Pubdate: Wed, 11 Jul 2001
Source: The Herald-Sun (NC)
Copyright: 2001 The Herald-Sun
Contact:  http://www.herald-sun.com
Details: http://www.mapinc.org/media/1428
Author: John Stevenson

DEFENSE TACTIC HAS ASSISTANT D.A. FUMING

DURHAM -- An assistant Durham district attorney fumed Tuesday that defense 
lawyers have devised a novel and perhaps devious tactic to short-circuit 
the prosecution of people who repeatedly commit felonies.

The way Assistant District Attorney Jim Dornfried sees it, defense lawyers 
routinely have begun to attack the professionalism of their legal 
colleagues. Their goal, Dornfried says, it to try to get some clients out 
of long prison terms.

And some of the attacked lawyers -- rather than defending their reputations 
- -- too readily are going along with the situation, according to Dornfried.

Here is how it works:

Attorneys at an advanced stage of some criminal cases are arguing that 
clients got "ineffective" representation from attorneys at an earlier 
stage. So, the logic goes, any earlier convictions should be wiped out.

Similar arguments have been used for years. But Dornfried said it now 
appears they are being advanced as part of a concerted effort to undermine 
Durham's so-called "habitual-felon" program, which is designed keep repeat 
criminals off the streets.

"It is very suspicious to me," Dornfried told The Herald-Sun on Tuesday. 
"It's something we are seeing a lot of. It needs to be looked into. It's 
disturbing. It befuddles me. How do you react to it?"

Defense lawyers countered that they have a moral, ethical and 
constitutional duty to leave no stone unturned in protecting the rights of 
their clients.

"To suggest that there is some kind of conspiracy is misguided and 
unfortunate," said veteran attorney Bill Thomas, past president of the 
Durham Criminal Defense Lawyers Association. "Competent defense counsel 
have been doing this since the first courthouse opened in America."

According to Thomas and others, if one lawyer fails to do a good job at the 
beginning of a case, lawyers at a later stage are obligated to bring the 
situation to light.

Meanwhile, the "ineffective assistance" argument has worked twice in two 
days this week, getting a suspect named Maurice Lamont Cates out of a 1997 
conviction for forgery and a 1998 conviction on a cocaine charge.

The net result is that the forgery and cocaine cases cannot be used to make 
Cates into a habitual felon and subject him to longer-than-normal prison 
terms for any later crimes.

People can be prosecuted as habitual felons after they accumulate three or 
more felony convictions. Once this happens, their punishment may be 
increased dramatically.

This is how the 24-year-old Cates got off the hook:

Lawyer Lynne A. Rupp argued Monday that attorney Russell Hollers, then an 
assistant public defender in Durham, gave Cates bad advice in 1997 when 
Cates was charged with forging a check and then trying to cash it -- 
something called "uttering" in legal parlance.

Cates pleaded guilty to forgery and uttering even though he confessed only 
that he attempted to cash the check. He consistently maintained that 
someone else forged it.

According to Rupp, Hollers failed to inform Cates that forgery and uttering 
were separate charges, and that he could plead guilty to one and not the other.

Hollers was called to the witness stand Monday to clarify the situation. He 
admitted that he gave Cates bad advice.

And in a sworn affidavit, Hollers acknowledged he "should not have advised 
Mr. Cates to plead guilty to the forging charge, as he has always 
maintained his innocence. . "

In the end, Superior Court Judge Orlando F. Hudson ruled Monday that 
Hollers had provided Cates with "ineffective" legal representation.

On Tuesday, Rupp was back in court to successfully argue that lawyer Brian 
Wilks -- also an assistant public defender at the time -- ineffectively 
represented Cates on a 1998 cocaine charge.

Wilks failed to do an independent investigation of the case, requested no 
information from prosecutors and did not inform Cates about possible 
defense tactics, Rupp contended.

"It's not within the range of competence demanded of criminal defense 
attorneys," Rupp argued.

In fact, Wilks advised Cates to plead guilty without even waiting for the 
results of a laboratory analysis to see if the substance at issue really 
was cocaine, according to Rupp.

Wilks conceded in a sworn affidavit that he did not conduct an independent 
investigation, did not receive a lab report and did not obtain information 
about the case from prosecutors.

As with Hollers, Hudson ruled that Wilks had provided Cates "ineffective" 
representation.

The judicial rulings were sufficient to move Cates out of the 
habitual-felon arena.

A disgruntled Dornfried said afterward that he will report Wilks to the 
State Bar, which oversees the performance of lawyers. He said he has an 
obligation to do so.

But Rupp said such a report would be "misguided."

Thomas agreed. "It is not a reportable situation under our rules," he said. 
"His [Dornfried's] statement that he has a duty to report it is simply 
nonsense."
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MAP posted-by: Beth