Court asked to decide if Modesto attorney charged with murder can represent clients in murder cases

A legal fight continued Wednesday over whether a Modesto defense attorney can continue to represent his clients while facing a charge of murder in the death of Turlock resident Korey Kauffman.

Attorney Frank Carson remains in custody at the Stanislaus County jail. He is being held without bail and is scheduled to return to court Tuesday for a possible bail review hearing. Carson wants to return to work and defend his clients while on bail.

Prosecutors are asking the court to keep Carson and some of his co-defendants in custody without bail. They’re also seeking to remove Carson from some of his clients’ cases, arguing that Carson would have a conflict of interest if he were to represent clients facing their own murder charges.

On Wednesday, the Stanislaus County District Attorney’s Office filed motions in two murder cases unrelated to Kauffman’s death. The prosecutors are asking the court to hold a hearing to determine whether there is a conflict of interest for Carson, who represents the defendants in these cases.

Deputy District Attorney Beth O’Hara DeJong filed one of these motions in the case of Gabriel Miranda, who is accused of murder in the May 2012 shooting of Simon White, 24, in Turlock.

“Here, Mr. Carson, as well as his client, Gabriel Michael Miranda, are being prosecuted by the same agency – the Stanislaus County District Attorney’s Office – in different cases for the commission of murder,” according to DeJong’s filed motion.

Percy Martinez, Carson’s attorney, said his client should be allowed to return to work, especially if he has posted bail and is out of jail. He said Carson has a long list of clients who have chosen Carson to represent them.

“They’re trying to get him removed from the case,” Martinez said about prosecutors. “He’s beaten them many times, and they want him off the case.”

Nine defendants have been charged in Kauffman’s death, including Carson, his wife, her daughter, a former California Highway Patrol officer, two CHP officers on administrative leave and two Turlock business owners.

Robert Lee Woody, who last year was the first to be charged in the murder case, is being prosecuted separately. He appeared in court briefly Wednesday. Woody was scheduled to return to court Sept. 23 for another pretrial hearing. His preliminary hearing was supposed to start next week, but it has been canceled and has not been rescheduled.

Martinez spent Wednesday morning appearing with some of Carson’s clients, including Miranda. In Stanislaus County, Carson has clients in 71 pending cases.

A two-day preliminary hearing for Miranda was scheduled to begin this week, but now it’s delayed and hasn’t been rescheduled. At the conclusion of the hearing, the judge would have decided whether Miranda should stand trial.

Martinez told the judge he is in constant contact with Carson and needs time to discuss the prosecution’s filed motion before proceeding with a conflict-of-interest hearing. “I’m not in a position to argue this today,” Martinez said in court.

Stanislaus Superior Court Judge Thomas Zeff scheduled Miranda to return to court Sept. 28 for a hearing to discuss the prosecution’s motion.

In Carson’s own case, there’s still a question as to whether the defense attorney will be given a chance to post bail. If the judge rules in favor of the prosecution, Carson could be ordered to remain in custody without bail. Before that is argued next week, a trial has to begin for one of Carson’s clients.

Juan Manuel Tello is accused of murder in the death of Robert Ruvalcaba. Tello’s first trial ended in June with a hung jury. Tello has refused to waive his right to a speedy trial, so his second trial has to begin by the end of this week.

“Mr. Tello wants Mr. Carson to represent him,” Martinez said in the courthouse hallway between hearings Wednesday morning. “He feels more comfortable with Mr. Carson.”

Martinez also said Carson has everything prepared to proceed with Tello’s trial as soon as possible. He said Carson is willing to appear in court while in custody to start the trial.

Deputy District Attorney Wendell Emerson, who is prosecuting Tello, has said in court that it would be wrong to allow an attorney facing a murder charge to argue in court on behalf of a client scheduled begin his own murder trial. Emerson filed a conflict-of-interest motion in Tello’s case Wednesday.

Judge Ricardo Córdova has scheduled Tello to return to his courtroom Thursday to decide whether Tello’s trial will start this week and who will represent him.

Emerson has argued that if a jury were to convict Tello with Carson representing him, an appellate court would overturn that verdict based on the “ineffective assistance of counsel.” The prosecutor on Monday told the judge he knows of no other case in which an attorney was allowed to defend a client in a murder trial while facing a murder charge in a separate case.

State Bar prosecutors have the ability to assume jurisdiction over a law practice if an attorney is incapable of handling clients and there is no other attorney to step in. But that legal action would require a Superior Court order. When that happens, State Bar prosecutors also can ask the State Bar Court to make the attorney ineligible to practice law.

John Sims teaches professional responsibility courses at University of the Pacific’s McGeorge School of Law in Sacramento. He says attorneys charged with a felony, a criminal complaint or an indictment are required to report the felony charge to the State Bar within 30 days.

Then, State Bar disciplinary officials can look into the matter and decide whether any action is necessary, Sims said.

Martinez said Wednesday that Carson is acting in the best interest of his client, Tello, who doesn’t want to wait another two years in custody for a new attorney to get caught up with the case and be ready for trial.

Asked whether Carson is willing to return to work if he post bail and is out of jail, Martinez said, “Absolutely. There’s no reason why he shouldn’t be.”

This story was originally published August 19, 2015 at 3:54 PM with the headline "Court asked to decide if Modesto attorney charged with murder can represent clients in murder cases."