Prosecutors Say They’re Just Easy Targets

“There’s an old axiom,” Deputy Dist. Atty. Josephine Kiernan said last week. “When you don’t have the facts on your side and you don’t have the law on your side, what you do is attack the prosecution or attack the police officers.”

Like many of her colleagues in the district attorney’s office, Kiernan says most charges of prosecutorial misconduct are groundless--that they are tactical flourishes by defense attorneys with weak cases.

Kiernan insists she was the victim of just such an attack in the 1982 case of Jerry Paul Barr, a career criminal charged in a series of robberies.

At first, Barr represented himself. But when attorney Barton Sheela III was appointed to assist him, the defense lashed out at Kiernan. Sheela alleged that Kiernan resisted Barr’s efforts to obtain qualified counsel, manipulated witnesses, conducted an intimidating investigation of Barr’s girlfriend, failed to disclose evidence that could have aided the defense, and privately contacted a judge about the case without informing the defense.

Kiernan’s conduct, Sheela said in a motion to remove her from the case, “has--perhaps irreparably--threatened defendant’s right to a fair trial.”

The motion failed. The district attorney’s office argued that Sheela’s web of charges was without merit.

“It amounts to a potpourri of innuendo, half-truths and false inferences primarily designed to malign (Kiernan) and the office of the district attorney,” Deputy Dist. Atty. Henry Mann said in a written response to the allegations.

Later, the trial judge held that Kiernan’s aggressive questioning of witnesses constituted misconduct. An appellate court agreed but said the errors were not sufficient grounds for throwing out Barr’s conviction.

Kiernan said her supervisors never analyzed the case as possible grounds for discipline; the allegations of misconduct were a legal argument, she said, and they were answered in the courtroom, not the woodshed.

“I looked at it . . . (as) a tactical maneuver to sidetrack me from my job, which is to prosecute the case in an appropriate fashion,” Kiernan said.

Deputy Dist. Atty. Susan Biery faced accusations of misconduct in prosecuting a child molestation case last year.

Both sides traded bitter charges in court papers over their opponents’ conduct in the sensitive case, which required testimony from young children. Defense attorney Steven Feldman asked that Biery be held in contempt of court for privately asking a Superior Court judge to release evidence--two anatomically correct dolls used by molestation investigators--after a Municipal Court judge had ordered them held in court, at Feldman’s request.

A hearing was conducted, and Biery was cleared of misconduct. But a judge found that she had engaged in “impropriety” by violating a court rule in removing the dolls from court.

Like some of her colleagues, Biery complains that defense lawyers can get away with personal attacks and groundless criticism while prosecutors, as public officials, are restrained in their ability to respond.

“Defense attorneys just out of hand can accuse you of something without any substance,” she said.

But Biery insists that prosecutors know better than to jeopardize cases--and their jobs--by playing fast and loose with legal ethics.

“We don’t want problems like this,” she said. “It’s just not worth it to risk an entire career on one case, no matter how important the case.”