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SAN JOSE — It’s no secret around the Hall of Justice that Benjamin Field would like to be elected Santa Clara County district attorney some day. That may explain, at least in part, the chorus of critics gathered around him. In the past four months, he’s been hit with discovery sanctions by two different judges. One termed Field’s actions “exceptionally misleading,” while the other accused him of a “blatant” violation of discovery rules. That has fed talk of Field as a prosecutor who doesn’t fight fair. Mary Greenwood, Santa Clara’s alternate public defender, says Field has violated her “rule of threes.” “When you hear about an attorney on either side violating the expected rules of engagement — and you hear it from three respected sources — you start to develop opinions,” Greenwood said. “We know [prosecutors] are going to come at us with both barrels. That’s fine if they follow the rules. What we don’t like, and think is fundamentally unfair, is when they hide the ball.” Field says it’s predictable that he would be targeted by the defense bar. The rape and homicide cases he prosecutes are “hard-fought on both sides,” he says. Defense attorneys have long alleged that Kennedy’s office drags its feet on discovery. But now, they say, it’s not just them complaining. Last month, Judge Hugh Mullin III ruled that Field violated Brady v. Maryland when he failed to hand over to the defense an interview that could undermine the credibility of his witnesses in a robbery-murder case that starts trial this week. Field said he hasn’t withheld any exculpatory evidence. He said confessions of the defendants, along with witness testimony, will ensure convictions in the case, which is set for trial this week. But the latest controversy comes four months after Judge James Emerson excluded evidence gathered by Field to defend a rape conviction on habeas corpus review. Defense attorneys for defendants Damon Auguste and Kamani Hendricks had argued that new witnesses and lab evidence had surfaced to discredit the 15-year-old victim’s testimony and shore up the defense theory that the sex was consensual. Unknown to the defense or Judge Emerson, Field served search warrants on one of the witnesses, the witness’s aunt, and the family of one of the defendants. Field then had the search warrants sealed. Emerson excluded the fruits of the search, including a letter in which one of the defendants wrote that he would “cheat” to overturn his conviction. The judge stopped short of a prosecutorial misconduct finding, finding that defense attorneys also dragged their feet on discovery. He still hasn’t ruled on the habeas corpus claim. Field said he stands by his work defending the rape convictions, which were won with physical and DNA evidence. In the case that starts trial this week, three men were initially suspected of involvement in a 2002 drug-related robbery and killing. All three made incriminating statements to police about the robbery. In February of 2003, defendant Alfred Martinez agreed to plead guilty. According to his lawyer, Martinez approached prosecutors in an effort to get a better deal. “There was no deal going in. We offered to have [Field] talk to Alfred and to enlist Alfred’s cooperation in solving some cases in hopes of getting a reduced charge,” said Deputy Public Defender Charles Gillan. “If they didn’t find it useful, it would be as if nothing happened.” Martinez told Field that three key prosecution witnesses were actually involved with the accused. One provided guns and masks to the three defendants. Another acted as the “inside man,” and the third witness was having sex with Martinez. Field, who tape-recorded the interview, says he didn’t think Martinez was credible, and refused to offer him a better deal. Martinez received a 35-years-to-life sentence for the murder-robbery. Field didn’t turn the interview tapes or notes over to the attorneys representing Martinez’s two co-defendants. The pair, Bernard Ballard and Jaime Barrientos, pushed forward to the preliminary exam in May. Prosecutors didn’t have a murder weapon and relied on the testimony of police and the three witnesses. Days before the trial was set to start last July, Martinez — who was already serving his prison term — called Ballard’s defense attorney and explained what he had told Field months before. Defense attorneys for Ballard and Barrientos demanded Field hand over the interview tapes and filed a motion to dismiss the case. In his ruling last month, Mullin refused to throw out the case. But he dropped a weapons enhancement charge, ruling that Martinez’s statement did jeopardize the credibility of the DA’s witnesses. Mullin also said he wouldn’t OK immunity for those witnesses and set a hearing for this week where the witnesses are expected to be advised of their right not to incriminate themselves. “The district attorney’s Brady violation may have done the defense a favor,” Mullin noted when making his ruling. But Field said the rulings don’t jeopardize his case and that Martinez’s statements don’t help the two other defendants. “If I thought the statement was exculpatory, I would have turned it over immediately,” Field said. “It implicates the two charged defendants.” In hindsight, though, Field said turning over the Martinez interview before the prelim “would have been the better course of action.” Defense attorneys see a disturbing pattern. “This wasn’t a small or inadvertent violation of Brady. This is a blatant violation,” said defense attorney Geoffrey Braun. “In this case, he personally sits down, generates the statement, knows what a reasonable defense attorney can do with the information, and withholds it.” “What’s telling is Judge Mullin — who was a district attorney for years and was involved in supervision of that department for years — recognizing it for what it was,” said Greenwood. “Clearly, Judge Mullin, who is absolutely a judge perceived as a straight arrow by everybody, is offended by this conduct. He is the second judge to say it on the record publicly.” Field says criminal defenders are making the most of a small matter. Since joining the office in 1994, Field, who is 39, has become one of Santa Clara’s top prosecutors. He has long said he’d run if and when Kennedy retires, and office insiders say Kennedy has indicated his support for Field as his successor. And given the cases he handles, he expects some grousing. “It does not surprise me if some defense attorneys criticize me,” Field said. “My office has been entirely supportive of me.” Up to a point. “Ben and I are having an ongoing dialogue about how to conduct discovery,” says Kennedy’s lieutenant , Assistant DA Karyn Sinunu. “He is handling discovery differently than he did a year ago.” Kennedy’s office has been dogged with accusations that it is sometimes too aggressive, criticism that reached a crescendo last year when the office said it had imprisoned Rick Walker for more than a decade for a murder he didn’t commit. To Sinunu, Field’s troubles serve as a reminder to the troops: “George Kennedy cherishes open and timely discovery of exonerating evidence.” “I’m being more careful,” says Field.

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