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Name: People v. Hernandez
Case #: H031992
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 11/09/2009
Subsequent History: rev. granted 2/24/10 (S178823)

A gag order preventing trial counsel from discussing witness declarations with defendant was a denial of appellant’s right to effective assistance of counsel. Appellant’s conviction for first degree murder was affirmed in an unpublished opinion on July 23, 2009. On August 14, 2009, the court granted his petition for rehearing to address an issue relating to a gag order which prevented defense counsel from discussing with his client the contents of two declarations by witnesses. The declarations were made as part of a plea bargain where charges for the two accomplices were reduced in exchange for their guilty pleas and declarations. One of the witnesses had been stabbed in jail, and the declarations were then filed under seal in order to protect his safety. Defense counsel was prohibited from discussing the contents with his client unless the witnesses testified inconsistently with their statements. On appeal, appellant contended that the court’s restrictions before trial and during cross examination violated his Sixth Amendment right to consult with his attorney. The appellate court agreed and reversed the conviction. A defendant’s right to effective assistance of counsel includes the right to confer with counsel. A court may only order witness statements sealed when there is an overriding safety interest and there has been an express finding that no less restrictive means exist to protect the interest. Although the gag order here was issued for a safety purpose, it prevented appellant and his counsel from investigating the accuracy of the statements, and it gave the prosecutor an advantage of surprise testimony. Also, the safety interest, based on the witness’s stabbing in the jail, was not sufficiently connected to his declaration to justify such a huge intrusion on appellant’s right to confrontation.