Judge Charges Public Defender : Contempt Case Turns on Courtroom Mix-Up

Times Staff Writer

After a police officer identified the wrong man at a hearing in a drug-sales case Tuesday, a judge found the defense attorney in contempt of court for failing to reveal that the man brought from jail to face the charge was not his client.

Municipal Judge James M. Brooks found Deputy Public Defender Leroy A. Towne guilty of contempt of court. He imposed a sentence of five days in jail or a $500 fine but granted a delay until Friday to allow Towne time to appeal.

Public Defender Ronald Y. Butler said that his deputy was not guilty and that his office will appeal. Other than to confirm the contempt finding and the sentence, Towne, a 22-year veteran of the public defender's office, declined comment.

The incident occurred at a preliminary hearing in the felony cocaine-sales case of a man named Alfredo Gutierrez, according to Towne's supervisor, Deputy Public Defender Anthony Charles Kies. The mistake was discovered only after a Santa Ana police officer testified that he recognized the man as the defendant.

Neither Gutierrez nor the man who mistakenly was brought to court in his place could speak English, Kies said. The need for a translator added to the confusion, Kies added.

In a hearing late Tuesday at which Butler's office sought and received permission to withdraw from the Gutierrez case, Brooks said his decision to hold Towne in contempt of court was a reluctant one.

"The court reluctantly found him in contempt, not because of him--he's a fine man--but because what transpired should not have happened in a court of law," Brooks said from the bench. He declined to comment on the case.

Kies said Brooks did not ask for any explanation from Towne before the contempt ruling was issued.

'Point of Contention'

It is not clear when Towne realized that the wrong man had been brought to court. Asked whether Towne may have delayed revealing the mistake until after the police officer testified, Kies said: "That's going to be a point of contention. The court found Mr. Towne in contempt before he asked Mr. Towne anything."

Pressed on whether Towne waited for the erroneous identification before revealing the mistake, Kies said: "That is a logical way of looking at it, but there could be other logical ways of looking at it."

One reason why the public defender's office should be relieved of responsibility in the Gutierrez case is that Towne now might have to testify, Kies told Brooks.

"Mr. Towne would be put in the position of being a witness to the substantially erroneous identification of the police officer," Kies said.

The public defender's office has no authority or responsibility for transporting prisoners from the County Jail to courtrooms. Kies said, "The bailiff brought the wrong man."

Mistaken identity cases are "quite rare," according to County Marshal James C. Byham, whose deputies serve as bailiffs in Municipal Court. Byham said he had not received a report on the Gutierrez incident.

Identified by Bracelet

"Normally they (prisoners) have a bracelet on. If he had the wrong bracelet on or switched the bracelet--particularly when he's not English-speaking--we might not pick up on that,' Byham said. .

Custody of prisoners changes at the courthouse door from sheriff's deputies, who run the jail, to bailiffs, Byham said.

Late Tuesday afternoon, Brooks appointed a private attorney to represent Gutierrez. The judge found that since Gutierrez had not been present before the preliminary hearing was interrupted, his rights had not been "transgressed."

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