PEOPLE v. WEAVER (LATWON R.)

Appellant's Opposition

Cal.November 10, 2011

JAMES S. THOMSON SUPREME COURT California SBN 79658 FILED Attorney and Counselor at Law — 819 Delaware Street Berkeley, California 94710 NOV 1 0 20H Telephone: (510) 525-9123 Frederick K. Chirich Clerk encom ateene Deputy ELISABETH SEMEL California SBN 67484 TY ALPER California SBN 196840 Death Penalty Clinic School of Law (Boalt Hall) University of California Berkeley, California 94720-7200 Telephone: (510) 642-0458 (510) 643-7849 Attorneys for Defendant/Appellant LA TWON WEAVER IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, ) ) Plaintiff / Respondent ) No. S033 149 ) Vs. ) Related Case No. ) $193534 LA TWON WEAVER, ) ) San Diego County Defendant / Appellant. ) Superior Court Case ) No. CRN22688 OPPOSITION TO RESPONDENT’S MOTION FOR ACCESS TO SEALED PENAL CODE SECTION 987.9 DOCUMENTS AND SEALED CLERK’S AND REPORTER’S TRANSCRIPTS EATH PENALTY TO: THE HONORABLETANI G. CANTIL-SAKAUYE, CHIEF JUSTICE OF CALIFORNIA, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE SUPREME COURTOF THE STATE OF CALIFORNIA: Appellant La Twon Weaverfiled his opening brief on direct appeal in this case on January 23, 2007. On November1, 2007, respondentfiled a motion requesting the Court unseal certain documents andtranscripts that had been sealed in the Superior Court pursuant to Penal Code section 987.9.' Followingthelitigation of that motion, this Court denied respondent’s request on January 23, 2008. See Order, People v. Weaver, S033149 (Cal. Jan. 23, 2008) (“Respondent’s ‘Application to Unseal Portions of Reporter’s and Clerk’s Transcripts of Trial Court Proceedings,’ filed on November1, 2007, is denied.’’). Respondent subsequently filed its brief on March 20, 2008. Appellant filed his reply brief on December 14, 2010. The caseis fully briefed and awaiting argument. On May 31, 2011, Mr. Weaverfiled a Petition for Writ of Habeas Corpus in this Court, in related case S193534. On June 1, 2011, this Court exercised its discretionary authority, pursuant to Rule 8.385(b) of the ' All further references are to the California Penal Code unless otherwise specified. California Rules of Court, to request an informal responseto the petition. Respondent’s informal response is currently due on December30, 2011. On September 29, 2011, respondent again petitioned this Court for access to all material sealed by the trial court pursuant to section 987.9. See Motion for Access to Sealed Penal Code Section 987.9 Documents and Sealed Clerk’s and Reporter’s Transcripts (“Motion”). Respondent has styled its motion as a request for “access” to the sealed material, as opposed to the “application to unseal” the material that it filed in 2007. But the changein captionshould not obscurethe fact that respondent, via the same Deputy Attorney General, seeks the same material, in the samecase,that this Court refused to provide several years ago. All sealed portions of the record contain material that is confidential pursuant to section 987.9. The rights guaranteed to indigent defendants by section 987.9 are mandated not only by state law, but also by the rights to counsel, fair trial, equal protection, and due process underthe Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution, and parallel provisions of the California Constitution. See People v. Blair, 36 Cal. 4th 686, 732-33 (2005) (citing County ofLos Angeles v. Commission on State Mandates, 32 Cal.App.4th 805, 815 (1995)). For the reasons stated below, appellant opposes respondent’s request for access to the section 987.9 materials filed in this case. As it did in 2008, this Court should again reject respondent’s request. POINTS AND AUTHORITIES I. THE DISCLOSURE PROVISIONS OF SECTION 987.9(D) DO NOT APPLY BEFORE THIS COURT ISSUES AN ORDER TO SHOW CAUSE Respondent seeks access to confidential materials pursuant to section 987.9(d), which allows for limited disclosure where respondent makes a showing that certain confidential records “relate” to an issue raised on appealor collateral review. By its very terms, however, section 987.9(d) requires that a “proceeding” must exist before its disclosure provisions comeinto play. The statute provides that “the documents shall remain under seal and their use shall be limited solely to the pending proceeding.” Penal Code § 987.9(d) (emphasis added). A “judicial proceeding”in a habeas corpusaction is instituted by the issuance of an order to show cause. As this Court has explained, ““When weorder the respondent to show cause... we do more than simply transfer the petition to that court and more than simply afford the petitioner an opportunity to present evidence in support ofthe allegations of the petition; we institute a proceeding in whichissues offact are to be