Wednesday, January 23, 2008


By Mike Zapler, Mercury News
Article Launched: 02/12/2006 05:31:54 PM PST
Mike Zapler at (408) 920-5505 or

When California prosecutors and criminal defense attorneys engage in conduct that violates defendants' rights, they can rest assured that they will rarely be held to account by the agency in charge of policing lawyers.

A Mercury News review of nearly 1,500 state disciplinary actions over a five-year period found that just one of them involved prosecutorial misconduct. Criminal defense attorneys drew more notice from the State Bar of California, but not much more: Only 5 percent of the actions concerned criminal defense attorneys targeted for their work on behalf of clients.

The findings come in the wake of a Mercury News investigation published last month that revealed the trial and appellate courts also rarely act to curb prosecutors or defense attorneys. Combined with the bar's record, the paper's reviews establish that there is no consistently effective check on courtroom behavior.

Some experts say the situation is deplorable, although they are quick to add that California's failures are not unique.

``The bar and the judiciary that oversees prosecutors do not take actions to enforce the norms of prosecutorial conduct,'' said Richard Rosen, a University of North Carolina law professor who has written about how disciplinary authorities across the country treat prosecutors.

``There are many prosecutors who do their best to follow the rules. But when they choose not to, they know they aren't going to suffer serious consequences.''

Of the three Santa Clara County prosecutors described in the series whose conduct led to a wrongful conviction, there is evidence of only one even being investigated by the bar. That case, involving Deputy District Attorney Benjamin Field, is pending, 18 months after a complaint was filed.

A few of the defense attorneys identified in the series were disbarred, losing the right to practice law. Others, such as Rudy Guzzetta of San Jose, repeatedly have been cited for misrepresenting their clients, and yet they continue to practice. Guzzetta has been disciplined four separate times by the bar since 1987, admitting to multiple instances of misconduct, but the most severe penalty he has faced was a nine-month suspension imposed in 2002.

Guzzetta, however, does not believe he got off easy. ``If there's a complaint to the bar, there's a presumption that you're guilty,'' he said. ``It is a situation where you're not going to get a break, not from the bar.''

Few complaints

Bar officials insist they take complaints against prosecutors seriously. ``It's a grave situation when a prosecutor commits misconduct,'' said Donald Steedman, the bar's supervising trial counsel.
But for a variety of reasons, said Steedman, the bar receives complaints against prosecutors far less often than other types of grievances. When complaints are lodged, bar officials must find ``clear and convincing evidence'' that the prosecutor's violation was intentional to prove charges. ``Our lot is sometimes a hard one,'' he said.

Steedman also noted two recent cases involving prosecutors that fell just outside the time frame for the Mercury News review. In one of them, a Butte County prosecutor was suspended for one year for withholding evidence helpful to the defense -- an infraction that eventually led to the dismissal of charges against the defendant. A third case involving charges of prosecutorial misconduct is pending.

The Mercury News undertook its analysis of bar discipline after learning that the agency does not track its own actions by type of attorney. The paper reviewed summaries in the California Bar Journal of the most serious categories of discipline -- disbarment, probation and suspension -- from 2001 to 2005. That amounted to 1,464 cases.

The review shows that civil attorneys garner by far the most attention. Time and again, discipline logs describe the workings of divorce, bankruptcy and other civil attorneys who collect money from clients and then do little or no work.

When it comes to conduct by attorneys in criminal cases, in contrast, the bar is rarely to be found. Only 75 cases were identified -- one for a prosecutor and 74 for defense attorneys -- in which the lawyer was disciplined for conduct in a criminal proceeding.
The sole prosecutor was B. Iver Bye, a Los Angeles County deputy district attorney at the time. In 2004, the bar suspended him for 30 days for secretly assisting a woman under investigation by his office.

Apparent inaction

In some instances, the bar does not act even when detailed charges against a prosecutor are filed. Field was rebuked for withholding evidence and defying judicial orders in a rape case in which a judge later found that the defendants, Damon Auguste and Kamani Hendricks, were wrongfully convicted.

Donna Auguste, Damon Auguste's aunt, said she complained to bar officials about Field in August 2004, but they declined to investigate. So ``I kept calling and filing additional documents,'' Auguste said. Six months later, in February 2005, a bar supervisor agreed that Field should be investigated. But there is no indication since then that the bar took action against Field, although Auguste said an investigator has contacted her on occasion with questions.

Field, who insists he did nothing wrong in the Auguste case, said he has responded fully to the bar's inquiries.

Bar officials say they are most likely to pursue discipline charges against a prosecutor when a court makes a finding of misconduct -- and when the misconduct causes the case to be reversed or dismissed.

But in the case of Los Angeles prosecutor Rosalie Morton -- cited in textbooks and court filings as the epitome of prosecutorial misconduct in California -- the bar still took no action.

In 1998, the California Supreme Court found Morton's actions in a trial so egregious -- she engaged in a ``mountain of deceit and unethical behavior'' -- that it took the extremely rare step of overturning a murder conviction. The court then reported Morton to the state bar for discipline, noting that it was one of a succession of cases in which Morton had been cited by courts for misconduct.

Morton has never been publicly disciplined; she has left the Los Angeles County District Attorney's Office but remains an active member of the bar.

Steedman declined to comment, saying the bar discusses only cases that result in formal charges. But he noted that the bar at the time was in the midst of a severe budget crunch caused by a dispute with then-Gov. Pete Wilson. Most employees were laid off, and when the bar resumed functioning, ``We had to prosecute cases we believed would protect the public most from future misconduct.''

Legal experts say there are many reasons why bar organizations rarely pursue prosecutors. One is resources: Cases against prosecutors are hard to prove and likely to be contested, so it is easier for the bar to pursue allegations that involve money, which are more clear-cut.

``It's largely a passive operation that reacts to complaints and chooses to prosecute what it considers the worst violations,'' said Fred Zacharias, a University of San Diego law professor, who said he doesn't believe that disciplining prosecutors more often would do much to deter misconduct.

Let courts do it

Other experts say bar officials prefer to let the courts handle misconduct allegations, or that they are uncomfortable, except in the worst cases, challenging attorneys who are trying to put criminals behind bars. And even though judges are required by professional code to report serious findings of prosecutorial or defense misconduct, bar officials say they don't believe that always happens.
California does not appear to stand out in its rate of attorney discipline. A recent American Bar Association survey of lawyer discipline agencies suggests that the frequency with which California sanctions attorneys ranked in the middle of states that responded. California's rate of disbarring attorneys was lower than the median, but it suspends lawyers and puts them on probation more frequently than many states.

The survey also indicated that California has one of the best-funded bar organizations in the nation, on a per attorney basis.

Chief Assistant District Attorney Karyn Sinunu, who is running for district attorney, said it is troubling that the California bar so rarely sanctions criminal defense attorneys or prosecutors.
``I think they're very focused on civil litigation and attorneys who take money from clients,'' Sinunu said. ``Few and far between are there cases of criminal defense attorneys or prosecutors getting slapped on the hand for anything.''

``I think the state bar should be more active'' in that realm, Sinunu said.