The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
After years of adjudication, this habeas case is ready for resolution. The only issue remaining at this juncture concerns petitioner's absence from a hearing related to disciplinary allegations asserted against his lawyer by the Public Defenders office, who employed counsel at the time. Specifically, as set forth in the Order setting the evidentiary hearing in this case:
Characterizing the basic issue here is difficult in that the alleged error involves an inextricable blending of petitioner's absence from proceedings in which an actual or potential conflict of counsel was discussed, possible errant advice from his attorney regarding a conflict, and a decision by petitioner to waive a potential conflict of counsel on less than a full disclosure of facts.
In a sentence, the backdrop of the issues here revolve about trial counsel's unethical conduct with another unrelated defendant, and the possible effect in petitioner's case of pending disciplinary proceedings against her along with the potential effect of embarrassing publicity, and petitioner's absence from an in camera hearing in which the issues were discussed. A violation of ethics law for counsel does not create an actual conflict per se. See United States v. Nickerson, 556 F.3d 1014, 1019 (9th Cir. 2009). However, in certain circumstances, an actual conflict could arise, and petitioner had to make a choice at this time of whether to continue with his counsel or accept another appointed counsel. In making this choice, petitioner had to be sufficiently informed about the nature of counsel's wrongdoing, either by counsel or the court.
The crux of the problem here initially involves intelligent waiver of the potential conflict, and that determination involves the totality of whether counsel effectively advised petitioner about the nature of the potential conflict, the prejudice suffered from not being permitted to attend a hearing where a fuller discussion of the ethical problem took place, and the discussion by the judge in open court about the nature of the conflict along with his inquiry to petitioner of whether petitioner desired to waive the conflict.
If the waiver of any conflict was valid, the petition should be denied as petitioner has abandoned any subsequent issues, related or not, to the issue of conflict of counsel. If the waiver is found not to be valid, it is not "game over" for respondent; the law requires a determination to then be made whether the potential conflict advanced to an actual conflict which caused an "adverse effect" on counsel's performance, and if not, whether petitioner suffered Strickland*fn1 prejudice as a result of any lingering potential conflict. See Belmontes v. Brown, 414 F.3d 1094, 1118 (9th Cir. 2005), rvs'd on other grounds, Ayers v. Belmontes, 549 U.S. 7, 127 S.Ct. 469 (2006); Lewis v. Mayle, 391 F.3d 996, 997 (9th Cir. 2004), in which both cases found a conflict waiver invalid and then went on to determine whether the effect of the conflict warranted reversal.*fn2
After an exhaustive presentation of the facts, the undersigned will first discuss whether, aside from any advice counsel may have given her client about the nature of the conflict, the record allows a finding that petitioner was sufficiently informed such that he could validly waive any conflict. If the record does not permit such a finding, the court will determine whether an evidentiary hearing is permitted to ascertain what specifically counsel told her client about the nature of the conflict. These facts, could, depending on their specificity, make up for any deficiencies in the on-the-record explanations to petitioner.
Assuming for the moment, that the undersigned ultimately finds a non-intelligent waiver, the effect of that deficiency would have to later be assessed viewing the case as a whole, either on the "adverse effect" standard, or Strickland prejudice. Evidentiary Hearing Order, November 24, 2009 at 4-5.
An evidentiary hearing was held concerning what was told to petitioner by his counsel, as what petitioner knew, and when he knew it, are important factual matters. This Findings and Recommendations will borrow liberally from previous orders in this case, as an order simply recounting the decision after hearing would leave the reader in the dark about the circumstance of the entire case. And, it is grossly inefficient to have a reviewer sift through the docket attempting to get a picture of the case as a whole.
In sum, the undesigned recommends that the petition be denied. Petitioner sufficiently knew the in camera hearing facts at the time he made his waiver, and, in any event, he suffered no prejudice from any potential or actual conflict.
The Third District Court of Appeal in an unpublished opinion, noted that the trial, involving four defendants, four defense counsel, two prosecutors and three juries, "was long and complicated." People v. Brewer, 2005 WL 290021 *1 (Cal. App.3rd 2005). The "facts of the crimes," are not presently at issue in this order. Suffice it to say here that the case involved serial robberies of the Bread Store by multiple assailants. Brewer was involved in both robberies, and the last robbery resulted in the murder of a Bread Store employee.