framed and decided.” In re Hochberg, 2 Cal. 3d 870 (1970), overruled on other grounds, In re Fields, 51 Cal. 3d 1063, 1070 n.3 (1990) (emphasis in original). This Court has not yet issued an order to show cause in appellant’s habeas case. It is presumably undisputed that no cause of action or “proceeding” presently exists. Indeed, this is likely why respondentfiled its request for access to the confidential documents in appellant’s direct appeal case, S033149, not the habeas case, S193534. Under this Court’s jurisprudence,“the [habeas corpus] petition itself serves a limited function.” In re Lawler, 23 Cal. 3d 190, 194 (1979). It does not create a cause of action. See People v. Romero, 8 Cal. 4th 728, 740 (1994). Nor does the request for an informal response create a cause of action. As the Court explained in Romero, “The term‘informal’ by itself implies that the . . . responseis not a pleading, does not frameor join issues, and does not establish a ‘cause’ in which a court may grantrelief.” /d. at 741. Instead,it is the issuance of the order to show causethat “creates a ‘cause’ giving the People a right to reply to the petition by a return and to otherwise participate in the court’s decisionmaking process.” Jn re Serrano, 10 Cal. 4th 447, 455 (1995). Pursuant to this scheme, the return to an order to show cause — not the petition, and not the informal response ~ is the “principal pleading” in a habeas corpus proceeding. Lawler, 23 Cal. 3d at 194; see also Serrano, 10 Cal. 4th at 454-56 (describing generally the process by whichissues are joined). Second, the Legislature did not intend disclosure under 987.9(d) to occurat this stage of thelitigation. It is assumed that when the Legislature drafted section 987.9(d) in 1998,it did so with awarenessof, and in conformity with, relevant precedents. See People v. Weidert, 39 Cal. 3d 836, 844 (1985). At that time, this Court had already determined that the filing of a habeas corpuspetition in state court did not confer jurisdiction on a court to grant discovery, People v. Gonzalez, 51 Cal. 3d 1179, 1256-58 (1990), or even to grant a request to preserve documents and records not introducedor usedattrial for future litigation, People v. Johnson, 3 Cal. 4th 1183, 1257-59 (1992). As the Court explained in Gonzalez, this result follows from the fact that the filing of a petition “creates no cause or proceeding which would confer discovery jurisdiction” until the Court determines that the allegations state a prima facie case for relief. Gonzalez, 51 Cal. 3d at 1258. In 2003, the Legislature modified the rule announced in Gonzalez by enacting section 1054.9, which established a mechanism through which habeaspetitioners could obtain discovery “before theyfile the petition,1.e., before they must state a prima facie case.” In re Steele, 32 Cal. 4th 682, 691 (2004) (emphasisin original). Although it could have done so, the 6 Legislature did not amendsection 987.9(d) at the time it enacted section 1054.9, or at any other time. Thus, while section 987.9(d) provides for limited access under specified conditions to confidential documents, a court cannot grant respondenta free-floating nght of access. Instead, it must exercise its authority in the context of an existing cause of action. Had the Legislature meant to provide otherwise, it would have doneso,asit did whenit enacted section 1054.9. Absent such an indication, this Court must assumethat the Legislature meant to harmonize section 987.9(d) with existing law. Existing law requiresfirst that an appellate court receiving a petition evaluate the petition by asking whether, “assuming the petition’s factual allegations are true, the petitioner would beentitled to relief.” People v. Duvall, 9 Cal. 4th 464, 475 (1995) (internal citations omitted). If the court concludesthat the petitioner has failed to state a primafacie case forrelief, the court will summarily denythe petition. If, however, the court finds that the factual allegations, taken astrue, establish a prima facie case forrelief, the court will issue an order to show cause. Jd. Whenthe court issues an ceeorder to show cause, ““‘it is limited to the claimsraised in the petition and the factual bases for those claims alleged in the petition. It directs the respondentto address only those issues.’” /d. (quoting Jn re Clark, 5 Cal. 4th 750, 781 n.16 (1993)). The issuance of an order to show cause 7 announcesthe issuing court’s preliminary assessmentthat the petitioner would be entitled to relief if his factual allegations are proved. Duvall, 9 Cal. 4th at 475. Then, and only then, may respondent seek access to confidential materials that are related to those specific claims pursuant to section 987.9(d). In sum, at a minimum, respondent’s motion is premature. This