Tuesday, December 11, 2001
Judge to Decide Whether State Bar Can Use Inadmissible Evidence
By NICK YULICO, Staff Writer
A Sacramento superior court judge will decide whether evidence ruled inadmissible in a criminal and later, federal case, can be used in a State Bar of California investigation.
Former Sacramento County prosecutor, Pete Harned, who was accused of possessing child pornography, has waited over two years for the return of his personal property that was seized from his home as a result of a search warrant, which was later found to be invalid.
The criminal charges against Harned were dismissed, but his property—which includes a revolver, briefcase, computer disks allegedly containing child pornography, and a computer—has not been returned.
After the charges were dropped, the State Bar decided to conduct an investigation to determine whether to file its own charges against Harned. No charges have been filed. When Harned filed a motion last month to have all his property returned, State Bar officials filed a counter-motion to preserve the property.
“We were interested in preserving that property for our investigation, so we moved to preserve it as evidence,” Mark Torres-Gil, assistant general counsel to the bar, said.
Harned’s attorney, Hill C. Snellings, filed a motion to have all the property returned. Federal law requires all personal property, except contraband, to be returned to its rightful owner at the end of a criminal case. A judge will now decide what is contraband and what is not.
Torres-Gil said a State Bar statute gives the bar the right to gain access to all non-public court records, even if a court order sealed those records.
Harned’s defense has disputed that the evidence is part of the court record, citing that inadmissible evidence is different from evidence sealed by the court.
Torres-Gil said that there is no rule against the State Bar using evidence that was suppressed in criminal proceedings and that as long as the alleged images of child pornography are in the possession of the court the documents are court records.
“Without that evidence, our case will be circumvented,” said Torres-Gil. “We will have no case. Mr. Harned is aware of that and it is our feeling that his motion to return his property is motivated by his desire to short-circuit our investigation.”
Harned and his attorney said they would refuse to directly comment on the case because it is still pending.
The court is expected to issue a ruling within the next two weeks. It will determine to what extent the State Bar’s right to access property trumps Harned’s reported right to have his personal property returned, Torres-Gil said.
“All the State Bar is attempting to do is perform its state function to investigate allegations of purported misconduct,” said Torres-Gil.
Copyright 2001, Metropolitan News Company