Petitioner filed his initial federal petition on February 26, 2006. He listed nine claims (1-8 specifically enumerated, and claim 9 was a cumulative error claim made in the conclusion):
1. Trial court error in not granting the Sacramento County Public Defender's (PD) Motion to Withdraw from Representation;
2. Failure of the trial court to fully disclose his counsel's conflicts by virtue of petitioner's absence from an in camera hearing in which the conflicts were specifically discussed thereby resulting in an uninformed waiver;
3. Marsden motion (conflict with counsel) denials;
4. Counsel's preclusion from use of the pass-through window at the jail resulted in a compelled choice between self-incrimination and right to counsel;
5. Outrageous government conduct in monitoring attorney-client visits;
6. Involuntary consent to search;
7. Prejudicial statements by jurors;
8. Due process violation in admission of photographs;
In his amended petition filed on December 12, 2007, petitioner expressly abandoned every claim except for number 2. Thus, only that claim, dual as it is with both an absence from hearing and uninformed waiver aspect, will be adjudicated herein.
Within that claim, however, petitioner abandoned arguments and later attempted to retract the abandonment. Some explanation is necessary as petitioner has thrashed about searching for a prejudice argument that will work for him.
Petitioner initially contended that he does not make any argument based on the Sixth Amendment because in order to prevail on such a claim it would be necessary for petitioner to demonstrate that the conflict adversely affected his defense counsel's performance and while "Repkow's performance was affected in regards to her relationship to her client...." as evidenced by the multiple Marsden*fn3 motions, the prejudice standard for a conflict issue relates to how the trial legal issues were actually handled and petitioner conceded "that an adequate showing of this type of 'adverse effect' cannot not be made in this case." FAP, pp. 33-34; Mickens v. Taylor, 535 U.S. 162, 174, 122 S.Ct. 1237, 1245 (2002) (where trial court fails to inquire into a potential conflict of interest about which it knew or reasonably should have known, petitioner has the burden "to establish that the conflict of interest adversely affected his counsel's performance" in order to show a Sixth Amendment violation); Campbell v. Rice (Campbell II), 408 F.3d 1166, 1170-71 (9th Cir. 2005) (en banc) (no relief from Sixth Amendment violation unless defendant can demonstrate counsel's "performance was 'adversely affected' by the conflict of interest").*fn4
Thus, as articulated in his first amended petition, petitioner's claim rests on an assertion of a Fourteenth Amendment due process violation by the trial court "in absenting Brewer from a crucial proceeding," as well as allegedly subsequently failing to fully disclose the facts divulged at that proceeding. FAP, pp. 34 - 44. Petitioner asserted that Campbell II is incorrect, and structural error should be found; he also asserted that the attorney-client relationship was substantially harmed by the absence and invalid waiver, i.e., he should have been allowed to fully assess the potential damage to the relationship at the time of waiver of potential conflict.
Notwithstanding, in his traverse while remaining focused on a claim of a due process violation, petitioner expressly withdrew his previous analysis predicated on Campbell II, as well as withdrawing his prior withdrawal of any Sixth Amendment argument. Traverse, p. 7. Eschewing his prior express averment that the requisite prejudice for a Sixth Amendment violation could not be shown, petitioner asserts in the traverse that "[t]he key issue here is prejudice" for which he maintains that the "controlling authority" is Bradley v. Henry, 510 F.3d 1093 (9th Cir. 2007) (en banc), contending that the "harmful to the attorney-client relationship" prejudice analysis therein is what he relies on at this point.*fn5
On February 29, 2008, the following addition in Bradley v. Henry, cited as 518 F.3d 657, issued, stating in relevant part: "The plurality opinion has been joined by only five of the eleven judges on this limited en banc panel. Because that constitutes less than a majority of the panel, that opinion does not announce the law of this circuit. The precedential effect of this decision does not extend beyond the conclusions expressed in this separate opinion [referencing the decision at 510 F.3d 1093], which concurs in the judgment on more narrow grounds. [citation omitted]."*fn6 To the extent that petitioner makes an argument in his traverse based on the Sixth Amendment -- despite having expressly previously avowed that the requisite prejudice to support a claim of ineffective assistance of counsel under the Sixth Amendment could not be shown as to the actual handling of the legal issues at trial -- rather than limiting his claim to a Fourteenth Amendment due process violation as set forth in the amended petition, the court will include that discussion below. However, as discussed below, petitioner incorrectly relies on the Bradley plurality opinion, and petitioner's inability to even show an adverse effect on the trial itself, much less Strickland prejudice is ultimately the downfall of this petition.