Court cannot order the disclosure of documents that are protected by appellant’s privilege against self-incrimination and the attorney-client and work productprivileges without first establishing a cause of action and making a determination as to which habeas claims,if taken as true, would warrant relief. Only at that point wouldit be possible for this Court to determine, pursuant to section 987.9(d), whether any of the protected materials “relate” to any claims appellant has raised. Only at that point would a “proceeding”exist within which the Court could limit any disclosure underthestatute.” I. THE STATUTE REQUIRES A SHOWING OF RELEVANCE THAT RESPONDENT HAS NOT MADE Section 987.9(d) requires a showing of relevance before the Court can authorize the disclosure of confidential materials sealed pursuant to * If an order to show cause is no longer a precondition to the creation of a cause of action, then this Court must revisit many of its habeas corpus precedents, including, as discussed above, Duvall and Romero. 8 section 987.9. As an initial matter, it would be impossible for respondent to make such a showing prior to the issuance of an order to show cause. Until that point, as discussed above, there is no pending “proceeding” through which appellant has raised an issue that might prompt disclosure under section 987.9(d).° But even if such a proceeding hadbeeninstituted, respondent has made noeffort to demonstrate the relevance of any habeas claim to the sweeping set of documents to which it seeks access. A. The Statute Requires a Showing of Relevance Atthe time of appellant’s trial, section 987.9 permitted counsel for a capitally accused defendantto request funds for investigators, experts, or other ancillary services by way of a confidential application. The fact of the request and its contents were confidential. The court’s ruling onthe request was also confidential. No provision for disclosure existed. In 1998, at the urging of the Attorney General, the Legislature amended section 987.9 to add subsection (d). See Senate Committee Analysis of SB 1441 (May 12, 1998)(listing the Attorney General as a * Respondentcites People v. Superior Court (Berryman), 83 Cal.App.4th 308, 311 (2000), in which the California Court of Appeal for the Fifth District, in conclusory fashion, held that the merefiling of a habeas petition raising claimsof ineffective assistance of counsel due to counsel’s failure to investigate and/or prepare a defense “constitutes raising by collateral review an issue or issues related to the recorded portion of the record crated pursuant to Penal Code section 987.9.” Particularly in light of the absence 9 supporter, and the source, of the bill). Subsection (d) states that the Attorney General may gain access to otherwise confidential 987.9 material “when the defendant raises an issue on appealor [in] collateral review where the recorded portion of the record, created pursuant to this section, relates to the issue raised.” Penal Code § 987.9(d). Thus, by its plain language, the statute authorizes disclosure only where there has been a showing that the confidential material “relates” to an issue raised on appeal or in a habeas corpuspetition. The history of the statutory languageis instructive and supportsthis commonsense reading ofthe statute. As originally introduced, Senate Bill 1441 would have terminated confidentiality upon finality of direct review or uponthefiling of a post-conviction pleading to which the contents ofthe confidential file relates.* The bill was amendedin several waysbeforeit was passedby the Legislature. First, the amendedbill eliminated the automatic termination provision by requiring the Attorney General to obtain judicial permission to view the documents. The statute authorized the court to release only those of any analysis of the issue in that case, appellant respectfully suggests that this Court reject the court’s holding in Berryman. “ The relevant portion of SB 1441 originally read: “(d) The confidentiality provided in this section shall exist only until the judgmentis final on direct review or until the defendantraises an issue on appealor collateral review 10 recordsthat it found “relate[d|” to pending post-conviction claims. The amendedstatute also provided for continued “confidentiality.” Finally, the Legislature inserted the words “relevant” and “relevant portion” into the final version of the bill. These amendments makeit clear that the Legislature intended a prior judicial determination of relevancy before the release of any records, and eliminated any possibility that the statute would be self-executing. B. Respondent Makes No Attempt to Establish Relevance Respondent seeks access to “all Penal Code section 987.9 records and the sealed Reporter’s