D.A. Comes to the Defense of Defense 5 Years After Murder-Case Conviction

In a role reversal seldom seen in an Orange County courtroom, Deputy Dist. Atty. John D. Conley found himself defending an attorney Wednesday who was his adversary in a murder trial five years ago. And he had to call on another longtime courtroom opponent to help him do it.

It was the latest twist in a 15-year-old Santa Ana murder case that went unsolved for nearly nine years.

Thomas E. Fox, 39, found guilty of first-degree murder in a 1972 killing, claimed that his conviction should be overturned because his lawyer at his 1982 trial, Gary L. Proctor, had given him an inadequate defense. But Conley, who prosecuted Fox, vigorously defended Proctor at a recent hearing before Superior Court Judge Francisco P. Briseno. Conley called as his expert witness Ronald G. Brower, a leading Orange County defense attorney who spends most of his time at odds with the district attorney’s office. Briseno on Wednesday found no incompetence by Proctor. He was critical of one of Proctor’s tactical decisions in handling the case but added:

“The question is whether it could have made a difference in the outcome of the case,” Briseno said. “In fact, I know that it could not.”

Ivan J. (Lash) Wallace, 27, was shot twice in the head with a pistol at his Santa Ana home on Aug. 20, 1972. Police had few leads except that Wallace was a member of the Hessians motorcycle gang.

The case went unsolved until March, 1981, when Fox’s ex-wife, in a child custody dispute, claimed that her former husband, then living in Eugene, Ore., had killed Wallace.

Conley said prosecutors were dubious until she got on the telephone with Fox as investigators listened in. Fox told her that “if you keep your mouth shut, I could skate on this.”

Fox admitted the shooting at his trial but said it was an accident.

He was convicted in March, 1982, and sentenced to 25 years to life in prison. His appeal was turned down by the 4th District Court of Appeal. But the appellate court did agree to return Fox to Orange County for a hearing on whether Proctor had provided an adequate defense.

Joel W. Baruch, Fox’s lawyer, argued that Proctor had failed to independently investigate the prosecution’s physical evidence, had not done enough to examine Wallace’s background and should have fought to block Phyllis Fox’s testimony.

Proctor testified that he made tactical decisions in an attempt to downplay some of the more damaging evidence against Fox.

Brower, who is a friend of Proctor and shares office space with him, testified that Proctor had used acceptable defense tactics.

Baruch told the court that he already has been criticized for accusing a fellow defense attorney of incompetence. He added that he recognized that Proctor is highly respected in Orange County’s legal community.

“But he didn’t do his homework in this case, and he got caught,” Baruch argued.

Conley said he decided to call his own expert witness after learning that Baruch was going to call on two lawyers to say Proctor’s work on the Fox case was substandard.

Conley couldn’t help but smile at the turn of events.

“It’s the first time I can recall when our office needed a criminal attorney,” Conley said. “But when we needed one, I decided to get the best.”

Defense lawyers seldom testify as experts for the prosecution, Conley said, because such cases usually go back to the trial judge, who already is familiar with the facts. But Briseno did not preside at Fox’s trial.

Proctor was unavailable for comment Wednesday, but Brower blasted Fox’s contention as “spurious and unfounded.”

“Gary is one of 19 attorneys on the judges’ panel of lawyers who can be appointed to capital cases; I think that says something for him,” Brower said. “He’s one of the most respected lawyers in this county.”