Rhaburn

In these cases we are asked to determine whether a public defender whose office has previously represented a witness for the prosecution is subject to automatic (or virtually automatic) disqualification for conflict of interest. Although we cannot establish a bright-line rule, we do hold that disqualification is not mandatory whenever the situation arises; further, that disqualification in one of the two cases before us was clearly improper.

The facts of the two cases are similar, although not identical.

Petitioner Gerald Anthony Rhaburn was arrested on October 8, 2003. After the usual proceedings and several continuances, a trial date of May 16, 2005, was set. The case continued to trail into July, and on July 7, the prosecutor filed a trial brief that included a request that the public defender’s office be disqualified because that office had represented witness Cary Barnett, Sr., in a criminal proceeding in 1996. Although the brief was not very illuminating, at the hearing held that date the prosecutor explained that Cary had originally been charged with a crime of moral turpitude—to wit, misdemeanor spousal abuse under Penal Code section 273.5 —but had eventually…