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Cold case defendant fires lawyer
Fagan to defend himself in murder trial
VICTORVILLE • According to an old adage, he who represents himself in court has a fool for a client.
But six days into his cold case murder trial, a 78-year-old defendant, who’s a civil law attorney, decided to relieve his defense lawyer and represent himself.
After nearly two hours of hearings, Judge John Vander Feer granted Eric Francis Fagan’s motion to represent himself Thursday afternoon in Victorville Superior Court. The judge advised Fagan of the rights and privileges he would have to give up and the risks that come with being his own lawyer.
“Is it your unequivocal request to represent yourself?” Vander Feer asked.
“Absolutely, your honor,” Fagan responded.
Fagan is accused of shooting Cathy Paternoster, his ex-girlfriend’s daughter, to death in Spring Valley Lake in 1989. Prosecutors said Fagan’s motive for the killing was to get custody of Paternoster’s daughters. If convicted, Fagan could face life in prison.
Investigators suspected Fagan from the beginning, but they didn’t have enough evidence to make an arrest.
The Sheriff’s Cold Case Unit reopened the case in 2008 after a latex glove recovered just two blocks away from the crime scene in 1989 had DNA that matched Fagan’s. Fagan was arrested in October 2009 outside his Chula Vista home.
Before a jury came into the courtroom Thursday morning, Fagan stood up and told the judge he wanted to fire his attorney.
Richard D. Berkon Jr., a private attorney retained by Fagan in March 2010, said the motion came out of blue.
“He complimented me on my style and tactics, so I had no idea,” Berkon said.
Berkon started his criminal law firm in San Diego in 2006 after working 4 1/2 years in the San Diego Public Defender’s office. He tried nearly 70 cases, eight to 10 of which involved murder charges, Berkon said.
Vander Feer interviewed Fagan in a closed session why he wanted to represent himself. The hearing wasn’t open to the prosecution, public or media because it might include trial tactics.
The judge later said Fagan and Berkon had difference of opinion.
“I’m disappointed,” Berkon said. “I wanted to try this case. I put a lot of time and effort into this case.”
Fagan told the judge he has no memory problem and his health is “excellent” though he takes blood pressure pills.
Fagan received his B.A. from Lowell Technological Institute in 1955 before graduating from Irvine University College of Law in 1979, according to his Avvo.com profile.
He said he practiced real estate law until 2004, when he turned over his business to his two children. He got into consumer law afterward and tallied a 244-6 record, according to Fagan. He said he holds a 98-2 record in debt collection lawsuits.
Fagan said he’s tried one criminal case, child molestation, which he won an acquittal.
The judge reminded Fagan he would get no special treatment in court or in jail. Fagan cannot stand up or move around the courtroom like other attorneys do, Vander Feer said.
Fagan said he is 75 percent prepared, but assured the judge he wouldn’t delay the trial. His son will help him contact witnesses and deliver his suit to wear in court, Fagan said.
The trial is scheduled to resume Nov. 26. Fagan will start cross examining Carl Fuerst, Paternoster’s boyfriend who was also hit during the shooting in 1989.
Tomoya Shimura may be reached at (760) 955-5368 or TShimura@VVDailyPress.com. Follow Tomoya on Facebook at facebook.com/ShimuraTomoya.
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