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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. |
