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PUBLISHER KATE DIXON'S PAST LIFE HITS LEGAL PAPER'S FRONT PAGE

9th Circuit Court of Appeal holds that disbarred attorney
effectively represented 3-strike defendant

by Virginia McCullough

An article on the legal newspaper The Recorder's front page caused Newsmakingnews.com's publisher Kate Dixon to relive her past life as an attorney.  Reporter Justin Scheck's article, which appeared on Tuesday, January 24, 2006 opened with the statement,  "If only Kathryn Dixon had been a cobbler."  Scheck went on to detail the 1997 case of Darris Young who had been defended by Kate Dixon, then a sole practitioner from Berkeley, California (Click to Scheck article)

Kathryn Joanne Dixon was born on February 17, 1952 in Pennsylvania.  She was one of two children born to a WWII soldier and probate attorney Joseph Leon Dixon and mother Minnie Boudman Dixon who was elected three times to the Democratic State Committee.  Dixon had a passion for writing and the theater and worked for two years as a theater producer in New York City after graduating from Penn State University in 1972 and obtaining her J.D. from the Mid-Valley College of Law in 1976.  Leaving New York, she worked as a paralegal in San Francisco from 1978 until 1981 before entering solo practice.

Dixon practiced civil law until mid-1994 when a federal judge's sanctions pushed her into becoming a criminal defense attorney, according to an article by Deborah Yaffe published in The Recorder on February 7, 1996.  That article entitled Strange Bedfellows detailed the race between self-described conservative pro-life Alameda County Superior Court Judge Joseph Hurley and liberal Dixon described by friends, clients and acquaintances as a hard-working advocate for the poor and underprivileged.

The Jaffe article contained a quote from Carmen Herrera, the former director of the lawyer referral service of La Raza Centro Legal Inc., a Mission District legal services center for Hispanics. "She's a very caring kind of person," Herrera said, "She was one of the attorneys that was always very helpful to indigent people. I think she was sensitive to her clients, especially the poor ones."

But even as Dixon took out her candidacy papers she was aware that two judges had levied $19,000 plus interest in sanctions against her. Dixon had filed a class action lawsuit alleging children had been paddled, beaten and sexually abused and subjected to experimentation via University of California pain surveys while attending the Emeryville schools.  The suit outraged politicians and school officials alike and ultimately led to the California State Bar filing 44 charges against Dixon in August of 1995.  The Bar detailed instances of dishonesty and incompetence in 10 cases dating back to 1993.  More cautious attorneys would have quietly retreated, hired an attorney to defend them and mustered their resources fighting to retain their law license.  However, typical of the confrontational style that made her an effective criminal defense lawyer, Dixon displayed her chutzpah by choosing to run against a well-financed, entrenched judge.

There was no question that the Hurley-Dixon judicial race was the most talked about contest for an Alameda County judgeship in years. There is also no doubt that the negative publicity that Dixon generated by running aided and abetted the State Bar's effort to disbar the irritating Kate Dixon. Finally in 1999, Dixon was formally disbarred.

The case that is the focus of Justin Scheck's article in The Recorder involved Dixon acting as defense attorney for Darris Young in 1997, the year that the California State Bar recommended Dixon's disbarment (Click to Young v. Runnels, No. 03-16859)  Young's appellate attorney
A. J. Kutchins argued that the behavior that cost Dixon her license occurred before Dixon represented Young and that therefore her counsel was ineffective.

The 9th Circuit Court of Appeals was not impressed with Kutchins' argument and instead upheld the 2000 ruling of U.S. District Judge Saundra Brown Armstrong of Oakland.  Ninth Circuit Senior Judge Warren Ferguson wrote that although Dixon was facing disciplinary proceedings at the time of Young's trial she had not yet been disbarred, so her counsel was not per se ineffective.

