Court of Appeals Ponders Mistrial in Overton Case : Hearing: Justices lift a veil of secrecy from the sensational O.C. murder trial, delayed for 10 months.

Appeals court justices on Friday lifted a veil of secrecy from the murder trial of Richard K. Overton and pressed county prosecutors for reasons why a mistrial should not be declared in one of the longest recessed cases in local history.

During an hourlong hearing, a panel of judges on the 4th District Court of Appeal denied motions to keep the proceedings confidential and addressed the merit of a defense request to have Overton retried on charges that he murdered his wife with cyanide.

In January, 1988, Jan Overton, a popular trustee on the Capistrano Unified School District board, collapsed in the driveway of her home and died within a few hours. A homicide investigation later uncovered an attempt by Richard Overton to poison his first wife and lurid details about his personal life, including meticulous diaries he kept that tracked Jan Overton’s suspected infidelities.

“Aren’t we better off just starting over?” Justice Sheila Prell Sonenshine asked Deputy Dist. Atty. Gregg L. Prickett, an appellate lawyer for the district attorney’s office who argued that a mistrial should not be declared.

Sonenshine and her colleagues focused their inquiries on Overton’s constitutional right to a fair trial, considering that testimony in the case--recessed since July--has not resumed for 10 months partly because Overton’s attorney, Robert D. Chatterton, was undergoing treatment for severe depression.

Chatterton’s illness and other reasons for the delay were disclosed two weeks ago by The Times, which obtained case records that had been sealed by Orange County Superior Court since the recess began.

The documents show that Overton’s case was abruptly halted without public explanation after 30 days of testimony because a dispute arose between Overton and his attorney about the truthfulness of Overton’s statements on the witness stand. Chatterton charged that his client might have tampered with evidence and asked to be removed from the case.

A few weeks later, Chatterton admitted himself to a hospital, where he was put on a suicide watch. His mental condition eventually cast doubt on the adequacy of his representation of Overton during the case, which deals with complicated medical and scientific evidence about cyanide.

These and other issues delayed the trial for months as Orange County Superior Court Judge David O. Carter tried to resolve complicated legal questions about competency of counsel, conflicts of interest and Overton’s right to a speedy trial.

After 20 confidential court sessions, Carter ultimately ruled against a mistrial, and turned down Overton’s request for a new attorney. Doctors said Chatterton was cured of his depression, and Carter concluded, after a time-consuming review of trial transcripts, that Overton was well-represented despite his attorney’s illness.

However, Jack M. Earley, an attorney appointed by Carter to protect Overton’s interests amid the unusual developments, filed a motion for a mistrial with the appeals court. Justices first denied his motion without a hearing, but the state Supreme Court sent it back to the 4th District in March for full consideration.

From the discussion Friday, the justices did not appear to be interested in many of the issues that have played a part in the unprecedented recess. They rebuffed Earley when he tried to address his concerns about Chatterton’s illness as it relates to his competency as an attorney.

Those issues are “almost a red herring because of the time that has expired,” Sonenshine said, adding that this might be a case of “good intentions gone awry.”

Sonenshine said Carter’s effort to salvage the trial was done with the “best intentions, but somehow it just didn’t work out the way it was envisioned. . . . Cutting the losses right now may be the best for everyone” so each side can start off “with a clean record.”

The 4th District Court of Appeal has 90 days to rule on the motion for a mistrial.

Justice Edward J. Wallin noted that even if a mistrial was not granted, the matter would be appealed to the state Supreme Court, further delaying the case. He said he was concerned about whether the jury could function properly after such a lengthy recess.

“How long is it reasonable to separate two halves of the trial?” Wallin asked. “It’s worse if we let it go forward and get reversed” by the state Supreme Court.

During Friday’s hearing, justices decided to unseal some of the court documents that had been kept confidential for the duration of the recess. The records detail Chatterton’s illness, and Carter’s attempt to save the trial.

The three-judge panel--Wallin, Sonenshine and presiding Justice David G. Sills--was not swayed by attorneys’ arguments to keep the records and proceedings secret because their disclosure might taint the jury.

On May 2, The Times reported the contents of some of those records, bringing to light for the first time the reasons behind the delay of one of the county’s most unusual murder cases.

The documents show that Chatterton was so debilitated by his illness that he felt he could not do a good job for his client. A month before the recess he broke down in front of the judge stating, “Ultimately the bottom line is I don’t think I can represent Mr. Overton. I’m so embarrassed.”

At one hearing during the recess, Carter told the lawyers that the complicated and difficult issues had confronted him with an uncomfortable dilemma. He likened himself to a military commander on some ancient battlefield whose army was facing an enormous enemy force and had its back to the sea.

“I can’t recall the rather ancient general, I believe he was Roman, who was faced with the destruction of the army,” Carter confided to those present in chambers. “The general knew that whatever call was made, it would certainly be to the destruction of all his forces.”

According to the court records, Carter undertook a lengthy review of the trial transcripts and particularly scrutinized Overton’s performance on the witness stand to determine if Chatterton had left his client unrepresented.

“Mr. Chatterton did an exemplary job up until the time of the recess in the trial,” Carter concluded on Jan. 12. “Its apparent that Mr. Chatterton in this court’s opinion is fully recovered. . . .”

But Earley argued in his mistrial motion to the appeals court that Carter’s review of Chatterton’s performance was flawed. Among other things, Earley contended that scrutinizing trial transcripts was not enough to determine competency.

Carter, he said, should have reviewed Chatterton’s legal research, his preparation for trial, and his investigation of the facts as well as defense strategies he considered.

“In this highly technical case,” Earley wrote, “very small things can make a very big difference on how a juror views the case.”

During the hearing and in court documents, Prickett argued against a mistrial on the grounds that there is no proof that Overton’s right to a fair trial had been adversely effected by Chatterton’s depression.

Prickett contends that Carter had reviewed the trial transcripts and concluded that Chatterton had done an excellent job despite his illness. Medically, he said, Chatterton had improved so much that he was able to take over a complex murder case from another attorney and had withdrawn his earlier request to be relieved as Overton’s defense counsel.

Prickett accused Overton of trying to remove his defense attorney because he feels the trial “is not going well and hence would like a second chance at the jury.”

He argued, too, that the prosecution has a right to a speedy trial and that declaring a mistrial or replacing Chatterton would impose another extraordinary delay in the case. He said it took 10 months for the prosecution just to prepare for the current trial.

Before the case even reached the appeals court, Deputy Dist. Atty. Christopher J. Evans told Carter that if the case had to be retried he would have extreme difficulty getting some of his witnesses back to testify.

In a retrial, Evans said, the defense would have an unfair advantage because it would know exactly how to prepare its case against his evidence. Just as troublesome, Overton might not testify the same way during a retrial, he said.

Immediately before the recess in July, Overton had undergone a blistering cross examination by Evans and admitted that he tried to adulterate the coffee of his first wife with prescription drugs. It was “a neat joke,” he told the jury.

His admission was significant for Evans, who contends that Overton tried to poison Dorothy Boyer, a former wife. Similarly, the prosecution theorizes that Overton tried unsuccessfully to poison Jan Overton with small doses of selenium before killing her with cyanide because he was jealous of her extramarital affairs.