Who Defends the Undefended? Part Two: Conflict of Interest.

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In Part One, which can be found HERE, I examined how unqualified the defence counsel was, how ill-prepared and unorganised they were and how they virtually abandoned Ramirez to his fate.

Welcome to Part Two, where we will continue to examine the failings and shortcomings of Daniel and Arturo Hernandez, and their contribution to the saga, that ended in the death penalty being meted out to Richard Ramirez, on the back of some of the crumbliest evidence ever to echo round a courtroom.

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Here are some basics:

“An attorney owes all clients: the duty of loyalty, the duty of care, and the duty of confidentiality. Within the bounds of the law, the duty of loyalty requires the lawyer to put the client’s interests ahead of the lawyer’s own interests and to do nothing to harm the client.“

But what happens when the lines are blurred? What happens when the lawyer doesn’t seem too sure about who is the client? Is it the man in chains at the defence table, or perhaps, the family of the defendant, a third party, the ones who are paying (or have promised payment)?

This is what is referred to as a conflict of interest and it was this conflict which led directly to gross negligence, a violation of rights, a cover-up of mental impairment, and ultimately, resulted in a miscarriage of justice.

Generally speaking, under the rules of the California Rules of Professional Conduct, a lawyer cannot represent two or more clients whose interests potentially conflict, or whose interests actually conflict, without obtaining prior written consent. That’s an easy enough standard to follow in a typical legal case because one person = one client.

Or so you would assume, or at least hope, but this was the trial of Richard Ramirez, where constitutional errors were littered throughout the whole process, and there was nothing typical about this particular case.

A Dance of Lawyers

And a brief glossary of terms which may be useful as we unpick what happened.

Public Defender: a criminal defence attorney who gets paid a salary by the government (federal, state, or local) to argue the cases of clients who have been charged with a crime and can’t afford a lawyer.
Assigned Counsel also defends those who can’t afford an attorney, but these lawyers work in private practice, and the government pays them on a case-by-case basis.
Retained Counsel, privately engaged for a fee.
Sixth Amendment: says anyone charged with a crime has the right to counsel. (Unfortunately, the Sixth Amendment’s promise of counsel for all, including the poor, often remains unfulfilled in capital cases. The Supreme Court has affirmed that this right includes the right to an effective lawyer, but all too often, defence attorneys involved in capital cases prove inept, ineffectual, underfunded, and overmatched by the State’s attorneys.)
The Fourteenth Amendment, due process clause: “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Conflict of Interest: An attorney’s conflict of interest arises when an attorney takes on a new client who has interests that are averse to the interests of someone the attorney is currently representing or has represented in the past.

Declaration of Arturo Hernandez from the Writ of Habeas Corpus.

That’s the “legalese” out of the way, let’s move on…

On October 9, 1985, the trial court relieved the Public Defenders, Alan Adashek and Henry Hall, and Joseph Gallegos, retained counsel, appeared on Petitioner’s behalf. This did not last long either; more information about that brief, but relevant, appearance can be found in THIS post.

Why relevant? Because on October 24, 1985, counsel Joseph Gallegos moved for a psychiatric evaluation of Richard to determine his present mental state and his ability to choose his own counsel. Gallegos informed the court that he was gravely concerned about his mental condition and ability to retain new counsel. The matter surrounding Richard’s cognitive impairment is a mammoth and distressing subject, too large for the scope of this post. However, we aim to cover it in the future, as it is monumentally important.

So often in this case transcripts are missing.

Declaration of Manuel Barraza, who seems to have done well out of this.

After Richard was arrested for murder in Los Angeles, police searched the home of his older sister, Rosario, in El Paso, Texas. A neighbour suggested to the Ramirez family that they talk to a local lawyer Manual Barraza, who, after meeting with the family, travelled to California with the intention of defending him. Mr. Barraza’s representation also included “protecting the family’s interest related to Petitioner’s case.” (Ex. 13, M. Barraza Declaration)

On October 3, 1985, while still officially represented by the public defenders Henry Hall and Alan Adashek, Richard signed an Assignment of Rights agreement in favour of his sister Rosario Ramirez. This was just three days after his capture!