Ferguson was joined by Judge Pamela Rymer.  Justice John T. Noonan in a concurring opinion, elaborated on his decision by stating, "It is conceded by all that if Darris Young had been represented by a college student or a cobbler or counsel not admitted to the California bar, he would have been denied his Sixth Amendment right to counsel. But his case is different because he was represented by a fully licensed member of the California bar whom the courts of California took nearly two years to remove from a position where she could harm the public, the courts, and her clients!"

Publisher Dixon responded to Justin Scheck after his article's deadline with the following email:

I just read your article. It is very good. I am now in the internet news business as publisher, reporter of newsmakingnews.com.

I wanted to tell you that there is apparently a cottage industry going on since July 1997 when I was disbarred. The industry consists of filing inadequacy of counsel motions and appeals.  I understand that the panel lawyers are getting paid well for it, and the briefs that are being churned out look somewhat alike.  I am always happy to enrich my fellow members of the bar.

I was never contacted on this Young case or any of the other cases by any appellate lawyer or investigator.  If I had been contacted, perhaps my declaration would have been helpful.  Given that a so-called top trial lawyer of the Alameda DA's office testified against me at the bar proceedings and DA Orloff made moves to disbar me over the Emeryville cases he failed to prosecute, I think I may have had some helpful information.  In addition, the state bar decisions and other decisions against me read as though I was mentally incompetent.  A mentally incompetent lawyer cannot give effective representation. That is the law.  This Young decision does not address the issue of whether the lawyer is mentally competent.  It just says "discipline" was pending or in effect for some material -- fantasies?  What?  Politics?  If a political hit by the district attorney upon the lawyer is shown to have removed him/her in the middle of a case or during it, or if a lawyer is mentally incompetent, the decision in Young would be quite different.  But no one pursues those avenues.  If they did, virtually all of the cases I was involved in at the time -- approximately 30 pending when disbarred and approximately 100 cases during the approximate 4 years it took to disbar me, would all be reversed and have to be retried.  The authorities know this, so they have carefully danced around these two central issues - first, the political hit by D.A., the US Attorney and law enforcement causing bias vs. me and the client, and second, the issue of mental incompetence.  And the appellate counsel are now providing inadequate representation, incompetent counsel by not raising these two issues which are clearly on the record.

Soon after the cases vs. Emery school district were filed, a deal was struck -- that the Alameda DA and US Attorney, FBI, law enforcement and Shellmound State child care licensing lawyers, would not investigate the cases or prosecute and instead that I would "removed" from the cases to "kill" the cases.  In other words, disbarred by fabricated State Bar charges, so the merits of the cases would not be heard ever.  After I was disbarred, no lawyer wanted to represent the Emeryville children.  A siren was clearly heard.

This is not the first time this has happened.  Other lawyers have been removed from controversial cases, and the removals range from sanctioning them off the case, where they fear a steep debt, all the way to minor and then heavy discipline and even disbarment.

Since this state bar proceeding, no case of mine has been overturned for my ineffective assistance of counsel.  I have not been sued for malpractice.  I was never arrested for anything.  The people who beat and molested the Emery school children were never prosecuted despite clear and convincing evidence.  Now those children are grown.  Maybe they will come forward like the Catholic altar boys did!

Finally, I was not allowed to testify in my own defense in the state bar case, or bring one witness or document on my own behalf. 
It was a fascist hit.

So again, thanks for writing a fair article.

Kate Kathryn Joanne Dixon

The Oakland Tribune and Tri-Valley Herald also carried articles of a similar nature written by staff writer John Richman. Tuesday, the ghosts of publisher Dixon's past life came back to haunt her.  Her response indicates that she has learned how to integrate her old life and her new life leaving the hurt behind her and learning from her life as a lawyer.  It is also clear that she does not intend to hide in shame in the shadows. She has found a new and more effective method of getting her message before the public.  As an attorney she was able to help a few people in need; as a publisher she reaches thousands every day.

Virginia McCullough © 1/24/06

 


Troubled Lawyers Not Ineffective Per Se



January 24, 2006

If only Kathryn Dixon had been a cobbler.

