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.''
....
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. ....
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. ....
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.
....
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.
....
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.
Data
analyst Griff Palmer
contributed to this
article. Contact Mike
Zapler at (408) 920-5505
or
mzapler@mercurynews.com.
