Prosecution Dealt Blow in Insurance Scam Trial : Courts: Judge rules that star witness won’t have to testify against her husband, accused with attorney of collecting $1 million from staged auto accidents.

Prosecutors suffered a serious setback Wednesday when a judge ruled that their star witness does not have to testify against her husband, who is a co-defendant in the county’s first prosecution of an attorney charged with auto insurance fraud.

Adriana Fernandez, 39, told Superior Judge Everett W. Dickey this week that she thought she was testifying against herself last July in a preliminary hearing and did not realize that her testimony could hurt her husband, Jose J. Toribio, in his upcoming criminal trial.

Wednesday, Dickey ruled that the Santa Ana woman did not know that she had a privilege to not testify against her husband and could invoke that privilege now--just as his trial is about to start in Orange County Superior Court.

Toribio, 37, of Santa Ana, and personal injury attorney Thomas F. Mullen, 45, of Costa Mesa are charged with conspiracy to commit insurance fraud, conspiracy to commit grand theft and nine counts of grand theft. They are accused of masterminding an alleged ring that staged bogus traffic collisions and collected an estimated $1 million in fraudulent insurance claims from the accidents.

In a plea bargain last July, Fernandez plead guilty in the case and was sent to prison.

In making his ruling Wednesday before the start of the Mullen and Toribio trial, the judge also chastised Deputy Dist. Atty. Kenneth O. Chinn, the prosecutor, for neglecting to formally discuss the waiver issue with Fernandez during their plea agreement in July.

“You’ve got to protect your record because you leave yourself exposed” to what happened, Dickey told Chinn.

Chinn had unsuccessfully argued Wednesday that by testifying in her husband’s preliminary hearing last July, Fernandez effectively waived her privilege.

Dickey will decide today if Fernandez’s testimony last July at the preliminary hearing of Toribio and Mullen will be admissible during their trial.

Mullen is the first personal injury attorney in Orange County to be prosecuted on insurance fraud charges, according to prosecutors.

In exchange for her testimony, Fernandez pleaded guilty to grand theft charges and was sentenced in July to two years in state prison. She was originally charged as a co-defendant with Mullen and Toribio, and had she been convicted with them she would have faced eight to nine years in state prison, Chinn said.

During the defendants’ preliminary hearing, Fernandez testified that in 1987, Toribio, an administrator at Mullen’s firm, sent clients who reportedly had been in traffic accidents to her therapy clinic in Santa Ana.

Toribio had asked her to bill the law firm at least $3,500 per client even if they did not receive physical therapy, Fernandez testified. Most of the clients did not show up for treatment, Fernandez said.

Fernandez and Toribio were married in July, 1987.

Tuesday, she told Dickey that she was never advised of her right to refuse to testify against her husband and that she now wanted to invoke that right.

Her attorney, Thomas A. Kroopf, told Dickey that he does not remember if he discussed the waiver with his client.

Chinn said that the judge’s ruling is a setback but that “we’re still prepared for our case.”

Douglas J. Myers, Toribio’s attorney, said that he is pleased with the ruling and hopes that “we can keep out her former testimony.”

Jury selection for the trial is scheduled to start Monday.