Attorney-Client Privilege Is Tested in Murder Case
While Jesse James Hollywood and his friends allegedly were holding a 15-year-old boy hostage for payment of what police contend was a drug debt, Hollywood called his lawyer to ask for advice.
But when Simi Valley attorney Stephen Hogg picked up the phone, prosecutors say, the conversation that followed set the stage for murder. Hollywood decided to kill the boy--abducted from near his West Hills home last summer--after Hogg told him that the penalty for kidnapping is life in prison, prosecutors contend.
Now, in another twist in the case, a judge ruled last week that Hogg can be compelled to testify in future criminal proceedings against his onetime client, a 21-year-old fugitive wanted by the FBI on suspicion of kidnapping and murder.
In making his ruling, Santa Barbara County Superior Court Judge William L. Gordon opened the door for prosecutors to seek Hogg’s testimony about Hollywood in the trials of four other defendants charged with kidnapping and murdering Nicholas Markowitz in August.
The case has stirred interest in legal circles because it deals with forcing attorneys to testify against clients, and because it demonstrates the dilemmas that lawyers can face simply by answering the phone.
“It’s an attorney’s worst nightmare,” said Laurie Levenson, a professor at Loyola Law School. “It’s a situation where the ethical rules of lawyers butt up against what a lot of people think our moral duties should be. If [Hogg] ran to the police, he could have been subject to discipline by the State Bar. The professional rules say, ‘Don’t reveal it,’ but your own heart may say, ‘I have to.’ ”
The case presents a particularly unusual question about the application of the attorney-client privilege, because the principle usually shields information divulged by clients after a crime has been committed.
Santa Barbara County Deputy Dist. Atty. Ron Zonen successfully argued that Hollywood sought legal advice midway through a crime, in the midst of the kidnapping. Zonen contended that the attorney-client privilege does not apply because Hollywood waived it by later telling a friend about the conversation with Hogg.
In the court hearing last week, Hogg strenuously opposed the prosecutor’s efforts, and he could still appeal.
“It’s a very uncomfortable position for me,” said Hogg, a veteran defense attorney. “The attorney-client privilege is very important. You can’t imagine the number of times people come to me and tell me their secrets.”
Police allege that Nicholas was killed during a botched attempt to collect a drug debt that the boy’s older half-brother owed Hollywood. They say the victim was taken to Santa Barbara on Aug. 6, where he was held before being taken to a remote mountain campsite and shot nine times, probably early on Aug. 9.
Hollywood, who investigators say was not present, was charged under a California law that allows any participant in a kidnapping that ends in homicide to be charged with murder. The four other defendants are Ryan Hoyt, Jesse Rugge and William Skidmore, 21-year-olds who grew up with Hollywood in the west San Fernando Valley; and Graham Pressley, 18, a friend of Rugge’s from Santa Barbara. All have pleaded not guilty and remain in custody.
California has one of the country’s strictest rules on attorney confidentiality, requiring attorneys “to maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets” of clients.
In the rare instance when a lawyer hears about a potentially violent crime as it unfolds, professional obligations may clash with concern for the victim’s safety.
“We’re human beings,” said Diane Karpman, an ethics attorney who defends lawyers before the State Bar Court. “There’s a point where your obligations become very gooey. You’re torn between being a human being with morality in the universe, and your ethical obligations [as an attorney]. It’s very hard.”
The outlines of the Hogg-Hollywood conversation are contained in transcripts of grand jury testimony by people who talked to Hogg. Investigators say the discussion between Hogg and Hollywood took place several hours before Nicholas was shot.
According to those transcripts, Hogg told a friend of Hollywood’s parents that “there had been a kidnapping,” that Hollywood was in trouble, and that they needed to find him and the kidnapped boy.
Hogg also discussed the situation with Hollywood’s father, Jack, according to testimony by the elder Hollywood.
Should Hogg have gone to the police? Zonen said that’s what he would have done.
“I would like to believe, if faced with that situation, I would say [to Hollywood], ‘You’re not going to hang up the phone until I’m assured this kid is being released,’ ” Zonen said. “And if I’m not absolutely convinced, my next call is to 911.”
But other attorneys observed that Hogg may have been trying to prevent harm by discussing the situation with Hollywood’s father.
Charles Sevilla, a San Diego criminal defense attorney, said a situation like this “puts the attorney in the middle of a hotbox of decisions where there is no bright line path.”
“It sounds like the attorney did the right thing by trying to get [Nicholas] out of peril,” Sevilla said.
Unlike the debate over what Hogg should have done when Hollywood called, legal experts said that once the case was brought before a grand jury, Hogg did the right thing by refusing to testify and asserting attorney-client privilege.
It was that refusal that led prosecutors to seek a court order compelling Hogg to testify. Last week, prosecutors convinced Judge Gordon that Hollywood himself waived the attorney-client privilege by telling a friend, Chas Saulsbury of Colorado Springs, Colo., that he had called Hogg to find out “the implications of the kidnapping,” according to transcripts. That account is based on testimony Saulsbury provided the grand jury in exchange for immunity from prosecution.
Nine months after the killing, the hunt for Hollywood grinds on. Investigators tracked him through mid-August as he fled to Colorado and back to Los Angeles, but the trail has cooled, said Cmdr. Bruce Correll of the Santa Barbara County Sheriff’s Department. With leads in short supply, investigators are hoping that taped segments on “America’s Most Wanted” and other national television shows will unearth tips, Correll said.
So far, Hollywood’s flight has led to one conviction: His godfather, Richard Dispenza, 48, of Woodland Park, Colo., was found guilty in March of harboring a fugitive. Colorado prosecutors said that Dispenza, a high school football coach, helped Hollywood evade capture by checking him into a hotel after the killing.
The FBI continues to monitor Hollywood’s Valley friends and acquaintances. One young man, who played baseball with Hollywood at Calabasas High School, said he was interviewed by FBI agents in March.
“We weren’t close friends,” said Brian Trejo, 21, of West Hills. “I knew him a little, a long while ago.” He declined to comment further on the FBI’s inquiry.
FBI agent Bob Mack confirmed that the agency has “reached out” to many of Hollywood’s associates. “We are aggressively looking for him, and we are confident sooner or later, hopefully sooner, we will catch Mr. Hollywood,” Mack said.
Trejo’s mother, Cheryl, said that she is tired of the FBI’s questions.
“They’re desperate to find him,” she said. “They’re the largest law enforcement agency in the country, and it amazes me they can’t find him.”
Times staff writer Michael Krikorian contributed to this story.