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Lawyer’s Health in Stalker Case May Force Mistrial

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Times Staff Writer

The defense attorney in the Night Stalker trial is suffering from “nervous exhaustion” and is “not presently capable of functioning as a trial attorney,” a San Jose physician declared in a letter Monday to Los Angeles Superior Court Judge Michael A. Tynan.

Daniel V. Hernandez’s condition raises the possibility of a mistrial, which would force the long-delayed trial of Richard Ramirez to re-commence with jury selection, perhaps with new, court-appointed lawyers.

According to the doctor’s letter, Hernandez, 44, needs four to six weeks of counseling and recuperation. The doctor, who was not identified in court, may be summoned to testify about Hernandez’s condition as early as Wednesday--the same day that Tynan has ordered Hernandez to come to court to discuss his health.

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Tynan ordered a second attorney, Arturo Hernandez, to appear on Wednesday as well. Arturo Hernandez, who is not related to Daniel Hernandez, is the second defense attorney of record in the case, but he has rarely appeared in court since jury selection began on July 21.

The prospect of a prolonged delay also caused prosecutor Phil Halpin, a Los Angeles deputy district attorney, to worry about the fading memories of witnesses. “It’s the same old concern,” he said.

Even if Daniel Hernandez is able to proceed in the near future, Halpin added, there is no guarantee that the defense attorney will not suffer relapses. Tynan has estimated that the trial, which began on Jan. 30, could take up to two years.

Outside the courtroom, Halpin said if a mistrial were necessary, he would prefer that it happen sooner than later, noting that there have been only 9 1/2 days of testimony so far.

The prospect of a prolonged delay--and possibly a mistrial--clearly made Tynan uneasy. “This is a novel experience,” the judge said. “I’m not exactly sure how to proceed.”

Then Tynan said he has “no choice” but to conduct a hearing to examine Hernandez’s health and to decide whether the lawyer is able to continue representing Ramirez. The judge left open the possibility of calling in independent medical experts to offer second opinions about Hernandez’s condition.

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“We’ll see what happens at that time,” Tynan told the jury and alternate jury. “These things must be thrashed out correctly.”

Then the judge, for the second straight week, sent the 12 jurors and 12 alternates home for the week.

If Tynan finds that Daniel Hernandez is unable to continue, and that Arturo Hernandez is not qualified or prepared to pick up the case, the judge could appoint, at public expense, private attorneys to represent Ramirez.

But it is not at all certain that Ramirez would go along, which may be a prerequisite before such a substitution can take place, according to Assistant Dist. Atty. Curt Livesay.

After Ramirez’s Aug. 31, 1985, arrest, Los Angeles County public defenders were appointed to represent him. But the suspect quickly had a falling out with them and demanded that he be allowed to retain private counsel.

Eventually, Daniel Hernandez and Arturo Hernandez were allowed by Los Angeles Municipal Judge Elva R. Soper to represent Ramirez. But it has never been fully disclosed what contractual arrangements the lawyers have with the defendant, other than the fact that they have separate contracts with Ramirez and with members of his family.

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Arturo Hernandez said last summer, while jury selection was under way, that he could no longer continue in the case for financial reasons.

Asked outside court on Monday whether Tynan could order Arturo Hernandez to resume participation in Ramirez’s defense, Halpin said it would not be an “effective remedy” because Arturo Hernandez has missed all the testimony so far and most of jury selection.

“We’re looking at a mistrial of some nature,” Halpin said. “We can’t keep this jury hanging around indefinitely.”

Neither of the defense attorneys could be reached Monday for comment.

Richard Salinas, a paralegal assisting in Ramirez’s defense, also declined on Monday to comment at length about the health of Daniel Hernandez, citing the attorney’s privacy.

But Salinas did say that Hernandez had been perspiring profusely during the last two weeks of testimony, a condition that he said Hernandez had attributed to the warm courtroom temperature.

Hernandez last appeared in court on Feb. 16. He first called in sick on Feb. 21.

According to the letter from Hernandez’s physician, which Tynan received on Monday morning by special delivery, the only abnormality found during a complete physical examination, which included an EKG, was a high blood-sugar level.

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In court, Hernandez has persistently sought more time to prepare for the case, but mostly to no avail.

Ramirez, who turns 29 today, is a drifter from El Paso, Tex. He is charged with 13 murders and 30 other felonies in a terrifying spree of night-time residential attacks in 1984-85. If convicted, he could receive the death penalty.

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