That would have saved years of trouble for a handful of Bay Area public officials, several criminal defendants and a Ninth Circuit panel that on Monday unanimously declined to overturn the 20-year sentence of Darris Young, despite the reservations of at least one judge.

The problem they all ran into is that Dixon — who represented Young in his 1997 armed robbery trial — was, in the words of Senior Ninth Circuit Judge John Noonan, "not a college student or cobbler … [but] a fully licensed lawyer with her head full of fantasies."

Dixon's most notoriously fantastic assertion came in a federal suit she filed in the mid-1990s alleging that some of the region's best-known lawyers, including Alameda County District Attorney Tom Orloff, former U.S. District Court Judge Barbara Caulfield and then-U.S. Attorney Michael Yamaguchi, were covering up an East Bay pedophile ring.

Such behavior — along with a pattern of financial improprieties, dishonesty, false accusations and moral turpitude — caused the California State Bar to recommend Dixon's disbarment in July 1997, just one month after Young's conviction and before his sentencing. In 1999, Dixon was formally disbarred.

Because the behavior that got her license yanked occurred before Dixon represented Young, it rendered her counsel ineffective, Young's current attorney argued.

The Ninth Circuit panel didn't buy it. Although Dixon was facing disciplinary proceedings at the time of Young's trial, she had not yet been disbarred, so her counsel was not per se ineffective, wrote Senior Judge Warren Ferguson.

"A lawyer can be disciplined for a variety of reasons — merely because he is subject to disciplinary proceedings while representing a client does not mean that he is presumptively incapable of providing effective assistance," he wrote.

Ferguson was joined by Judge Pamela Rymer and Noonan, whose concurring opinion exclamatorily lamented the result.

"It is conceded by all that if Darris Young had been represented by a college student or a cobbler or counsel not admitted to the California bar, he would have been denied his Sixth Amendment right to counsel," Noonan wrote. "But his case is different because he was represented by a fully licensed member of the California bar whom the courts of California took nearly two years to remove from a position where she could harm the public, the courts, and her clients!"

Young's lawyer, Berkeley appellate specialist Albert Kutchins, took some solace. The concurrence, as well as the judges' reactions during oral arguments, showed they were "gravely troubled by what happened to the defendant, but couldn't find a way to grant relief," he said.

The case was difficult, Kutchins added, because few prior rulings deal directly with such a case.

Gregg Zywicke, the deputy attorney general who argued the case for the state, said a ruling in Young's favor would have greatly lowered the bar for ineffective assistance claims.

"All a defendant would have to do is make an allegation and that would affect his cellmate's case," Zywicke said. "If all it took was an allegation, we wouldn't have lawyers to represent anybody."

Kutchins said he plans to ask the court to reconsider the decision.

While that motion is pending, Zywicke said other criminal cases Dixon handled are working their way through state and federal appeals courts. Yet despite the appeals caused by her disbarment, there's one fact that may cheer all the judges and attorneys involved: In 1996, Dixon lost a bid for the Alameda County bench.

Dixon did not respond to phone and e-mail messages asking for comment.

The opinion is Young v. Runnels, 06 C.D.O.S. 597


http://www.law.com/jsp/ca/PubArticleCA.jsp?id=1138023315685

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Young v. Runnels

Cite as 06 C.D.O.S. 597

DARRIS YOUNG, Petitioner-Appellant,

 v.

DAVID L. RUNNELS, Warden, Respondent-Appellee.

No. 03-16859

United States Court of Appeals for the Ninth Circuit

D.C. No. CV-01-01427-SBA

Appeal from the United States District Court for the Northern District of California Saundra B. Armstrong, District Judge, Presiding Argued and Submitted April 11, 2005--San Francisco, California, Before: Warren J. Ferguson, John T. Noonan, and Pamela Ann Rymer, Circuit Judges.

COUNSEL

 A.J. Kutchins, Berkeley, California, for the petitioner-appellant.

Gregg E. Zywicke, Deputy Attorney General for the State of California, San Francisco, California, for the respondent-appellee.

