Legal Ethics

Study: Calif. Courts Discipline Prosecutorial Misconduct Less Than 1% of the Time

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The State of California—from its judges to the bar association—does not take prosecutorial misconduct seriously, and the result is that an increasing number of innocent people have been sent to prison, taxpayers are forced to pay millions and millions in litigation costs, and public confidence in the criminal justice system is undermined, according to a new study by the Northern California Innocence Project.

The study, released today, examined more than 4,000 state and federal appellate decisions between 1997 and 2009 in which allegations of misconduct by prosecutors were raised.

The 113-page report, called “Preventable Error: A Report on Prosecutorial Misconduct in California 1997-2009” identified 707 cases in which the courts found that prosecutors had committed misconduct. However, the courts reversed only 159, or 22 percent, of those convictions—holding that the misconduct in the other 582 was harmless error. See the executive summary (PDF) of the report for more details.

Sixty-seven prosecutors were found to have committed misconduct more than once, according to the study, while three prosecutors committed misconduct in four cases and two prosecutors committed it in five cases.

In addition, the report states that the California State Bar Association has publicly disciplined only six prosecutors for misconduct during the past dozen years or less than 1 percent of the 707 times in which courts have found that prosecutors did commit misconduct.

Study co-author Kathleen Ridolfi, a law professor at Santa Clara University says “most prosecutors are doing their job ethically and professionally,” but that some prosecutors commit misconduct repeatedly because they know there is little chance they will be caught and even less likely they will be punished, especially because prosecutors have absolute immunity from civil liability.

“We have serious problems with prosecutorial misconduct in California, and it is not being addressed,” Ridolfi says. “These cases are just the tip of the iceberg.”

The study found that the prosecutorial misconduct occurred in all kinds of cases—from murder trials to DUIs. The two most common forms of misconduct were improper arguments to the jury—making inadmissible statements or improperly endorsing the credibility of witnesses—and failure to disclose exculpatory evidence.

The report recommends that prosecutors be required to take increased ethics training, that judges be required to report findings of prosecutorial misconduct to state bar disciplinary officials and that judges be required in their written opinions to identify by name prosecutors who commit misconduct.

California District Attorneys Association CEO Scott Thorpe says that his group plans to study the report, but cautions that “statistics can be manipulated to show anything.” He points out that many of the appellate cases cited were actually tried in the 1980s and early 1990s, when the impact of the 1963 Brady v. Maryland decision was still evolving.

“A key problem with the study is that it doesn’t differentiate between the levels of misconduct,” says Thorpe. “There is a difference in the kinds of misconduct, which is why the courts found most of these cases to be harmless.”

Thorpe also says that the district attorneys association also conduct significant amount of ethics and professionalism training for its prosecutors.

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