Holy Irony

Wednesday, November 26th, 2008

The California state bar recently handed down an unprecedented three-year suspension of the law license of a Santa Clara County prosecutor who was, “charged with committing misconduct in four criminal cases dating back to 1995, including misleading judges, defying court orders and concealing critical evidence from defense lawyers in pursuit of convictions.”

So what’s the reaction from this prosecutors’ peers? Shame? Embarrassment? Assurance that he’s an unusual case? Promises to institute stricter guidelines to prevent prosecutors from going astray in the future? Of course not. Their reaction is to scale back the state bar’s power to discipline.

In the wake of a disciplinary hearing against a top local prosecutor, the union that represents Santa Clara County prosecutors and public defenders is asking the California District Attorneys Association to sponsor a bill that would essentially curb the power of the state bar to punish all lawyers.

The proposed changes in state bar procedures also come at a time when the disciplinary board and state appellate judges are responding aggressively to questionable official conduct in local criminal cases examined in a 2006 Mercury News series on courtroom misconduct. In recent months, others in the office have received notices that their conduct is under review by the bar.

The proposal also follows the findings of a statewide commission on the roles that both prosecution and defense misconduct play in wrongful convictions.

The details of the proposal are still under discussion, but the draft calls for a two-year statute of limitations for bringing any charges against attorneys. Currently, the bar has latitude in bringing charges, especially if an attorney has concealed facts. The charges in Field’s case date back more than 10 years.

They also want to cap the financial hit prosecutors can take due to misconduct investigations, and reimburse prosecutors who are eventually acquitted.

Cognitive dissonance, anyone?

Given that it’s pretty much impossible to sue a prosecutor, professional discipline is really the only available deterrent to misconduct. It’s telling that they’d want to take that away, too.

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29 Responses to “Holy Irony”

  1. #1 |  ClubMedSux | 

    I would argue this is further evidence of why state bars shouldn’t have the power to authorize or prevent the practice of law in the first place. I’ve seen firsthand the arbitrary nature with which the Illinois bar’s Character and Fitness committee decides who’s fit to practice and who isn’t (and I can only imagine it’s the same in other states). I have no problem with professional organizations giving their stamp of approval to members of that profession, or denying the same, but at the end of the day it should be up to the client as to whether they wish to hire an “approved” practitioner versus one who is not. The same should be true of dentists, plumbers and (now-infamous) interior designers.

    I agree that it’s ridiculous that prosecutors are virtually immune from any discipline, but if you’re turning to the state bar to protect citizens I would argue you’re barking up the wrong tree. They’re protecting their own interests, which in the end is the purpose of any professional organization.

  2. #2 |  Larry | 

    Reimbursing those who are eventually acquitted sounds good to me.

    I assume, of course, that those same prosecutors are also in favor of reimbursing and making whole those criminal defendants who are ultimately acquitted, yes?

  3. #3 |  Edintally | 

    I was like:

    !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

    Then I was like:

    :(***********

  4. #4 |  Episiarch | 

    Prosecutors are even worse than cops.

  5. #5 |  Nick T | 

    ClubMed, I have to disagree with you.

    Interior designers and plumbers, for example, are going to be policed mostly by the market because a consumer can plainly see (usually) whether the job they performed was effective or not. (Also, even people like plumbers would be susceptible to state laws in both criminal and contracts if they committed fraud or violated the terms). Doctors and lawyers need a serious oversight and licensing body because what they do is not easy for the consumer to appreciate or to police by himself. Also you in most cases involving those professions, the things that hang in the balance are of enormous importance: your kids, your health, your freedom!

    In the case of prosecutors, who exactly would ever police their conduct. There’s no consumer amrket whatsoever. And the political branches, or appellate courts? We see how well those do with cops, what exaclty are they supposed to do with prosecutors? The court system is left to a supposedly apolitical branch of government because what is at stake there should not be decided at a ballot box or in a mindless stump speech. Lawyers are officers of the court, and their conduct needs to be judged – and judged with teeth – by other lawyers who are focused on justice and ethics rather than popularity.

    Your point that lawyers will protect their own is a fair one in theory, but look how it played out here. Lawyers associations are fighting the CA Bar. And an apolitical lawyer oversight body tied to appellate courts that is hopefully concerned about maintaining the reputation and quality of its profession is certainly better than nothing at all.

  6. #6 |  Nick T | 

    And as for the post itelf, I would just like to add that prosecutors continue to bring serious embarrassment and shame to the entire legal profession. People can say what they want about “trial lawyers” and “ambulance chasers” but prosecutors are the worst of them all.

