A fairly in-depth report on the historic day:
Someone needs to explain to me how this works. Three co-defendants in a cop-killing trial in NYC are tried together, but each has their own jury. Short, thin and fat are being tried in front of green, blue and yellow. And this is considered efficient?
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.
Have you ever been to a parole hearing? Or watched one? I happened to catch the CT Board of Pardons and Paroles conducting hearings at Carl Robinson on CT-N last week (they’re now broadcasting these hearings). Watching them unfold was very interesting and instructive.
The setup in simple: the inmates sits in from of the panel of three. A fourth member reads out the charges the inmate was convicted of and his sentences, then asks the inmate, a la a job interview, to explain why he thinks he should get parole. Then the board members question him about things that bother them.
And that’s what bothers me. The tone and tenor of the questioning was akin to a cross examination: some of the attitudes were hostile, there was a lot of disbelief about the inmate’s responses and, frankly, everyone knows the game.
The one that caught my eye was a domestic crime, where the inmate acknowledged flouting a protective order along with his “victim”, by living together during the pre-trial process. The board member wanted to know or why the protective order was issued in the first place, something the inmate didn’t seem to understand initially. This caused the board member to get rather frustrated and accusatory.
As far as I know, some of the board members are lawyers. They should have some experience dealing with clients, but I didn’t see that at all. And that’s the problem: yes, you’re evaluating inmates for suitability for release. Yes, you want to know whether they’ve “changed”. But what are these standards we’re holding them up to? Are they yours and mine? Is that unfair?
It’s safe to say that most of our clients did not come from the same backgrounds that we did; they didn’t have the same upbringing, the same opportunities. Yet, somehow, they’re supposed to meet our arbitrarily defined standards.
I understand that on some level there’s a bright-line rule for behavior in society – you do not commit crimes, you do not hurt other people, etc.
But we understand that and we’re taught (for the most part) how to follow those general rules and how not to run afoul of them. We all have had support structures to keep us in place – a moral compass if you will. But not all of our clients have.
Perhaps it would be better if the determination of suitability for release was not based on whether these inmates have crossed this threshold set by us, the rest of society, but on how far they’ve come from where they started.
It would be much easier for me to say that inmates should be measure against our bright-line rule if there were opportunities made available to them in prison that taught them how to behave in society. If we provide that support that we had, to them, then we have an adequate measure. If we have rehabilitated inmates or provided them the opportunity to rehabilitate themselves, then the comparision is valid.
Rehab in prisons is a sham, though – a mirage if you will. The spectre hangs over incarceration as the lipstick on a pig. That’s part of DOC’s motto, but for whatever reason – public sentiment, lack of political will or just lack of funding – it isn’t actually practiced. Seats in classes comprise a miniscule percentage of the prison population. Even if inmates want to change, do we provide them with adequate opportunity? Why, then, do we expect anything different?
How are we different from the environments they grew up in or the environments that caused them to bend toward the criminal? By putting them in prison, we’re telling them that what they did was wrong and we’ll let you out early if you change, go on the path to the right. But aside from pointing them in the general direction of “right”, do we do anything else? So if they get only halfway there, by sheer force of will, then is it fair to say you’re not far enough?
On the flip side, there are inmates that know the game: they know what to say, they know that even being on the waiting list for a class counts for something. They know how to act remorseful, how to pretend like they’ve changed. They do this because they know there is no other way; that there is actually very little chance that programs and support will be available.
So what’s the point of all this? I think the parole system (and the correctional system as a whole) will perform better if we take a more nuanced approach to evaluating individuals. We must look at where people come from and how far along they are, rather than whether they’ve met a bright-line test. If the alcoholic recognizes that he gets into trouble when he drinks, that should count as a lot in his favor, not against him because he can’t guarantee that he’ll never drink again.
We do this in our daily lives, with our friends and family. We empathize and we encourage and we support. But in the prison system, it’s us against them. That is a failing strategy. We can’t give people a quarter and then complain that they don’t have a dollar. Where’s it going to come from? Magic?
A day early, but never too much so to salute the veterans who have served this country over the years. This one’s for you:
- Speaking of serving your country, public defenders in seven states are refusing cases due to high caseloads and low funds.
- Why the path of least resistance in police encounters isn’t always the best approach.
- Michael Dorf has some interesting suggestions for post Proposition 8 strategy.
- SCOTUSblog has this preview of today’s argument in Melendez-Diaz, a Crawford case.
- Jon Katz argues that the slowing economy demands a tighter criminal justice system.
- New Haven implements street cameras.
- The fantastic OLR has this report detailing every single time in the last 30 years that the legislature has responded to a Supreme Court or Appellate Court decision.
- Who bears responsibility for overburdened dockets? Not judges.
Huh. That was a slow weekend. Anyway, enjoy the day and the day off tomorrow, if you have it.
I received a letter in the mail a few days ago. It was from a client. Nothing remarkable about it – 3 pages, handwritten, barely legible. The pages were of different sizes and came from different notebooks. I tossed it onto my desk; I was in the middle of something else.
Later that afternoon, I started to go through the mail again. I came across the same letter from the client. Scanning through the first page, I read words I’d read a thousand times before: please will you do this, please will you do that, when, when will you…when, when, when.
I flipped to the second page. The same handwriting – or so it seemed – except it was not from my client. It was from his daughter.
“Hello daddy”, she wrote, “when are you coming home? I’ve grown tall now – almost 4 feet! I also had to get glasses, but my little brother doesn’t have them.”
“We miss you daddy”, the letter concluded.
I’ve written before about our duty to our client. “It’s all about the client”, I’ve remonstrated time and again. It is, but part of understanding that it’s about the the client is to understand that the client is a person – not a file number or a docket number. The client has a family too, just like you and just like the victim. The family of the client may be the one that loses out the most when he goes to jail. Given the epidemic of incarcerations in this country, there are many, many broken families, some with no parents at all.
So the next time you’re feeling down or feeling like you just don’t care, take a second to think about who you might end up helping more than the client: the family that he could leave behind.
I love my job.