DEFENSE TACTIC HAS ASSISTANT D.A. FUMING

DURHAM -- An assistant Durham district attorney fumed Tuesday that defense
lawyers have devised a novel and perhaps devious tactic to short-circuit
the prosecution of people who repeatedly commit felonies.

The way Assistant District Attorney Jim Dornfried sees it, defense lawyers
routinely have begun to attack the professionalism of their legal
colleagues. Their goal, Dornfried says, it to try to get some clients out
of long prison terms.

And some of the attacked lawyers -- rather than defending their reputations
- -- too readily are going along with the situation, according to Dornfried.

Here is how it works:

Attorneys at an advanced stage of some criminal cases are arguing that
clients got "ineffective" representation from attorneys at an earlier
stage. So, the logic goes, any earlier convictions should be wiped out.

Similar arguments have been used for years. But Dornfried said it now
appears they are being advanced as part of a concerted effort to undermine
Durham's so-called "habitual-felon" program, which is designed keep repeat
criminals off the streets.

"It is very suspicious to me," Dornfried told The Herald-Sun on Tuesday.
"It's something we are seeing a lot of. It needs to be looked into. It's
disturbing. It befuddles me. How do you react to it?"

Defense lawyers countered that they have a moral, ethical and
constitutional duty to leave no stone unturned in protecting the rights of
their clients.

"To suggest that there is some kind of conspiracy is misguided and
unfortunate," said veteran attorney Bill Thomas, past president of the
Durham Criminal Defense Lawyers Association. "Competent defense counsel
have been doing this since the first courthouse opened in America."

According to Thomas and others, if one lawyer fails to do a good job at the
beginning of a case, lawyers at a later stage are obligated to bring the
situation to light.

Meanwhile, the "ineffective assistance" argument has worked twice in two
days this week, getting a suspect named Maurice Lamont Cates out of a 1997
conviction for forgery and a 1998 conviction on a cocaine charge.

The net result is that the forgery and cocaine cases cannot be used to make
Cates into a habitual felon and subject him to longer-than-normal prison
terms for any later crimes.

People can be prosecuted as habitual felons after they accumulate three or
more felony convictions. Once this happens, their punishment may be
increased dramatically.

This is how the 24-year-old Cates got off the hook:

Lawyer Lynne A. Rupp argued Monday that attorney Russell Hollers, then an
assistant public defender in Durham, gave Cates bad advice in 1997 when
Cates was charged with forging a check and then trying to cash it --
something called "uttering" in legal parlance.

Cates pleaded guilty to forgery and uttering even though he confessed only
that he attempted to cash the check. He consistently maintained that
someone else forged it.

According to Rupp, Hollers failed to inform Cates that forgery and uttering
were separate charges, and that he could plead guilty to one and not the other.

Hollers was called to the witness stand Monday to clarify the situation. He
admitted that he gave Cates bad advice.

And in a sworn affidavit, Hollers acknowledged he "should not have advised
Mr. Cates to plead guilty to the forging charge, as he has always
maintained his innocence. . "

In the end, Superior Court Judge Orlando F. Hudson ruled Monday that
Hollers had provided Cates with "ineffective" legal representation.

On Tuesday, Rupp was back in court to successfully argue that lawyer Brian
Wilks -- also an assistant public defender at the time -- ineffectively
represented Cates on a 1998 cocaine charge.

Wilks failed to do an independent investigation of the case, requested no
information from prosecutors and did not inform Cates about possible
defense tactics, Rupp contended.

"It's not within the range of competence demanded of criminal defense
attorneys," Rupp argued.

In fact, Wilks advised Cates to plead guilty without even waiting for the
results of a laboratory analysis to see if the substance at issue really
was cocaine, according to Rupp.

Wilks conceded in a sworn affidavit that he did not conduct an independent
investigation, did not receive a lab report and did not obtain information
about the case from prosecutors.

As with Hollers, Hudson ruled that Wilks had provided Cates "ineffective"
representation.

The judicial rulings were sufficient to move Cates out of the
habitual-felon arena.

A disgruntled Dornfried said afterward that he will report Wilks to the
State Bar, which oversees the performance of lawyers. He said he has an
obligation to do so.

But Rupp said such a report would be "misguided."

Thomas agreed. "It is not a reportable situation under our rules," he said.
"His [Dornfried's] statement that he has a duty to report it is simply
nonsense."