Filed January 23, 2006

 

FERGUSON, Circuit Judge:

Petitioner-Appellant Darris Young, a California state prisoner, appeals the District Court's denial of his 28 U.S.C. § 2254 habeas petition challenging his conviction for armed robbery and felony evasion. Young contends that his trial attorney's disciplinary problems rendered her presumptively unable to provide effective assistance, thereby warranting a per se reversal of his conviction under United States v. Cronic, 466 U.S. 648 (1984). Young further contends that his trial attorney's baseless lawsuit against various public officials, including the Alameda County District Attorney (DA), for allegedly participating in a pedophile ring created an actual conflict of interest under Cuyler v Sullivan, 446 U.S. 335 (1980). We uphold the state court's resolution of Young's ineffective assistance claim since Strickland v. Washington, 466 U.S. 668 (1984), rather than Cronic, governs this claim, and Young fails to show prejudice under Strickland. Further, we find that Young has waived his conflict of interest claim by not raising it before the District Court. See Belgarde v. Montana, 123 F.3d 1210, 1216 (9th Cir. 1997). Accordingly, we affirm the District Court's denial of Young's habeas petition.

I. BACKGROUND

A. Pre-Trial and Trial Proceedings

On July 8, 1995, Young was apprehended after a high-speed car chase and charged with armed robbery and felony evasion. Young, positively identified by two witnesses, waived his Miranda rights and confessed to robbing a Safeway store. Young's two prior robbery convictions were submitted as "strikes" against him under California's Three Strikes law, which imposes a minimum sentence of twenty-five years to life on defendants previously convicted of two or more "serious" or "violent" felonies. Cal. Penal Code § § 667(e)(2)(A), 1170.12(c)(2)(A). Prior to trial, the Alameda County DA's office offered Young a determinate prison term of sixteen years for pleading guilty. Young rejected this offer, as well as a second offer for a term of twelve years, four months. Later, he regretted his decision and had his court-appointed public defender request a determinate sentence, which the DA's office declined to extend.

On March 18, 1997, Young's family retained Kathryn Jo-Anne Dixon as his counsel. Unbeknownst to Young or his family, State Bar disciplinary charges alleging forty-four counts of misconduct were pending against Dixon at the time she was hired. Dixon was also engaged in a baseless lawsuit accusing numerous public officials, including the Alameda County DA, of being members of a pedophile ring that kidnapped local schoolchildren. As Young's counsel, Dixon moved to suppress the field lineup conducted after the robbery as unduly suggestive, as well as a prejudicial statement Young had made in violation of his Miranda rights. She argued unsuccessfully to exclude the use of Young's prior convictions for impeachment, but did secure a bifurcated trial on the truth of those convictions. Dixon also twice requested of Deputy DA Matt Golde a determinate sentence, which Golde refused to extend. At the close of the prosecution's evidence, Young offered to plead guilty, but withdrew the offer when Dixon advised him that it might not affect the length of his sentence. On June 16, 1997, the jury convicted Young of armed robbery and felony evasion and, in a separate proceeding, found his prior convictions to be true.

On July 9, 1997, before Young's sentencing had begun, the California State Bar Court recommended Dixon's disbarment. The Bar Court found that Dixon took fees from and then stopped communicating with six clients; made false statements to the probate court, to an administrative tribunal, and to a superior court; engaged in acts of moral turpitude, dishonesty, or corruption; and threatened or made false accusations against four attorneys, a former client, a former paralegal, the State Bar's trial counsel, and the Bar Court itself. Dixon was eventually disbarred on March 15, 1999.

