S.D. Lawyer Is Focus of Case Before U.S. Supreme Court on Right to Choose Attorney

Mark Erick Wheat was on the verge of panic in the late summer of 1985.

It was a feeling that had been growing since the previous December, when he was indicted in a case that eventually involved more than a dozen defendants charged with participating in a large-scale marijuana distribution scheme.

Wheat, also known as Mark Chum, had stored at least 12 tons of marijuana in the garage of his home on South Citrus Street in Escondido for nearly three years beginning in 1981, federal prosecutors alleged.

With his trial less than a week away, Wheat, then 32, faced the imminent possibility of a long prison term and substantial fine.

As he sat in the office of his lawyer, David Semco, a glimmer of hope began to emerge. There was another lawyer in town, Eugene Iredale, who had recently beaten the same federal prosecutors at a jury trial in a related case. The government’s key witness in that case was scheduled to be the key witness against Wheat. Iredale also had arranged a favorable plea bargain for a second defendant charged in the scheme.

Might Have Chance if Right Lawyer Hired

If they could hire Iredale, who already knew so much about the case and the key witness, Wheat might have a chance, they concluded.

Iredale, they learned, was free for the next two weeks and, after a daylong session in his office, agreed to take the case.

But, as things turned out, it was not that simple.

When prosecutors learned that Iredale was planning to represent Wheat, they filed a strong objection with U.S. District Judge Lawrence J. Irving, arguing that Iredale would have a conflict of interest if he were allowed to represent yet another defendant in the alleged conspiracy. Irving agreed and barred Iredale from the case.

Now, more than two years later, the U.S. Supreme Court is set to hear oral arguments on whether Wheat had the right to hire the lawyer of his choice. Convicted and sentenced to 10 years in prison, Wheat is free on bond while he awaits the court’s decision.

It has been long settled by the courts that a judge can bar a particular lawyer from a case if it is clear that a conflict of interest exists. But federal courts around the country have issued conflicting opinions on whether a defendant, made aware of a potential conflict, should be allowed to waive his right to a conflict-free attorney.

In the complex Wheat case, however, defense lawyers say prosecutors raised the conflict-of-interest objection to mask their true intention. They say prosecutors “manufactured” the objection because they did not want to face a top defense attorney who had already beaten them once.

“It’s the ‘Too Good Lawyer’ objection,” said John Cleary, a San Diego attorney who will argue the case before the Supreme Court in early March. “The prosecutors knew they were outclassed and outgunned.”

In his brief to the Supreme Court, Cleary contended that any potential conflict of interest was “speculative” at best, and that prosecutors had created the alleged conflict “to avoid facing the attorney who bested him in a prior jury trial with a co-defendant.” Cleary called the prosecutor’s objection “disingenuous” and said a prosecutor “should not be given near plenary control over who is to be his opposing advocate.”

“In the absence of a clearly proven actual conflict, a criminal defendant is entitled to select counsel of his choice,” Cleary said.

Prosecutors, however, argued that the possibility of conflicting interests was quite real and Iredale’s continued involvement tainted the case.

In its brief filed with the Supreme Court, the Justice Department argued that the Sixth Amendment, while guaranteeing defendants the right to counsel, does not guarantee a defendant “the right to the services of a particular lawyer.”

Even though Wheat may have been willing to waive his right to a conflict-free lawyer, “he cannot waive the independent public interest in the fairness of criminal trials and the integrity of the legal profession,” the Justice Department said.

The alleged conflict of interest involved two defendants. One was Juvenal Gomez-Barajas, who was acquitted of the drug conspiracy charges at a jury trial during which he was represented by Iredale and later pleaded guilty to an income tax charge.

The other was Javier Bravo. The week before Wheat’s trial was scheduled to begin, Iredale appeared before Judge Irving with Bravo, who pleaded guilty to a conspiracy charge. In exchange for the plea, prosecutors offered to recommend probation and no more than 30 days in jail.

At the end of that proceeding, which occurred on a Thursday afternoon, Iredale notified Irving that he intended to represent Wheat at his trial set to begin the following Tuesday.

But Michael Lasater, the assistant U.S. attorney on all three cases, objected. Lasater conceded that the government had no plans to call Bravo as a witness at Wheat’s trial, but said that it was “always a potential.”

As for Gomez-Barajas, he had not yet been sentenced on the income tax charges, Lasater said, adding that he could still withdraw his plea and request a trial.

