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'Defense Attorneys Under Siege' : Stinging Debate Triggered By Indictment of Lawyer

April 21, 1985|H.G. REZA | Times Staff Writer

The term "adversaries" has taken on a new and bitter meaning in the traditional battle between federal prosecutors and criminal defense attorneys practicing in the U.S. District Court in San Diego.

In recent weeks, defense attorneys have been fuming over the decision by U.S. Atty. Peter K. Nunez to indict and prosecute local attorney James Warner. Barry Tarlow, Warner's attorney, said Warner was indicted for telling a grand jury witness to plead the Fifth Amendment and to seek legal counsel.

Tarlow said that Warner's advice to the witness was proper and legal. Nunez and federal prosecutors argued that Warner encouraged the witness to lie to impede a government investigation of a drug ring.

Although Warner was acquitted in a trial, his case has opened old wounds in the local defense bar and led to new allegations by lawyers of prosecutorial abuse and vindictive prosecution. The animosity between the local defense bar and Nunez goes back to April, 1983, when his office conducted a search of the office and home of San Diego attorney Phil DeMassa.

A federal judge later said the search was not unreasonable but he ruled it unconstitutional because the government's search warrants failed to specify what materials should have been seized. Since the search of DeMassa's office, defense lawyers have also complained of:

- Nunez's decision to prosecute local attorney Frank Prantil on perjury charges. Prantil's conviction was reversed by the U.S. 9th Circuit Court of Appeals one day before Warner's acquittal. The appellate court said the prosecutor's behavior at the trial prejudiced Prantil's right to a fair trial.

- The indictments by federal prosecutors last month of 98 people, most of them North County residents, on drug charges. At a press conference announcing the indictments, Nunez said the defendants were part of a massive drug ring responsible for smuggling as much as 25% of all the cocaine used in the United States. Federal officials later admitted that the amount of cocaine smuggled by the ring was nowhere near the amount originally announced. This prompted allegations by defense lawyers that Nunez sensationalized the case, thereby prejudicing the defendants' chances of getting a fair trial.

- The use in Warner's prosecution of an informant who had acted as a potential client seeking legal advice. Tarlow said Warner was "targeted" by federal prosecutors, who equipped the informant with a microphone and instructed him to try to "lure" Warner into breaking the law. Government officials "created the crime" with the use of the informant and then charged Warner, Tarlow said.

Nunez said the indictment of Warner unleashed a barrage of protest letters from criminal defense lawyers nationwide. In addition, the judge who presided at Warner's trial received about 20 advisory briefs in support of Warner from lawyers and lawyers' groups from around the country.

San Diego attorney Michael Pancer said Warner's indictment is part of "a national trend to get lawyers." Pancer's position is echoed by Edward F. Marek, the federal public defender in Cleveland, who said in a telephone interview that "defense attorneys are under siege by federal prosecutors."

Nunez denied that his office or the Justice Department has initiated a policy of targeting lawyers. Instead, Nunez charged that the defense bar is looking for preferential treatment for lawyers who violate the law.

"What I see from them is a nationwide campaign to make defense lawyers immune from criminal prosecution, and that isn't going to happen," Nunez said. "Then there are lawyers who take the position that this is personal, that the government is out to get them. That is absolute nonsense. An honest and ethical lawyer has no more to fear than an honest and ethical citizen."

In an interview at his downtown office, Nunez was just as critical of the defense bar as some lawyers were of his office. Defense attorneys, he said, are motivated by profit. Unlike the government, defense lawyers "have no obligation to make sure the guilty are convicted," Nunez said.

"Lawyers that are in private practice are there to make money. They are not altruistic. They are generally not there to do good for society. If they wanted to do that they would be prosecutors, doing good for society," Nunez said.

It is Nunez's view of the criminal justice system, and particularly his view of the role played by defense lawyers, that prompted Warner's indictment, Tarlow said. Warner previously had represented several defendants in a major drug- and gun-smuggling ring that was uncovered by federal investigators.

In interviews with The Times, Warner and several other lawyers charged that Warner's prosecution stemmed from his success in defending accused drug dealers. Warner's indictment, they say, was nothing less than vindictive prosecution.

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