These standards are well known and were set forth in the initial order. For sake of brevity, they will be omitted here.
In order to be complete in this document, much of what was set forth in the order for evidentiary hearing, is set forth here. That discussion is critical to understand why the undersigned found AEDPA-unreasonable the analysis of the Court of Appeal finding a valid waiver of potential conflict on the record before it. The undersigned will then discuss the evidentiary hearing issue -- whether petitioner had knowledge of the substance of the in-chambers conference from his counsel such that an absence from the in camera hearing was factually harmless. Finally, if the absence was not harmless, was petitioner sufficiently prejudiced to warrant a granting of the petition.
1. Lead Up to the Evidentiary Hearing
Factual Background re: Petitioner's Representation The facts concerning this claim, which would test any trial judge, must be initially fully stated, and then broken out in order to fully understand the claim. The 3rd DCA sets forth the following background "facts concerning Brewer's representation:"
The public defender's office was appointed to represent Brewer on January 16, 1997. Brewer was represented by assistant Public Defender Karol Repkow, a 22-year veteran of the Public Defender's Office. Trial began November 1, 2000. The first weeks were taken up with pre-trial motions, then jury selection for three juries. Opening statements were presented to Brewer's jury and the first witness was called on March 20, 2001 (trial day 46). The court excused the jury until Monday, April 2.
On March 29, 2001, Repkow approached all counsel and told them she needed to speak to the court ex parte; there was no objection. Repkow asked the court for a one-week continuance until April 9. She was involved in a situation involving her employment that was taking substantially all of her time. The next day, Friday, the trial court held a hearing. Repkow did not attend due to "the personal issue," but her supervisor, Don Manning, attended. Manning told the court he believed that with a one-week continuance Repkow would be able to represent Brewer the remainder of the trial. The prosecutor's only concern was what had been disclosed to Brewer and his attitude about the matter. The court envisioned a two-part process: the first step was the continuance, then a further hearing with Repkow and Brewer so "that everyone is on the same page." The court granted the continuance without objection.
That afternoon the court had a conversation with Paulino Duran, the public defender, about whether there would be any further disruptions in this case relative to this situation. Duran assured the court that to his knowledge there would be none.
The following Monday, April 2, Manning appeared with Repkow and stated the public defender's office was declaring a legal conflict. Two defense counsel who represented another client who may have been involved in the potential conflict were present. They were concerned with protecting their client's privileges. A hearing was held in the afternoon.
Manning stated that based on a reevaluation of the case and subsequent matters, the public defender's office believed it was best to ask to be relieved because they did not believe Brewer could get effective assistance of counsel if the office remained in the case. The evaluation was based on facts surrounding Repkow's representation and other factors in her life. Manning was not prepared to discuss those further unless the court asked for an in camera hearing.
The court indicated it needed a better idea of the nature of the conflict. Repkow stated her primary concern was what was best for Brewer and he wanted her to continue to represent him. She believed she was ready and able to do that. She suggested the conflict was between her office and herself and was not a legal conflict that touched on Brewer. Manning asserted that Repkow was not in a position to raise the issue of conflict because the public defender was the attorney of record and the public defender believed Repkow could not provide effective assistance of counsel. Additionally, Manning advised the court that Repkow intended to request an additional one-week continuance.
The court granted an in camera hearing; present were two representatives from the public defender's office, Manning and Mr. Loehr, Repkow, and Brewer. The court indicated the situation did not permit simply allowing the Public Defender's Office to make the call because Brewer had certain rights to continue representation by Repkow. Presumably, the trial court was referring to Harris v. Superior Court (1977) 19 Cal.3d 786. Under Harris, a trial court exercising its discretion in the appointment of counsel should take into consideration whether defendant has a pre-existing relationship with an attorney willing to accept appointment. ( Id. at p. 799.) But even in such circumstances, the court need not appoint that attorney when there are "countervailing considerations of comparative weight." ( Ibid.)