  7. #7 |  SJE | 

    I’m with Nick T.

    The California Bar is supposed to uphold the standards of the practice of law in California. I am a member of that bar, and am glad to see that they take this issue seriously.

    My only complaint here is that the prosecutor was not permenantly disbarred.

    I hope that his fellow prosecutors do not convince the appellate courts to change the licensing requirements as applied to prosecutors.

  8. #8 |  Mike T | 

    I think one reform that we need here is to take away the monopoly on bringing charges. A defense attorney should have equal authority to bring charges before a permanent, standing Grand Jury as a prosecutor, going so far as to allow a defense attorney to file criminal charges against government agents in the middle of a trial if it’s discovered that they’ve engaged in criminal conduct.

    Of course, that’s about as likely to happen, as prosecutors are to start policing themselves short of the families of the victims of their grossly immoral, self-aggrandizement taking matters into their own hands. The behavior of a lot of prosecutors is downright sociopathic, as evidenced by the way that they seem to have absolutely no moral compass on these issues.

  9. #9 |  Marty | 

    this is a little off topic, but people don’t realize the unintended consequences of a growing prison population- the corruption and healthcare costs are enormous. Being ‘tough on crime’ is popular with voters, but there’s a huge human cost. I have a couple of primitive myspace blogs regarding issues with prison healthcare- if anyone wants to offer feedback or advice, please visit at http://blog.myspace.com/index.cfm?fuseaction=blog.ListAll&friendID=427556801

  10. #10 |  MacGregory | 

    Evaluating the performance of a prosecutor based on a conviction rate is a big part of the problem. Threats of longer jail terms, if convicted in court, leading to plea bargains (or agreements as they like to say) follows closely. If I were working on a project and things got this messy, I would scrap the whole thing and start over.

  11. #11 |  Scott | 

    Wait! I’ve heard this one before. How does it go…

    “All pigs are equal. But some pigs are more equal than others”.

    That’s the answer, right? Now maybe I can get that cushy gub’ment job.

  12. #12 |  gDavid | 

    A dirty prosecutor will ruin a persons life forever. So any limit on their misconduct should be none. It may take decades before a bad prosecutor can be found out and charged. I also think that any prosecutor who does not abide by the law should be imprisioned forever until their death. A prosecutor’s job is to bring forth the truth, the whole truth, and nothing but the truth. Anything less is worse than the most cowardly criminal can ever be.

  13. #13 |  OneByTheCee | 

    #9 | Marty |

    I too, have read atrocious prison healthcare stories. The ACLU
    conducted an investigation on a Nevada prison, that literally let a diabetic prisoner’s limbs rot, which of course, killed him. Very slowly.

    I do not care what this prisoner did and the investigation didn’t say, presumably, to make the dead prisoner more sympathetic.

    It’s horrific and unconscionable.

  14. #14 |  Cynical In CA | 

    “The first thing we do, let’s kill all the lawyers.” Shakespeare, Henry VI

  15. #15 |  bear | 

    I for one am shocked…just shocked, that a prosecutor was actually held accountable for any crimes. Unprecedented, to say the least.

    Of course, I’m not shocked, that the response from other prosecutors is to shut this whole accountability thing down.

    FYI…I sent an email to Patrick Frey, an LA ADA, who runs the “patterico.com” website, requesting his coverage of this topic. Say what you will, but aside from the occasional “stepping off the reservation,(you too at times Radley. Hell, me too, for that matter and I don’t blog!)” Patterico and his crew are generally fair minded and thought provoking bloggers. I am thankful for the dust-ups between him and Radley which introduced me to his site.

    I cc’d you on the request Mr. B…

    best,

    -bear

  16. #16 |  Jason | 

    A recipe for disaster

  17. #17 |  Marty | 

    thanks OneByTheCee, the more I investigate, the worse it gets.

    ‘It’s horrific and unconscionable,’ indeed.

  18. #18 |  OneByTheCee | 

    #16 | Marty |

    Out of curiosity, have any of your investigations lead you to CCA and The Geo Group?

  19. #19 |  Chris | 

    Sorry Nick, I am perfectly capable of deciding if the doctor I choose to treat me is worthy do do the job. The same with lawyers and every other profession. All your way does is lead to an unnatural monopoly and the higher costs that government monopolies bring.

  20. #20 |  ZappaCrappa | 

    “the draft calls for a two-year statute of limitations for bringing any charges against attorneys.”

