Wolfson conflict of interest issue again raised by defense attorneys

What they say about economists - ask two for an opinion and get three responses - might also apply to the nearly 20 lawyers litigating a criminal case.

In this case, the multitude of opinions is wrapped in contentious bickering and muddled facts.

The discord unfolded Friday at a hearing in the latest attempt by defense attorneys to disqualify the county's district attorney's office because of new top prosecutor Steve Wolfson, a former defense attorney himself.

At the heart of the argument is whether the district attorney's office can avoid the appearance of impropriety in prosecuting cases Wolfson and his former firm are - or were - involved in defending.

In about a dozen such cases, including the one Friday before Judge Michael Villani, the district attorney's office argues it has taken the appropriate steps to "shield" Wolfson from contact with prosecutors handling cases with ties to their new boss or his former firm - which could total more than 100.

Defense attorneys contend Wolfson's knowledge of strategy, access to case files or even his payment in a case is enough to create the appearance of impropriety. So far, two district judges have agreed with defense attorneys and ordered special prosecutors to take over. A third judge has sided with the prosecution.

In Friday's case, which has 13 defendants, including members of the infamous Hells Angels Motorcycle Club, some attorneys say Wolfson was privy to strategy and tactics because an associate at his former firm, Pat McDonald, represents one of the defendants.

As a result, defense lawyers are asking Villani to appoint a special prosecutor.

Prosecutors on the case, including Assistant District Attorney Chris Owens, argue Wolfson was insulated from the case and that appointing a special prosecutor would only cause delays and waste taxpayer money.

At Friday's hearing, four attorneys, including Owens, testified about what Wolfson knows about the defense's strategy.

The case before Villani revolved around a December 2008 brawl between rival motorcycle gang members at a downtown Las Vegas wedding chapel. The brawl followed a wedding ceremony the Hells Angels were attending. As they were leaving, they saw three Mongols who were at the chapel for a different wedding, authorities said.

The 13 men attacked the Mongols and others, bludgeoning them with their fists, feet, bottles and trash cans, according to authorities. Defense attorneys have said the 13 men were acting in self-defense.

McDonald, Wolfson's former associate, represents, Brad "Pee Wee" Goldsmith, who is alleged to be the Hells Angels leader. The attorney testified that he didn't discuss any confidential aspects of the case with Wolfson prior to his taking office.

All they discussed were money issues, McDonald said.

However, defense attorneys Joel Mann and Tricia Palm, who both have separate clients in the case, said they did discuss strategy with Wolfson before he was named district attorney. They said they felt comfortable doing so because McDonald worked for his firm.

Owens, who has prosecuted the case since it began two years ago, testified that he has not discussed the case at all with Wolfson because of McDonald's involvement.

This is not a new issue, Owens said. The district attorney's office has a long history of defense attorneys joining the prosecution's side and has established ways of dealing with that.

After being appointed, Wolfson created a list of clients that he should be shielded from.

In a memo to prosecutors, Wolfson stated: "I will not be speaking to attorneys representing these old clients, and I will not be speaking to any deputy district attorneys about any of these clients. The purpose of this ethical shield is to prevent any accusation that there is a conflict of interest."

During a contentious cross examination Friday, veteran defense attorney Thomas Pitaro took aim at Owens, pointing out that Wolfson's list was incomplete and the system was fallible.

Owens said he recognized the list might be incomplete, but prosecutors also have been ordered to check all cases for ties to Wolfson or his former firm before discussing details with the district attorney.

The nearly 2½-hour hearing was adjourned after testimony. Villani ordered closing arguments to be made Wednesday. The judge will then decide whether to appoint a special prosecutor or order the proceedings to move forward.

Wolfson was not called as a witness.

Friday's hearing cost county taxpayers at least $1,800 in appointed defense attorney costs. At least nine of the 13 defendants have lawyers being paid $100 an hour by the county.

Drew Christensen, who heads the county's office of appointed council, said $91,000 already has been paid to the appointed lawyers, investigators and experts involved in the Hells Angels' case.

Villani's decision probably will be appealed to the Supreme Court, further increasing the case's cost.

Owens scoffed when asked after the hearing why the district attorney's office did not just acquiesce and allow a special prosecutor to be appointed.

"We're prosecutors. We prosecute. We're not going to step aside because some defense attorney wants a new prosecutor," Owens said. Appointing a special prosecutor would only delay the proceedings and justice, he said.

McDonald later responded that "money should never be an issue in the pursuit of justice." He added the potential appearance of impropriety by prosecutors could erode public confidence in the justice system.

Currently, there are about a dozen cases going through court systems county wide, where defense attorneys have asked to disqualify the district attorney's office because of Wolfson's former role. In a memo to his new staff, Wolfson released a list of 83 cases involving more than 60 clients that he should be shielded from. McDonald currently has 100 cases where this issue could potentially arise. It was unclear Friday how much overlap exists between the client lists.

Earlier this month, Senior District Judge J. Charles Thompson disqualified Wolfson from prosecuting a felony drunken driving case because the defendant was a former client. On Thursday, Judge Doug Smith ruled the same way in a felony gun possession case.

However, also on Thursday, Judge Doug Herndon sided with prosecutors, keeping them on a felony theft case. The district attorney's office is appealing Thompson's decision. The other two rulings also could be appealed to the Supreme Court.

Contact reporter Francis McCabe at fmccabe@review
journal.com or 702-380-1039.