Manning discussed what precipitated the withdrawal motion. He reported that after the request for the continuance the previous Thursday, Repkow was to meet with Duran, but she was so distraught she was unable to, nor was she able to attend court on Friday. The public defender's office questioned Repkow's judgment regarding her conduct with another client. They could not guarantee the court Repkow might not have an emotional collapse in the future; they could not certify that Repkow could adequately and effectively assist Brewer. Loehr added that the facts revealed "a failure to exercise good legal judgment, failure to understand [her] role as counsel and perhaps a failure to be able to focus and to do the work in this matter that is required because of other concerns." There was also a concern that personnel matters would be preceding [sic] simultaneously with the case and a high likelihood of adverse publicity shortly. There had been serious lapses of judgment involving her contact with a prior client as to whom the Public Defender's Office had declared a legal conflict. Repkow took the position these matters did not effect [sic] Brewer. The court confirmed with Brewer that he wanted Repkow to continue to represent him. Manning declared Brewer could not waive the issue of effective assistance of counsel.
The discussion turned to the timing of the personnel issues facing Repkow. Manning told the court that he was investigating the matter and would have a report to Duran in 30 days. Any further action would be taken in less than six months, while the trial was going on. Manning stated the previous one-week delay was due to the impact of Repkow understanding the office was initiating an action against her; the personnel matter would not be resolved in a week, but before this trial was over.
Manning set forth his office's position of the issue of effective assistance of counsel: "It is our belief based on internal personnel matters, matters that have come to our attention through information that has been provided to us by the Sheriff's Department, information that has been presented to Ms. Repkow in the form of a letter by Mr. Duran, her conduct last week and on Friday, her conduct with a prior client, her conduct with other prior clients in our office, that we believe that if that hits the public during this trial that we cannot guarantee this Court that Ms. Repkow will be able to assist effectively in insuring that Mr. Brewer has the proper right to counsel." Manning indicated Repkow was concerned about termination from the office and public disclosure of the events that led to the investigation. Repkow protested she felt the Public Defender's Office was pressuring her to change her position by threatening to fire her within 30 days. The court remarked the only thing that sounded new from the previous week was that this matter might become public.
The trial court determined more information on the personnel matter was necessary, so Brewer was removed from the hearing. Manning explained that in January the public defender's office had to declare a conflict as to a client and Repkow was ordered to have no contact with that client. In early March, law enforcement advised them that Repkow had continuing contact with that client and law enforcement was revoking her privilege to use the attorney-client room. Repkow had also received calls from the client at both her home and office. And Repkow had been passing contraband to the client and violating rules of the sheriff's department concerning social visits, contraband, and using other inmates to communicate with the client. Duran directed her in writing not to have any additional contact with the client, and the previous Friday Repkow disregarded that order and received a phone call from that client. The public defender's office then reassessed Repkow's judgment and how the circumstances of her contact with the client, the pending personnel matter, and other things would weigh on her ability to represent Brewer. The conclusion was the office could not assure the court of adequate representation. Loehr added there was some question whether Repkow properly understood the role of counsel.
Repkow reiterated that any mistakes she had made had no bearing on Brewer and she believed she could adequately represent him. The court adjourned the hearing until the next day.
The next day, to refute any claim of ineffective assistance of counsel, Repkow recounted all the work she had done on this case. She then proposed that she would resign from the public defender's office and ask the court to appoint her to represent Brewer.
The court found there was no current conflict of interest, though there was a secondary issue of a potential conflict of interest. The court had not found any ineffective assistance on the part of Repkow so far in the trial. The court then questioned Brewer. Brewer said he did not understand most of what had been discussed, but he wanted Repkow to represent him. The court then explained that the public defender's office wanted to be relieved because it believed Repkow could not effectively represent him. There were issues involving her employment that might distract her and affect her ability to be focused on this case; her attention could be divided. As a result, it might increase his chance of being convicted. Brewer was given the opportunity to discuss the potential conflict with an attorney from the indigent defense panel but declined. Brewer stated he had discussed the matter with Repkow and was comfortable with his decision to retain her.
