A DA finally gets his comeuppance. Let's hope it's a trend.

Prior to contributing to this blog I wrote a number of replies to what others had said about the criminal justice system. I am a public defender who strongly believes in the adversary system of criminal justice, so long as it is tempered with reality. The PD has far less resources than the DA and the police combined, and does not have the peace officer powers those two have. One of the great equalizers in the criminal justice system is supposed to be the discovery power possessed only by the defense, via Brady v. Maryland. The defense is supposed to have little or no duty to give discovery to the DA – the DA must prove the case on his/her own without help from the defense. But if the DA, or anyone working on the prosecution team, comes across “exculpatory evidence,” then the DA must hand it over to the defense. The theory is that the DA cannot blind him/herself to evidence of innocence on the way to seeking justice. The greatest and best-used example of “Brady material” is impeachment statements by a prosecution witness (US v. Agurs) – in other words, if the DA knows a witness said something helpful to the defense, or something that contradicts in any way what he said to the police/DA (and that could be just about anything), the DA MUST disclose it to the defense. And the DA MUST seek out such information from the other “prosecuting agencies” such as the police, the coroner, etc., and give it to the defense (Kyles v. Whiley).

A second great equalizer is that the DA cannot commit “prosecutorial misconduct” against the defense. From Berger v. US (1935) 295 U.S. 78, 88: “The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor -- indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”
Prosecutorial misconduct takes many forms, and few courts are vigorous in pointing it out, because it can mean a reversal for no other reason than the DA “cheated.” In other words, even if a defendant is probably guilty, a court will have to reverse the conviction unless they can say that the misconduct did not infect the trial “beyond a reasonable doubt.” The phrase is, was the error “harmless beyond a reasonable doubt?” This is known as a harmless error, from California v. Chapman.

The efforts that courts go through to shield prosecutors from misconduct are enormous, and the biggest one is harmless error. But another one is procedural default. Let’s say the DA makes an improper argument in front of the jury. He slips out that your defendant has convictions, or rephrases testimony in a very different way than it was presented at trial to your client’s detriment, or he appeals to the bible, or asks the jury to ignore the facts and “send them a message,” or whatever. Prosecutorial misconduct can take many, many forms. If the defense attorney does not immediately object, AND label the statements as “prosecutorial misconduct,” and nothing short of this will do, then the issue is essentially waived, unless on appeal the appellate attorney can show that you were guilty of “ineffective assistance of counsel.” In other words, UNLESS you speak the right mantra of words ("objection, prosecutorial misconduct," all while stating the precise nature of the misconduct and where it occurred) then you have waived the objection for your client unless someone else comes along and shows that you were such an awful attorney that NO ONE would have failed to object. If this is during the DA’s closing, you just have to try to approach on a sidebar with a hostile judge and argue “misconduct,” often with a judge who doesn't want to interrupt the DA during closing. It’s hard to do, I know.

In the one appellate decision I have on this (I was trial counsel), the DA argued in his closing “I'll tell you after this is all over and I will stop and talk with you. I'll tell you about that.” I objected to misconduct, the judge overruled the objection, and he said it again, and again my objection was overruled. I had to state, in front of the jury, that I thought that the prosecutor was committing "prosecutorial misconduct" in a difficult case, and the judge overruled me without blinking, and without explanation. Do you think my credibility suffered in front of the jury? I think so.

The DA's comments were obvious misconduct because the DA was essentially telling the jury that, hey, there’s more stuff you haven’t heard – talk to me after the trial and I’ll tell you about it. Read the unpublished decision at PEOPLE v. WILLIAMS, 2005 Cal. App. Unpub. LEXIS 8399 [You'll have to get it from LEXIS or Westlaw - it is an unpublished decision from 2005 and I have no idea how to get it free]. The evidence of guilt for Mr. Williams was strong on two of the three charges, but on the robbery (the one I was trying to beat) it wasn’t overwhelming. An honest court of appeals would have reversed the case because of the obvious misconduct – imagine how improper it is for a DA to say to a jury that he would “talk to them afterwards,” especially in the context of reasonable doubt. But the appellate court did not reverse, instead criticizing me for raising the issue in my closing. I bring this up to show that have been screwed by an appellate court like just about any seasoned PD, and to show what lengths courts will go to to protect DAs from their own perfidy.

