Murder Case in S.D. Tests Cost Disclosure Law
Joselito Cinco shot and killed two San Diego police officers in 1984. Sentenced to die for their murders, Cinco hanged himself in his San Quentin prison cell in December.
Cinco’s death made his one of the first capital convictions in California to become final since the Legislature restored the death penalty in 1977. And it’s precisely because it is final that Cinco’s case, perversely, is not yet over.
Seven months after Cinco’s death and five years after his murders, the cost of Cinco’s legal defense--reportedly approaching a million dollars--remains a secret, even though the bill was paid entirely by the public.
First of Its Kind
At a hearing today, prosecutors will ask San Diego Superior Court Judge Charles R. Hayes to make that information public, setting up what appears to be a first-of-its-kind issue pitting the public’s right to know how its money is spent in death penalty cases against a lawyer’s long-recognized right to preserve confidences.
Defense attorneys see the move by prosecutors as a way to make the enormous cost of legal defense in such cases into a political issue. They also believe prosecutors are seeking a tactical advantage because the district attorney’s office wants the documentation for the legal expenses and the transcripts of closed hearings at which defense attorneys explained their need to spend the money.
Hayes must interpret a state law that applies solely to capital cases and sets forth a process by which a lawyer asks a judge for public funds to pay for “investigators, experts and others” who the lawyer feels would be helpful in preparing a defense.
Although the law keeps secret not only any hearings the judge and lawyer may hold on the request but also the application itself, Deputy Dist. Atty. Howard H. Shore has told Hayes in legal briefs that prosecutors believe that secrecy should end when the case ends.
The law itself does not say whether it should or should not.
More Than Figures Sought
Cinco’s defense attorney, John G. Cotsirilos of San Diego, said in his court filings that he opposes the prosecution’s request because it asks not only for dollar figures but for what was said at the private hearings he had with judges concerning those costs.
To divulge those conversations would mean revealing legal theories and strategy, especially those unique to capital cases, and the law traditionally has protected that information, even beyond the close of an individual case, Cotsirilos said.
Even in non-capital cases, defense attorneys can apply and receive funds in confidence, Cotsirilos said. Although at a case’s end it is not unknown for county auditors to divulge the lump sum spent for a criminal defense, the application for funds and any discussions with the disbursing official have always been confidential, he said.
“This would be like us saying, now that the case is over, we’d like to go over to the district attorney’s office and find out what discussions they had that led to them hiring a certain expert,” Cotsirilos said in a phone interview last Friday. “They’d scream, ‘That’s privileged.’ Believe me, there were a lot of experts they called in the course of pretrial proceedings. I would like to know their justification for calling them and what moneys were paid to them.”
Further, prosecutors see the chance to gain a tactical advantage, defense attorneys believe. By finding out how defense lawyers go about allocating resources in a capital case, prosecutors will be able to prepare for murder cases more effectively, thereby perhaps securing more convictions, Cotsirilos said.
But what prosecutors really want to do is score political points, many defense attorneys believe.
“I believe the reason the defense bar doesn’t want the information released is that the amounts of money you’re talking about are very, very high,” said a leading San Diego-area defense attorney who asked to remain unnamed. “I think as well that clearly the defense bar is concerned about protecting a client’s rights.”
Cotsirilos said in an interview that what prosecutors want is “to have some say in how these cases are funded. That’s not the rule.”
The San Diego Union and the Tribune newspapers have filed a joint friend-of-the-court brief backing prosecutors. “There can be no legitimate reason to deny the public access to the court records,” the newspapers said in their papers.
Two groups of defense lawyers, meanwhile, filed their own lengthy friend-of-the-court brief spelling out five reasons why the records should remain secret, foremost among them the protection of defense-side “trade secrets.”
“Everybody in this town who practices criminal defense knows (a capital defense case) is a mutual effort,” said Lewis A. Wenzell, who wrote the brief on behalf of the Criminal Defense Lawyers Club of San Diego and the Criminal Defense Bar Assn., groups of about 70 and 200 attorneys, respectively.
“It involves half a dozen to 10 attorneys in town who do that kind of work, other than the public defender’s office,” Wenzell said. “So, if the prosecutor gets one lawyer’s work product, he’s got them all. And then he knows what the general defense of capital cases in this county is. They don’t give a damn about money. They want to know the trade secrets about defending capital cases in San Diego County. . . .”
“It’s inconceivable to me that a district attorney could find out from a private attorney what he spent his money on. Obviously, to the extent public money is being spent, the public has the right to know how much money is being spent. But what it’s being spent for is absolutely irrelevant, as a matter of specifics. The bottom line is I think the public is entitled to know that the ticket to the acid pill is an ‘E’ ride, and it’s going to cost millions of dollars.”
In addition to the groups of local defense attorneys, a statewide association of 2,000 defense lawyers, California Attorneys for Criminal Justice, filed its own friend-of-the-court brief Monday telling Hayes he lacks authority to make the records public.
Shore, the deputy district attorney, accused the defense groups, in reply papers he filed Monday, of engaging in “Orwellian paranoia.” He said Monday, “I just don’t feel that what they’re saying even comes close to outweighing the compelling public interest in scrutinizing these expenditures.”
Prosecutors are not willing to settle for just the figures themselves and none of the records behind them, Shore said.
The public defender’s office put the cost of Cinco’s defense at $962,338, according to a May report in the Tribune when prosecutors filed their disclosure request. Elliot G. Lande, head of San Diego County’s Indigent Defense Conflicts Administration, the unit that supervises payments to attorneys representing indigent defendants, said Monday that he would not confirm that figure.
Cotsirilos said he did not know whether that figure is correct, and did not know whether that number is an aggregate total that also includes his fees. He was paid $70 an hour but has not determined how much time he has spent on the case, he said.
Two Officers Killed
Cinco was convicted and sentenced to die in June, 1988, for killing two police officers in Balboa Park.
The shootings took place on Sept. 14, 1984. Officer Kimberly Tonahill, 24, was shot four times and died at the scene when a bullet pierced her heart and a lung. She was the first San Diego policewoman to die in the line of duty. Officer Timothy Ruopp, 31, was mortally wounded by a bullet that entered above his right eye and exited the back of his head.
Because of extensive publicity, the trial was moved to Orange County, where a jury found that the killings were multiple and occurred when Cinco and another man tried to avoid misdemeanor citations for providing liquor to two teen-age girls.
Cinco arrived on San Quentin’s Death Row last July. He was 29 when he was found dead on Dec. 28, having hanged himself with a sock in his cell, prison officials said.
The state law that his death has put into question was enacted in 1977 along with the revised death penalty statute.
The law plainly says that the application, any hearings and any rulings are to be secret. The reason for the secrecy, the California Supreme Court said in discussing the law in a 1987 case, is to keep prosecutors from anticipating defense tactics.
However, the law does not say whether the secrecy is temporary or permanent.
Its only reference to the close of a case provides that a defense lawyer must provide an accounting to the judge of money disbursed “at the termination of proceedings.” The accounting in Cinco’s case is under review, Cotsirilos said in his briefs.