B. Sentencing and Appeals

Because Dixon became an inactive member of the bar on July 16, 1997, the trial court reappointed a public defender to represent Young during sentencing. The court first imposed a concurrent twenty-five years to life three-strikes sentence for Young's two offenses, with a determinate term of eleven years for enhancements. Later, pursuant to its discretion under Cal. Penal Code § 1385(a), the trial court struck one of Young's prior convictions and imposed a determinate sentence of twenty years. Young simultaneously filed a direct appeal and state habeas petition alleging that Dixon suffered from a conflict of interest, that she failed to pursue plea negotiations, and that the State Bar proceedings rendered her presumptively incapable of providing effective assistance. The California Court of Appeal, unswayed by Young's arguments, denied relief on December 27, 1999, and the California Supreme Court denied Young's petition for review on April 12, 2000. Young timely filed a federal habeas petition in which he argued that Dixon's failure to disclose her pending disciplinary charges amounted to an actual conflict of interest, and that the State Bar's finding that Dixon was unfit to practice law established per se ineffective assistance under Cronic. The District Court denied the petition on August 30, 2002, and this appeal timely followed.

II. STANDARD OF REVIEW

We review de novo the District Court's denial of Young's § 2254 habeas petition. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). We may grant habeas relief to a person in state custody if the state court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The state court's findings of fact are presumed to be correct unless the petitioner can rebut this presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).

A state court decision is contrary to Supreme Court precedent if it "applies a rule that contradicts the governing law set forth in [the Supreme Court' s] cases" or "confronts a set of facts that are materially indistinguishable from a decision of th[e] Court and nevertheless arrives at a result different from [the Court' s] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision involves an unreasonable application of Supreme Court precedent if it "identifies the correct governing legal principle from th[e] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. In applying the foregoing standards, we review the "last reasoned decision" by the state court, Robinson, 360 F.3d at 1055, which in this case is the California Court of Appeal's denial of Young's state habeas petition.

III. DISCUSSION

A. Ineffective Assistance of Counsel

Young contends that he is entitled to § 2254 relief because the California Court of Appeal applied the wrong legal standard to analyze his claim that Dixon's pending disciplinary proceedings rendered her assistance constitutionally deficient. We disagree and uphold the state court's resolution of Young's ineffective assistance claim under Strickland, rather than Cronic, as neither contrary to nor an unreasonable application of clearly established Supreme Court precedent.

To prevail on a Sixth Amendment ineffective assistance claim, a defendant must show that counsel's representation "fell below an objective standard of reasonableness," Strickland, 466 U.S. at 688, and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694. See also Bell v. Cone, 535 U.S. 685, 695 (2002) (explaining that "[w]ithout proof of both deficient performance and prejudice to the defense, . . . it could not be said that the sentence or conviction ' resulted from a breakdown in the adversary process that rendered the result of the proceeding unreliable' "(quoting Strickland, 466 U.S. at 687)).

In Cronic, the Supreme Court carved out certain exceptions to the general Strickland rule, holding that in limited situations the defendant need not show prejudice, as required under Strickland. See Cronic, 466 U.S. at 658. Specifically, prejudice may be presumed when the defendant is "denied counsel at a critical stage of his trial," id. at 659, "counsel entirely fails to subject the prosecution's case to meaningful adversarial testing," id., or "the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial," id. at 659-60. But apart from circumstances of this magnitude, "there is generally no basis for finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the reliability of the finding of guilt." Id. at 659 n.26.

Young contends that Cronic governs his ineffective assistance claim because representation by an attorney whom the State Bar has found to be unfit, and who is eventually disbarred, constitutes a constructive denial of counsel. Though Dixon was not disciplined until after Young's trial had concluded, the grounds for that discipline stemmed from events that occurred prior to Dixon's involvement in Young's case. Therefore, Young argues, the State Bar Court's subsequent finding of unfitness rendered Dixon's earlier assistance to Young per se ineffective.

