DA bid to remove pregnant defense lawyer withdrawn
Prosecutor request met with outrage by women’s groups and defense bar
SAN JOSE » District Attorney Jeff Rosen’s office found itself accused of sexism this week after seeking to boot a pregnant defense lawyer off a gang case, saying it anticipated she would ask the judge to postpone the trial so she could take optional maternity leave.
But attorney Renee Hessling never planned or sought to take such a leave, and after the defense bar and women’s groups objected to the premise of the prosecutor’s motion, the Santa Clara County District Attorney’s Office chose to withdraw it.
“I’ min private practice,” Hessling said. “I can’t afford to take any time off, and I also take my responsibilities to my clients and the courts seriously.”
Hessling, who is pregnant with twins, will be off on a medical disability for about eight weeks after having mandatory C-section surgery, and will be ready for the five- defendant, double-ho--
micide trial by March.
Amedical disability, even for a pregnancy, is generally considered “good cause” to postpone a trial.
The motion filed by deputy district attorney Leigh Frazier sparked outrage this week, even among some of Frazier’s fellow prosecutors. It also came under fire Wednesday in a class at Santa Clara University’s law school. And a member of the Asian American Criminal Trial Lawyers Association notified Hessling that the groupwas interested in drawing up a letter to the District Attorney’s Office protesting the motion.
In a scathing statement Thursday, county Public Defender Molly O’Neal condemned the prosecution’s motion as biased against women.
“It is truly hard to fathom how a female prosecutor in 2017 would fail to recognize that a pregnancy-related surgery is obvious good cause,” O’Neal said.
Frazier defended her motion this week, even after the District Attorney’s Office withdrew it, noting in a statement that “there are five victims in this case, including a murdered pregnant woman.”
“We do not want any further delays in this multiple-defendant gang case,” she said.
But the case could have taken far longer to get to trial — at least six more months — if Frazier had succeeded in getting Hessling removed. A new at- torney would have had to bone up on the double-homicide involving five suspected gang members, including poring over reams of paperwork and CDs.
If the trial starts in March, the case would be slightly more than two years old. Other gang cases have typically taken years longer to get to trial, a situation both prosecutors and defense attorneys are under pressure to remedy.
“The prosecutor’s request is factually and legally f lawed, premature and impractical since Ms. Hessling’s removal would actually cause greater delay,” said Sylvia Perez-MacDonald, director of the Independent Defense Counsel Office, which appoints private attorneys, including Hessling, to represent indigent clients when the Public Defender’s Office cannot represent the client.
Rosen’s administration declined to comment.
Complicating the matter in this case, one of the defendants had indicated he would move to invoke his right to a speedy trial within 60 days, at the same time that Hessling had mentioned she would seek the continuance. However, that defendant changed his mind and is now willing to wait.
In her statement, Frazier wrote that she withdrew the motion to remove Hes- sling because of that defendant’s change of heart.
“Consequently, we have withdrawn our opposition,” she said in the statement. “We will continue to try to get the case to trial as soon as possible.”
The prosecution’s concern was that if the defendant had continued to insist on a speedy trial, the judge could have forced the District Attorney’s Office to try him separately from the other defendants, making Frazier’s job to win justice for the two victims much tougher.
Or the judge could have dismissed the murder charges altogether against that defendant, unless there was good cause for delay.
But given the relative brevity of the delay — and the fact that another defense attorney in the case will also be unavailable in December because she will be in another trial— it is extremely unlikely the judge would do either of those things.
It is far more likely the judge would have found the medical disability to be good cause for ordering the defendant to wait.
Even if Hessling had planned to take maternity leave, there is no hard-and-fast rule about whether such time off represents good cause. Two years ago, a different judge in another case that Frazier was involved in ruled that a long maternity leave was not a sufficient reason to postpone that trial. But that ruling did not establish a precedent, meaning the judge in this case, Vanessa A. Zecher, was not obligated to rule in kind.
Even though Frazier’s motion was eventually withdrawn, Perez-MacDonald criticized Rosen’s office for failing to acknowledge what she characterized as an extremely flawed legal maneuver.
“It is disappointing that the prosecutor’s office has been unwilling to publicly or privately acknowledge the profound flaws with this request,” she said, “given our common interest to reduce delay, protect the integrity of criminal proceedings and our common pursuit for gender equality.”
“It is truly hard to fathomhowa female prosecutor in 2017 would fail to recognize that a pregnancyrelated surgery is obvious good cause.” — Santa Clara County Public Defender Molly O’Neal
Attorney Renee Hessling’s twinswill join her son, Jasper.