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Conflict Of Interest Prevents Attorney Accused Of Murder From Representing Client

Attorney charged with murder may not represent his own client in murder trial due to conflict of interest.

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Attorney Frank Carson. Photo: Debbie Noda/The Modesto Bee via AP[/caption]

A Stanislaus Superior Court judge has determined Modesto defense attorney Frank Carson, currently in custody on a murder charge, may not represent his own client in a murder trial.  A conflict of interest exists around the attorney cross-examining the same investigators who are involved in the murder case against him.

But Judge Ricardo Córdova will wait to decide whether Carson can represent his client in the trial while out of custody. Carson has been in county jail since his arrest Friday. He is being held without bail.

Carson is accused of orchestrating a criminal conspiracy that resulted in the death of Korey Kauffman and the alleged cover-up of his murder. The 26-year-old Turlock man’s body was found in Mariposa County a year and a half after he went missing.

A special circumstance allegation makes the case against Carson and some of his co-defendants eligible for the death penalty. Prosecutors are expected to inform the court on Tuesday whether they will seek the death penalty against any of the defendants charged with murder in Kauffman’s death.

If prosecutors seek the death penalty, Carson could be held in custody without bail through the conclusion of his case. If they choose not to seek the death penalty, a judge can set bail for Carson as high as $10 million.

Attorneys on Thursday morning argued over the issues involved with the Juan Manuel Tello case. He is accused of murder in the Dec. 16, 2011, 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 had to begin by the end of this week.

Percy Martinez, Carson’s attorney, argued that Carson has done all the preparation work for Tello’s second trial, and Carson should be allowed to proceed with the trial, even while in custody.

Martinez said Carson has already defended Tello effectively, and he can do it again. “Mr. Tello has total confidence in him,” he told the judge.

Tello, who is well aware of Carson’s charges and custody status, told the judge he is willing to start his trial soon with Carson at his side. “I know that Mr. Carson is the only one who can prove my innocence,” Tello said in court.

Prosecutors are 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.

Deputy District Attorney Wendell Emerson, who is prosecuting Tello, said the defendant has the right to have effective counsel in his trial. He told the judge that there are investigators involved in Tello’s case and Carson’s case, some who testified in Tello’s first trial and will testify in the second.

Prosecutors are warning the court that Carson could try to go easy on the investigators during cross-examination in the Tello trial for his own benefit in his case.

Martinez argued that he and Carson have known about the Kauffman murder investigation for three years, and this “cloud of suspicion” has been hanging over Carson’s head that entire time, even while he effectively defended clients in trials. He told the judge that Carson cross-examined these same investigators in Tello’s first trial, and he never tried to curry favor from them.

“We knew the people who were investigating Mr. Carson,” Martinez said in court.

The judge said he doubts that Carson would do something to “make nice” with investigators in Tello’s trial, nevertheless it is among the court’s concerns.

Tello has a Sixth Amendment right to be represented by an attorney of his choosing. He hired Carson to represent him. But the court has the discretion to overrule that right in “extreme circumstances,” Judge Córdova said.

The prosecutor told the judge that Tello’s right to a fair trial could be adversely affected by some potential jurors aware of Carson’s charges. He said maybe they can address that during jury selection.

There’s also the possibility Carson’s law license is suspended. The prosecutor told the judge that the District Attorney’s Office has notified the State Bar that Carson was charged with murder, conspiracy and perjury.

Martinez told the judge State Bar officials are expediting their inquiry into Carson, and that they appeared to be more concerned with Carson’s custody status, not his charges. “They really don’t know if they’re going to do anything,” Martinez said about State Bar officials.

Tello ultimately decided to waive his right to speedy trial for 40 days. If Carson is released on bail, the judge would still have to determine whether he can continue to represent Tello at trial.

Córdova appointed Deputy Public Defender Maureen Keller as independent counsel and advised Tello about his rights to have an attorney without a conflict of interest. The judge scheduled Tello to return to court Wednesday to further discuss his pending trial.

Originally posted by Rosalio Ahumada in the online version of the Modesto Bee.

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