Young's argument that Cronic rather than Strickland governs his ineffective assistance claim has already been rejected by this Court. See United States v. Mouzin, 785 F.2d 682, 696-98 (9th Cir. 1986). As we suggested in Mouzin, a lawyer can be disciplined for a variety of reasons -- merely because he is subject to disciplinary proceedings while representing a client does not mean that he is presumptively incapable of providing effective assistance. Cf. id. at 698. Moreover, the situation here is positively distinguished from Mouzin to the extent that Dixon remained in good standing throughout her representation of Young, whereas the attorney in Mouzin was disciplined mid-trial, but continued to represent the defendant. Even in those circumstances, this Court held that Strickland, not Cronic, governed, for an attorney's suspension or disbarment does not invite "a per se rule that continued representation in an ongoing trial is constitutionally ineffective." Id. Rather, we found it reasonable to treat such cases under the general rule requiring a showing of specific errors and prejudice, for if the discipline rendered is indicative of counsel's substandard abilities, then that deficiency should be manifested in counsel's courtroom behavior and trial conduct. Accordingly, we agree with the District Court that the state court's decision to apply Strickland and not Cronic to the present case was not contrary to clearly established federal law under § 2254(d)(1).

We turn next to whether the state court's resolution of Young's ineffective assistance claim on the merits, under Strickland, involved an unreasonable application of clearly established Supreme Court precedent. We examine the prejudice prong of the Strickland test first. See Strickland, 466 U.S. at 697 (noting that courts may consider either prong of the test first, and need not address both prongs if the defendant fails under one). To "affirmatively prove prejudice," a defendant must demonstrate a reasonable probability that, but for counsel's alleged errors, the results in his case would have been different. Id. at 694; see also Williams, 529 U.S. at 391-93. In assessing the probability of a different outcome, a court must consider the "totality of the evidence before the judge or jury." Strickland, 466 U.S. at 695.

Young argues that, but for Dixon, the outcome in his case would have been different because he would have pled guilty and thus received a lesser sentence than the twenty years he ultimately obtained. Given the facts of this case, Young fails to meet his burden of establishing a reasonable probability that he would have received a more lenient sentence by pleading guilty. Before hiring Dixon, Young had already rejected two plea offers from the DA, one for a determinate term of sixteen years, and another for a term of twelve years, four months. Subsequently, both Young's first attorney, the public defender, and Dixon tried to negotiate determinate sentences from the DA's office, but were rebuffed. As Deputy DA Golde explained to the trial court, the DA had reviewed Young's case and had declined to extend anything less than twenty-five years to life. By the time Dixon entered the case, the only available disposition from the DA's point of view was an indeterminate three-strikes term of at least twenty-five years to life. We therefore find that Young fails to meet his burden of showing prejudice and his ineffective assistance claim based on Dixon's pending disciplinary proceedings fails.

B. Conflict of Interest

Young also contends that Dixon's baseless lawsuit against the Alameda County DA for participating in a pedophile ring created an actual conflict of interest under Cuyler, 446 U.S. 335. Assuming arguendo that the Certificate of Appealability encompasses this claim, Young has waived it by failing to raise it before the District Court. See Belgarde v. Montana, 123 F.3d 1210, 1216 (9th Cir. 1997) (noting that "[h]abeas claims that are not raised in the petition before the district court are not cognizable on appeal" (internal quotation marks omitted)). Whereas Young argued to the District Court a conflict of interest theory based on Dixon's failure to disclose her pending disciplinary proceedings, he now argues to this Court a different claim based on Dixon's suit against the Alameda County DA.

Nor does Young's failure to raise this alternative conflict of interest claim fall under any exception to the waiver rule. See, e.g., Taniguchi v. Schultz, 303 F.3d 950, 959 (9th Cir. 2002) (outlining three exceptions to the waiver rule). First, there are no "exceptional circumstances as to why the issue was not raised at the trial court." Id. Like the petitioner in Taniguchi, Young raised his alternative conflict of interest claim in his state habeas petition and so could have raised it in his federal habeas petition. Nor was there any change in law excusing Young's failure to raise this claim earlier. Finally, Young's new claim is not a purely legal question easily resolvable without a factual record, where the "opposing party would suffer no prejudice as a result of the failure to raise the issue in the trial court." Id. As such, we find that Young's conflict of interest claim based on Dixon's suit against the Alameda County DA is not cognizable on appeal.

