Judge Studies Cinco Disclosure Bid : Ruling on Making Cost of Murder Defense Public Is Delayed

Describing the case as unique, a San Diego County judge Tuesday said he needed more time to rule on a prosecutor’s request to make public the cost of defending a former auto mechanic convicted of murdering two San Diego police officers.

At a hearing in Superior Court, Judge Charles R. Hayes was asked to choose between the public’s right to learn how it spends money defending people accused of murder and the time-honored rule protecting lawyers’ secrets.

Hayes apparently will be the first California judge to interpret a provision in state law that keeps confidential the amount of public money spent for legal defense in death-penalty cases. That 1977 law sets up a process in capital cases by which a defense lawyer asks a judge for public funds to pay for “investigators, experts and others” that the lawyer feels would be helpful.

The law itself does not say whether the secrecy should end when the case ends. Convicted murderer Joselito Cinco, 29, committed suicide in December in his cell at San Quentin, making his case one of the first to become final since the Legislature restored the death penalty in 1977.

No Case ‘More Final’

“No case will ever be more final,” Deputy Dist. Atty Howard H. Shore, who made the request to unseal the records, told Hayes. “If the records are not made available to the public in this case, it’s safe to assume they never will be.”

Defense attorneys, including John G. Cotsirilos, the San Diego lawyer who defended Cinco, complained to Hayes that what prosecutors are really trying to do with their request was score a political and tactical bonanza.

Cotsirilos said he did not object to making public the lump sum expended on a case, reportedly nearing $1 million in Cinco’s case.

But he said the primary difference between a death-penalty case and other cases is the “emotion and semi-hysteria” unique to capital cases. Combining that emotion with an explicit description of the high cost of defense could fuel a drive to persuade the Legislature to change the law to give prosecutors a voice in how the defense of capital cases is funded, he said.

The tactical problem, Cotsirilos said, is that releasing the breakdown on even one case would enable prosecutors to learn how defense attorneys prepare in general for murder trials.

Applications, Hearings Secret

The law in question keeps secret not only the lawyer’s application for funds but also any hearings the judge and lawyer may hold on the request. To divulge those conversations would mean revealing legal theories and strategy, and the law traditionally has protected that information, Cotsirilos said in legal papers he filed before the hearing.

At Tuesday’s hearing, Hayes asked Cotsirilos whether he would object to the disclosure of names and fees of experts and investigators who testified at trial but keep private the names of those he consulted but didn’t call at trial. Cotsirilos said that would be redundant, since prosecutors already know who testified in the trial.

Shore urged Hayes to make everything--the figures, the documentation and transcripts of any hearings--public, citing the rule that court records are usually public records. “We feel the public should be able to scrutinize this process,” he said.

Shore said it is nonsense to say prosecutors sought defense lawyers’ tactical secrets.

“I can’t imagine why they think we think there’s some dark, mysterious secret they have that will make our lives easier,” he said. “That’s preposterous.”

Public Accountability

Supporting Shore was Marilyn L. Huff, a San Diego lawyer who filed a friend-of-the-court brief on behalf of the San Diego Union and Tribune newspapers asking for release of the records. She also relied on the rule making most court records public.

“This is a case about public accountability,” she said.

But Lewis A. Wenzell, a San Diego defense lawyer who wrote a friend-of-the-court brief on behalf of the Criminal Defense Lawyers Club of San Diego and the Criminal Defense Bar Assn., groups of about 70 and 200 attorneys, respectively, said the papers had a different interest.

“What the (two newspapers) want is a public uproar about what it costs to kill people in this state,” Wenzell said. “They have no interest in the cost to the court or the prosecution of these cases.”

Huff denied that, saying the papers would be interested in the cost of prosecution as well.

Written Opinion

Hayes, a former San Diego County deputy district attorney who moved to the Municipal Court bench in February, 1986, and the Superior Court in December, 1987, gave no indication when he would rule. He said he will write an opinion announcing his decision, a somewhat uncommon step for a Superior Court judge.

Any decision Hayes might announce in the near future would not take effect until Cotsirilos completes a “complete accounting” of the money, the only reference in the state law to the end of a case. That accounting is under review, Cotsirilos said.

Cinco was convicted and sentenced to die in June, 1988, for killing two police officers in Balboa Park on Sept. 14, 1984.

Because of extensive publicity, Cinco’s trial was moved to Orange County, where a jury found him guilty of the murders, which occurred when Cinco and another man were trying to avoid misdemeanor citations for providing liquor to two teen-age girls.