Posted On: March 19, 2008 by Mary Frances Prevost

PROSECUTORS ON TRIAL - IT'S ABOUT TIME

A Burst of Prosecutors on Trial

Prosecutors are normally the predators of the legal world, stalking and taking down the bad guys who break the rules of society.

But in an unusual twist, three Northern California prosecutors are now the prey — of State Bar prosecutors who want them punished for allegedly abusing their authority or violating the very rules of law they were sworn to uphold.

Santa Clara County Deputy District Attorney Benjamin Field, Santa Cruz County Deputy DA George Dunlap Jr., and retired Sacramento County Deputy DA Christopher Cleland face trial in the State Bar Court within the next couple of months. A fourth, former Sonoma County Deputy DA Brooke Halsey Jr., was suspended in January.

Field is accused, in part, of concealing evidence, misleading a judge, and ignoring a judicial order; Dunlap of improperly intervening in a case involving his then-girlfriend and lying to authorities; and Cleland — whose case was the subject of a story in The Recorder last month — of withholding exculpatory evidence in a murder trial.

Halsey, meanwhile, was suspended for four years for intentionally withholding documents that could have helped Petaluma physician Louis Pelfini defend against charges he murdered his wife in 1999. A judge dismissed the case based on the Tiburon attorney’s misconduct.

Some attorneys who defend lawyers facing discipline believe state bars around the country, including California’s, have begun scrutinizing prosecutors more closely following the North Carolina State Bar’s decision last year to disbar Michael Nifong. The Durham County district attorney was behind the disastrous prosecution of three Duke University lacrosse players falsely accused of rape.

“Lots of prosecutors are getting caught in the crosshairs,” Los Angeles attorney Diane Karpman said, because the public senses some “aren’t playing by the rules.”

But State Bar Supervising Deputy Trial Counsel Donald Steedman, who is handling the case against Field, said that while it’s “fairly rare” to have so many cases against prosecutors under way at once, there really is no rhyme or reason.

“It’s luck, karma,” he said. “It’s just that these have come in at about the same time.”

Steedman said the State Bar doesn’t keep figures on the number of prosecutorial misconduct cases that go through the State Bar Court each year. And, he added, few cases of any type make it to trial.

“They happen only when we’re unable to reach a settlement,” he said.

Cleland is up first, with his trial beginning on April 1. Dunlap is next, facing prosecutors for three days on April 22, after an earlier day of trial in December. Field’s trial is set for May 20-23 and June 17-20. (Dates are based on the availability of judges.)

Of the three, Field has gotten the most publicity. His alleged wrongdoings — including reportedly suppressing evidence that could have cleared two accused rapists — were widely covered in the press, particularly as part of a scathing five-part series in the San Jose Mercury News two years ago. State Bar prosecutors accuse Field, a 15-year veteran of the Santa Clara County DA’s office, of abusing his authority in three separate cases.

The most egregious charges stem from the 1998 rape convictions of Damon Auguste and Kamani Hendricks. Six years after Auguste was sentenced to nearly 19 years in prison and Hendricks to more than 37 years, Santa Clara County Superior Court Judge James Emerson overturned their convictions in 2004 based on alleged misconduct by Field.

The judge found Field hadn’t disclosed important DNA laboratory notes or strong evidence that the supposed victim — a 15-year-old girl identified only as Monique —had fabricated the assault for fear her parents would punish her for being out after curfew. The judge also said Field had no authority to serve search warrants on the defendants, their families and witnesses during habeas corpus proceedings.

In an unrelated case, the State Bar accuses Field of concealing evidence that could have been used to repudiate witnesses who fingered a man for the murder of a San Jose drug dealer. And in a third case, Field is accused of ordering a supposed 13-year-old male to undergo a dental exam — over a judge’s objections — to determine if he was really an adult so Field could file tougher charges.

Steedman, who is prosecuting Field’s disciplinary case with State Bar Deputy Trial Counsel Cydney Batchelor, called the charges against Field “pretty significant.”

“It’s important that prosecutors treat defendants fairly,” he said, “and when that doesn’t happen, our system of justice is threatened.”

Nonetheless, he said no decision has been made yet about whether to seek disbarment.

Field’s attorney, Allen Ruby, a partner in San Jose’s Ruby & Schofield, wouldn’t let Field talk to the press. But in 2004, after the rape convictions against Auguste and Hendricks were overturned, Field told reporters the judge’s decision was “an injustice to the victim” and insisted there was “overwhelming physical evidence” the girl had been raped.

After more allegations of wrongdoing were raised in 2006, Field told the Mercury News he had tried to play by the rules at all times. “I know in my heart that I did not intentionally engage in misconduct,” he said. “I take the ethical obligations of the office seriously.”

Ruby said last week his client’s defense strategy will be simple.

“He’s innocent,” Ruby said. “The State Bar has made a variety of allegations that we think are unsound and unproveable.” He said Field “looks forward to his trial and vindication.”

Ruby would not go into detail about his defense plans. But in court papers, Field denied all allegations.

Field, who graduated from Boalt Hall School of Law, has been with the Santa Clara County DA’s office since getting his Bar license in 1993. In May 2006, he was reassigned from homicide and gang cases to the high-technology crime unit.

Trouble for Santa Cruz Deputy DA Dunlap began in 1995 when, according to State Bar records, he crashed his truck into another vehicle while driving drunk. A prosecutor in San Joaquin County at the time, Dunlap allegedly claimed someone named John had been driving.

“This was a total lie,” State Bar Deputy Trial Counsel Tammy Albertsen-Murray wrote in her pretrial statement. “There was no one named ‘John’ involved at all; [Dunlap] was the driver.”

The more serious charge against Dunlap, however, accuses him of intervening in a hit-and-run and insurance fraud case that had been filed against his then-girlfriend Amelita Manes. State Bar prosecutors claim Dunlap entered a San Joaquin County courtroom in 2002 when Manes’ case was on calendar and talked to the judge, despite having been ordered by his bosses to keep hands off.

In court papers, Albertsen-Murray said Dunlap didn’t tell the judge he knew the defendant and that he was forbidden from having any contact with her case.

“In fact,” she wrote, “[Dunlap] — a senior homicide prosecutor at the time — acted as if he had authority to appear in the case and personally stated to the court that the district attorney’s recommended resolution of the Manes case was a six-month continuance for dismissal, which was a total fabrication.”

Albertsen-Murray is seeking Dunlap’s disbarment.

Dunlap, who was fired from the San Joaquin County DA’s office in 2002, didn’t return a telephone call seeking comment. But his attorney, San Francisco solo practitioner Jonathan Arons, said last week that Dunlap did nothing wrong.

“He wasn’t at the prosecutor’s table,” Arons said. “He was watching with all the other attorneys in the courtroom, and he answered a question asked by the judge. He didn’t say he was appearing for the people [or] appearing for Ms. Manes.”

Since joining the Santa Cruz County DA’s office, Arons said, Dunlap has tried 25 cases to verdict and is currently involved in a murder trial. If there were anything to the State Bar’s charges, Arons asked, “why’d another DA hire him on the spot?”

Arons said Dunlap — a prosecutor for the entire 20 years he’s had his Bar license — admits he got a DUI in 1995, but said the State Bar was simply “piling on” by filing charges for that incident.

Steedman said the State Bar considers misbehavior by prosecutors very serious because they are in some ways bound by stronger ethical obligations than other attorneys.

“Their client is the people and their obligation is to seek justice,” he said, “as compared to a defense attorney whose obligation is to that client — within his ethical responsibilities.”