney Kevin McInerney to discuss Lahodny’s case.

McInerney was representing Louis Villar at the time. Villar, who was a leader in the Coronado Company, agreed to become a government informant and avoided going to jail.

Hendricks, who is now an assistant U.S. attorney in Sacramento, declined to discuss the incident but said he did not do anything unethical. McInerney, in a sworn statement, said he met with Lahodny in his office on Oct. 4, 1982, and telephoned Hendricks so the prosecutor could talk to Lahodny.

McInerney said he volunteered to act as Lahodny’s attorney while he talked to Hendricks on the telephone. In an affidavit filed with the court, McInerney said he charged Lahodny $1 for representing him at the meeting. “During the meeting, Lahodny conveyed no information to the government,” McInerney said.

Nunez vigorously denied all allegations of impropriety by his office and labeled as “nonsense” allegations that his office has targeted defense lawyers. He said that of the 27 attorneys prosecuted by his office since 1981, only Prantil and Warner are defense attorneys.

If Warner’s indictment sent a message to the defense bar, it was only a “consequence” of the prosecution, Nunez said. “I find it difficult to believe that there are criminal defense lawyers in this town who are not going to practice law today just like they did a year ago or 10 years ago. If they were honest then, they are going to be honest now. The Warner case will not affect honest criminal lawyers in any way, shape or form,” Nunez said.