1 2 3 4 5 6 7 8 STATE BAR OF CALIFORNIA OFFICE OF CHIEF TRIAL COUNSEL STEVEN J. MOAWAD, No. 190358 CHIEF TRIAL COUNSEL DONNA S. HERSHKOWITZ, No. 172480 DEPUTY CHIEF TRIAL COUNSEL JOHN T. KELLEY, No. 193646 ASSISTANT CHIEF TRIAL COUNSEL MICHAEL J. GLASS, No. 102700 SUPERVISING ATTORNEY ELI D. MORGENSTERN, No. 190560 SENIOR TRIAL COUNSEL 845 South Figueroa Street Los Angeles, California 90017-2515 Telephone: (213) 765-1334 FILED ;JUL I o 017 ~TATE BAR COURT CLERICS OFFICE LOS ANGELEs 9 10 STATE BAR COURT 11 HEARING DEPARTMENT - LOS ANGELES 12 13 In the Matter of: Case No. 16-O-12803-YDR 14 CARMEN ANTHONY TRUTANICH, No. 86629, SECOND AMENDED NOTICE OF DISCIPLINARY CHARGES 15 16 A Member of the State Bar. 17 NOTICE - FAILURE TO RESPOND! 18 IF YOU FAIL TO FILE A WRITTEN ANSWER TO THIS NOTICE WITHIN 20 DAYS AFTER SERVICE, OR IF YOU FAIL TO APPEAR AT THE STATE BAR COURT TRIAL: 19 20 (1) YOUR DEFAULT WILL BE ENTERED; (2) YOUR STATUS WILL BE CHANGED TO INACTIVE AND YOU WILL NOT BE PERMITTED TO PRACTICE LAW; (3) YOU WILL NOT BE PERMITTED TO PARTICIPATE FURTHER IN THESE PROCEEDINGS UNLESS YOU MAKE A TIMELY MOTION AND THE DEFAULT IS SET ASIDE, AND; (4) YOU SHALL BE SUBJECT TO ADDITIONAL DISCIPLINE. SPECIFICALLY, IF YOU FAIL TO TIMELY MOVE TO SET ASIDE OR VACATE YOUR DEFAULT, THIS COURT WILL ENTER AN ORDER RECOMMENDING YOUR DISBARMENT WITHOUT FURTHER HEARING OR PROCEEDING. SEE RULE 5.80 ET SEQ., RULES OF PROCEDURE OF THE STATE BAR OF CALIFORNIA. 21 22 23 24 25 26 27 III kwiktag® 28 -1- 226 180 692 1 The State Bar of California alleges: 2 JURISDICTION 3 1. Carmen Anthony Trutanich ("respondent") was admitted to the practice of law in the 4 State of California on May 31, 1979, was a member at all times pertinent to these charges, and is 5 currently a member of the State Bar of California. COUNT ONE 6 Case No. 16-O-12803 Business and Professions Code, section 6068(a) [Failure to Support Laws-Brady v. Maryland (1963) 373 U.S. 83] 7 8 9 2. At all times relevant to this charge, respondent represented the People of the State of 10 California in the capital murder case titled People of the State of California v. Barry Glenn 11 Williams, Los Angeles County Superior Court case no. A623377 (the "criminal matter"). 12 3. On or about January 9, 1986, Patricia Lewis testified on behalf of the prosecution that 13 she witnessed the murder of the victim in the criminal matter from the passenger seat of a station 14 wagon driven by "Jean Rivers." At the time that Ms. Lewis testified in the criminal matter, 15 respondent knew, or was grossly negligent in not knowing, that Ms. Lewis’ testimony regarding 16 the identity of the woman in the station wagon with her on the night of the murder was actually 17 false. At the time that Ms. Lewis testified in the criminal matter, respondent knew, or was 18 grossly negligent in not knowing, that "Jean Rivers’" true name was Arlene McKay, or at the 19 very least that "Jean Rivers" was an alias. 20 4. Respondent failed to comply with his constitutional obligation under Brady v. 21 Maryland (1963) 373 U.S. 83 to provide defense counsel with the following information that was 22 within his possession at the time of the trial in the criminal matter which would have impeached 23 Ms. Lewis: (i) the true identity of"Jean Rivers" was Arlene McKay; and (ii) the correct home 24 address of Arlene McKay. 25 5. Respondent thereby failed to uphold the laws of the United States, in willful violation 26 of Business and Professions Code, section 6068(a). 27 /// 28 -2- COUNT TWO 1 Case No. 16-O-12803 Rules of Professional Conduct, Rule 5-220 [Suppression of Evidence] 2 3 4 6. At all times relevant to this charge, respondent represented the People of the State of 5 California in the capital murder case titled People of the State of California v. Barry Glenn 6 Williams, Los Angeles County Superior Court case no. A623377 (the "criminal matter"). 