The truth is that DAs almost never get sanctioned for prosecutorial misconduct. The California Bar is even more loathe to sanction DAs for such conduct, even when a conviction is reversed by an appellate court for misconduct. They just don't do it. Ask any California defense attorney when was the last time they ever heard of a prosecutor being sanctioned by the Bar for prosecutorial misconduct or withholding evidence in California. Answer: They have never heard of such a thing. Appellate Courts routinely refuse to state the name of an offending prosecutor, even when they reverse a conviction in a published decision. And the Bar routinely does nothing to such prosecutors, not even admonishing them for flagrant abuses. But when a civil plaintiff’s attorney does not call his clients back and/or commingles his client trust fund, even honestly, they are all over THAT guy. Likewise for a criminal defense attorney who does not investigate his client’s case. Don’t get me wrong – I am not in favor of whitewashing any malfeasance or misfeasance, and there should always be the threat of sanctions when an attorney screws up or loses his/her way.

The California State Bar may be starting a new trend.

In the July California Bar Journal there is a powerful article titled: “Misconduct charges for 3 prosecutors.” One of the three essentially committed crimes and lied to the cops, which is nothing new. But the other two are very shocking indeed. The first, Benjamin Field, is a Santa Clara Deputy District Attorney, State Bar # 168197 (I just checked the Bar’s website and it confirms that Benjamin Field’s address is still with the Santa Clara DA, presumably still employed there) is currently in trial for prosecutorial misconduct. His abuses are really flagrant, and at least one court opinion reversed a conviction for what he did, openly criticizing his methods. Judges have rebuked him for withholding evidence, etc. His trial started in May but had to be continued because an appellate court reversed ANOTHER conviction he obtained for, you guessed it, prosecutorial misconduct. The appellate court found that Field had made “deceptive and reprehensible” comments to a jury that violated a court order. One of the convictions Field obtained that was reversed was of a sex crime committed by Damon Auguste. Auguste was convicted by Field and sent away for 8 years and 8 months. But after the exculpatory evidence that Field didn’t hand over was obtained by the defense, the 8 year 8 month sentence eventually became a misdemeanor!!

The funniest part of the Field Bar proceeding is the following paragraph from Bar Journal: “Field, who several years ago expressed interest in either an appointment to the bench or a run for the top spot in his office, has attracted support from colleagues and friends, many of whom have attended the trial. Kevin Smith, president of the Santa Clara County Government Attorney’s Association, said ‘the biggest shock to all of us has been the notion that there’s no statute of limitations’ on when the bar can charge lawyer misconduct. ‘The system that we work in in criminal justice has standards and rules that apply to every defendant . . . We wouldn’t get away with prosecuting someone for something they did two years ago.’” What a riot!! Field has apparently built a career ignoring Brady and rules of exculpatory evidence, apparently deciding that those “liberal laws and judges” should be ignored when he sees fit, and now his friends (as presumably he is as well) are shocked when he doesn’t the protections of Due Process and fairness under the law. Gee, I wonder if he had become a judge he would have been really fair to those he would sit in judgment over? My personal opinion: I don’t think he would have been much different from many of the “tough on crime” “law and order” judges we have today.

I hope that this trend continues, and I hope that Mr. Field, Esq., is convicted by our State Bar and disbarred, as he ought to be. At the very least he should be suspended from the practice of law for a long, long time. Maybe then he will re-apply, and become a defense attorney. Hopefully with a changed perspective.

Dennis Wilkins
The Guest PD Blogger