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A Santa Clara County judge is scrutinizing a prosecutor’s handling of a 1997 rape and related habeas corpus proceedings. At a hearing Friday, Judge James Emerson expressed concern over the discovery tactics employed by Deputy District Attorney Benjamin Field in the case and left the door open for a possible hearing on prosecutorial misconduct. Emerson has already ordered an evidentiary hearing into the claims made by Damon Auguste and Kamani Hendricks, who were convicted in 1998 of the rape and sodomy of a 15-year-old girl on the basis of her testimony and DNA evidence. On Friday, Emerson ordered Field to stop serving search warrants on defense witnesses and Auguste’s family without the court’s consent. He also told Field to hand over all letters, videotapes, investigator notes and any other items seized during the searches. Clifford Gardner and James Thomson, who represent Auguste, have accused Field of deceiving the court. Gardner compared Field’s actions to those of fired Deputy PD Thomas Spielbauer, whom the Santa Clara DA is now prosecuting for a misdemeanor charge of deceiving the court. Field denied deceiving the court and said outside of court that the allegation was a “common defense tactic.” He said the warrants were sealed so as not to compromise the DA’s investigation of the claims made by the two men in their habeas corpus proceedings. “There is no statutory or case authority that prevents the use of the investigative tools that we use in criminal cases,” Field said. “The searches yielded some important evidence showing the petitioner’s guilt.” Emerson vowed Friday to monitor discovery to ensure the “letter and spirit” of his orders were followed. He also admonished both sides to comply with discovery. “I want both sides in this case to adhere to the highest standards of professionalism,” Emerson said. “I feel that this is the search for truth, and with that in mind, the people and the petitioners’ attorneys and the court must adhere to the highest possible standards.” Emerson invited briefs on the propriety of the search warrants issued by Field. “This is a civil matter, and the court has some concern about search warrants in such a situation,” he explained. In their writ petitions, the defendants contend they should be released because of newly discovered evidence and prosecutorial misconduct committed when the case was tried. According to defense attorneys, 20 witnesses can discredit the victim’s testimony. They also argue that Field improperly withheld portions of lab reports during the 1998 trial. Defense lawyers say the withheld information could have helped prove that the victim consented to sex, a contention Field denied. Emerson granted the defendants an evidentiary hearing in December. It’s set to begin in October. In preparing for the evidentiary hearing, Gardner and Thomson argue that Field misled the court when he filed an affidavit from his investigator informing the court he could not locate defense witness Stephen Smith at his Kentucky address. Field’s investigator listed Smith on a list labeled “unsuccessful attempts to locate some of these witnesses at these addresses.” Gardner said Field failed to mention in court papers or during a July status conference that his investigator found Smith in San Diego and had police search his house, as well as the homes of Auguste’s mother and aunt. Smith was charged with drug possession when the search turned up the drug ecstasy. “Swearing out a search warrant against Stephen Smith and then prosecuting him for drug possession was nothing less than rank intimidation of a witness,” Gardner wrote in court papers. “And misleading this court by filing a false declaration as to Smith’s whereabouts may be criminal.” Gardner cited Business & Professions Code § 6126, which makes it a misdemeanor for attorneys to mislead the court. It’s the same statute the Santa Clara DA is using to prosecute Spielbauer. But in his reply papers, Field said his investigator’s affidavit was meant to show that the defense attorneys were not handing over accurate witness information. “The point of the declaration was that petitioners had not let respondent know whom they actually would call as witnesses,” Field wrote. Field said he didn’t mention the search warrants during the July status conference because they were ongoing. “One of the search warrants was served on the day of that conference,” Field said Friday. “The reason the warrants were sealed has to do with the possibility it would compromise further investigation.” Field said the search warrants yielded several letters written by Auguste that described plans to intimidate the victim, try to bribe jurors and coach others to testify for the defense. Field’s papers quoted one of the letters Auguste purportedly wrote to his aunt in 1998 as saying: “The only way, therefore, to assure victory is to cheat. I am or at least in the past have been a good cheater.”

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