and Clerk’s Transcripts” in this case. Motion at 6. While respondentstates that access to the documentsis “warranted”in light of appellant’s habeas claims, it provides no argumentorfactual showing in support of this claim. Motion at 5. Respondent merely lists in a two-page footnote the many allegations of ineffective assistance of counsel where the record created pursuantto this section relates to the issue raised.” Sen. Bill No. 1441 (1997-1998 Reg. Sess.) as introduced Jan. 28, 1998. > As amended on April 27, 1998 subsection (d) read: “The confidentiality provided in this section shall not preclude any court from providing the Attorney General with access to documents protected by this section when the defendant raises an issue on appeal or collateral review where the recorded portion of the record, created pursuantto this section relates to the issue raised. When the defendantraises that issue, the funding records, or portions thereof, shall be provided to the Attorney General at the Attorney General’s request. In such a case, the documents shall remain underseal 11 that appellant raised in his habeaspetition. Motion at 2-3. Respondent’s position appears to be that the filing of a habeaspetition alleging ineffective assistance of counsel entitles it to access to all material sealed pursuant to 987.9(d). As explained above,the statute does not provide for such a broad, free-floating request absent any showingofrelevance. ‘Respondent does, on one page of its motion, appear to recognize that the statute requires a determination that the sealed portions of the record “are relevant to Weaver’s allegations of ineffective assistance oftrial counsel.” Motion at 5. Butit is not clear whether respondentbelievesit has made such a showing,or that it wishes the Court to do this work instead. In any event, the showing has not been made.° If the Legislature meantto authorize disclosure based solely on a showing that a defendant had raised an ineffective assistance of counsel claim either on appealor in a habeas corpuspetition, it would havesaid so. Instead, the law requires that the requested confidential materials be “related” to an issue raised. Penal Code § 987.9(d). Because respondent and their use shall be limited solely to the pending proceeding.” Sen. Bill No. 1441 (1997-1998 Reg. Sess.) as amended April 27, 1998. © The only sealed documentabout which respondent makes even a token relevance argumentis the January 28, 1993 testimony of a witness named John Costa. Motion at 4-5. Respondent speculates that the testimony is relevant to the habeas claim that trial counsel wasineffective for failing to pursue a continuance, but provides no analysis of the habeas claim or how 12 fails to make any argumentthat the material it seeks is related to any specific claims in appellant’s petition, its motion should be denied. Ht. EVEN IF THE STATUTE PROVIDED FOR DISCLOSURE PRIOR TO THE INITIATION OF A CAUSE OF ACTION, AND EVEN IF RESPONDENT HAD MADE THE REQUISITE SHOWING, THE STATUTE CANNOT CONSTITUTIONALLY BE APPLIED TO APPELLANT A. The Disclosure Provisions of Section 987.9(d) Were Not In Effect at the Time of Appellant’s Trial and MayNot Be Retroactively Applied to Him For the reasons stated above, the statute does not provide for disclosure at this stage of the proceedings, and respondenthasfailed to make the requisite showing of relevance in any event. But even if the request were timely, and properly made, application of section 987.9(d) to appellant would give the statute impermissible retroactive effect neither contemplated by the Legislature nor appropriate in light of the constitutional and statutory rights implicated by such disclosure. The confidential applications filed by appellant’s counsel, the hearings conducted in connection with those applications, and the orders issued bythe trial court were drafted and filed between 1992 and 1993. its inability to access Costa’s testimony impactsits ability to file its informal responseto the petition. 13 The Legislature added subsection (d) to section 987.9 in 1998, andit becameeffective on January 1, 1999. Section 3 of the Penal Code provides that no portion of the codeis retroactive “unless expressly so declared.” Section 3 is a codification of the principle, “familiar to every law student,” United States v. Security Industrial Bank, 459 U.S. 70, 79 (1982), that “statutes are not to be given a retrospective operation unlessit is clearly made to appear that such wasthe legislative intent.” Aetna Casualty & Surety Co. v. Industrial Accident Commission, 30 Cal. 2d 388, 393 (1947). A statute has a retroactive effect whenever the new law “attaches new legal consequencesto ‘events completed’ before its enactment, and... sucha determination must include consideration