The document covered rights “in any and all present or future literary, publishing, motion picture, television, interviews, serials, dramatizations, advertisements, manuscripts, all whether written or unwritten, published or unpublished, copyrighted or non-copyrighted, direct or subsidiary.” (Ex. 110, “Assignment of Rights.”) In it, Petitioner “irrevocably consent[ed] to and forever authorize[d] the use by the Assignee (Rosario) or anyone authorised by the Assignee, her legal representatives, the absolute and unqualified right to use the Assignor’s life material in any manner the Assignee may desire”

As the public defenders weren’t relieved until October 9^th, it was already starting to get messy. Just who was representing him, defending his rights and protecting his best interests? There were doubts as to his ability to understand or to make rational decisions.

“Both Mr. Barraza and Mr. Hall admitted that Petitioner was acting unusually at and around the time the assignment of rights was executed. Mr. Hall admitted that Petitioner was “agitated and irrational” during his contacts with him. (Ex. 18, H. Hall Dec., ¶ 4.)

Mr. Barraza admitted that during the times he met with Petitioner in September and October 1985, Petitioner “exhibited extreme mood swings and his dialogue was remarkable for its incoherence and irrationality…. He was unable to focus or listen to [Barraza’s] attempted explanation about what appeared to be in his best interests.” (Ex. 128, M. Barraza Dec., ¶ 7) (Dec. 21, 1994)

Mr Barraza immediately began to solicit book or film deals, telling Rosario that he received many calls from interested parties. From these prospective deals, he was expecting a percentage of monies, and Rosario had already signed a promissory note of $100,00. Ultimately, Barraza could not take Richard’s case because he was not licensed in California.

It was Manuel Barraza who suggested to Richard’s sister that they hire Arturo and Daniel Hernandez to represent him, as he knew Arturo, and that they were licenced to practise in California.

This really boils down to money, cold hard cash. Retained attorneys charge for their services, and receive no funding from the state, unless they are appointed by the court. As the state refused to appoint the Hernandez’, their qualifications falling short of the requirements under Californian law, it was down to the Ramirez family to find what amounted to a vast amount of money. The harsh truth is that money buys you a decent defence, and in a capital case, a defendant needs all the help they can get. Their life depends on it. God help a defendant who finds himself saddled with an incompetent lawyer due to lack of funds, a conflict of interest, or horribly, as in this case; both.

Enter Daniel and Arturo Hernandez, stage right!

From the California Lawyers Association rules.

Richard’s sister met Arturo and Daniel Hernandez in court the day they appeared to represent him. Two retainer agreements were signed, one with the family and another with their client, Richard Ramirez. The family retainer agreement specified that the Hernandez’ would receive money from the family for their legal services when they received payment for the book or movie rights to Richard’s story.

They expected to be paid early in the case by the family’s attorney, Manuel Barraza, or by the family. Richard’s agreement did not require him to pay any funds for his defence, as payment was expected to be fulfilled by the family. The client retainer agreement bound the attorneys to represent Richard through court proceedings.

On October 22^nd 1985, Daniel Hernandez informed the court that he had been retained by Richard and his family, and that contracts had been signed by both parties. The court inquired how the Hernandez’ were going to be paid, and Daniel told the court he wasn’t comfortable with disclosing that, however, once the counsel for prosecution had left the room, he confessed to the judge that the family was going to pay, but not how.

“I really can’t comment on that. I am really not necessarily aware of that, and I am not necessarily anxious to discuss their finances at all.”
Daniel Hernandez

Trial court noted that they knew Barraza had been on the TV asking for lawyers to take the case, on the proviso that they would receive payment from TV and book deals, and that any and all potential conflicts must be disclosed to both the court and to their client.