7 7. On or about January 9, 1986, Patricia Lewis testified on behalf of the prosecution that 8 she witnessed the murder of the victim in the criminal matter from the passenger seat of a station 9 wagon driven by "Jean Rivers." At the time that Ms. Lewis testified in the criminal matter, 10 respondent knew, or was grossly negligent in not knowing, that Ms. Lewis’ testimony regarding 11 the identity of the woman in the station wagon with her on the night of the murder was actually 12 false. At the time that Ms. Lewis testified in the criminal matter, respondent knew, or was 13 grossly negligent in not knowing, that "Jean Rivers’" true name was Arlene McKay, or at the 14 very least that "Jean Rivers" was an alias. 15 16 8. Respondent intentionally failed to comply with his constitutional obligation under Brady v. Maryland (1963) 373 U.S. 83 to provide defense counsel with the following 17 information that was within his possession at the time of trial in the criminal matter which woul 18 have impeached Ms. Lewis: (i) the true identity of"Jean Rivers" was Arlene McKay; and (ii) the 19 correct home address of Arlene McKay. 20 21 22 23 24 25 9. Respondent thereby suppressed evidence in willful violation of Rules of Professional Conduct, rule 5-220. COUNT THREE Case No. 16-O-12803 Business and Professions Code, section 6106 [Moral Turpitude-Suppression of Evidence] 10. At all times relevant to this charge, respondent represented the People of the State of 26 California in the capital murder case titled People of the State of California v. Barry Glenn 27 Williams, Los Angeles County Superior Court case no. A623377 (the "criminal matter"). 28 -3- 1 11. On or about January 9, 1986, Patricia Lewis testified on behalf of the prosecution that 2 she witnessed the murder of the victim in the criminal matter from the passenger seat of a station 3 wagon driven by "Jean Rivers." At the time that Ms. Lewis testified in the criminal matter, 4 respondent knew, or was grossly negligent in not knowing, that Ms. Lewis’ testimony regarding 5 the identity of the woman in the station wagon with her on the night of the murder was actually 6 false. At the time that Ms. Lewis testified in the criminal matter, respondent knew, or was 7 grossly negligent in not knowing, that "Jean Rivers’" true name was Arlene McKay, or at the 8 very least that "Jean Rivers" was an alias. 9 12. Respondent intentionally, or with gross negligence, failed to comply with his 10 constitutional obligation under Brady v. Maryland (1963) 373 U.S. 83 to provide defense counsel 11 with the following information that was within his possession at the time of trial in the criminal 12 matter which would have impeached Ms. Lewis: (i) the true identity of"Jean Rivers" was Arlene 13 14 15 McKay; and (ii) the correct home address of Arlene McKay. 13. Respondent thereby committed an act(s) of moral turpitude, dishonesty, or corruption in willful violation of Business and Profess.ions Code, section 6106. 16 17 18 19 20 COUNT FOUR Case No. 16-O-12803 Business and Professions Code, section 6106 [Moral Turpitude-Prosecutor Presenting False Testimony of a Witness] 14. Respondent represented the People of the State of California during the trial in the 21 capital murder case titled People of the State of California v. Barry Glenn Williams, Los Angeles 22 County Superior Court case no. A623377 (the "criminal matter"). On or about January 9, 1986, 23 Patricia Lewis testified on behalf of the prosecution that she witnessed the murder of the victim 24 in the criminal matter from the passenger seat of a station wagon driven by "Jean Rivers." 25 26 15. At the time that Ms. Lewis testified in the criminal matter, respondent knew, or was grossly negligent in not knowing, that Ms. Lewis’ testimony regarding the identity of the woman 27 in the station wagon with her on the night of the murder was actually false. At the time that 28 -4- 1 Ms. Lewis testified in the criminal matter, respondent knew, or was grossly negligent in not 2 knowing, that "Jean Rivers’" true name was Arlene McKay, or at the very least that "Jean 3 Rivers" was an alias. 