of fair notice, reasonable reliance, and settled expectations.” Buttram v. Owens-Corning Fiberglass Corporation, 16 Cal. 4th 520, 536 n.6 (1997) (quoting Landgrafv. USI Film Products, 511 U.S. 244, 270 (1994)). Here, there is no reason to depart from these well-established rules. Nothingin the legislative history or the wording of section 987.9(d) suggests intent to depart from settled rules of statutory construction. The statute contains no expressretroactivity provision, and there is no other languagein section 987.9(d) on which this Court can rely to find that such intent is clear or that the Legislature considered retroactivity in amending section 987.9. The “presumption against statutory retroactivity is founded 14 upon sound considerations of general policy and practice,” and it “accords with long held and widely shared expectations about the usual operation of legislation.” Landgraf, 511 U.S. at 293. Consequently, this Court should not apply section 987.9(d) to the funding requests and related documents in appellant’s case. B. The Disclosure Provision of Section 987.9(d) Violates the Equal Protection and Due Process Clauses of the United States Constitution The underlying principles of section 987.9’s confidentiality provisions are the same as those supporting the work product doctrine. Both protect a lawyer’s ability to “work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel,” and without which “the interests of the clients and the cause ofjustice would be poorly served.” Hickman v. Taylor, 329 U.S. 495, 510-11 (1947). The work product doctrine extends to materials reflecting the “assistance of investigators and other agents in the compilation of materials in preparation for trial.” United States v. Nobles, 422 U.S. 225, 238 (1975). Subsection (d), however, authorizes disclosure of billing, funding and related records for ancillary services obtained by an indigent defendant represented by private counsel, either court appointed or retained, or, as in this case, by a public defender office that does not fully fund its cases internally. As such, 15 the provision violates appellant’s rights to Equal Protection and Due Process. Section 987.9(d) does not provide for disclosure of confidential section 987.9 information in cases involving indigent defendants represented by a public defenderoffice that fully funds its cases internally or defendants able to pay for such services from their own funds. Defendants such as appellant are singled out because of the happenstance that they were represented by attorneys who were required to seek section 987.9 funds. There is no rational basis on whichto distinguish a defendant such as appellant, who was represented by a public defender’s office that did not fully fund its cases internally, and a defendant who wasrepresented by a public defender’s office that did so. Yet section 987.9(d) provides for disclosure of confidential information related to the former, and not the latter. This distinction is not sufficiently related to the statute’s purpose to withstand constitutional Equal Protection scrutiny. See, e.g., Bearden v. Georgia, 461 U.S. 660, 664-665 (1983). Moreover, appellant has a Due Process right to fair adjudication procedures that provide “[m]eaningful access to justice.” Ake v. Oklahoma, 470 U.S. 68, 77 (1985). A procedure permitting discovery of attorney- client privileged information based on anirrational distinction between lawyers who can provide representation without the need for section 987.9 16 funds, and those that cannot, does not comport with due process. Such a scheme does not ensure that defendants represented bythe latter category of ceelawyers have an “‘adequate opportunity to present their claims fairly within the adversary system.’” /d. (quoting Britt v. North Carolina, 404 U.S. 226, 227 (1971)). IV. IN THE EVENT THE COURT ORDERS DISCLOSURE, IT MUST BE NARROWLY TAILORED AND SUBJECT TO A STRICT PROTECTIVE ORDER Even assuming that any disclosure is appropriate andthatit is appropriate at this time, this Court should refer this case to a referee to make an in camera determination of which specific documents and transcripts are sufficiently “related” to claims raised in appellant’s habeas petition to warrant disclosure under section 987.9(d). In addition, the Court must imposea strict protective order that limits the use and exposure of any disclosed records. A. Any Implied Waiver the Court Finds is Necessarily Limited in Scope and Must Be Carefully Policed Via an In Camera Review by a Referee Respondent’s position is that by filing a petition raising claims of ineffective assistance of counsel, appellant afortiori “directly place[es] at issue all of trial counsel’s decision-making, and the consultation, employment, and use of