Lawyers’ Affair Didn’t Taint Trial, Court Says : Law: Justices reject defendant’s claim that prosecutor and defense counsel had a conflict of interest because of their past relationship and a paternity dispute.

A fleeting romance and bitter paternity dispute between a prosecutor and defense attorney did not deny a murder defendant a fair trial, a state Court of Appeal held Friday.

The panel, ruling in a case that sometimes resembled a steamy television drama, said a previous sexual relationship between two opposing lawyers did not establish a conflict of interest that harmed the defendant.

Nor, said the court, did any ill will between the two hurt the defendant.

“Counsel often are hostile to one another and such hostility is more appropriately viewed as an alignment, rather than a conflict, of interest with the interest of the client,” the justices said.

The court voted 3 to 0 to affirm the conviction of Thomas John Marston, 31, a Willits millworker, for the murders of two people in an abortive marijuana deal in 1985.

Marston’s lawyer on appeal, Richard L. Huff of Ukiah, said he will seek a rehearing before the appellate court and, if that fails, take the case to the state Supreme Court. “It is outrageous that any court would uphold a conviction with the conflict of interest present in this case,” Huff said. “This really bothers me.”

Marston had sought a reversal on grounds that he was unknowingly caught in the cross-fire of a feud between his trial attorney, Richard J. Petersen, and the prosecutor, former Mendocino County Dist. Atty. Vivian L. Rackauckas.

Marston said that Rackauckas had a sexual relationship with Petersen before Marston’s trial, later claimed that Petersen was the father of her child, and threatened during the trial to bring a paternity suit against Petersen.

Rackauckas harassed Petersen by having the child send “Dear Daddy” greetings on various holidays, Marston said. In 1988, Rackauckas obtained a court order requiring Petersen to pay $765 a month in support for a son born in 1980.

Petersen signed a declaration saying that the charges of a sexual liaison and paternity dispute were true. Rackauckas acknowledged a love affair but said the relationship had ended well before Marston’s trial. She denied threatening Petersen and said both lawyers conducted themselves with professionalism during the trial.

On Friday, the appellate court, in an opinion by Justice William D. Stein, rejected Marston’s claims, noting that the sexual liaison had ended years before the trial and that there was no reason to believe that Petersen would have been any less vigorous in representing Marston because of his past relationship with the prosecutor.

Stein, joined by Justices William A. Newsom and Robert L. Dossee, said that the accusation of fathering a child did not establish a conflict of interest that hurt Marston.

The court also turned aside Marston’s contention that Rackauckas’ vindictiveness toward Petersen deprived Marston of the right to an impartial prosecutor. Among other things, Marston had contended that Rackauckas had said out of court that his sentence of life imprisonment without parole would be as desirable as a death sentence because in prison he would be “sodomized for the rest of his life.”

Other evidence showed that the prosecutor had been cooperative with the defense and at one time offered a plea bargain to Marston, the court said. Marston, it said, had failed to show that Rackauckas was not impartial.

The panel also rejected as inadmissible hearsay a declaration by a Ukiah woman who claimed that she heard Rackauckas say in 1983 that now-retired Mendocino Superior Court Judge Arthur B. Broaddus, who presided at the Marston trial, was the father of her child. Broaddus and Rackauckas have strongly denied any sexual relationship.