4 5 6 16. Respondent intentionally, or with gross negligence, failed to correct Ms. Lewis’ false testimony regarding the identity of the driver during the trial in the criminal matter. 17. By intentionally or with gross negligence failing to correct Ms. Lewis’ testimony witl~ 7 regard to the true identity of the driver of the station wagon, respondent committed an act 8 involving moral turpitude, dishonesty or corruption in willful violation of Business and 9 Professions Code, section 6106. 10 11 12 13 COUNT FIVE Case No. 16-O-12803 Business and Professions Code, section 6106 [Moral Turpitude-Prosecutor Presenting False Testimony of a Witness] 18. Respondent represented the People of the State of California during the trial in the 14 capital murder case titled People of the State of California v. Barry Glenn Williams, Los Angeles 15 County Superior Court case no. A623377 (the "criminal matter"). On or about December 18, 16 1985, the court in the criminal matter held a pretrial hearing (the "Massiah hearing") on whethe 17 the prosecution had obtained incriminating statements purportedly made by the defendant to 18 Arthur Cox, a fellow inmate at the Los Angeles County Jail, in violation of the rule in the 19 Supreme Court case of Massiah v. United States (1964) 377 U.S. 201. At issue at the Massiah 20 heating was whether Mr. Cox: (i) was acting on behalf of the government when the defendant 21 made the purported incriminating statements to him; and (ii) deliberately elicited the purported 22 incriminating statements from the defendant outside the presence of counsel. 23 19. In response to questions asked of him by respondent during the Massiah heating, the 24 Detective testified, among other things, that: (i) Mr. Cox initiated the first contact with the 25 Detective; (ii) the Detective’s first meeting with Mr. Cox occurred after the July 7th and 8th, 26 1982 preliminary hearings in the criminal matters, and probably on July 10, 1982; at which time 27 28 -5- 1 Mr. Cox had already been moved into the defendant’s module at Los Angeles County Jail; and 2 (iii) law enforcement’s first interview with Mr. Cox occurred on July 15, 1982. 3 20. At the time of the Massiah hearing, respondent knew, or was grossly negligent in not 4 knowing, that the Detective’s testimony was false. Specifically, respondent knew, or was 5 grossly negligent in not knowing, that the Detective: (i) initiated contact with Mr. Cox; and 6 (ii) spoke with Mr. Cox before the preliminary hearing in the criminal matter, and before 7 Mr. Cox moved into the defendant’s module at Los Angeles County Jail, and before Mr. Cox 8 obtained incriminating statements from the defendant that Mr. Cox provided to law enforcement 9 on July 15, 1982. 10 21. Respondent intentionally, or with gross negligence, failed to correct the Detective’s 11 false testimony at the Massiah hearing about the origin and timing of his initial contact with Mr. 12 Cox. 13 22. By intentionally or with gross negligence failing to correct the Detective’s false 14 testimony at the Massiah hearing, respondent committed an act involving moral turpitude, 15 dishonesty or corruption, in willful violation of Business and Professions Code, section 16 NOTICE - INACTIVE ENROLLMENT! 17 YOU ARE HEREBY FURTHER NOTIFIED THAT IF THE STATE BAR COURT FINDS, PURSUANT TO BUSINESS AND PROFESSIONS CODE SECTION 6007(c), THAT YOUR CONDUCT POSES A SUBSTANTIAL THREAT OF HARM TO THE INTERESTS OF YOUR CLIENTS OR TO THE PUBLIC, YOU MAY BE INVOLUNTARILY ENROLLED AS AN INACTIVE MEMBER OF THE STATE BAR. YOUR INACTIVE ENROLLMENT WOULD BE IN ADDITION TO ANY DISCIPLINE RECOMMENDED BY THE COURT. 18 19 20 21 22 23 /// 24 /// 25 /// 26 /// 27 /// 28 -6- NOTICE - COST ASSESSMENT! 