Misconduct charges for 3 prosecutors

By Nancy McCarthy
Staff Writer

Field

In three disciplinary cases pending before the State Bar Court, current or former deputy district attorneys are charged with committing acts of moral turpitude and disobeying the law. The bar alleges that two of those charged withheld exculpatory evidence.

In each matter, the bar is seeking either disbarment or a lengthy suspension.

Santa Clara County deputy district attorney Benjamin T. Field currently is on trial, facing 22 counts of misconduct in four matters. Each set of charges results from Field’s alleged violations of court orders.

Christopher Cleland, a retired Sacramento district attorney, was tried in April on five counts of misconduct, including withholding exculpatory evidence. Findings by Judge Pat McElroy are pending.

And a ruling is pending in the matter of Santa Cruz deputy DA George Dunlap, who was tried on six counts of misconduct stemming from two automobile accidents and an enforcement stop when his wife was driving.

In the case that has drawn the most attention — and filled a bar courtroom with spectators — Field is aggressively fighting the charges. His attorney Allen Ruby says his client is “not guilty. He’s innocent.”

Field’s trial began in May but was continued last month after the Court of Appeal reversed a case on the grounds Field committed prosecutorial misconduct. The bar filed five additional charges.

The appellate court found that Field made “deceptive and reprehensible” comments to a jury that violated a court order. In that matter, the district attorney filed a petition to commit Dariel Shazier, convicted of sexual misconduct in 1994, as a sexually violent predator. Shazier successfully moved to prevent witnesses from telling the jury what would happen if his petition were granted: he would have been treated in a hospital rather than be sent to prison.

In closing arguments, Field told the jury, “. . . I’m saying also that you should not make a decision based on what you think it’s going to be like for the respondent in Atascadero State Hospital.” The Court of Appeal wrote that the “statement made it ‘crystal clear to this jury. Don’t worry about [defendant], he’s just going to the hospital. He’ll get his treatment.’”

Half the charges against Field resulted from his actions in an appeal filed by Damon Auguste, one of two men Field prosecuted in 1998 for sexual assault on a 15-year-old girl. Auguste was sentenced to prison for 18 years, eight months but later filed a habeas petition based on a claim that Field did not disclose exculpatory evidence.

Santa Clara County Superior Court Judge James Emerson overturned the conviction in 2004 based on prosecutorial misconduct; he said Field did not disclose DNA lab notes and new evidence indicated false testimony affected the outcome of the case. Auguste was freed and the charges were reduced to a misdemeanor.

With his petition, Auguste filed a declaration by Stephen Smith, a boyfriend of the victim, whom Smith claimed had fabricated the rape because she stayed out past curfew and feared she’d be caught by her parents.

Although prosecutors are prohibited from obtaining search warrants to defend against habeas proceedings, Field — in an effort to locate Smith — obtained six search warrants and had three sealed. Emerson testified in the bar court that he had ordered Field, during a meeting in his chambers, not to obtain any search warrants without his permission. Field did not apply to Emerson for any of the warrants.

He located and interviewed Smith, who confirmed that the victim had fabricated her allegations of sexual assault. Despite Field’s obligation to disclose that information, the bar charges that he committed acts of moral turpitude by withholding the information from Auguste. He also gave the court the impression that he had not located Smith, the bar charges.

Also testifying early in the trial was Sandra Coke, an investigator for the defense, who said that she lost touch with Smith after initially interviewing him in 2002. She said she spent months in a fruitless search for Smith in 2003 and was surprised to learn Field had already interviewed him. Field’s attorney, Allen Ruby, suggested that Coke and Auguste’s attorney knew Smith’s whereabouts at the time of a key hearing.

But the judge found that it was “grossly unfair, excessive and unbalanced” to use a search warrant to rebut evidence in a post-conviction proceeding after the conviction was final and excluded all evidence obtained as a result of the search warrants.

The third matter drawing bar charges was a 1995 rape case in which Field prosecuted a minor who claimed to be 13. Field believed he was older; if that were the case, the boy could be tried as an adult. Although the youth’s age could be accurately ascertained through a dental exam, Judge Socrates “Pete” Manoukian denied Field’s oral request and instructed him to file papers to seek an order.

Instead, Field had the probation department arrange for the exam, which showed the defendant was between 16 and 19 1/2 years old. Field did not notify Manoukian or the boy’s attorney that the dental exam had been performed and it was suppressed. The case ultimately was dismissed.

The bar also alleges that during the prosecution of a murder case in 2003, Field withheld evidence from the defense that cast doubt on the credibility of several key witnesses. In addition, he added an enhancement of 25 years to life for one of the defendants, knowing the enhancement was based on one witness’ impeachable testimony.

The court struck the enhancement charge and concluded that Field’s discovery violation was “blatant” and that he failed to properly disclose exculpatory evidence to the defense.

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 Attorneys 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 13 years ago.”

The case against former San Joaquin County deputy district attorney George Dunlap accuses him of interfering with a California High-way Patrol officer who stopped Dunlap’s then-wife in 1995 on suspicion of driving under the influence.

The same year, he ran a red light and hit another car but told investigating officers that another man was driving and had left the scene. No witnesses corroborated his story, and Dunlap was charged with two counts of driving under the influence, charged as felonies because two people were injured. He did not report the charges to the bar as required.

In the third case, Dunlap was a passenger in a car driven by a former girlfriend who was accused of hit and run driving after an accident and insurance fraud. Although Dunlap informed his office that he had a conflict of interest and recused himself, he later appeared at a hearing for the woman and made false statements, the bar charges. Dunlap eventually was fired for misconduct that included but was not limited to the car accident.

Dunlap’s case wrapped up early last month and a ruling is expected by September. He is now a prosecutor in Santa Cruz County.

The charges against retired Sacramento prosecutor Cleland are based on a 2002 Ninth Circuit Court of Appeal opinion that ordered a new trial for Gloria Killian, who was convicted of first degree murder and other crimes in 1986. After three other courts upheld Killian’s conviction, the Ninth Circuit reversed the district court’s denial of Killian’s habeas petition based on what it said were “several substantial errors” by the prosecution.

Killian was released after spending 16 years in prison.

The bar charged Cleland with withholding exculpatory evidence and with improperly asserting during the trial that Killian had something to hide when she became silent after her arrest.

Cleland maintains his innocence. His case is awaiting final briefing before being submitted to the judge, who then will have 90 days to rule.