Prosecutorial hubris: Ethics, shmethics

Prosecutors are special. They have their own little section [pdf – Rule 3.8] in the rules of professional conduct. For the most part, they’re people like you and me, trying to do their job, abiding by their special duties and responsibilities.

Then you come across prosecutors like Ben Field of Santa Clara County, so intent on furthering his career that he doesn’t care who stands in his way: defense lawyers, rules of professional conduct, rules of evidence, the U.S. Supreme Court or the bar grievance committee. Here‘s the full investigation conducted by the Mercury News that, in part, led to the following.

Back in May, Field faced a disciplinary hearing, which was based on alleged misconduct in three cases dating back to 1995:

The state bar case includes charges of misconduct in connection with a 2002 murder case, when Field failed to tell defense attorneys that a key prosecution witness may have taken part in the crime. The judge called it a “blatant” violation of requirements that prosecutors hand over any evidence that could help prove innocence.

The bar also has accused Field of misconduct in connection with a 1995 rape charge, which involved questions about whether the defendant was old enough to be tried as an adult. Four times, different judges told Field to file a motion and receive court approval before ordering the physical examination, according to the complaint.

Field went ahead and requested the exam anyway. The evidence was not allowed in court and the case was dismissed. In that case, the complaint alleges, Field “willfully disobeyed a court order.”

In the Auguste case, Emerson told Field that he wanted the prosecutor to turn to him for approval before conducting any further searches for evidence. Four days later, armed with the approval of a Colorado judge, a Santa Clara County district attorney’s investigator joined authorities in searching the Colorado home of Donna Auguste. She was not there at the time.

Prosecutors were beginning to get up in arms back in May. That was just the beginning. Last month, the grievance committee recommended that Field be suspended for three years. This is shocking to many because it shows that the bar committee has teeth and is downright earth-shattering to prosecutors because they may finally be held accountable for their actions. Here’s what the recommendations said about Field:

Field “still does not understand that he stepped far outside his professional obligations and committed serious misconduct,” states the filing of bar trial counsel Donald R. Steedman and Cydney Batchelor. The bar prosecutors also questioned Field’s claim that he will be more careful in the future, contending that Field “evinced no change in the arrogant attitude” throughout those cases, and up through the disciplinary hearing.

The bar contends the four cases demonstrated repeated “acts of dishonesty and an intent to subvert the proper workings of the criminal justice system.” In one case they cited, Field concealed from defense attorneys that he knew the location of a witness whom the defense was having trouble locating. Instead, he urged that defense efforts to win a new trial be rejected because the witness was missing.

Naturally, they’re not happy. The decibels have gone up several levels. So they’re doing what they do best – appeal try to change the law to restrict the power of the bar to suspend attorneys. I kid you not.

In the wake of a disciplinary hearing against a top local prosecutor, the union that represents Santa Clara County prosecutors and public defenders is asking the California District Attorneys Association to sponsor a bill that would essentially curb the power of the state bar to punish all lawyers.

[T]he draft calls for a two-year statute of limitations for bringing any charges against attorneys.

This two year statute of limitations is quite ridiculous, btw. Many convictions are found to have been wrongful years after they are finalized. In some cases, prosecutorial misconduct may not come to light for a while. If justice is the goal – as prosecutors love to say – then there should be no limit on innocence and certainly no limit on punishment for those that subvert it.

“Are we doing this solely in response to Ben Field? No,” said union president and prosecutor Kevin Smith. “But when a member gets tried, you learn how the process works, and this process is unfair.”

It’s also particularly ironic that the prosecutors are complaining that Field didn’t get a fair trial when he was on trial for depriving defendants of a fair trial.

There’s a reason there is a special section for prosecutors in the Rules of Professional Conduct. It’s not to let them know they are special and exempt from the ethical requirements, but to remind them that their duty is and responsibility is greater than that of the ordinary lawyer and that additional demands will be made of them.

Not whining about being finally held accountable for ethical violations isn’t one of them, but it should be.

Thanks to loyal reader LJS for the tip.

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