[Deathpenalty] death penalty news----CALIFORNIA

[Rick Halperin]

Jan. 26



CALIFORNIA:

Attorney Removed From Death Penalty Case After Making Arguments While
Suspended


A well-respected appellate lawyer has incurred the wrath of the California
Supreme Court while indefinitely delaying an already decades-old death
penalty case.

The high court on Wednesday removed Cynthia Thomas, an attorney in the
Sacramento suburb of Elk Grove, from the case of Charles Moore, and
referred her to the State Bar for "appropriate disciplinary proceedings."
Her mistake? Arguing Moore's case before the Supreme Court on Dec. 2 while
ineligible to practice law.

Thomas, executive director of the San Francisco-based First District
Appellate Project from 1995 to 1998, contacted the high court in a letter
on Jan. 15, saying she failed to realize she hadn't been fully reinstated
to the Bar after being suspended in 2007 for not advising a client of his
legal options in a separate criminal case. Specifically, Thomas said that
even though she had fulfilled the one-month suspension in that case, she
hadn't as of Dec. 2 passed the State Bar's ethics examination, which is a
common requirement for permanent reinstatement.

In her letter, Thomas, a UC-Davis School of Law graduate who was admitted
to practice law in California in 1980, told the Supreme Court she had
failed the exam in August and November, but didn't realize she'd failed
the second time until she received an e-mail announcement on Dec. 6, four
days after oral argument.

"I deeply regret this unfortunate, inadvertent sequence of events," she
wrote, "and I apologize to the court for any impact it may have on the
current litigation.

"I do not believe that my suspension at the time of oral argument," she
added, "resulted in any actual compromise in the quality of representation
afforded Mr. Moore."

The court apparently thought otherwise.

"To say that this 'development' is a very serious matter," Supreme Court
administrator and clerk Frederick Ohlrich wrote in response on Jan. 15,
"is an understatement."

That became clear Wednesday when the high court not only terminated
Thomas' representation, but appointed Michael Millman, executive director
of the San Francisco-based California Appellate Project, as interim lead
counsel. Thomas was ordered to provide Millman all her pertinent
documents, as well as anything from her client, his trial lawyer, prior
appellate counsel and "any other source" within 30 days.

"The matter will be resubmitted," the court said in a document signed by
Chief Justice Ronald George, "after questions concerning appellant's legal
representation are resolved and the appeal is ready for presentation to
the court."

At the very least, Ohlrich said Thursday, that means there will be no
forthcoming opinion in People v. Moore, S075726. Whether the court will
require further briefing or will invalidate the oral argument held on Dec.
2 in Los Angeles remains to be seen.

Thomas didn't respond to a telephone call to her office on Thursday. But
lawyers who know her spoke positively about her.

"Having known her for years, I believe she is a highly dedicated and
well-respected attorney, and I'm confident she will work out her current
situation," current First District Appellate Project Executive Director
Matthew Zwerling said.

Berkeley, Calif., solo Wesley Van Winkle, who's one of the state's
better-known death penalty defense lawyers, said he doesn't know Thomas
personally, but has heard of her reputation.

"She's somebody who's well respected," he said, "and been involved in the
private appellate defense Bar for quite a while."

The court's strong reaction may have been prompted by the age of the case.
Moore was sentenced to death on April 11, 1984, for the brutal stabbing
deaths of Robert and Marie Crumb in their Long Beach, Calif., apartment on
the night of Dec. 1, 1977. The state Supreme Court had already affirmed
Moore's death sentence and denied his habeas corpus petition on Nov. 3,
1988. Then for reasons not clear in court documents, the federal court
ordered a retrial in Los Angeles County Superior Court, where Moore was
sentenced to death again on Dec. 7, 1998.

So the day before Thomas argued while on suspension, exactly 31 years had
passed since the Crumbs' killings.

State Bar chief trial counsel Scott Drexel said state statutes allow the
agency to suspend or disbar attorneys who practice while ineligible --
"depending on the gravity of the offense and harm to the victim, and that
could include harm to the administration of justice."

He said the State Bar will take into account whether Thomas knew or should
have known whether she was suspended and was acting in good faith. But,
Drexel added, Thomas was ineligible to practice law as of Nov. 24.

"Honestly," he said, "any court we get a referral from we take pretty
seriously. But we're an arm of the Supreme Court, so I would be less than
candid if I didn't say a referral from the Supreme Court didn't get
special attention."

(source: The American Lawyer)