Rare Accountability for Prosecutorial Officer of Court

Four-Year Suspension for Deputy DA Over Disobeying Judges, Concealing Evidence
The Recorder by Mike McKee - February 6, 2009

SAN FRANCISCO - If not for his own good deeds outside work and a stellar cast of character witnesses, including the current and former district attorneys of Santa Clara County, embattled prosecutor Benjamin Field's law license would be kaput. But the punishment recommended Tuesday by a State Bar Court judge was just about as harsh — suspension for four years. Field had been charged with 25 counts of misconduct, including disobeying judges' orders and concealing evidence. "Here, it is clear that respondent failed to be candid and truthful in all dealings with the court and counsel," Supervising Judge Patrice McElroy wrote in a 67-page opinion released Wednesday. "His overzealousness to convict and punish defendants who had murdered, robbed and raped obstructed his understanding of a prosecutor's special duty to promote justice and to seek truth."

"In fact," the judge continued, "disbarment would be the appropriate degree of discipline to be imposed in this case but for respondent's compelling mitigation — strong good character evidence and extensive pro bono activities." Field referred questions to his attorney, San Jose's Allen Ruby, who called the ruling "the first step in a process," saying he plans to appeal to the State Bar Court's review panel. Field "knows he's innocent of these charges," Ruby said, "and he has confidence that ultimately the system will do the right thing." The judge's recommendation — which will become effective only if and when upheld by the state Supreme Court — puts on hold Field's 16-year career with the Santa Clara County DA's office and taints a man once touted for a judgeship. McElroy acknowledged the import of her decision. "The court is mindful that four years' actual suspension would be detrimental to respondent's legal career as a prosecutor," she wrote. "But the need to uphold the administration of justice and the 'professional keeping of lawyers,' and not let those with power go rogue in violation of the constitutional rights of defendants, guilty or not, pre-empts respondent's personal career."

State Bar prosecutors filed charges against Field in 2007, citing misconduct in four separate cases between 1995 and 2005. In general, Field was accused of concealing exculpatory evidence, disobeying court orders and seeking improper search warrants. Field has defended himself by saying that in some instances he'd done nothing wrong, and in others he was guilty of judgment errors. He was backed at trial in the State Bar Court by more than 35 witnesses, including current Santa Clara County DA Dolores Carr and her predecessor, George Kennedy , who testified he didn't think Field was "intentionally corrupt." Field was accused, in part, of concealing DNA evidence, as well as testimony that a teenage girl had fabricated a rape allegation that resulted in two men being convicted of sexual assault; hiding evidence that could have repudiated witnesses who fingered a man for murder; ignoring a judge's order to not subject a minor to a dental examination to determine his age; and making comments during a sexually violent offender's trial that a judge had ordered excluded.

In the rape case, the defendants' convictions were reduced to misdemeanors, and in the sexually violent offender matter, a commitment order was reversed. Both orders cited Field's misconduct. "Respondent's misconduct frustrated the administration of justice and wasted hours of unnecessary litigation and caused unwarranted delays," McElroy wrote in her ruling. "Respondent's abuse of his prosecutorial power has negatively impacted the reputation of the DA's office and the public trust in the justice system." The judge's recommendation was even harsher than the three years of suspension that had been sought by State Bar prosecutors. Ruby had argued that Field deserved a reproval at worst. State Bar Supervising Trial Counsel Donald Steedman was gratified by the judge's ruling.

"It's fair and very accurate and it reflects the very important public policy issues involved in this case," he said, "which involved the abuse of power by a criminal prosecutor. These issues are very important to our system of justice, go right to the heart of it." Noting that the judge had added a year's more suspension than he sought, Steedman said it was "pretty clear that the court was impressed with our case." Steedman's co-counsel was State Bar Deputy Trial Counsel Cydney Batchelor. It couldn't be ascertained on Wednesday whether the decision will cost Field his job. Ruby wouldn't comment on that and a call to the Santa Clara County DA's office wasn't immediately returned. During trial, DA Carr testified that she would be very troubled if any of the charges against Field were found true. She didn't say she would fire him, but noted she "would be concerned about whether Ben had achieved any insight on his behavior."