California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - MARCH 2002
spacer.gif (810 bytes)
spacer.gif (810 bytes)

California Bar Journal

The State Bar of California


REGULARS

spacer.gif (810 bytes)
Front Page - March 2002
spacer.gif (810 bytes)
News / News Briefs
Midyear meeting will focus on fairness
E-briefs offer bar updates
Three strikes supporter has a change of heart, now wants the law restricted
ABA seeks nominations for three awards
Rule change proposed to protect government whistleblowers
More pamphlets added, translated
Innovation garners awards for 11 courts
spacer.gif (810 bytes)
Trials Digest
spacer.gif (810 bytes)
Public Comment
spacer.gif (810 bytes)
Opinion
From the President - New era of bar-conference cooperation
Conference of Delegates: A valuable ally
PG&E's plan: A power play
Letters to the Editor
spacer.gif (810 bytes)
You Need to Know
spacer.gif (810 bytes)
Discipline
Ethics Byte - Twilight zone cases can make practice tricky
Former deputy DA, convicted of grand theft, is suspended
Attorney Discipline
spacer.gif (810 bytes)
MCLE Self-Study
At tax time, modify debt with caution
Self-Assessment Test
MCLE Calendar of Events
Bar asks court to preserve evidence
spacer.gif (810 bytes)
Continued from Page 1
spacer.gif (810 bytes)

Court's] inherent authority and responsibilities over attorney disciplinary proceedings," the bar's petition says. "Unless reversed, the superior court's order would allow Harned to undermine those disciplinary proceedings at the investigative stage, circumventing any meaningful inquiry into whether Harned engaged in acts of serious misconduct and moral turpitude."

In addition, he would be allowed to practice law "without consequence for his purported misdeeds and at the expense of the integrity of the courts and legal profession," bar lawyers argue.

The case originated with the 1996 arrest of Pete Harned, then a deputy district attorney in Sacramento, who was charged in state court with 18 misdemeanor counts of possession of alleged child pornography, one misdemeanor count of possession of a controlled substance and two felony counts of misappropriation of public records by an official custodian. The case was subsequently transferred to federal court, where Harned was indicted on 11 felony counts of receiving child pornography, seven felony counts of transporting child pornography and one felony count of possessing child pornography. Criminal charges in state court were dropped in favor of federal prosecution, and in 1999 all charges were dismissed when a judge ruled that a police officer lied in order to obtain a search warrant.

The search warrant affidavit included two misstatements, which the judge said were made with reckless disregard for the truth.

The seized evidence includes hundreds of images of purported child pornography in computer format, videotapes, various disks and computer hardware, controlled substances - methamphetamine - and drug paraphernalia, office equipment, a revolver and Harned's briefcase.

Once the evidence was suppressed, the bar began an independent investigation of Harned's alleged criminal activity to determine whether discipline was warranted. But the sheriff's department would not permit it to see the evidence, which was slated for destruction.

The bar's motion to preserve the evidence was denied in December by Sacramento Superior Court Judge Norbert Ehrenfreund, who said the evidence was not part of the court record and was obtained illegally.

"The court recognizes the importance to society of the State Bar's role in disciplining attorney malfeasance," Ehrenfreund wrote. "But such considerations are far outweighed by the constitutional demands of the Fourth Amendment and the need to deter egregious police conduct."

He ordered that Harned's personal property and property belonging to the district attorney be returned, that drugs be destroyed and that all other contraband be retained by the sheriff for disposal.

The bar argues in its petition for review that Business & Professions Code 6090.6 requires that the bar have access to all court records relevant to a member's competence and that such records include property gathered as the result of a search warrant. Permitting the evidence to be destroyed amounts to an abuse of discretion by the court, the petition says. If allowed to stand, Ehrenfruend's ruling "will have circumvented [the Supreme Court's] disciplinary function at the investigative stage, thereby jeopardizing the integrity of the process."

The bar also argues that exclusionary rules, intended to preclude use of evidence obtained in an unlawful search and seizure, do not apply to bar disciplinary proceedings. The value of applying the exclusionary rule to the Harned investigation is marginal, according to the petition, because the bar did not participate in preparing the search warrant and did not execute the search.

Harned, 42, has maintained his innocence from the beginning.