The court found Brewer had been advised of the right to be represented by conflict-free counsel and understood the disadvantages of being represented by an attorney with a potential conflict. He had discussed the matter with his attorney and was aware of the possible consequences. The court found Brewer waived any potential conflict, stressing that the conflict was only potential.
Repkow requested a week's continuance as she needed to move her office. The request was granted. Repkow resigned from the public defender's office. The public defender requested a five-month continuance for a new lawyer to take over the case. Repkow requested she be appointed Brewer's counsel. Brewer indicated he wanted Repkow to represent him. The trial court relieved the public defender's office as counsel and appointed Repkow to represent Brewer.
Beginning two months later, Brewer made a series of Marsden (People v. Marsden (1970) 3 Cal.3d 118) motions. At one point he sought to represent himself. (See Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562].) Brewer and Repkow also complained that Repkow was denied pass-through privileges in the attorney-client area of the jail and the lack of privacy made communication on Brewer's defense extremely difficult. All of these motions were denied as the court found Repkow provided effective assistance of counsel.
Brewer, supra, 2005 WL 290021 *5-8.
Petitioner contends that in obtaining the waiver from petitioner, the court did not disclose to him:
(1) Repkow had a personal relationship with another client, (2) was barred from using the attorney-client room (pass through window), (3) that her telephone calls were being intercepted, or (4) that the Public Defender's office had serious doubts about her competency based upon other matters that they had reviewed.
FAP P&A, p. 24, citing RT 2202-2206.
These issues arose in a case involving four co-defendants (and multiple juries) during the six months of trial. RT 2151-2152. Repkow asked for the in camera hearing to be comprised of the court, herself and petitioner. RT 2152. The trial judge ordered the in camera hearing among himself, Ms. Repkow, petitioner, as well as Mr. Manning and Mr. Loehr of the Office of the Public Defender, including "necessary court staff." RT 2152-2153; initially sealed RT 2154-2196 (Docket # 59) (unsealed in evidentiary hearing order).
At first, Ms. Repkow objected to Mr. Manning's and Mr. Loehr's presence as adverse to herself and thus, to her client, and just wanted the judge, herself and petitioner at the hearing. RT 2154. But the judge noted it was the Office of the Public Defender (OPD) which was petitioner's appointed counsel and that the assignment to a particular attorney occurred within the office, so as petitioner's counsel, the OPD could be heard. RT 2154-55. The judge observed that petitioner was "in the middle" of any conflict between the OPD and Repkow, and that in order to make a waiver if that should come up, petitioner needed to be present to "know all the dynamics that are involved in this particular case." RT 2155. Although Ms. Repkow continued to object to the OPD arguing against her in front of petitioner, the judge asked how petitioner could "make an informed decision without having all of the facts available to him[.]" RT 2156. The judge also referred both to his need and that of petitioner to hear about the conflict issue "if it's this bad now." RT 2157. Ms. Repkow said the following about what she had previously shared with petitioner:
"I have indicated to Mr. Brewer generally the nature of my position with respect to the office and that some matters have arisen that actually concern, as an example, or may concern a former client. The conflict in my view had nothing to do with Mr. Brewer. I think I've already said that and doesn't have a bearing on my representation of him.
Mr. Brewer is aware that, obviously he can see there's a conflict here in my own office, and that much I did represent to him. And as I've already indicated to the Court, Mr. Brewer states that he wants to continue with me as his attorney, what he understands that some matters have arisen in my office, matters that concern me, matters that concern other individuals and other issues that have taken my focus away recently within the last few days from his case, which is why I asked for an additional week."
RT 2157-58. (Emphasis added)
Her focus at that point was on the unnamed former client and she wanted to make sure counsel for that client be included if Mr. Manning and Mr. Loehr intended to discuss that former client. RT 2158. Petitioner was present for a discussion of how Repkow had been unable to communicate with the public defender, Paulino Duran, and that Manning had come to court on Friday for Repkow because she was so distraught and there was a personnel issue that was in the investigation phase. RT 2159.
Mr. Manning: "We currently question her judgment based on the issues that are involved in the personnel matter. We question her judgment regarding her conduct with another client in our office. And after a full and thorough discussion of whether or not we believe that she could provide effective assistance of counsel to Mr. Brewer, it was our judgment that she could not. And that's why we have requested our office to be relieved." RT 2159-60. We cannot guarantee to the Court that two weeks from now, three weeks from now she is not going to have an emotional collapse, and I don't think the Court wants to be in that situation three to four weeks from now. She's had this case for four years, and her emotional state last week was such that she requested the Court to continue it a week, and this morning wanted the Court to continue it an additional week.
