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A Santa Clara County Superior Court judge scorched a prosecutor Tuesday for tactics he employed in defending rape convictions under habeas corpus review. Judge James Emerson found that Deputy District Attorney Benjamin Field crossed the line by serving at least six search warrants on defense witnesses, family members and the petitioners’ prison cells. Emerson also concluded that Field sat on exculpatory testimony for six months, failed to disclose the location of a key witness and violated a court order when he served a search warrant after the judge ordered him to stop. In granting the defense motion to exclude improperly seized evidence, Emerson described one of Field’s search warrant affidavits as “exceptionally misleading.” But he stopped short of sanctioning Field for prosecutorial misconduct, noting that defense attorneys have been slow to respond to some discovery requests. Damon Auguste and Kamani Hendricks were convicted of rape and sodomy in 1998 and given lengthy prison sentences. Their current defense lawyers, Cliff Gardner, Edward Swanson and Deanna Lamb, filed habeas petitions alleging prosecutorial misconduct, suppression of evidence and the discovery of new exculpatory evidence. In December 2002, Emerson granted an evidentiary hearing, which got under way Tuesday. Field defended the searches and said he did nothing to deceive the court. “I disagree with the court’s characterization of my actions,” he said outside court Tuesday. “This is the bottom line. [Emerson] said he’s not making a finding of misconduct.” Defense lawyers declined to comment on the order. According to Emerson’s order, Field used “stale” facts from the 1998 rape and sodomy convictions to obtain search warrants in search of evidence to rebut the petitioners’ allegations. Field tried to conceal his efforts by moving to seal the search warrants. “This is improper given that sealing orders are appropriate only where portions of the affidavit may reveal a confidential informant’s identity,” Emerson wrote. Among the evidence Emerson excluded is an incriminating letter that one of the defendants wrote to his aunt five years ago, in which he explains his plans to intimidate witnesses, bribe jurors and suborn perjury. Last week, the aunt, Donna Auguste, filed a separate federal civil rights suit against the DA’s office over the search of her Colorado home. Emerson said he could find no precedent in the country authorizing the use of criminal search warrants in a habeas proceeding. “It is grossly unfair, excessive and unbalanced to afford the state the power of the search warrant to merely rebut evidence in a post-conviction proceeding in which the validity of the state’s conviction is already presumed,” Emerson wrote. Field had argued that no law prohibited post-conviction search warrants and said they served as a “valuable tool in the truth-finding process.” He added that search warrants were used to obtain post-conviction evidence that earlier this year led to the exoneration of a man who had spent a dozen years in prison for a murder he didn’t commit. Emerson also concluded that Field knew the location of a key defense witness — one of his investigators had interviewed him and San Diego police had executed a search warrant at his home — yet didn’t tell defense lawyers trying to locate the witness, an omission that Emerson said was “especially disturbing.” The witness, Stephen Smith, had testified in a deposition that the victim recanted to him. In the search, police found nothing connecting Smith to the defendants, but uncovered two tablets of Ecstasy and charged him with drug possession. “To date,” Emerson wrote, Field “has provided no explanation or justification as to why he did not inform petitioners about the location of Smith, the state’s interview with Smith and the search warrants executed on Smith and his mother.” In his papers, Field said he never claimed he was unable to contact Smith and hadn’t intended to mislead the court. Gardner, a lawyer for Damon Auguste, has compared Field’s actions to those of fired Deputy Public Defender Thomas Spielbauer, who is being criminally prosecuted by Field’s office on a count of misleading the court. Emerson issued his order as the evidentiary hearing began Tuesday. One of the petitioners’ key contentions is that Field failed to hand over important lab notes before the original trial that might have shown that the 15-year-old rape victim consented to sex with the two defendants. Field has denied that any discoverable lab notes were withheld. The defense team also contends Field is withholding reports on interviews with witnesses conducted in habeas discovery. Last week, DA investigator Tom Wilson testified he spoke with the victim for an hour but generated no report. Gardner said it seemed “unusual” that an investigator “would speak to such an important witness and not have any notes.” Field countered that there has been nothing misleading about his discovery efforts. “There was no witness statement taken,” he said last week.

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