Tuesday, February 16, 2010
State Bar Court Urges Suspension of Former Prosecutor
By STEVEN M. ELLIS, Staff Writer
A former career prosecutor in Santa Clara County should be suspended from practice for four years for disregarding prosecutorial accountability in favor of winning cases, the State Bar Court concluded Friday.
Upholding a hearing judge’s recommendation that Benjamin Field serve four years of a five-year stayed suspension, the Review Department said his misconduct in four criminal cases over a 10-year period violated the due process rights of criminal defendants.
The State Bar’s Office of the Chief Trial Counsel brought charges in 2007, alleging that Field violated court orders and directives, performed incompetently, did not respect the court, failed to obey the law, withheld evidence, misled a judge and committed multiple acts involving moral turpitude, dishonesty or corruption.
Hearing Judge Patrice McElroy found Field culpable of misconduct, but also found that evidence in mitigation—including Field’s cooperation with the State Bar’s investigation, his otherwise “good character” and his record of pro bono service—warranted suspension rather than disbarment.
The State Bar initially sought a three-year suspension, but on review asked for adoption of McElroy’s recommendation that Field be actually suspended for four years of the stayed suspension.
Field, who served with the Santa Clara County District Attorney’s Office for over a decade after his admission to the State Bar in 1993, sought exoneration before the Review Department and a reversal of the suspension. However, the department denied his request in an opinion by Judge Catherine D. Purcell, who was joined by Presiding Judge Joann M. Remke and Judge Judith A. Epstein.
Neither Field nor his attorney, Allen Ruby of San Jose, could be reached for comment.
According to the Review Department, Field “failed to fulfill his ‘important and solemn duty [as a prosecutor] to ensure that justice and fairness remain the touchstone of our criminal justice system’ ” in four matters from 1995 to 2005.
In 1995, the department said, he obtained a dental examination of a minor accused of sexual assault in violation of a court order.
Field sought to prove the minor, who said he was 13 years old, was actually at least 16 in order to prosecute him as an adult, and told the probation department to perform the examination on the minor without first submitting a motion, as a judge had ordered. The test revealed that the minor was between 16 and 19 years old, but the results were suppressed.
In 2003, Field intentionally withheld a witness’s statement that was favorable to the defense in a habeas corpus proceeding involving a sexual assault case against two men he had tried in 1998. The men claimed the victim, a 15-year-old girl, admitting fabricating her allegations to avoid missing curfew, but they said Field failed to disclose the whereabouts of the only witness to the admission, leading a superior court judge to find Field committed a discovery violation by concealing evidence.
Also that year, Field intentionally withheld a defendant’s statement favorable to co-defendants while prosecuting three men for the home invasion robbery-murder of a methamphetamine dealer, leading to dismissal of a 25-year gun enhancement against one of them.
Two years later Field made an improper closing argument in a sexually violent predator case, telling jurors that a defendant who pled guilty to multiple sex crimes would go to a hospital rather than prison if he were found to be a sexually violent predator despite the trial court’s prior order not to do so.
In addition to the suspension, McElroy recommended that Field be subject to a five-year probation period and imposed as a condition of reinstatement that Field first prove rehabilitation from his misconduct, fitness to practice law, and learning and ability in the general law.
On review, Purcell said that the recommended discipline, particularly the suspension, was “necessary to protect the public and the courts, to preserve public confidence in the legal profession, and to maintain high professional standards for attorneys.”
However, despite finding that “Field’s abuse of his prosecutorial power negatively impacts the reputation of the District Attorney’s Office and the public’s trust in the criminal justice system,” she agreed with the hearing judge’s conclusion that the evidence in mitigation was “compelling.”
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