It’s big news. Huge news. Ben Field, a former Santa Clara County assistant, was suspended from the practice of law for four years. This is big enough to make the San Jose Mercury News.
With a brief, nondescript order, the California Supreme Court on Wednesday put a quiet end to the explosive disciplinary case against former Santa Clara County prosecutor Ben Field, turning away his last-ditch attempt to avert one of the stiffest punishments ever levied against a state prosecutor.
A Bar appeals panel upheld the judge’s order in February, based on evidence presented during a lengthy trial last year. The panel found Field violated court orders in a 1995 juvenile case and defied a judge’s orders and concealed evidence in the 2003 appeal of a rape case involving Auguste and another defendant; their case was later reduced to misdemeanors. It also found that he withheld evidence in a 2003 murder case and defied a judge’s orders in a 2005 sex-offender case.
As we’re well aware, lawyers are suspended all the time, disbarred even, without so much as a whisper. Big deal. Do wrong, get nailed. That’s the way it goes.
But not prosecutors. Prosecutors, new or experienced, young or old, aren’t held to account. They are part of the duopoly that protects us from the evils of society (if in doubt, watch the intro to Law & Order, which explains it in somber tones) and must be protected. Too often, we gripe that a prosecutor did wrong, but without fear of consequences.
Ben Field must have been truly bad. To suffer a four year suspension, “one of the stiffest punishments ever levied against a state prosecutor,” is tantamount to the death penalty for a prosecutor. Except, of course, he wasn’t disbarred, or imprisoned, or executed. It makes one wonder how many of his victims suffered worse fates. He was only caught four times, but given the recidivistic tendencies of such wrongdoers, there were likely more who were unable to show Field’s evil ways.
Did the rest of the prosecutorial junta decry his wrongs? Did those who are the embodiment of lawfulness and righteousness denounce Ben Field’s evil ways?
Field has insisted that while he made mistakes as a prosecutor, he never deliberately violated ethical rules. He also has had his defenders, which helped avoid an even stiffer punishment from the State Bar. He presented 36 character witnesses in his case, including former District Attorney George Kennedy and outgoing District Attorney Dolores Carr, who vouched for Field’s integrity but conceded he failed to meet the office’s overall ethical standards.
It can be awfully difficult to explain to ordinary citizens why their malum prohibitum transgressions, victimless and often so vague and unclear that they are left wondering how they ended up in the dock, results in these very same witnesses arguing to a judge how they must be incarcerated for the safety of society. Yet, when Ben Field violates the law, they appear on his behalf to speak of his integrity. Field is a good man. You are not a prosecutor. You are not such a good man. Field should not suffer harsh punishment. You should.
Sending a message is both a legitimate concern of the courts and the sentencing process. The perpetrators of wrong must know that they will be held to account for their deeds, and that the consequences are severe enough to make them behave properly. The courts sent a message by suspending Ben Field for four years. This is huge, because it’s a message that’s almost never heard. It’s not enough, since prosecutors, like drug dealers, don’t believe they will ever be caught, and this is shown by what a big deal it is that Ben Field was sanctioned. But it happened, and he was punished. A message, however insignificant, was sent.
The District Attorneys who testified on behalf of Ben Field sent a message too. Their message was more significant, that they only care about wrongs that happen outside their office. The message to prosecutors is that they can violate the law and still enjoy the support of their office, their boss. Even when everyone agrees that the prosecutor was bad, it’s not the same as it is for others. Great message.
Update: And more from the San Jose Mercury News, which did a series called Tainted Trials, Stolen Justice. (H/T Kathleen Casey)
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I “blawg[ed” on this guy back in February when the Legal Profession blawg linked to the disciplinary opinion. There’s a “prick” of a former prosecutor that I’ve featured on my blog who has held a common pleas judgeship for a decade or more based on the vague idea that he’s a “tough judge” who as a prosecutor made Field look like a school boy. Somehow this bastard hung on to his ticket despite documented offenses including lying on his bar app about drunk driving convictions, and the full panoply of routine prosecutorial misconduct. As I said in my blog–these prosecutors cost the “people” in at leat two ways: the taxpayers directly pay for ineffective assistance of counsel when convictions are overturned and matters are re-tried; and, really “bad guys” who should be in jail are released because of deprivation of constitutional rights, creating a “public safety” peril. Oh, then, of course, there is the damage to the “preception” of rule of law as you indicated.
There are quite a few, many of which have appeared here as well. What makes this distinct is that he was subject to discipline. As for bad prosecutor stories (including the ones who go on to become judges), we’ve got more than we can handle already. To criminal defense lawyers, this is nothing new.