1 2 3 4 IN THE EVENT THESE PROCEDURES RESULT IN PUBLIC DISCIPLINE, YOU MAY BE SUBJECT TO THE PAYMENT OF COSTS INCURRED BY THE STATE BAR IN THE INVESTIGATION, HEARING AND REVIEW OF THIS MATTER PURSUANT TO BUSINESS AND PROFESSIONS CODE SECTION 6086.10. Respectfully submitted, 5 THE STATE BAR OF CALIFORNIA OFFICE OF CHIEF TRIAL COUNSEL 6 7 8 9 10 DATED: July 10, 2017 By: ELI D. MORGENSTERN Senior Trial Counsel 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7- DECLARATION OF SERVICE by U.S. FIRST.CLASS MAIL / U.S. CERTIFIED MAIL / OVERNIGHT DELIVERY / FACSIMILE-ELECTRONIC TRANSMISSION CASE NUMBER(s): 16-O-12803-YI)R I, the undersigned, am over the age of eighteen (18) years and not a party to the within action, whose business address and place of employment is the State Bar of California, 845 South Figuema Street, Los Angeles, California 90017, declare that on the date shown below, I caused to be served a true copy of the within document described as follows: SECOND AMENDED NOTICE OF DISCIPLINARY CHARGES D By U.S. First-Class Mail: (CCP §§ 1013 and 1013(a)) [~ By U.S. Certified Mail: (CCP §§ 1013 and 1013(a)) - in accordance with the practice of the State Bar of California for collection and processing of mail, I deposited or placed for collection and mailing in the City and County of Los Angeles. By Overnight Delivery: (CCP §§ 1013(c) and 1013(d)) I am readily familiar with the State Bar of California’s practice for cefle~on and processing of correspondence for ovem~ht deliver~ by the United Parcel Service (’UPS’). By Fax Transmission: (CCP §§ 1013(e) and 1013(f)) Based on agreement of the parties to accept service by fax transmission, I taxed the documents to the parsons at the fax numbers listed herein below. No error was reported by the fax machine that I used. The original record of the fax transmission is retained on file and available upon request. By Electronic Service: (CCP § 1010.6) Ba.s.ed on a. c9. u.rt.order or an agreement of the parties to accept service by electronic transmission I caused the documents to be sent to the parson(s) at the electronic aaarasses listea nerein below./did not rece ve, within a reasonable time after the transmission, any elecVonic message or other indication that the transmission was unsuccessful. [] (forU.S.R~t-Cla$$Mall) in a sealed envelope placed for collection and mailing at Los Angeles, addressed to: (see be/ow) [] l~¢e,eeee=,i0 in a sealed envelope placed for collection and mailing as certified mail, return receipt requested, Article No.: 71969008911110075911 at Los Angeles, addressed to: (seebelow) (forOvernlghtDelive~ together with a copy of this declaration, in an envelope, or package designated by UPS, Tracking No.: ........................................................ addressed to: (see below) [] ........................... Pe~0n Served ................................................. Business-Residential Address DAVID CAMERON CARR Fax Number LAW OFFICE OF DAVID C. CARR 525 B. ST., STE 1500 SAN DIEGO, CA 92101-4417 Courtesy Copy to: ~: Elmronlg Adat~s [] via inter-office mail ragulady processed and maintained by the State Bar of Califomia addressed to: NIA I am readily familiar with the State Bar of California’s practice for collection and processing of correspondence for mailing with the United States Postal Service, and overnight delivep] by the United Parcel Service (’UPS’). In the ordinap/coume of the State Bar of California’s practice, correspondence collected and processed by the State Bar of California would be deposited with the United States Postal Service that same day, and for overnight delivery, deposited with delivery fees paid or provided for, with UPS that same day. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date on the envelope or package is more than one day after date of deposit for mailing contained in the affidavit. I declare under penalty of perjury, under the laws of the State of California, that the foregoing is true and correct. Executed at Los Angeles, California, on the date shown below. DATED: July 10, 2017 SIGNED: t ~A(~)Y ~ NATALIE F E’ORES Declarant State Bar of California DECLARATION OF SERVICE t/