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“The Clerk:  I will call his office.

“The Court:  I am going to try to find Mr. Mort Borenstein who tried a capital case by the name of People versus Beltran in this case [sic:  court] and was able to obtain a verdict of not guilty.  I know him to be a very resourceful as well as a most competent attorney.  I want him.  I am going to try to get a hold of him; have him here at 1:30 this afternoon.”

After a recess, the court reconvened at 1:40 p.m., again outside the presence of the jury and district attorney.  The court continued its examination of defense counsel regarding their obligation to present mitigating evidence if any was available.  Attorneys Maple and Miller responded that they needed the advice of counsel and had obtained such representation in attorney Robert Gerstein, who was present outside the courtroom.  Maple further asserted that Gerstein had been previously appointed counsel for defendant, having been appointed “for all purposes” by Judge Xanthos, presiding judge of the same court, who in his capacity as master calendar judge, was handling counsel and expert witness appointments and investigator funding.  The trial court (Judge Tso), taking apparent umbrage at the assertion that, without his knowledge, an attorney had been appointed in this case “for all purposes,” invited Judge Xanthos into the courtroom to confirm or disprove the claim.  Before he arrived, the following colloquy occurred:

“Mr. Maple:  Thank you.

“I wish to amplify the record so that it is complete and not incomplete, your Honor.  If I may be heard in this regard.

“Mr. Gerstein’s status in the case occurred as a result of Mr. Miller and myself deciding to take a writ.  We employed him.  Utilizing trust funds that were provided by Judge Xanthos, among other things.  Your Honor has no knowledge

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