California Criminal Lawyer Blog

This is for those of you who thinks this just doesn't happen. Well, it happens, but our state bar lets prosecutor continue doing it. maybe not for long......Prosecutor faces rare disciplinary hearing today
CRITICS CHARGE MISCONDUCT; SUPPORTERS CALL BAR MISGUIDED
By Leslie Griffy
Mercury News
Posted: 05/20/2008 01:30:25 AM PDT

Tainted Trials, Stolen Justice
Ben Field is a prosecutor with a great résumé - stellar academic credentials and political ambition that seemed likely to lead to a Santa Clara County judgeship or even the post of district attorney.

But as Field won convictions in one difficult case after another, his aggressive conduct in the courtroom raised questions about whether he was twisting facts and defying judges to gain his victories. And beginning today, that conduct will be at issue in a rare state bar hearing examining allegations of prosecutorial misconduct.

In California, as in many states, prosecutors rarely face sanctions for their courtroom tactics. For that reason, the Field case - which could result in the prosecutor being suspended or even barred from the practice of law - is seen by some as a test of the system's ability to police itself.

The case has sharply divided the local legal community, and both sides see the outcome as critically important: To some, Field is accused of egregious actions of the type that have been too long tolerated. To others, including many in the district attorney's office, the case is a sign of an out-of-control state bar wielding its power to satisfy the misguided media.

Even as Field built a following among prosecutors who see him as aggressive but honorable, he was generating increasing controversy within the defense community.

He shrugged off those criticisms as the claims of disappointed lawyers who represented guilty
clients - until he won the conviction of two young men, Damon Auguste and Kamani Hendricks, for raping and sodomizing a teenage girl after she became drunk in their San Jose house.
After Auguste's conviction, his aunt Donna Auguste, who earned a small fortune as a software engineer with Apple and on her own, opened her wallet to fund her nephew's defense against what she considered an unethical prosecution.

She hired lawyers, investigators and experts who began to develop evidence raising questions about the defendants' guilt. Their claims led to a series of hearings before Judge James Emerson that focused on not only the evidence in the case but on Field's conduct before, during and even after the trial of the two.

Verdict overturned

The hearings concluded with Emerson overturning the verdict, based both on new evidence casting doubt on the girl's credibility, as well as on Emerson's finding that Field had wrongly withheld laboratory notes from the physical examination of the girl that might have cast doubt on whether she was raped. The judge separately criticized Field's tactics during the post-trial proceedings, calling a series of searches of homes of Auguste's family and friends "grossly unfair, excessive and unbalanced."

As part of the 2006 series "Tainted Trials, Stolen Justice," the Mercury News reviewed Field's conduct, and found a pattern of questionable conduct in earlier cases as well.

The state bar hearings are based on Field's conduct in the Auguste case and two earlier cases, dating back to 1995.

Such hearings are uncommon. The 2006 Mercury News review of nearly 1,500 cases found that only one prosecutor had been brought before the court in the previous five years. But there appears to be new vigor by the bar - records show three prosecutors in the state are facing disciplinary hearings.

Field has strongly defended his conduct in past interviews. Contacted for this article, he referred questions to his attorney, Allen Ruby, who said Field is innocent and the charges are not well-founded.

Field's supporters contend that the case against him represents nothing more than the state taking action in a high-profile case driven by media pressure. Months ago, District Attorney Dolores Carr and her top assistant went to San Francisco to urge the state bar not to bring charges.

And she urged the county to pay for Field's defense against the charges. The county agreed to pay up to $50,000 of the costs.

Bar criticized

Deputy Santa Clara District Attorney Kevin Smith, head of the local prosecutors union, said the case shows the danger of the "unchecked power" of the state bar.

COMMENTARY: Hey, Kevin, we have loads of this stuff down in San Diego and the rest of the State. Click Here, and HERE, and HERE and HERE. Oh, By The Way, Kevin, it's because of YOU that this dirtball got to keep going and going and going like the EverReady Battery Bunny. YOU should go next.

In a letter to his colleagues entreating them to attend the hearings to support their colleague, Smith called the newspaper's articles a "hatchet job."

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.

Donna Auguste has a pending federal lawsuit against Field in Colorado about the search of her home.