Recording error could delay trial in Forestville triple homicide.

Sonoma County sheriff’s deputies who were interviewing a triple-murder suspect let a recorder run even when the man and his attorney were alone and protected by attorney-client privilege.

Superior Court Judge Robert LaForge will hear arguments from lawyers next week about how to handle the thorny issue.

Prosecutors are seeking the death penalty against Mark Capello, 47, of Central City, Colo., in the Feb. 5, 2013, slayings of Todd Klarkowski, 43, of Boulder, Colo.; Richard Lewin, 46, of Huntington, N.Y.; and Raleigh Butler, 24, formerly of Sebastopol, during a marijuana ripoff.

Authorities say Capello shot the three men execution-style at a house on Ross Station Road.

The other two suspects, Odin Dwyer, 39, also of Colorado, and his father, Francis Dwyer, 66, of New Mexico, face life in prison.

LaForge set a Dec. 18 hearing at the request of Joe Stogner, Capello’s attorney, who asked that a neutral party be assigned to review the entire unedited recording for the court.

Chief Deputy District Attorney Diana Gomez acknowledged that at some points during the interview, detectives exited the room, leaving Capello and his then-attorney, Michael Meehan of San Francisco, alone.

Conversations between lawyers and their clients are confidential and protected by law.

“It certainly is alarming. It was videotaped without the knowledge of the client and his attorney, and that is of concern,” Stogner said. “But the longer term impact on the case remains to be seen.”

Gomez declined to say where the interview with sheriff’s Detective Brandon Cutting took place. Stogner, who took over Capello’s case, said the interview was conducted shortly after Capello was extradited from Alabama to face charges in Sonoma County.

The video recording “inadvertently was left running at some points,” she said.

Gomez said prosecutors haven’t seen or otherwise reviewed the recording.

Stogner said he was alerted to its existence in police reports he’s received as part of the evidence-sharing process and that he has no reason to doubt Gomez’s assertions that the recordings were accidental.

Trial had been expected to start in September for the case - the first time since 1995 that a death sentence has been sought in Sonoma County. Stogner said the recording issue and a change in prosecutors handling the case likely will delay it further.

LaForge likely will appoint a “special master” who will review the recording and edit out conversations covered by attorney-client privilege in a copy for prosecutors. Stogner is seeking an unedited copy.

That process is fair for everyone, Gomez said.

Stogner said he still intends to try to persuade prosecutors that the death penalty isn’t appropriate in the case.

“Both the prosecutor’s office and my office have now engaged in some detailed analysis of Mr. Capello’s entire history and there is nothing in his history whatsoever that would suggest that he either committed these homicides or is deserving of the ultimate sanction,” Stogner said.

The felony complaint against the men alleges that two of the victims, Klarkowski and Lewin, were purchasing marijuana from Butler, the third victim.

Capello also was seeking to obtain pot from Butler, the complaint says, although his exact role in the deal was unclear.

The complaint says he met with the three victims a day before the Feb. 5 slayings to view a sample of marijuana for sale. The next day, Capello and Dwyer followed the three victims into a Forestville house, the complaint says.

They packaged the pot for transport before Capello and Odin Dwyer left to meet in Santa Rosa with Francis Dwyer. The three then fled out of state with the marijuana, the complaint says.

At some point, Capello is alleged to have shot and killed the three men with a pistol. Their bodies were discovered by Butler’s brother in a house their mother rented off Ross Station Road.

Capello was arrested Feb. 14 last year on Interstate 10 in Alabama after authorities pulled him over in a traffic stop and found he was wanted in California. The Dwyers were arrested in their home states 12 days later.

You can reach Lori A. Carter at 762-7297 or lori.carter@pressdemocrat.com. On Twitter @loriacarter.