investigators, consultants, and experts, as well as court proceedings from whichthe prosecutor and public were excluded or 17 in which witness testimony was sealed.” Motion at 2. As discussed above, respondent’s construction of the statute defies both its plain language and legislative history. But even if appellant’s habeas petition constituted an implied waiver of the attorney-client privilege or the work product doctrine, that waiveris limited in scope. See Bittaker v. Woodford, 331 F.3d 715, 720-21, 722 n.6 (9th Cir. 2003). Appellant has not expressly waived any privileges. Consequently, in addressing respondent’s request, this Court first must determine the parameters of any implied waiver and then “strictly police those limits.” Bittaker, 331 F.3d at 728; see also Webster v. Ornoski, No. 93-cv-0306- LKK-DAD-DP, 2007 WL 1521048, at *2-3 (E.D. Cal. May 22, 2007) (noting that “[t]he court finds unpersuasive respondent’s argumentthat the inclusion of an ineffective assistance of counsel claim in a habeas petition constitutes unlimited waiverof the attorney-client privilege,” and ordering an in camera reviewto “closely tailor the scope of the implied waiver so that only those documents, or portions of documents, relating to the ineffective assistance of counsel claim are disclosed”); People v. Superior Court (Laff), 25 Cal. 4th 703, 720 (2001) (holding that the trial court is obligated to consider and determineattorney-client privilege and work- product protection for material seized pursuant to a search warrant from attorneys before any such material can be inspected by or disclosed to law 18 enforcement authorities); cf ABA Comm. on Ethics and Prof?! Responsibility, Formal Op. 10-456 (2010) (“Permitting disclosure of confidential client information outside of court supervised proceedings undermines important interests protected by the confidentiality rule.”). Compelled broad and unmitigated access to materials regarding fees and funding requests violates the work product doctrine as set forth in section 1054.6. This section expressly states that attorney work productis non-discoverable. Protected work product is defined by reference to Code of Civil Procedure section 2018(a), which provides that “[a] writing that reflects an attorney’s impressions, conclusions, opinions,or legal research or theories is not discoverable under any circumstances.”” While section 1054.6 permits a court to impose limitations on discovery to protect a defendant’s rights under the federal Constitution, /zazaga v. Superior Court, 54 Cal. 3d 356, 383 (1991), it lists no circumstances under which a court may expandsuch disclosure. Appellant thus requests that, should this Court permit respondent access to any materials pursuant to section 987.9(d), it refer the case to a referee to conduct an in camera review of the requested records, with appellant’s counsel present. As discussed above,the statute is not self- executing; any disclosure must be based on a judicial determination of the relevancy of each specific sealed item to a specific disputed claim or 19 allegation. The preferred method of determining relevancy in Californiais via an in camera hearing. See Corenevsky v. Superior Court, 36 Cal. 3d 307, 321, 325-26 (1984); see also Kerr v. U.S. Dist. Courtfor the Northern Dist. of California, 426 U.S. 394, 405 (1976) (“[I]t would seem that an in camera review of the documents isa relatively costless and eminently worthwhile method to insure that the balance between petitioner’s claims of irrelevance and privilege and plaintiffs asserted need for the documents1s correctly struck.”’). B. Any Disclosed Materials Must Remain UnderSea! and Subject to a Strict Protective Order Section 987.9(d) providesthat, if the Attorney General is provided access to documents, they “shall remain underseal.” Appellant’s constitutional right to counsel includes the right to maintain the confidentiality of defense counsel’s trial preparation. See People v. Benally, 208 Cal. App. 3d 900, 909 (1989). If defense documentsare to be disclosed, any order granting access to respondent must be narrowly drawn to protect appellant’s constitutional and statutory rights. In addition to an ordering that any disclosed documents remain underseal, the Court must limit the use of the disclosed confidential 20 information “to the pending proceeding,” as section 987.9(d) requires.’ This is particularly necessary, where, as here, the same lawyeris representing respondent in both appellant’s direct appeal proceedings and habeas proceedings. While the direct appeal has been fully briefed, it has not yet been argued. As noted above,this Court has already rejected respondent’s request for access to the confidential records for use in responding to appellant’s direct appeal. See Order, People v. Weaver, S033149 (Cal. Jan. 23, 2008). Respondent seeks access to the same material now, and hasfiled its request in the same case, S033149. Ifthe Court orders disclosure now, to the same lawyerin the same case, the Court will, in effect, be nullifying its previous order. The Court has madeclear throughits routine rejection of motions to consolidate capital appellate and habeas proceedingsthat it views the two proceedingsas distinct cases. See, e.g., Order, People v. Pearson, S191872 (Cal. Oct. 12, 2011) (denying appellant’s motion to consolidate appellate and habeas corpus proceedings); Order, People v. Tully, S030402 (Cal. April 20, 2011) (same). Accordingly, where, as here, the same lawyer ’ As discussed above,the term “proceeding”is a term ofart in this context, and no such proceeding has been initiated in this case. Under these circumstances, if the Court nevertheless orders disclosure pursuantto section 987.9(d), it should interpret “proceedings” to mean appellant’s habeas corpus proceedings, as opposedthe direct appeal proceedings,or 21 represents the respondentin both proceedings, the Court should be extremely reticent to disclose any confidential information without the clear showing of relevance required by the statute. If it finds that respondent has met that high standard, it should thenstrictly police the limitations on the use of the disclosed information. Specifically, the Court should order that any information disclosed pursuant to section 987.9(d) be reviewed only by a lawyer in the Attorney General’s Office who is not working on appellant’s direct appeal. Such a procedureis similar to the “taint team” method of protecting privileged communications from inadvertent disclosure to attorneys within the same office who should not be privy to those communications. See, e.g., S.E.C. v. Rajaratnam, 622 F.3d 159, 183 n.24 (2d. Cir. 2010) (“[The] inevitable ‘tainting’ of the team of attorneys is the reason that so-called ‘ethical walls’ are erected to insulate attorneys from conflicts of interest, immunized testimony, or materials that may have been illegally obtained.”); United States v. Triumph Capital Gr. Inc., 211 F.R.D. 31, 43 (D. Conn. 2002) (“The use of a taint team is a proper, fair and acceptable method of protecting privileged communications. . . .”). In the alternative, at a minimum, the Court should order that respondent maynot use the disclosed any subsequentre-trial of the underlying charges. See Osbandv. Woodford, 290 F.3d 1036, 1042-43 (9th Cir. 2002). 22 information — or any information directly or indirectly derived fromsuch testimony — in any proceeding other than appellant’s habeas case.* CONCLUSION For the reasons set forth above, respondent’s motion for access to documents related to funding requests under section 987.9 should be denied. DATED: November9, 2011 submitted, paee JAMES THOMSON ELISABETH SEMEL TY ALPER Attorneys for Appellant *In other words, the Court should borrow from the concept of derivative use immunity in crafting its limitations on the use of confidential section 987.9 information. Cf Kastigar v. United States, 406 U.S. 441, 450, 453 (1972) (describing origins of use immunity); United States v. Plummer, 941 F.2d 799, 804-06 (9th Cir. 1991) (holding that use immunity presumptively includes derivative use immunity). 23 People v. Weaver; California Supreme Court Case No. S033149 PROOF OF SERVICE I, Jessica Michalski, declare: Tam employedin the County of Alameda, State of California. ] am over the age of eighteen years and am not a party to the within-entitled action. My business address is 392 Simon Hall, School of Law, University of California, Berkeley, California, 94720. On November9, 2011, I served the within OPPOSITION TO RESPONDENT’S MOTION FOR ACCESS TO SEALED PENAL CODE SECTION 987.9 DOCUMENTS AND SEALED CLERK’S AND REPORTER’S TRANSCRIPTS on the below-listed parties, by depositing true copies thereof in a United States mailbox regularly maintained by the United States Postal Service, in sealed envelopes, with postage paid, addressed as follows: Valerie Hriciga Angela M. Borzachillo California Appellate Project Attorney General's Office 101 Second Street, Ste 600 110 West A Street San Francisco, CA 94105 San Diego, CA 92101 La Twon Weaver Ty Alper Box H80000 Elisabeth Semel San Quentin, CA 94974 Death Penalty Clinic School of Law (Boalt Hall) James S. Thomson University of California 819 Delaware Street Berkeley, California 94720 Berkeley, California 94710 San Diego County Public Defender 450 B Street Suite 1100 San Diego, CA 92101 I declare under penalty of perjury that the foregoing is true and correct, and that this declaration was executed on November9, 2011, at Berkeley, California. becGLZC) DeMICHALSKI ia 24