Law Practice
Jul. 24, 2002
Transcripts Are Crux of Case
RIVERSIDE - A former deputy public defender is asking a judge to hold her ex-boss - Riverside County Public Defender Gary Windom - in contempt for allegedly publicizing privileged information between her and her former clients.
Gail M. Cronyn, who was fired by Riverside County in May 2001, contends in court documents that Windom used transcripts of secret Marsden proceedings involving two of Cronyn's former clients as evidence against her employment appeal.
Judge J. Thompson Hanks had allowed Windom to view the transcripts for five days but barred him from duplicating the material - an order that Cronyn's attorney and husband, Rees Lloyd, says Windom clearly violated. Daniel Spradlin, counsel for Riverside County with the Orange firm of Woodruff, Spradlin & Smart, contends Windom did nothing wrong.
Hanks was scheduled to rule today on Cronyn's request for a contempt finding. However, Windom's attorneys late Monday obtained a stay of the proceedings, requesting that the case be heard by a different judge.
"They're running around copying these things and putting them out," Lloyd said of the Marsden transcripts involving Cronyn's former clients, Marc Merolillo and Arthur Elder.
A Marsden hearing is a confidential court hearing held when a client wants to change attorneys because of a conflict or some other reason.
According to court documents, Hanks gave the public defender's office permission in January 2001 to view the transcripts of Marsden hearings in the Merolillo and Elder cases, in which the defendants asked that Cronyn be removed as counsel. At the time, the judge ordered Windom not to duplicate the transcripts and to give them back to the court within five days.
According to Lloyd, the public defender's office is using the transcripts in the ongoing arbitration of Cronyn's appeal of her termination in an attempt to show that Cronyn inadequately represented her clients.
"We thought at first that [the situation might be] that Windom got a waiver from the defendants to use the information. That's not the case," said Lloyd, a Banning sole practitioner who specializes in employment and civil-rights law.
"The issue before the court Tuesday is whether Mr. Windom violated a court order. We are categorically denying that he ever did that," Spradlin said in defense of the county. "With respect to the issues involving the Marsden hearings, Ms. Cronyn was fired from her job as a deputy public defender because she wasn't doing her job for her clients."
Debra L. Bray of Liebert, Cassidy & Whitmore in Los Angeles, counsel for the county in administrative proceedings involving Cronyn, wrote in court documents that Evidence Code Section 958 clears the use of the transcripts by the public defender's office from violations of attorney-client privilege.
According to the evidence code, no attorney-client privilege exists "as to a communication relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship."
Bray also cited a Legislative Law Revision Comment accompanying the evidence code section that she contends further justifies her position: "[I]f the defendant in a criminal action claims that his lawyer did not provide him with an adequate defense, communications between the lawyer and client relevant to that issue are not privileged."
Bray disagreed with Cronyn's allegation that public defender didn't obtain waivers of confidentiality from Merolillo or Elder before admitting information from the Marsden transcripts into evidence.
"Here, there is no question that Cronyn's clients waived any attorney-client privilege which attached to their complaints about Cronyn's statements to the clients, including any communications that occurred between them concerning such complaints," Bray wrote.
According to the Marsden transcript obtained by the Daily Journal in the Elder case, the defendant - who ended up pleading guilty to charges of assault to commit rape - said he didn't want Cronyn as his attorney because she didn't seem to be spending much time on the case.
"I haven't seen her," the defendant told the judge in the January 16, 2001, hearing on the motion. "Every time I talk to her and try to get something done or she is trying to get a motion, she is rebuffed at every move."
Portions of the transcript, however, appear to side with Cronyn.
"I want you to understand, Mr. Elder, you haven't told me anything about Miss Cronyn nor has she mentioned anything that indicates she isn't adequately representing your interests," Hanks said at the conclusion of the proceedings.
"Actually, we don't have any problem with the transcripts being in evidence, because they make Gail look pretty good," Lloyd said. "But we don't want them [in evidence] if it's a violation of the judge's orders or a violation of attorney-client privilege."
In court papers, Cronyn, who has a federal defamation lawsuit pending against Windom, has argued that she enjoyed a good reputation in the public defender's office and adequately represented her clients. She said she was one of three women in the office who tried death-penalty cases.
Cronyn, 53, worked as a deputy public defender for 11 years, making $85,000 annually when she left.
She had a court victory last year when a Riverside judge ruled that the public defender's office improperly barred her from talking to her former co-workers in the office after she was placed on administrative leave.
Jason Armstrong & Sean Windle
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