Court Again Voids Lawyer’s Jail Sentence : Public Defender Need Not Serve Day for Ignoring Judge’s Order

A one-day jail sentence imposed on a defense attorney who ignored a judge’s order to surrender evidence to prosecutors in a criminal case was voided for a second time by a state appellate court Tuesday.

Diana M. Polos, a deputy Orange County public defender, was exonerated by the 4th District Court of Appeal in Santa Ana in an opinion issued Tuesday.

“It is a defense counsel’s obligation to preserve the rights of the defendant, even at possible personal expense,” Polos said Tuesday. “I’m happy we prevailed in this case.”

Rejecting arguments by prosecutors that the decision ignores the rights of the people of California, the appellate court said it was bound by a controlling state Supreme Court decision.

While defending a man on trial for armed robbery, Polos called a defense investigator to testify. The investigator said the victim, who identified the defendant in the trial, had given a different description of her assailant in an earlier interview.

Prosecutors insisted that Polos turn over the notes the investigator took at the interview, citing a state law that provided for the disclosure. She refused, and Superior Court Judge James K. Turner held Polos in contempt and sentenced her to one day in jail.

“The Supreme Court recently determined that section (of the law providing for the disclosure) was unconstitutional because it violated the defendant’s privilege against self-incrimination under the California Constitution,” according to the appellate court decision, written by Justice John K. Trotter Jr.

“It is not this court’s place to question the pronouncements of our state Supreme Court,” Trotter wrote.

The high court decision last year held that criminal defendants have “an absolute, unqualified right to compel the state to investigate its own case.” Trotter found both cases “factually identical.”

The lone dissenter in the 6-1 opinion last year was Justice Malcolm Lucas, who noted that the U.S. Supreme Court has upheld similar laws in other states.

Lucas accused the majority of clinging to “outmoded constitutional concepts,” apparently “based on nothing more than a personal aversion to perceived increasing conservatism in the decisions of the United States Supreme Court.”

The Court of Appeal in Santa Ana had considered the Polos case once before, before the state Supreme Court ruling last year. At that time, it held the statute was constitutional but found that Polos could not be held in contempt for having made a “good faith” challenge to the law, according to Polos.

Polos said her client in the 1983 case pleaded guilty to a lesser offense after the jury could not reach a verdict.