Then Hernandez’ denied any knowledge of this, which wasn’t true, because they had been, from day one, telling Rosario it was imperative to get Richard to sign a film or book deal, to enable them to build a vigorous defence. They went as far as taking her to see a Hollywood producer, however the deal fell through as Richard refused to sign the contract. Even though Rosario was the legal holder of the rights to Richard’s story, his cooperation was required to secure a media deal. He was, presumably, the only person who would know certain facts about his alleged criminal activity.

That’s the basic outline of how and why the possibility of conflict was born. So how did this affect the defence?

Where and to whom do they owe loyalty? To the family paying them, or to their client, the one they are duty bound to defend whatever the circumstances, within the law.

Declaration of Robert R Bryan, post-conviction attorney

On October 24, 1985, after denying attorney Gallegos’s motion for a psychiatric evaluation of Petitioner, the trial court advised Richard that “your attorneys have a contract with you and with your family, those two contracts may at some point be in conflict. . . Do you understand that possibility does exist?”

An accused person must be informed of any potential conflict of interest by the court, it must be fully disclosed and the defendant able to understand what, potentially, could happen when an attorney is unsure of where their priority is. He must also consent. To waive the constitutional right to conflict-free counsel, you must be clear what it means. Gallegos had raised his doubts in municipal court as to the mental competence of Richard and wanted him to be thoroughly assessed.

Inability of Client to Consent. This situation presents the opposite side of the coin from a lawyer’s inability to make an adequate disclosure. Even if a lawyer were able to fully “communicate [] and explain []” the risks and consequences of the conflicted representation, “informed consent” under CRPC 1.0.1(e) still requires that the client agree. Although diminished capacity presents a broad spectrum of abilities, a client with significantly diminished capacity might be unable to comprehend a lawyer’s disclosure concerning the risks associated with a conflicted representation and consequently would be unable to give informed consent to the representation.
From the Californian Lawyers Association

Richard said he thought there would be no conflict. He was wrong.

The fear that Richard was not competent to rationally assist, understand, consent to or waive his rights, was real and valid. He needed to be assessed properly.

Richard was seen (briefly) by William Vicary, M.D., a psychiatrist. A summary of his findings is below, although a further post will look in greater depth at his report.

“His best interests before and during trial, and that of his family were divergent and irreconcilable. The fee agreement placed counsel in an untenable position between client’s best legal strategy – which should have included the adoption of a mental health defence at the guilt phase and/or the presentation of his impoverished and abusive upbringing at penalty – and the financial and privacy interests of his family.” (Writ of Habeas Corpus)

This subject, and its sensitivity will be discussed, as ever, in due course. Again, it is too complex to be included within this post.

The sad fact is that Richard any psychiatric investigation that he was subjected to was not developed or followed up, to any degree, until after his LA convictions, when he was moved to San Francisco. That will be covered later, but for now, we remain in LA, with the complicated subject of conflict of interest and a defendant who has no idea what he should be entitled to in a capital trial for his life.

Here’s a little conundrum, the family needed money to pay for his defence, they did everything possible to help the son and brother they loved, but no deal was forthcoming, no money came rolling in, and they couldn’t afford the legal fees. The court refused to appoint the Hernandez’, who were broke. They, in turn, refused to acknowledge or investigate a defence strategy, which included mental health, for two reasons: They did not want to diminish his value or cause embarrassment to his family.

Findings of Dr Dietrich Bulmer, Ex. 31, who examined Ramirez on 19th and 20th January 1986

When attorney Joseph Gallegos moved for a competency evaluation just before the Hernandez’ substitution, Arturo Hernandez objected, stating that Petitioner had no trouble understanding the proceedings. The Hernandez’ never again moved for a competency evaluation until seemingly compelled by the court. They did not develop or further investigate a strategy that focussed on his mental capabilities.