As for your concerns about convictions being overturned and the release of bad guys, it’s a bit (okay, extremely) naive. The system is a mess to begin with, and the likelihood of a conviction being reversed due to prosecutorial misconduct is incredibly small, not because misconduct doesn’t happen but because courts are extremely reluctant to reverse under any circumstances. If you want to have something to concern yourself with, consider the innocent people convicted when denied Brady or otherwise subject to prosecutorial and police misconduct. It’s a far more serious problem.
You are right about the “naive” aspect of my perceptions. Last night I was out with a local law professor, long time pal, and former county prosecutor. He asked if I ever did any criminal law and truth be told, I handled the very rare case. But enough, along with sitting in court observing the legends of OurTown, and reading endlessly. Naiveté aside, there is a major mass killing case in New Orleans (not the Danzinger Bridge) where charges were dismissed against the probable shooter based on prosecutorial misconduct. The Field disciplinary case also supported my comments on the costs to the taxpayer in terms of both retrial and early release of some dubious characters.
Scott, I care very much about the ideal of the “rule of law,” and if I practiced where you practice, my cynicism would probably be more refined. But be in a great old rustbelt city to the west, I find bad prosecutors and bad judges intolerable. I was prosecuted on 5 counts of felonious assault on sheriff personnel by bad prosecutors in 2005 for objecting to the rude and obnoxious conduct of courthouse security personnel. I was beaten, pepper-sprayed and jailed. Ultimately I was acquitted of the felony charges after 5 judges recused themselves from presiding over the charges in my case and a retired judge appointed by OurState Supreme court heard the matter without a jury. It cost me a fortune financially and emotionally.
Naive as I am, I personally understand law enforcement and prosecutorial misconduct.
I’m sincerely sorry to hear of your experience. I would like to tell you how outrageous it is, but unfortunately its quite common. Of course, most of the time, the only people who appreciate the outrage is the person beaten, his family and his lawyer. To everyone else, he’s just another criminal or statistic.
That the system bears a weight for prosecutorial misconduct really doesn’t bother me all that much; judges and prosecutors have always had it within their power to fix this problem. They chose to ignore it. Sure, the public pays for it, but we pay for all the stupid things government does. Consider the cost for a single “bunker buster” bomb.
It’s the cost to the individual, like you, who can’t afford the bill, either in time or money, that concerned me more. The individual can’t fix the problem, but suffers for it nonetheless. The system goes on either way. The misconduct and abuse can destroy the individual and his family. You aren’t wrong about the system, but I’m saving my concern for the individuals who suffer for the system’s failure to clean up its own mess.
Yes, the system is a mess. But there is only one way to fix it and that is to hold bad prosecutors and bad cops to answer.
When every prosecutor who does as Field did is made to serve as many years as his victims did as a result of his actions (or would have if he had not been caught), then the notion that the government is impartial and seeks real justice — not just power — will start to be believable again.
Well, there is a case of a defrocked prosecutor in Arizona, Ken Peasley. Jeffrey Toobin wrote about Peasley’s disbarment in a fine New Yorker article several years ago. Peasley had twice been voted Prosecutor of the Year in Arizona. Peasley suborned perjury in a three co-defendant capital case. Rick Lougee was the defense attorney who blew the whistle and, over a 4 year period, pursued justice in this case at great risk to his own career. Two men are no longer on death row as a result.
Kinda supports the whole rarity thing, no?
I am currently in litigation against Ben Field for Malicious Prosecution. I just moved to Ca in 2007. I am surprised that the lawyers in CA treat legal matters like a game of vpoker, the like to cite annotations without checking the underlying case. Thus they make all kinds of false representations in court. This looks like a typical “bluff” in poker where the opposition is constantly having to clear up the misrepresentations to the court. As a poerson who has worked with law enforcement in the state and federal level, this callouse behavior is incredibly disturbing. The proccess of law is designed to deal with a serious proccess. First the complaint or indictment, the presentation of evidence that is not spoiled, the accurate submissions of legal documents where case precendence is relevant to the matter of law, the proper presntation of a case where no actions to decieve the court is mandatory, so that the court decisions are made with all the proper consideration and quality of cases are high, so that the quality of decisions are high. As an IS investigator, the rule that garbage in gives garbage out reallly is true when the courts are being misled by attorneys with garbage case precendence. When does California get to work to ensure court activity will not result in improper decisions based on false submissions by parties in a case?