We cannot certify that Ms. Repkow can adequately and effectively assist Mr. Brewer." RT 2160.
Mr. Loehr: "[W]e have a responsibility as an office to make sure that Mr. Brewer's Sixth Amendment rights to counsel are protected. And Mr. Duran has, as Mr. Manning said, serious concerns about Ms. Repkow's legal judgment at this time as demonstrated in these matters involving another client, matters which have happened very recently.
And when we see her coming before this Court on a serious matter, I think the office cannot stand back at a time when we have such questions about the judgment of a lawyer and let that lawyer proceed to try such a serious and difficult case... [T]he matters that have been related to me tend to show a failure to exercise good legal judgment, failure to understand role [sic] as counsel and perhaps a failure to be able to focus and to do the work in this matter that is required because of these other concerns.
So there is the concern about the judgment. There's also the concern that other matters may be preceding [sic] simultaneously with this case, other personnel matters - -" RT 2161. ....
There's also a high likelihood of some adverse publicity shortly. Things seem to have become public in a way that was not anticipated. And we don't know what's going to happen, frankly. And it could be something that would have a serious impact, on Ms. Repkow personally and on this trial. RT 2161.
Mr. Loehr referred to "a significant lapse in judgment" by Ms. Repkow with regard to a former client who had been represented by Repkow in which the OPD, a month prior, had had to declare a legal conflict (the unidentified person subsequently represented by Mr. Clymo and Mr. Millard). RT 2162-63. Mr. Loehr stated that "under Rule 3-310, matters relating to former clients that would substantially affect a current representation do form the basis for a legal conflict," but he asserted that the more important concern was the Sixth Amendment duty to ascertain what the conflict is and to always be prepared to provide the client with vigorous and adequate representation. RT 2163.
Ms. Repkow then defended herself by asserting that any matters affecting a former client or any error of judgment on her part with regard to any such person had nothing to do with petitioner and that there was no question of her professional relationship with petitioner. RT 2164. She claimed that what had recently affected her concentration on petitioner's trial had been discussions of issues in her office and that petitioner would be best represented by her. RT 2164. She conceded that she was distraught and had been crying on the previous Friday, but that she regarded her crying, which she said was rare for her, as healthy in the circumstances. RT 2164-65. She stated she was under even more pressure at the then-current point and was not crying and reiterated that petitioner would be served best if she continued to represent him. RT 2165.
The judge ascertained that petitioner had heard everything up to that point and still wanted Repkow to represent him. RT 2165-66. Mr. Manning interjected that he did not believe that petitioner could waive the issue. RT 2166. A discussion ensued wherein it was made clear that an investigation would continue into Ms. Repkow's conduct and that any action by the public defender as to Ms. Repkow's future employment in that office would be concluded before the trial ended. RT 2166-2170.
When asked by the court, still in petitioner's presence, whether or not it was the position of the public defender's office (OPD) that Ms. Repkow would not be able to provide constitutionally adequate representation of counsel based on information the office had received, RT 2170-71, Mr. Manning responded:
It is our belief based on internal personnel matters, matters that have come to our attention through information that has been provided to us by the Sheriff's Department, information that has been presented to Ms. Repkow in the form of a letter by Mr. Duran, her conduct last week and on Friday, her conduct with a prior client, her conduct with other prior clients in our office, that we believe that if that hits the public during this trial that we cannot guarantee this Court that Ms. Repkow will be able to assist effectively in insuring that Mr. Brewer has the proper right to counsel.
The Court: That clarifies a lot.
Now, just so I understand, assume for the sake of argument that no information gets out to the public and that there's no further personnel actions, and Ms. Repkow is left to simply work on this one case and defend Mr. Brewer to the best of her ability at this time, would you still have the same position on behalf of the office?
Mr. Manning: The personnel action will proceed. What the final result of that personnel action, I'm not Mr. Duran. So until I present the investigative report to him, I don't know what that final personnel action will be.