Iredale responded that such a change of heart was highly unlikely and that none of the three defendants had any objection to his involvement in all three cases.

‘I See No Conflict’

“Frankly, I see no conflict,” Iredale said. “Mr. Wheat wants me to represent him. Mr. Gomez has no objection. His case is resolved and I don’t even think Mr. Lasater’s hope of resurrecting it constitutes any possibility,” he said.

“And Mr. Bravo has indicated to me that he has never met Mr. Wheat, doesn’t know Mr. Wheat from Adam, and even if the government wanted to call him, he could not implicate Mr. Wheat in any way,” Iredale said.

“I would hope the government would not be engineering conflicts to try to get their selection of counsel for the case,” he added. He suggested that Lasater was trying to “shop” for the defense attorney of his choice.

The following Monday, the lawyers appeared before Irving again to try to settle the matter. That, according to Iredale, is when Lasater approached him with a new offer for Bravo: if he would testify against Wheat, the government would drop its request that he spend 30 days in jail and would recommend straight probation.

“If you’re playing chess and you’re the government, this is a beautiful move,” Iredale said. This development seemed to put his clients directly at odds, he said.

Bravo accepted that offer and eventually testified at Wheat’s trial, but even so there was no conflict, Iredale said, because Bravo knew nothing that could harm Wheat’s case.

Lasater said he could not comment on the case, but during court proceedings he denied that he was “trying to choose counsel” for the defendant . He said the government believed Iredale had “a very heavy conflict in the case” and should not be permitted to represent Wheat.

‘Very Tough Decision’

Irving conceded that the dilemma presented him with a “very tough decision.”

“Were I in (Wheat’s) position, I’m sure I would want Mr. Iredale representing me, too,” Irving said. “He did a fantastic job in that (Gomez-Barajas’) trial and I’m sure Mr. Wheat would like to have him representing him.”

However, Irving said, based on the representations of the prosecutors, “the court really has no choice at this point other than to find that an irreconcilable conflict of interest exists.” The Justice Department would later argue that Bravo had indeed been expected to testify against Wheat. And, even though Gomez-Barajas had been acquitted of the conspiracy charge, the department contended that he had been Wheat’s superior in the marijuana conspiracy.

In a decision handed down last April, the 9th Circuit Court of Appeals agreed with Irving and the Justice Department, saying that Iredale’s defense of Wheat would “very likely” have created a conflict of interest.

In the end, Iredale said, the government’s case against Wheat was founded largely on the testimony of Victor Vidal, a middleman in the marijuana conspiracy who agreed to cooperate with the government.

“What really is the tragedy in this case is that the government was able to manipulate a situation to get rid of a lawyer to whom nobody objected except the government,” Iredale said.

Tough Adversary

Cleary, former head of the Federal Defenders Office in San Diego, says that Iredale has a long history of tweaking the government. It was Cleary who gave Iredale his first job when he graduated from Harvard Law School in 1976.

Iredale arrived in San Diego at a time when defense attorneys were simply expected to lose, Cleary said. “The only thing you could do was lose with dignity and grace,” Cleary said. Iredale remained in the Federal Defender’s Office for 6 1/2 years, earning a reputation as a tough adversary.

“I hired him because he was extremely bright,” Cleary said. “Today he is probably one of the best trial lawyers in San Diego.”

Cleary describes Iredale as aggressive and imaginative and says he regularly “goes for the jugular.”

Like thousands before him, Iredale arrived in San Diego one day and decided to stay.

“When I left Boston to have an interview here with Cleary, there was a foot of snow,” Iredale recalled. “When I stepped off the plane in San Diego, it was 75 degrees and a gentle breeze was kissing the palm trees.

“I had a religious experience. It was like a bolt of lightning, a vision. I said, ‘This is where God wants me to serve his poor.’ ”

Iredale, 36, generally admires prosecutors in the U.S. attorney’s office here, and is ambivalent about criticizing prosecutor Lasater.

“As a human being, you could not hope to meet a nicer, more decent person,” Iredale said. “He is pleasant and he is above board. But what he did in this matter as a tactician was very tricky, was very cute. It deprived a defendant of his constitutional rights.”

“It’s the difference between personality and policy,” he said. “Some prosecutors are unpleasant people. They’re adversarial in the extreme. They are hard to deal with. They are rude. But this prosecutor is a joy to deal with.

“But regardless of how decent he is as a human being, as a representative of the government, it’s just wrong.”

A decision in the case is expected sometime late this year.