    Heh heh heh….thanks for the chuckle. 2 years. They sure are generous with themselves. If we ever have a revolution…the lawyers and lawyer/politicians HAVE to be the first to go………just sayin’….

    *Disclaimer for prevention of SWAT team kicking in my door, shooting my dog, then conspiring with some prosecutor to send me up for life for treasonous statements: ZappaCrappa does NOT support a revolution….at this time.

  21. #21 |  Marty | 

    OneByTheCee-

    I’m not familiar with either of those groups- do you have any links or reference points?

  22. #22 |  Mark Z. | 

    Off topic, but this “Jason”/”rightklik.blogspot.com” guy is spamming.

  23. #23 |  TBoneJones | 

    Before I worked in the criminal justice system for about a decade I thought it was just criminal defense lawyers who were slime balls. Now its my opinion prosecutor’s are worse. The only thing unusual about the Santa Clara County Dude is that he was minimally held accountable for his dishonesty. It’s my opinion one of the best signs cops are lying when they’re under oath is when their lips start moving. That being the case I now have much greater respect, and see the need for competent criminal defense attorneys.

    As the DA is usually the highest level of law enforcement in a county, (a job that should require 100% honesty to bolster public trust) I think they should be held to the highest possible standards. One tiny lie, withhold ANY evidence, ignore ANY court order, they should disbarred for life, publicly flogged, tarred and feathered, then run out of town on a rail. (ooops, we wouldn’t have any prosecutors left then so guess I better come up with another plan.)

    Of COURSE they’re trying to limit the consequences they could suffer for being scumbags. They’re lawyers for Gods sake. Not sure what it is they do to them in law school but they sure come out of there with some messed up morals. (the whole herd of them!)

  24. #24 |  OneByTheCee | 

    #21 | Marty |

    http://www.corpwatch.org/article.php?id=867

  25. #25 |  OneByTheCee | 

    In 1981, I turned 18, got my drivers license, registered to vote, then BAM, got my first (of many) jury summons. I was seated for a jury on a case of manslaughter. During Voir Dire, the jury was told that police officers would be testifying and would any of us automatically believe their testimony? Eleven of us outright laughed, including the judge! But one older gentleman held fast that he would believe their testimony – he was excused. In the end, we did find the defendant guilty of voluntary manslaughter.

    But now, it’s not just the police, it’s the prosecutor’s motives as well, that NEED to be questioned but how can that be done?

    Interesting website:

    http://truthinjustice.org/p-pmisconduct.htm

  26. #26 |  OneByTheCee | 

    #21 Marty

    Went to your link on your #9 post, then went to the CMS website.

    The website gleefully states:

    “The future of correctional healthcare:
    The number of prisoners in the United States has never been higher – 1 in 32 Americans is behind bars. The growing inmate population has resulted in incredible growth for the correctional healthcare industry as well as the increased privatization of correctional healthcare.”

    http://www.cmsstl.com/about-us/evolution-correctional-healthcare.asp

  27. #27 |  Marty | 

    OneByTheCee-

    Great link on prison profiteering! I was struck also by the ’1 in 32′ stat. Pretty mind-blowing!

    We have just signed a legal team to start our fight- I’m hoping we can make someone limp, but we’re probably more like a defective pinto to Ford…

    I’ll be digging through the links you provided- thanks, again.

  28. #28 |  Nick T | 

    Chris, you shouldn’t throw around the word monopoly so lightly, especially when it doesn’t apply in any sense.

    At the consumer end there is no monopoly. There are thousands upon thousands of lawyers and firms you could hire to represent you. The market will still factor into and motivate lawyers to do a good job.

    Yes, some people would of coruse be capable of recognizing a good lawyer or good doctor without having to be assured that the person a)graduated law school b)passed an exam c) has never cheated or ratted out their clients or has otherwise behaved improperly. But many people can’t.

    I think you also have to look at who these bodies keep out and who they let in. When they become too onerous, too expensive or they exist to favor certain schools or industries then it’s a problem. To become a licensed lawyer, you basically have to go to an accredited law school, pass a usually pretty easy exam and not have screwed somebody over at some point. There would be a ton of quacks if anyone could become a legal counselor just because they got arrested once, or argued their way out of a parking ticket. I could tell you anecdotes for days.

  29. #29 |  InjusticeAnywhere@gmail.com | 

    Update regarding Ben Field prosecutorial misconduct case:

    http://www.mercurynews.com/ci_11680314

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