In California, motion denied for gang member counsel.

Hoping to set a legal precedent, the Los Angeles County public defender's office filed a motion in June to assign court-appointed counsel to alleged gang members named as defendants in public nuisance suits. The motion was denied.

Since the early 1980s, injunctions granted under California's public nuisance statute have prohibited gang members from congregating in public and harassing or intimidating neighborhood residents. Hundreds of suspected gang members have been enjoined in civil suits. (See Gang warfare: legal battle pits personal liberty against public safety, TRIAL, Mar. 1998, at 12.) While impoverished defendants in criminal proceedings have the right to a lawyer, these injunctions are civil suits, which do not accord that right. According to the public defender's office, most reputed gang members aren't represented by counsel because they don't appear to have the money to hire an attorney.

In September, Judge Fumiko Wasserman rejected the motion, filed on behalf of Vladmir Iraheta and Pedro Monico, 2 of the 92 defendants in a public nuisance suit brought last May by city and county prosecutors against the 18th Street Gang. (People v. 18th Street Gang, No. BC 190334 (Cal., Los Angeles County Super. Ct. Sept. 10, 1998).)

Erwin Chemerinsky, a law professor at the University of Southern California, noted that potential loss of liberty is key in right-to-counsel cases. "Ultimately the question is of [defendants'] facing incarceration, and if they violate the injunction, they face incarceration," he said.

The right to counsel has been granted in civil cases. In Salas v. Cortez, the California Supreme Court held an indigent defendant in a paternity case had a due process right to counsel. (24 Cal. 3d 22, 27 (1979).) The Los Angeles public defender's office argued this exception was made because civil paternity cases can lead to criminal suits against fathers if they do not pay court-ordered child support. Similarly, the office said, the civil gang abatement suits could lead to criminal contempt proceedings against the defendants if they violate the injunction conditions.

Gang prosecutors with the district and city attorneys' offices said the due process right exception doesn't extend beyond family law-related cases. They said the gang members have not been denied access to the courts. They argued that if any impoverished defendants violate the conditions of the injunction and are charged with criminal contempt, then they will be provided with free legal counsel.

The public defender's office will pursue the case in appeals court. "We decided to intervene in this test case in order to set up the issue on appeal," said Alex Ricciardulli, deputy public defender.

But Chemerinsky said that any victory for the public defender's office will be hard won. "The California Supreme Court is reluctant to find the right to counsel and generally leaves it up to the discretion of the lower courts," he said. "Any request for counsel is going to be an uphill battle."