Attorney-Client Privilege Waiver Requested in Garcia Case

Santa Clara County District Attorney Jeff Rosen requested a waiver Friday morning of attorney-client privilege between convicted murderer Paul Garcia and his former attorney Harry Robertson.

Since a retrial motion on the case now alleges misconduct on Robertson's part and ineffective counsel during the October 2010 high-profile case, Rosen said had no choice but to allow the former attorney to address allegations in the retrial motion, filed Dec. 22, 2011.

In the waiver, Rosen said Robertson, who represented Garcia for almost three years and withdrew from the case two weeks before sentencing, sent a letter to Santa Clara County Deputy District Attorney Michael Yee Louie requesting a finding from the court to allow him to discuss the case and allegations made in the retrial motion that point to ineffective counsel.

Rosen also said he will oppose criminal attorney Edward Sousa's 92-page retrial motion for Garcia, found guilty of first-degree murder by a jury in October of 2010 in connection with the killing of well-known Rosen said he will file his opposition in about a month, after he reviews Robertson's response to the retrial motion.

Achilli sold the now-closed 180 Restaurant & Lounge and to Garcia. Prosecutors say Garcia ordered Achilli killed after he became enraged when a woman bartender they had both dated chose Achilli over him.

Shooter Lucio Estrada was tried along with Garcia and middleman Miguel Chaidez. Estrada was convicted of first-degree murder and was sentenced to life in prison without the possibility of parole. Chaidez was also convicted of first-degree murder and sentenced to 25 years to life in prison. Garcia's sentencing, however, has been in limbo for more than a year.

After deliberating on how best Robertson could address ineffective counsel allegations, Santa Clara County Superior Court Judge David Cena agreed to allow Robertson to address the incompetent representation charges.

Cena also cited three cases, including a ruling by the United States Supreme Court, that have set precedent that once a retrial motion is filed, a defendant loses his attorney-client privilege relating to matters raised regarding ineffective counsel.

"The attorney-client privilege has already been waived by virtue of the filing of the motion setting forth arguments of ineffective assistance of counsel," Cena said.

Cena said his clerk had advised him that Robertson had sent a communication to Sousa, Rosen and the court raising the attorney-client privilege issue, so he had research done on the subject. "By issue of the motion for new trial, you're claiming that Mr. Robertson was ineffective or certain things there were no tactical reason for ... his action or inaction [related to the trial]," Cena said. "That effectively waives the privilege."

Sousa said a worst-case scenario of waiving the attorney-client privilege would be that Robertson has no restrictions on what he can say about his communications with Garcia.

"Attorney-client conversations are privileged communications. When you raise a motion for a new trial based in part at least to ineffective assistance of counsel, there's a limited waiver of the attorney-client relationship only as to specific issues that are raised," Sousa noted. "And the way the proposed order was drafted by Rosen it was a broader more general waiver and that was not appropriate ... Communications between an attorney and his client are sacrosanct."  

Prior to the waiver being presented, Sousa gave a lengthy status report to Cena about the defense's retrial work.

Sousa said he had made progress regarding archived digital video footage from the now-closed 180 Restaurant & Lounge and Mountain Charley's Saloon, which he said was seized by the Los Gatos-Monte Sereno Police Department on April 4, 2008.

He said the footage was never delivered to Garcia's counsel. He said on Dec. 23, 2011, the day after the retrial motion was filed, Rosen had left him a message telling him to retrieve the Mountain Charley's and 180 Restaurant's DVRs and their internal hard drives, which he had received on Dec. 17, but weren't in viewable form.

He said he was told to return the materials to the Los Gatos-Monte Sereno Police Department whose officials would take the DVRs and hard drives to the Silicon Valley Regional Computer Forensics Laboratory and Alan Lee would install internal drives into the respective DVRs.

Sousa said the Garcia family found two original DVRs during the Christmas holiday and on Jan. 2, those, too, were delivered to Sousa.

The morning of Jan. 4, Sousa said he personally delivered both DVRs and the internal hard drives to the los Gatos-Monte Sereno Police Department.

He said Los Gatos-Monte Sereno Police Sgt. Michael D'Antonio then had both DVRs and the internal hard drives delivered to the forensic lab.

On Jan. 9, Sousa said he picked up both DVRs from the police as well as a report written by Lee about what he did with the DVRs and the hard drives. Sousa submitted that report to the court Friday morning and it was marked as an exhibit.

The same day, Sousa said he also met with Los Gatos-Monte Sereno Police Sgt. Matt Frisby who indicated that someone from the department had previously spent weeks looking at the surveillance footage and the DVRs were returned to the police in late August of 2008.

Sousa said he had received permission from Jim Gleason, with the Santa Clara County Public Defenders Office, to retain an expert to assist him with the technical support to get the surveillance footage on the DVRs so that he and former Santa Clara County Superior Court Judge Gregory Ward could view the material. Ward is now helping represent Garcia pro bono, Sousa said.

Sousa said he's now working with a video technician to help him view the footage; however, he indicated one DVR has an operating system that crashes and the Mountain Charley's DVR also has issues.

"We want to expedite the viewing of this," Sousa said.

Achilli friend Scott Meyer said he had come to the hearing to "hear the judge deny the motion for a new trial ... I'm tired of it [the prolongation of the case]. I want it to come to an end one way or another. I don't see a new trial happening, but you never know."

About a dozen members of Garcia's family were also present, including his mother and brother Erik Garcia, the former owner of Mountain Charley's Saloon.