Bar Not Told About Reversal of Convictions : Courts: Law requires judge to report such a decision--in this case the Newport Coin Exchange murders--in any ruling where attorney misconduct or incompetence may be a factor.

The judge who overturned the murder convictions of Thomas R. Merrill has not reported that decision to the State Bar of California, even though the law requires courts to report any reversal of judgment based on misconduct or incompetence by an attorney, The Times has learned.

In an extraordinary action on June 28, Superior Court Commissioner Richard M. Aronson overturned seven felony convictions against Merrill, including two first-degree murder verdicts, related to the March, 1989, robbery of the Newport Coin Exchange. Two people were shot to death in that incident, and a third was seriously wounded.

The convictions were reversed when Aronson granted a habeas corpus appeal alleging misconduct by the prosecution for withholding evidence favorable to Merrill, and inadequate performance by his original defense attorney. Aronson, who presided over the original trial as a judge pro tem, ruled simply that “the (appeal) has merit.”

A provision added in 1990 to the state law governing legal practice in California requires courts to inform the State Bar “whenever a modification or reversal of a judgment . . . is based in whole or in part on the misconduct (or) incompetent representation . . . of an attorney.”

Under the law, such notification automatically triggers an investigation by the State Bar to determine whether attorney discipline is warranted. The State Bar is responsible for disciplining lawyers.

Judge Donald E. Smallwood, who presides over Superior Courts in Orange County, responded to a request to Aronson for comment, saying that the state Judicial Code of Conduct forbids judges to discuss cases pending before them. Aronson still has jurisdiction over the case, which is scheduled for retrial at an unspecified future date.

“It sounds like the case qualifies under the law and should be reported,” said University of San Diego law professor Robert Fellmeth, who authored the notification requirement of the State Bar Act. “At least one of the two attorneys should be reported, if not both.”

A failure to notify the State Bar could subject Aronson to review by the Commission on Judicial Performance, a watchdog agency that monitors the conduct of the state’s judges. Since 1990, the commission has reprimanded at least one state judge for failing to report attorney misconduct as required by the so-called “snitch rule” of the judicial canons.

State Bar President Harvey Saferstein said that neither the former prosecutor, Jeoffrey L. Robinson, nor Merrill’s original defense lawyer, Gary M. Pohlson, has been reported to the bar’s disciplinary unit for review of their conduct in the Merrill case.

Though Merrill was granted a new trial, it is unclear whether Aronson accepted one argument and rejected the other, or agreed that there was both prosecutorial misconduct as well as defense incompetence. Aronson has declined to elaborate on his ruling despite repeated efforts by The Times to interview him about it.

Robinson, now in private practice in Mission Viejo, and Pohlson, whose offices are in Laguna Hills, have denied any professional impropriety in the Merrill case.

According to court records, Aronson told Merrill before the habeas corpus proceeding began that he has been friends with Robinson and Pohlson for years, and has referred at least one case to Robinson because he felt Robinson had “some competence and integrity.” Aronson said, however, that he would not let his personal relationships influence his decisions.

In court documents and during five days of hearings, Merrill’s new attorneys, John D. Barnett of Santa Ana and William J. Genego of Santa Monica, attacked the conduct of the prosecution and the original defense attorney.

They presented sworn statements and testimony indicating that Robinson did not turn over to the defense the complete statements of a key prosecution witness, Finn Olsen. The prosecution witness said that he had told Robinson and his investigator, Gerald C. Teplansky, that Merrill was not one of the two men he saw outside the Coin Exchange immediately after the shootings.

The deliberate withholding of information pointing to the defendant’s innocence is a violation of the legal profession’s code of professional conduct and breaches a common legal principle spelled out in a U.S. Supreme Court ruling.

With respect to Pohlson, Barnett and Genego argued that he made numerous mistakes that were devastating to Merrill’s case, including the failure to search for evidence and interview witnesses who could have helped his client.

The controversy over misconduct in the case heightened nine days ago, when Merrill’s counsel filed a new motion to dismiss the charges against him. They alleged that the prosecution improperly withheld still more evidence from the defense--which authorities deny. A court hearing is set for Oct. 15.

Responding to the allegations in the habeas corpus appeal, Robinson has said that he had nothing to turn over to the defense, because Olsen told him only that he could not identify anyone, not that Merrill was not there. Robinson said his talks with Olsen were brief and that his investigator mostly dealt with him.

In sworn testimony, however, Robinson’s investigator, Teplansky, contradicts him, and the district attorney’s office; without assigning blame to either, Teplansky agreed that evidence had been withheld.

Also, according to a court transcript, Aronson indicated during the habeas corpus proceedings that he believed there were two instances of withholding of evidence by the prosecution.

Defending his performance in the case, Pohlson said, among other things, that the witnesses he is accused of failing to pursue were in his judgment not relevant to his case. He says that Merrill’s convictions were overturned largely because of misconduct by the prosecution.

Except for his troubles with Merrill, Pohlson said, he enjoys an otherwise good reputation among his colleagues and is helping the current defense effort to permanently dismiss Merrill’s criminal charges.

In light of Aronson’s ruling, Assistant Dist. Atty. John D. Conley, who supervises homicide prosecutions, contends there might not be anything to report to the State Bar. Instead of specifically blaming either Robinson or Pohlson, Conley said, the judge simply ruled that the habeas corpus petition had merit.

But Fellmeth, who was a key player in reforming the State Bar’s disciplinary system in the late 1980s, said the law does not require judges to make findings of impropriety by a lawyer before notifying the bar that possible misconduct contributed to the reversal of a court judgment.

Any reversal in judgment based on either of the two grounds in Merrill’s habeas petition--prosecutorial misconduct or inadequacy of defense counsel--would have to be reported to the State Bar under the law, regardless of whether Aronson relied on only one or on both grounds in making his decision, Fellmeth said.

Former state Supreme Court Justice Cruz Reynoso, who now teaches judicial ethics at UCLA Law School, said that in his opinion the matter “should be reported. The bar should just get a copy of the opinion where the court has so ruled, and then it’s up them to make a judgment of how serious it is. We need to facilitate these matters coming to the attention of the State Bar.”

Experts in attorney discipline and judicial performance say there is a problem with trial courts failing to report attorney misconduct where it is suspected. Part of the difficulty, they contend, is that the notification requirement is relatively new and many judges might not be that familiar with it, despite the State Bar’s annual effort to tell them about the rule.

“Courts are busy and reporting alleged wrongdoing by an attorney might present a burden to them,” said Saferstein of the State Bar. “This is something that is not likely to be reported on the trial court level.”

But, Saferstein said, the reason for granting Merrill a new trial is perhaps something that the State Bar’s disciplinary unit should at least take a look at to see if any impropriety occurred.

Professor Steven Lubet, a national expert on judicial ethics who teaches law at Northwestern University near Chicago, said California’s reporting requirement was “admirable” and on the “cutting edge,” but its application should be moderated for first-time offenders whose failure to report was not willful.

“I would hate to see a commissioner or judge disciplined for failure to report, because if reversal requires reporting, that might lead them to hesitate in the future to reverse,” Lubet said. “You could forget to do it. You might misinterpret the rule. You might look for other grounds to reverse on.”