IV. CONCLUSION

For the foregoing reasons, we uphold the District Court's denial of Young's § 2254 habeas petition.

 AFFIRMED.

 

NOONAN, Circuit Judge, concurring:

In proceedings brought by the State Bar of California that began in August 1995, and concluded in June 1997, a state bar judge made these findings about the lawyer who in June 1997 represented Young in his state trial for armed robbery:

1. The lawyer had falsely charged opposing counsel in a civil suit with being a "champion of the Emeryville pedophile ring," an enterprise which the lawyer described as "operated by organized crime."

2. The lawyer spoke to another opposing counsel representing a government agency, "yelling and talking about a child pornography ring" and told her, "You need to be careful -- you better remember what happened to Damien Gaines." The reference was to a murdered analyst for that counsel's agency.

3. The lawyer called her own former paralegal "a thief and a liar" and said that she would "get [her]" or "kill [her]." The lawyer kept calling the paralegal until the latter unplugged her phone.

4. The lawyer falsely accused a former client of terrorism and of stalking her. She accused both him and his new counsel of being "supremacist militia members."

5. During the proceedings before the state bar court, the lawyer "repeatedly screamed at the Court, refused to follow rulings and directions, and made direct threats toward the Court and Trial Counsel . . . . [Her conduct] "caused the Court the gravest concern that [she] is not capable of conducting herself properly in any court of law." (emphasis in original).

6. The state bar judge added:

 "While the Court appreciates the difficulty of representing oneself, it does not justify an attorney's abandoning the most basic elements of appropriate courtroom behavior and engaging in disruptive and offensive conduct. Again, [she] seems to have no insight that such actions are inappropriate and must be curtailed."

7. The state bar judge concluded:

 "Respondent's complete lack of insight into the wrongfulness of her actions is reprehensible. In vigorously defending her position, Respondent demonstrates that she does not fully appreciate the distinctions between right and wrong. Her erratic outbursts and lack of discernment during court proceedings constitute a danger to the public and to the legal profession."

Despite these findings, the lawyer -- as the state court of appeals remarked in Young's case -- remained "a fully licensed member of the bar" until she was formally disbarred on July 9, 1997.

Subsequent to these proceedings, the disbarred lawyer spoke about this case to Young's new counsel, a public defender, who filed this declaration in this case:

"The reference to the ' pedophile ring' is nothing new to persons familiar with [the lawyer' s] conspiracy theories. For the past couple of years, she has been known to make accusations that various officials, including the Alameda County District Attorney, have conspired to protect a ' pedophile ring' operating in Emeryville. In the one phone conversation I was able to have with [her] after being assigned to represent the defendant in this case, she declared that the State Bar proceedings were engineered by Tom Orloff because she had exposed his role in the ' Emeryville pedophile ring' and that ' Orloff sent his pansy Dave Hollister to testify against me' ."

It is conceded by all that if Darris Young had been represented by a college student or a cobbler or counsel not admitted to the California bar he would have been denied his Sixth Amendment right to counsel. But his case is different because he was represented by a fully licensed member of the California bar whom the courts of California took nearly two years to remove from a position where she could harm the public, the courts, and her clients! A fully licensed lawyer with her head full of fantasies and "with complete lack of insight into the wrongfulness of her actions" was counsel enough to satisfy the Sixth Amendment! As Judge Ferguson's opinion indicates, precedent apparently requires this bizarre conclusion. Only the Supreme Court of the United States can eliminate this cruel parody of the right to counsel.

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Profile of Judge John T. Noonan

Court: United States Court of Appeals for the Ninth Circuit

Appointed by: President Reagan, 1985

Born: October 24, 1926 in Boston, Massachusetts

Education: BA, Harvard 1946; PhD, Catholic University 1951; LLB, Harvard 1951

Law Practice: National Security Council (1954-55); Herrick Smith Donald Farley & Ketchum (1955-60); Professor, Notre Dame (1961-67); Professor, UC Berkeley (1967-)

Judicial Appointments: Ninth Circuit (1985-present)