Mercury News

State bar seeks to suspend Santa Clara County deputy district attorney

By Fredric N. Tulsky

10/17/2008

Contending that a top local prosecutor repeatedly sought to subvert justice, the state bar is recommending that Ben Field be suspended from practicing law for three years — a punishment that would represent an unheard of public discipline against a Santa Clara County deputy district attorney.

The harsh recommendation against Field follows a well-publicized hearing into his conduct. It is one of several signals that the disciplinary board and appellate judges are responding aggressively to instances of questionable official conduct in local criminal cases in the wake of a 2006 Mercury News series that examined courtroom misconduct.

Defense lawyer Jamie Harmon is facing trial later this month on a 20-count state bar complaint, accusing her of neglecting the cases of some criminal defendants and misrepresenting what would happen to other clients if they pleaded guilty without going to trial. Sources say the disciplinary board has stepped up investigations against other Santa Clara County prosecutors in addition to Field, though none of those cases has yet become public.

And the 6th District Court of Appeals has overturned several convictions in recent months after finding errors by Santa Clara County judges in their conduct of cases — including four cases in the past six months that were presided over by Judge Paul Bernal. The appellate court took the rare step in three of those cases of ordering the decisions to be published in the official court reporter, an action that brings heightened public attention to the case.

Taken together, the actions suggest heightened scrutiny of instances of questionable conduct by local prosecutors and judges — a sharp break with past practice. The Mercury News series "Tainted Trials, Stolen Justice" documented widespread instances of such conduct that generally occurred without repercussion. Many of the recent instances of scrutiny involve courtroom figures whose conduct had received attention in the newspaper series.

"There is clearly greater attention," said Gerald F. Uelmen, a Santa Clara University law professor who recently directed a statewide commission exploring causes of wrongful conviction.

High-profile case

No case has attracted as much attention as that of Field, a high-profile prosecutor who has aspired to become a judge. Many in the Santa Clara County legal and political community came to his defense after he was accused of violating judge's orders and failing to promptly provide the defense with potentially helpful evidence; his defenders included former San Jose Mayor Susan Hammer, District Attorney Dolores Carr and her predecessor, George Kennedy. Bar prosecutors said in a September filing that Field's support was the only reason they were not seeking his disbarment. 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.

Field's counsel, Allen Ruby, will file a response to the recommendation this month, after which a hearing officer will rule on what discipline is warranted. That decision is subject to internal review and, potentially, an appeal to the state Supreme Court — meaning any final decision is likely months away.

Ruby said last week that he believes the bar prosecutors are "taking on extraordinary new power," serving as "uber-prosecutors to oversee and regulate tens of thousands of prosecutors." Field concedes he should have acted differently in several instances, Ruby said; the dispute is whether that conduct deserves discipline.

In the past, the bar has rarely brought public cases against prosecutors — a 2006 Mercury News review found only one case statewide in a five-year period. But in recent months, several of Field's colleagues in the Santa Clara District Attorney's Office have received letters from the state bar notifying them of inquiries into their conduct, sources say.

Chief Assistant District Attorney Marc Buller said last week that the charges against Field had heightened concern by attorneys when they receive such notices. "All of us take notice of inquiries differently now," said Buller. "It is your livelihood."

Defense attorney

Nor is the bar looking only at local prosecutors' conduct.

The bar complaint against Harmon, a local prosecutor turned defense attorney, is based on her representation of 10 defendants whom the bar contends she failed to properly represent — a strikingly high number that reflects a broad inquiry into her conduct. In several cases, Harmon is accused of failing to file the necessary legal papers or appear in court as scheduled. In one case, Harmon falsely told the court that psychologist Kevin Kelley was lined up to interview her client, though there is no California licensed psychologist with that name.

Harmon's attorney, Jonathan Arons, said last week that the bar charges are "way overblown," and insisted many would not stand up at trial.

In addition to disciplinary proceedings, cases of questionable conduct also have drawn the attention of the appellate courts, which historically have seldom overturned verdicts. But since April, the 6th District Court of Appeal has overturned four cases after finding errors by Judge Bernal, a former district attorney whose conduct as both prosecutor and judge had drawn past criticism.

Uelmen, the Santa Clara University professor, called that number of reversals of one judge in such a short period "very unusual." E. Dallas Sacher, deputy director of the 6th District Appellate Project, said in his 22 years helping coordinate appellate defenses he could not recall any other judge being reversed with such frequency.

The court ruled in April that Bernal improperly ordered the involuntary commitment of a sexually violent predator after extensive delays that denied him a speedy trial. Since then, the court has overturned convictions in three other cases presided over by Bernal; most recently, last month, the court overturned a car theft case because the judge had permitted prosecutors to introduce improper evidence at trial.


Police/Prosecutor Misconduct
Truth in Justice