APPEAL QUESTIONS PUBLIC DEFENDER POLICY
Counsel argues for Jane Dorotik’s right to private lawyer
The San Diego District Attorney’s Office decided to drop murder charges against Jane Dorotik in May, but a behind-the-scenes issue from that long-running case has landed at the San Diego appellate court.
At issue is not any of the evidence prosecutors assembled against Dorotik, who spent nearly two decades in prison after being convicted of killing her husband before the case against her crumbled and prosecutors decided not to retry her.
Instead, the case in front of the 4th District Court of Appeal raises a more fundamental question: In complex cases like Dorotik’s, should indigent defendants be able to have the county pay for private lawyers who are most familiar with the case?
And it also questions the way that San Diego County has structured its system of public defense. Alone among all 58 counties, San Diego has a multitiered system of four public defense offices, all funded by the county and under the umbrella of the Office of the Public Defender but operating independently.
Normally that works seamlessly in the local courts. But Dorotik’s case — a complex one spanning decades with thousands of pages of testimony and evidence — presented something different.
While serving her prison sentence but still working to prove a wrongful conviction, her case was taken on by the Loyola Law School Project for the Innocent in 2016. About two years ago, the project recruited Los Angeles criminal defense lawyer Michael Cavalluzzi, a private lawyer working pro bono, who devoted more than 800 hours to representing her and preparing the case.
Over the past six years, the team of lawyers and students uncovered errors in the original investigation and problems in the county crime lab.
By law, indigent defendants like Dorotik have to be represented by the public defender’s office — unless a legal conf lict prevents public lawyers from taking the case. That is when private lawyers can step in and be paid by the county, if the judge agrees.
When Cavalluzzi sought to be appointed and paid by the county just before Dorotik’s trial in May, a judge said no.
The three innocence projects in California — based at law schools in San Diego, Los Angeles and Santa Clara — say that the judge’s interpretation of the law was erroneous and could damage the cases of other defendants in the future, especially those in innocence cases, which typically feature long and detailed investigations conducted over years. They and Cavalluzzi want the state appellate court in San Diego to take up the issue.
Dorotik was convicted in 2001 of the murder of her husband Robert in Valley Center. For two decades, she sought to overturn the conviction but did not get much traction until 2015, when the Loyola Law School Project for the Innocent took up her case.
After years of investigating, the innocence lawyers were able to convince a judge that the evidence against her was weak and she did not get a fair trial. The District Attorney’s Office reluctantly agreed in 2020 and gave up the conviction — but then months later said they would put her on trial again.
That decision triggered an extraordinary preliminary hearing that lasted 11 months and generated more than 10,000 pages of testimony. It also revealed gaping holes in the forensic evidence that was the basis of her conviction, problems with how some evidence was handled and stored, and a history of performance issues with two criminalists in the county crime lab that led prosecutors to take the unusual step of issuing formal letters advising defense lawyers that their work on cases could be called into question.
In March, Superior Court Judge Robert Kearney nonetheless ordered Dorotik to stand trial again. She and her lawyers pushed for an immediate trial to occur in May.
And that is when the struggle over who should represent her played out in several hearings in a downtown San Diego courtroom.
The office of the Primary Public Defender, the largest of the four, could not take Dorotik’s case because they represented a witness called during the preliminary hearing. But the office said that the Alternate Public Defender could take the case and represent Dorotik.
Ultimately, Cavalluzzi decided to continue to represent Dorotik without pay. Even though charges were dropped before trial, he said he was frustrated at the process. “It was so upsetting to me to have a public defender office against us on this,” said Cavalluzzi, a former public defender himself.
He said once the main public defender’s office said it was a conflict, then all of the offices should have been disqualified. Requiring that all four offices in San Diego declare a conflict before a private lawyer can be appointed is wrong and not required by the law, he added.
If he had stepped aside and a new lawyer appointed, then Dorotik, who is 75, would likely not have had a trial for at least a year or longer, while the new attorney got up to speed. That would have infringed on her right to a speedy trial, he argued.
Moreover, the state law contains an exception that allows a judge to appoint a private lawyer at public expense “in the interests of justice” and for good cause.
The complexity of the case and the fact that Dorotik had established a trusting bond with Cavalluzzi and the innocence project lawyers, as well as her age and looming trial date, qualified as good cause under the interests of justice exception, they argued.
The three innocence projects in California said requiring every division of a public defender office to declare a conflict before appointing private lawyers works against defendants. That standard basically wipes out the “interests of justice” clause in the law and “elevates the interests of county public defender offices as paramount, i.e., more important than those of the clients they would claim to represent.”
Deputy Public Defender Troy Britt rejected that notion and said that the public defense offices have the resources and capability to work on the most complex cases. “Our office always strives to do what is in the best interests of the client,” he said in an interview.
In motions filed during the hearings on the appointment in Superior Court, lawyers for the public defender said the law was clear: Private lawyers can only be appointed to a case when the public law offices are not available. And they argued each of the law offices in San Diego had to have a conflict before that could happen, as the judge held.
They also made another argument that allowing private lawyers to represent someone for a period of time, then ask for county pay, created a “slippery slope.” In other words, a lawyer could represent someone for a period of time, then ask to be appointed and paid by the county.
The appeals court has yet to decide if it will act. It could reject the writ outright or ask for a response from the county, and perhaps ultimately schedule oral arguments on the case.