McNally

The People appeal following the dismissal of the information against respondent Paul McNally after a determination that McNally had been previously placed in jeopardy for the same charge. Respondent was charged with kidnaping (Pen. Code, § 207), forcible rape (Pen. Code, § 261, subd. 2), rape by threat of great bodily harm (Pen. Code, § 261, subd. 3), and forcible oral copulation (Pen. Code, § 288a). It was alleged that in the commission of the last three offenses, respondent used a deadly weapon, a metal pipe (Pen. Code, § 12022, subd. (b)), and that he inflicted great bodily injury during commission of the rapes (Pen. Code, § 12022.7).

Prior to trial appellant’s attorney, Deputy Public Defender H. Sinclair Kerr, became aware that his office had previously represented the victim in this case in a misdemeanor matter. Kerr decided this prior representation did not amount to a conflict of interest.

On March 19, 1979, trial commenced and the jury was selected. During the trial Kerr became aware that the public defender’s office had represented the victim in at least two other misdemeanor cases. After further consultation with his office and a review of the various case…