When Santa Clara County Deputy District attorney Ben Field was handed a four-year suspension from the practice of law after a State Bar finding of ethical misconduct, some have suggested the reprimand was too harsh.
Given the nature of the misconduct outlined in the case against Field, I believe a stronger case can be made that the punishment imposed is little more than a slap on the hand.
I had little contact with Field when I was a Santa Clara County Deputy public defender for more than 20 years, and until all of his appeals are exhausted I am unwilling to judge his conduct, since I was not a witness to any of it.
But for anyone who is guilty of the acts with which Field is charged, the four-year suspension is mild punishment indeed. If, as a result of intentional misconduct by a prosecutor, another human being was wrongfully punished or imprisoned, then disbarment is too light a sentence.
If I had my way we would have legislation that includes jail time or some equivalent punishment- many hours of volunteer work- for those whose intentional acts result in the wrongful imprisonment of another. The same standard and punishment should apply to prosecutors and defense attorneys.
Absent the potential for harsh punishment to deter intentional misconduct by an attorney that leads to wrongful convictions, we will continue to see more wrongful convictions and more lives destroyed.
Mercury News columnist Scott Herhold recently wrote a column (Feb.14) criticizing Field’s sentence as overreaching. I wonder if his position would hold if he or a close family member ended up wrongfully serving a long prison sentence or even a short one as result of intentional apparently flagrant and arrogantly championed misconduct.
Imagine the transgression in other fields. Would a young journalist, for example who engages in intentional and repeated plagiarism be tolerated by the Mercury News?
When I was sworn in as an attorney, I took an oath to uphold the Constitution – and there was no clause that suggested I could put that oath on hold when it was convenient, or when I felt the pressures of courtroom competition. When I passed the bar, I was never told I would be given a break for intentional court room dishonesty because I was new to the process.
Nor was I told it would be OK to deceive a judge because no one in the administration of my office would do anything about it. Regardless of how I perceive the public defender’s office in some cases – a plea bargaining factory that often results in miscarriages – or the district attorney’s, the office culture is no defense to an act of incompetence.
We are all attorneys, and the bar for misconduct that can result in wrongful conviction should not be lowered or removed because of a particular office culture.
The views expressed above were originally written by Aram James a retired Santa Clara County deputy public defender, and first appeared on February 20th, 2009 in the Mercury News.
We believe prosecutorial misconduct is in fact a growing national problem not unique to Santa Clara County. For this reason and in light of recent misconduct findings by appellate judge Conrad Rushing involving the misconduct of yet another Santa Clara County TOP district attorney Jay Boyarsky, and by republishing this article, we hope to continue the dialog thereby exposing the depth and “extent of using deceptive and unfair tactics to secure convictions” at any cost, by the unlawful criminal activities of prosecutors and defense attorneys alike.
Ben Field vs. Jay Boyarsky what’s the difference? You decide!
A closer look at the similarity of judicial findings. As a side note, Ben Field was ultimately disbarred from practicing law for four years. A California State Bar investigation remains to be seen on any disciplinary sanctions to be imposed on Jay Boyarsky’s recent misconduct behavior present or past.
Highlights of Judicial Findings in both cases.
Former Santa Clara County Prosecutor Ben Field
- Field obtained a dental examination of a minor accused of sexual assault in violation of a court order. He was attempting to try the youth, who claimed to be 13, as an adult. A juvenile court judge suppressed the evidence obtained in the examination.
- In a murder case, Field intentionally withheld a defendant’s statement favorable to co-defendants. As a result, the judge dismissed a 25-year gun enhancement against one of the co-defendants.
- He made an improper closing argument in a sexually violent predator (SVP) case, which an appellate court described as “deceptive and reprehensible.” The court reversed a judgment committing the man as an SVP.
- He intentionally withheld a witness’ statement that was favorable to the defense in a 2003 habeas corpus proceeding involving a sexual assault.The judge found that he committed a discovery violation.
Current Santa Clara County Chief Assistant District Attorney Jay Boyarsky’s – Prosecutorial Misconduct
- Implying That Defendant Had Committed Other Crimes
- Schools in Defendant’s Neighborhood if Released
- Defendant Would Not be on Parole
- Questioning of Defense Expert on Other SVP Trials
- Argumentative questioning of Defense Witness
- Telling Jury They Had Been “Groomed” by Defendant
- Reference to Defense Witnesses as “Serial Rapists and Child molesters.”
The bottom line involving the current misconduct charges levied against Chief Assistant District Attorney Jay Boyarsky is whether or not he passes the misconduct standards for disbarment or sanctions as set-fourth by the California State Bar.