Convicted sex offender Mark Grunau must have thought the wheels of justice were not only turning slowly in his case, but had ground to a stop altogether. And in a way they had.
It seems that for his first eight years in prison, Grunau thought his case was working its way through the appeal courts. But, alas, his lawyer, identified by San Jose’s Sixth District Court of Appeal as one Dan J. Foley, did nothing right after he filed an appeal on Sept. 6, 1996. In the meantime, Foley kept assuring Grunau’s dad that the appeal was proceeding “in due course.”
Today, the Sixth District — which dismissed Grunau’s appeal way back in 1997 after no opening brief was filed — removed the remittitur that terminated the case and reinstated Grunau’s appeal.
Lies, all lies, after the jump ...
“Where, as here,” Justice Conrad Rushing wrote, “appellate counsel engages in a campaign of plausible deceptions, the defendant (or one acting on his behalf) makes reasonable independent inquiries, and nothing else in the case — such as prior appellate experience — puts the defendant on notice that he ought not to rely on counsel’s skilled assurances, even a delay of eight years before seeking relief may not bar an order recalling remittitur.”
Justices Eugene Premo and Franklin Elia concurred.
So nearly 13 years after being convicted of sexually assaulting a minor, Grunau’s case will go forward. The court ordered its clerk to set a briefing schedule.
Rushing noted that Grunau’s father had kept pestering Foley over the years for details about the appeal, but was told either that the case had been grouped with other Three Strikes cases that had been put on hold by the U.S. Supreme Court or that the Sixth District had a backlog caused by a shortage of judges.
“This was not the too-familiar case of an attorney who simply stops communicating with his client, or who offers vacuous assurances on which, at some point, it becomes unreasonable to rely,” Rushing wrote. “Foley used his knowledge of the law and legal procedure not only to misrepresent the status of the appeal, but to supply plausible explanations for why it remained undecided despite the lapse of years.”
The justice also pointed out that Foley did not disclose that the State Bar had charged him with nine disciplinary violations and suspended him from practicing law in 2000. Neither did Foley disclose that he had resigned from the State Bar with charges pending in 2001.
“He not only failed to perform duties for which he had contracted,” Rushing wrote, “but affirmatively breached his fundamental duty of trust by engaging in an egregious, long-term deception intended specifically to prevent defendant from discovering his defalcations.”
Foley couldn’t be located for comment. Although there are three Daniel Foleys listed in State Bar records — two of them inactive — there is no listing for a Dan Foley with “J” for a middle initial.
Paul Couenhoven, an attorney with San Jose’s Sixth District Appellate Program, didn’t respond to a telephone message left late today seeking help in tracking down Foley.
As for the justices, don’t think they were softies who bit on a tale of woe right away. The Sixth District back in 2005 rejected Grunau’s attempt to reinstate his case, saying too much time had lapsed. But the California Supreme Court ordered the Sixth District to take a closer look.
The ruling is In re Grunau, 08 C.D.O.S. 15669.
— Mike McKee