Former deputy district attorney's conduct reviewed in four cases.

Byline: Bill Bishop The Register-Guard

Prosecutors and defense lawyers agree that mistakes happen most often in the heat of trial, when lawyers are exerting their greatest energy to persuade a jury.

A prosecutor's mistake or misdeed can make the difference between a fair trial and one that violates the legal standards protecting the rights of all citizens. Appeals courts are the safety net in most cases.

In other cases, when alleged misconduct happens behind the scenes, state bar associations are expected to investigate and discipline lawyers - including prosecutors - for ethical and legal violations.

The Center for Public Integrity, in a study of three decades of misconduct by prosecutors nationwide, found 44 instances that resulted in discipline for a prosecutor. Two prosecutors were disbarred, 12 were suspended and 20 received a public reprimand, according to the center study.

Brian Barnes, a deputy Lane County district attorney for 15 years until 1990, was publicly reprimanded by the state bar association in the case of David Andrew Jones, a defendant in a 1975 rape case. The Oregon State Bar has disciplined 10 prosecutors in the past 20 years for ethical violations, according to bar records.

The center also cited seven Lane County appeals that alleged prosecutorial mistakes or misconduct in cases ranging from rape to aggravated murder. Barnes handled four of those cases, including the Jones rape trial.

In that case, Barnes asked a judge for a search warrant to get a sample of Jones' blood without telling the judge that a hearing was pending before another judge on the same issue. A bar investigation determined Barnes violated a lawyer's ethical obligation to fully inform a judge about the circumstances of a case.

The bar discipline panel said its ruling was "an extremely close call" because - as Barnes contended - prosecutors have a legal right to a search warrant if there's good reason to believe evidence of a crime will be found.

In the same case, Barnes committed a "harmless error" when he referred to Jones as "the animal" during his opening statement to the jury, according to the center's study. Lawyers are ethically barred from making inflammatory statements to jurors.

Appeals courts describe prosecutors' misconduct as "harmless" when it most likely wouldn't have affected the verdict.

"Jones was a serial rapist," Barnes said in a recent interview. "He brutally raped and, in my opinion, caused the emotionally insecure and youthful victim to shortly thereafter commit suicide. The comment was deemed harmless by the trial judge."

Jones was sentenced to 30 years in prison as a dangerous offender and the case was upheld on appeal, Barnes said. Jones, 59, remains in prison. His earliest possible release date is in 2010, according to prison records.

Other Barnes cases

In a 1980 case, the center's study found Barnes committed harmless error when he cross-examined a psychiatrist testifying for the defense in the murder trial of Rex Lee Larsen, a prison escapee who ultimately was convicted of murdering a Springfield cab driver.

The jury had already heard testimony that Larsen had been a suspect in a 1976 murder in California when Barnes asked the psychiatrist whether Larsen might have run away from a work-release center to return to California to kill a witness in that case.

Larsen's defense lawyer objected, saying the question wasn't supported by any evidence. The trial judge sided with the defense lawyer, but declined to order a new trial. Barnes said his question was hypothetical and neither the trial judge nor the appeals court found the question to be misconduct.

However, in a fatal 1982 car bombing case that Barnes prosecuted, the Oregon Supreme Court determined Barnes violated the rights of defendant Terry James White. The court ordered a new trial after White appealed his aggravated murder conviction.

In that trial, as White testified in his own defense, Barnes asked him why he had refused to testify in the trial of a co-defendant who had been convicted in the case.

Defendants generally have a constitutionally protected right to choose whether to testify and prosecutors are banned from speculating in front of the jury about the reasons behind a defendant's decision.

Barnes said he believed White had given up his right against self-incrimination under a statute that was in force at the time. The statute was repealed soon after the trial, and the high court granted a new trial for White, Barnes said.

White then pleaded guilty to felony murder and arson and was sentenced to life in prison plus 20 years. He remains behind bars.

The fourth and most recent case involves the infamous murder conviction of Eric Anthony Proctor who - with co-defendant Christopher Blaine Boots - spent eight years in prison for the murder of a convenience store clerk before an informant led police to the real killer. Both were released in 1994.

In the Proctor trial, the high court found Barnes erred in closing arguments when he demonstrated to the jury that a fingerprint on the tape that bound the victim's hands could have been transferred there by some other means than being touched by the killer. The fingerprint matched neither Boots nor Proctor, but did match a man who committed suicide in 1994 when police reopened their investigation into the killing.

Barnes said witnesses discussed the fingerprint transfer in Proctor's trial, but the appeals court ruled Barnes improperly used tape and a beverage carton that weren't admitted as evidence in his demonstration during closing argument. However, the court ruled the error was harmless to the trial outcome.

Boots and Proctor were convicted in separate jury trials for aggravated murder and sentenced to life with a minimum of 20 years in prison. Oregon's death penalty statute wasn't in force when the murder happened.

Remaining three cases

In a fifth Lane County case, an appeals judge ordered a new trial on a 1970 incest charge handled by former Lane County District Attorney Pat Horton.

The judge ruled Horton improperly questioned a witness - the victim's mother - to make it appear she was lying and failed to tell the defense lawyer that another witness - the victim's runaway brother - had been found in the midst of the trial and would testify.

Horton said the mother of the 12-year-old victim was lying to cover up her husband's rapes of the girl. The couple had terrorized their 15-year-old son and forced him to leave home to keep him from testifying, Horton said. The boy was a key trial witness after investigators found where he had gone, he said.

But Horton didn't immediately disclose to the defense lawyer that the boy had been found. Horton went ahead with questioning the victim's mother as though the boy wouldn't be available to testify, according to the appeals court record. The appeals judge ruled that Horton's tactics violated the defendant's right to a fair trial.

Horton, now retired, said he always has felt the appeals judge was wrong. He said he has no regrets about the case.

"It was a wrong opinion," he said. "I'm not a bit contrite about it. Never have been."

After the appeals court threw out his conviction, the defendant pleaded guilty to a lesser charge rather than face retrial.

In a sixth Lane County case, stemming from a drunken driving arrest in 1983, the appeals court record doesn't reveal the name of the prosecutor involved.

The appeals court concluded there was no misconduct or error in the case. Many appeals court rulings don't include prosecutors' names, center officials noted.

In the final Lane County case, defendant Anthony Arnold Charles claimed prosecutorial misconduct in his 1981 murder trial. The appeals court found "no evidence whatsoever" of misconduct, according to the court's ruling.