Metropolitan News-Enterprise


Monday, October 3, 2011


Page 1


C.A.: Prosecutor’s False Testimony Not Cause for Dismissal of Case


By SHERRI M. OKAMOTO, Staff Writer


A prosecutor’s false testimony at a hearing on a motion to recuse his office from conducting the retrial of a Northern California man accused of sexually assaulting his granddaughter was an insufficient basis for the information to be dismissed, the Sixth District Court of Appeal ruled Friday.

In a 62-page decision, the three judge panel said Santa Clara Deputy District Attorney Troy Benson’s conduct was “a grave affront to the judicial system,” but it did not impair Augustin Uribe’s ability to receive a fair trial.

Benson, who did not return a call seeking comment on Friday, prosecuted Uribe on five felony counts of abusing his granddaughter. A jury returned a guilty verdict as to four of the counts in 2006, and Uribe was sentenced to a prison term of 30 years to life.

Disclosure Violation

In 2008, the Sixth District reversed the judgment based on  the government’s failure to disclose a videotape of the medical examination of the victim.

Following remand, Uribe filed a motion to recuse the Santa Clara District Attorney’s Office, claiming that the district attorney and members of the Sexual Assault Response Team had conspired to violate state law by not documenting that the latter had videotaped its examinations of alleged victims of sexual assault, thereby preventing members of the defense bar from obtaining critical information in sexual assault cases.

He also filed a nonstatutory motion to dismiss the information based upon the alternative grounds of double jeopardy and outrageous prosecutorial misconduct in violation of his due process rights, contending the SART members and Benson had been aware of the videotape and deliberately suppressed it.

After extended evidentiary hearings and briefing on the motions, Santa Clara Superior Court Judge Andrea Y. Bryan denied the motion to disqualify the district attorney. She also denied the motion to dismiss made under double jeopardy principles, but ordered the information against Uribe be dismissed on the basis of prosecutorial misconduct by Benson.

Bryan found Benson had testified untruthfully in the hearings on the motions, which amounted to “egregious prosecutorial misconduct” which “strikes at the foundation of our legal system and is so grossly shocking and outrageous that it offends the universal sense of justice to allow prosecution in this matter to proceed.”

‘Wrong Remedy’

Justice Wendy Clark Duffy wrote for the appellate panel—which included Presiding Justice Conrad L. Rushing and Monterey Superior Court Presiding Judge Adrienne Grover, sitting on assignment—and acknowledged “the trial court’s understandable and profound concern about the former prosecutor’s misconduct, including his false testimony,” but said Bryan “chose the wrong remedy.”

Duffy explained that a court “may dismiss an information in an extreme case to address outrageous governmental conduct,” and while a prosecutor’s false testimony “is undoubtedly an act that is ‘outrageous’ in a general, nonconstitutional sense,” it must impair a defendant’s constitutional right to a fair trial in order to warrant dismissal.

Benson’s misconduct, she reasoned, “was certainly conscience-shocking in the sense that it involved false testimony by a prosecutor in a formal criminal proceeding,” but it occurred in a “peripheral hearing,” “apparently in furtherance of Benson’s personal objectives regarding the State Bar investigation,” and did not serve to obtain a conviction.

“Although the harm from Benson’s acts—as a significant insult to the dignity of the judicial system itself—was manifest, its impact on defendant, in the form of depriving him of his constitutional right to a fair trial, was absent,” Duffy concluded.

Warning Issued

She warned, however, that Friday’s decision “should in no way be construed as a signal that we condone the misconduct that the trial court found, based upon substantial evidence, to have occurred here,” noting that attorneys owe a duty of good faith and honorable dealing to the judicial tribunals.

“Benson’s breach of these ethical obligations notwithstanding, dismissal of the information here acted as a punishment to society for his misdeeds, without consideration of whether those misdeeds prejudiced defendant’s fair trial rights,” Duffy said.

Santa Clara Special Assistant District Attorney Steven Fein said Friday that the office “received the opinion” and was “going to review it carefully.”

After this, he said the office will “review our options and we’ll make a decision as to how we will proceed.”

Fein confirmed that Benson is “currently assigned to handle felony cases” for the office, and declined further comment.

Benson was admitted to practice in 1995 and has no public record of discipline, according to the State Bar.

 The case is People v. Uribe, 11 S.O.S. 5368.


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