The opinions of Drs. Vicary, Blumer, and Henderson were known to trial counsel. Daniel and Arturo, and later, Ray Clark, provided constitutionally deficient performance in failing to present those experts’ views to the trial court to support a motion to determine Richard’s competence to stand trial and waive rights. The opinions of these experts, and the factual bases for those opinions, moreover, would have constituted mental health and other defences to the charged crimes at the guilt phase and robust mitigation at the sentencing phase of his trial, and the defence counsel performed deficiently in failing to present such defences to the jury.

No follow up on this assessment of Richard’s competence. Writ of Habeas Corpus.

A follow-up that could’ve helped at the penalty phase, an evaluation that could have saved him from the death penalty.

Trial court knew all this, knew what was happening, and yet did not stop proceedings.

Hollywood loves a monster, and it soon became clear that adopting a defence, which included his mental impairments, lessened his value on the market. No one is interested in a man who might not be “quite right”; then, as today, people want the blood-soaked murderer. If such information were to come out at a public hearing, he would lose his appeal to a literary agent seeking exclusive material. After all, horror sells, right?

What to Do?

“In this case, the prospect of a book or movie deal further divided counsel’s loyalties. For example, more than once, Petitioner’s family voiced their concerns about protecting their monetary interest in Petitioner’s case: the Ramirez family expected to receive in excess of $300,000 for Petitioner’s story. (Ex. 18, H. Hall Dec., ¶ 3). Since trial counsel was dependent on the Ramirez family for the entire balance of the retainer agreement, counsel could not offend or embarrass them during the investigation or presentation of Petitioner’s case. The fact that no book or movie deal developed during the case, only furthered the Hernandez’ indebtedness to the Ramirez family, and gave counsel an ongoing incentive to defer to the interests of the family over Petitioner’s”
Writ of Habeas Corpus, page 224

Let’s add another spoke to this wheel…

Because they were running short of cash – cash they needed to run this defence successfully – the Hernadez’ began working on another case, another pending murder trial at the same time. The People v Ortiz. There’s a whole other story there, for they also messed up that case and were facing an incompetency investigation. Sometimes, when I think this could not get any worse, somehow, it does!

In THIS post I have already mentioned that Arturo Hernandez had stopped turning up, and was eventually jailed, Daniel was often M.I.A and Richard was often left to the machinations of paralegal Richard Salinas and one Ray Clark.

Attorney Ray Clark was appointed by the court (they were paying him) to assist Daniel Hernandez, who was unable to carry on virtually unassisted, and often sick. Unfortunately, Clark was not appointed until March 1989, with the trial well underway.

He did not review the case or bother to discover much about Richard and his alleged crimes, merely seeing himself as Daniel Hernandez’ assistant. There is more to this than at first seen. Clark, who had got this position because Daniel had opined to trial court that he couldn’t do this alone, felt somewhat beholden to him. After all, he was being paid $100 per hour, while Daniel was receiving nothing.

Clark and Daniel Hernandez had an agreement, whereby Clark would pay Daniel a percentage of his earnings from the court case. 30% of what he was paid, he gave to Daniel, and because he felt obligated, he did not try to change the lethal and downright unacceptable strategy employed by the Hernandez’, furthermore, Clark was dependent on Daniel Hernandez’ continued consent to his appointment.

This arrangement between the two attorneys was not even revealed to the court at the time, even though it caused yet another conflict of interest, with Clark seeming to have neither the authority to overrule the defence strategy or even to push back against the lack of mitigation evidence during the penalty phase. Where even the prosecution had to remind the jury that no mitigation had been given in defence!

In fact, Ray Clark doesn’t seem to have cared very much about it at all and this failure, when it most mattered, will be the subject of a future post, as it is serious enough to warrant it.

If you are poor, and charged with a capital offence, you are left to the mercy of the dollar, and because of it, the mercy of the court. Or not.

“Death always went with the territory…”

Richard Ramirez

And, as we know, there was no mercy, no fair trial, for Richard Ramirez.

~ Jay ~

Expendable For A Cause.