Friday, February 8, 2002
State Bar Asks High Court to Allow Suppressed Child Pornography Evidence in Discipline Case
By NICK YULICO, Staff Writer
State Bar officials have asked the state Supreme Court to overturn a superior court’s ruling that evidence deemed inadmissible in the criminal prosecution against an attorney accused of possessing child pornography cannot be used in the bar’s own investigation.
Pete Harned, a former Sacramento prosecutor, won dismissal of federal charges of possessing child porn after a Sacramento Superior Court judge found a policeman lied to obtain a search warrant.
The warrant led to seizure of personal items and alleged images of child pornography on computer disks.
When Harned moved last November to have his personal property returned and the contraband destroyed under federal law, State Bar officials filed a motion to preserve all seized materials for its own disciplinary investigation of Harned.
Superior Court Judge Norbert Ehrenfreund ruled in December that the evidence ruled inadmissible in the trial could not be used by the State Bar and granted Harned’s motion.
In an attempt to overturn Ehrenfreund’s ruling, State Bar officials petitioned to the Supreme Court Wednesday, asking the justices for a writ directing Ehrenfreund to vacate his order denying the State Bar’s motion to preserve the evidence. The petition asks for a new order granting the State Bar’s motion.
State Bar Assistant General Counsel Mark Torres-Gil said in the petition that the “writ is necessary to prevent irreparable damage to the public’s confidence in the legal profession.”
Should the Superior Court ruling stand, “Harned will likely be allowed to practice law without consequences for his purported misdeeds and at the expense of the integrity of the courts and legal profession,” Torres-Gil said in the petition. “Such a result cannot be countenanced.”
Harned told the MetNews yesterday that he “found the bar’s aggressiveness in this matter puzzling.”
“I’ve practiced law for 17 years without a single complaint from a client, and have established myself as a competent, ethical and hardworking trial lawyer,” he said.
He added that the alleged images were found on a commercially available CD-ROM in his possession and that he is “not responsible for the content which purveyors of adult materials place in their collections.”
“I am ready to defend my conduct in any forum,” he said.
The rejection of the State Bar’s motion cannot be appealed, and “no other adequate remedy other than the relief sought in this petition” is possible, the State Bar says.
The matter is within the original jurisdiction of the Supreme Court, the State Bar argues, because the lower court’s denial of the bar’s motion to preserve the evidence “materially impairs the Supreme Court’s ultimate regulatory power over attorney admission and discipline.”
The Supreme Court has the final authority to determine disbarment of attorneys in the state, according to the petition.
In the Superior Court case, the State Bar argued that the State Bar Act gives it the right to gain access to all non-public court records, even if a court order sealed those records.
Ehrenfreund’s ruling stated that “court records” as defined in the act does not encompass illegally seized physical evidence that has neither been filed nor formally lodged with the court.
The State Bar said that in Emslie v. State Bar, the Supreme Court held that the exclusionary rules, intended to preclude use of evidence obtained in an unlawful search and seizure, do not apply to the State Bar’s disciplinary proceedings in that case,
“Accordingly, the Court in Emslie found that, on balance, it was more important to protect the court and public from lawyers who engage in acts of moral turpitude and are otherwise unfit to practice,” the State Bar said.
“Notwithstanding this Court’s decision in Emslie, the Superior Court denied the State Bar’s motion to preserve the fruits of the illegal search,” they continued.
Torres-Gil told the MetNews in December that the State Bar would have no case without the disks that allegedly contain pornographic images of children. An investigation has been opened but no charges have been filed against Harned.
Harned has waited five and a half years for the return of his belongings that were seized in the criminal case.
On July 19, 1996, Detective John Landahl was assigned to investigate a report of possible child pornography found on a CD-ROM contained in Harned’s computer being serviced at a Computer City store in Sacramento.
That same day, Judge John Dougherty (now deceased) issued a search warrant for Harned’s residence and vehicle, for the seizure of possible child porn. Four days later, Dougherty issued a second search warrant for Harned’s office.
Many items were seized including numerous images of purported child pornography, small traces of controlled substances and paraphernalia, along with personal items like a revolver, briefcase, computer, printer and scanner.
They still remain in the custody of the Sacramento Sheriff’s Department.
Copyright 2002, Metropolitan News Company