I will say that based on my review and evaluation of this case, some of the matters that are -- Ms. Repkow is concerned about is [sic] termination from our office is public disclosure of the events that led up to this investigation, and it's our belief that that being on her mind and her poor judgment on prior cases in our office, that we cannot certify to this Court that she can properly and effectively provide the assistance that is necessary in the defense of a case of this nature. And that the personnel action in this case was contemplated to be finished long before six months.
At that point, Ms. Repkow interjected that the office was stating this position for the first time and that all of the information was known to them as of the afternoon of Friday before when it was represented to the court that she could continue to represent petitioner. RT 2172. She also remarked that as of Friday afternoon she was not being told she could be fired in 30 days, but she acknowledged that that was "a fear at the back of my mind." RT 2172-73. The trial judge then attempted to discern what could have happened between 2:00 p.m. on the previous Friday [March 30, 2001] and 10:00 a.m. on that next Monday [April 2, 2001] that caused the OPD to question Ms. Repkow's competence, stating that "it appears that the one thing that I hear that's new is that this may get out and become public." RT 2173.*fn7
The Court: And Friday at 2:00 o'clock you were competent to handle the case. What I'm trying to find out is what happened between Friday at 2:00 and this morning at 10:00 that caused you not to be competent to handle the case. And the only thing that's new information that I hear is that it may become public, and as a result of it becoming public, it may cause tremendous stress upon not only the office, but you personally, Ms. Repkow.
And further important now, I also understand there's a misunderstanding regarding length of trial, so there could be a personnel action prior to this trial which would create another whole issue.
Ms. Repkow acknowledged that she had been "worried about a personnel action" since receiving a "directive a couple of weeks ago." RT 2174. But she continued to protest that although she was worried about being fired that as of Friday afternoon she understood that she was "okay to proceed on this trial...." RT 2174. Mr. Manning clarified that he did not speak for Mr. Duran regarding the resolution of the personnel matter but that the matter would not rest for six months [his newly understood time frame for the length of the trial]. RT 2175. He also stated that "this should not come as a shock to Ms. Repkow because during her improper contact with a prior client of ours that was discussed numerous times the fact of termination being a possibility of this contact." RT 2175. Petitioner was present for this entire discussion up to the point when the trial judge asked if there were any other issues to be brought up. In what set up the issue in Claim 2 Mr. Manning responded:
The only thing I would say to the Court is that I believe within the parameters of discussing this issue and providing privacy to Ms. Repkow concerning these personnel matters, I have not disclosed in exact detail what the issues are in our office. And I believe it would be inappropriate to discuss those issues especially with Mr. Brewer present since they are personnel issues.
Mr. Loehr also requested a hearing in petitioner's absence if the court wanted more detail. RT 2176. Mr. Manning later reinforced the request: "And as I indicated to the Court, if the Court desires additional information we are ready to provide that information to the Court as long as Mr. Brewer is removed from the hearing." RT 2181. Mr. Loehr had also earlier expressed that they were "to some extent...speaking in generalities...," in addition to their concern for Ms. Repkow's "privacy interests" in the pending "personnel actions," they also were concerned about guarding the privacy of the former client, stating "[t]here are matters that are private with respect to that client that Mr. Brewer perhaps should not be privy to." RT 2160. Ms. Repkow continued to argue for her competence to represent the petitioner; she also averred that raising "a possible reason as to why there could be problems in the future....doesn't have any bearing on my competence to adequately and fairly represent...petitioner." RT 2182.
After petitioner was removed for the court to be provided with greater detail, Ms. Repkow again alert, perhaps over-alert, to the interests of the former client, immediately asked on behalf of Mr. Millard and Mr. Clymo whether they could be present to protect their client's interests as he was the one involved in the personnel action, which request was denied with the judge expressing no interest in hearing the name of anyone involved. RT 2184.
Mr. Manning proceeded to provide more specific information, beginning with informing the judge that in January of that year, the OPD had to declare a conflict with a client represented by Ms. Repkow, at which point she had been directed by Paulino Duran to have no more contact with that client. RT 2184. After the first or second week in March, according to Manning, the OPD was informed by law enforcement that:
Ms. Repkow had had continuing contact with that client to include the attorney-client room when she no longer represented the client and they were informing us at that date they were revoking any privilege she ...