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Report Documents Scope of Prosecutorial Misconduct in California

by Mike Brodheim

In October 2010, the Northern California Innocence Project (NCIP) of the Santa Clara University School of Law published a study regarding the extent of prosecutorial misconduct in California. The study explores the ways in which the criminal justice system identifies and addresses the problem of misconduct by prosecutors, as well as its costs and consequences.

The authors, Santa Clara University School of Law Professor Kathleen Ridolfi, who is the NCIP’s executive director and a former Commissioner on the California Commission on the Fair Administration of Justice, and Maurice Possley, a Pulitzer Prize-winning criminal justice journalist and NCIP Visiting Research Fellow, make a number of thoughtful recommendations in the hope that their comprehensive study will serve as a catalyst for reform and lead to a reduction in the volume of prosecutorial misconduct.

Noting the dual role of prosecutors as advocates in seeking convictions of those they believe guilty of crimes on the one hand, and as “ministers of justice” on the other hand, Ridolfi and Possley make the case that while the majority of prosecutors successfully balance their obligations under those dual roles, some allow their advocacy role to prevail to the extent that they are willing to use deceptive and unfair tactics to secure convictions.

The authors begin with the stirring words of the U.S. Supreme Court, which, in reversing a conviction due to prosecutorial misconduct, observed 75 years ago that the prosecutor “is the representative ... of a sovereignty whose ... interest in a criminal prosecution is not that it shall win a case, but that justice shall be done.” Thus, while a prosecutor “may strike hard blows,” the High Court admonished that “he is not at liberty to strike foul ones.” That is because, as a nation, we have traditionally espoused the view that it is better, on balance, for the guilty to go free than for the innocent to be convicted. However, what actually occurs in our justice system may be contrary to this traditional view – at least in California.

Ridolfi and Possley reviewed more than 4,000 state and federal appellate rulings involving allegations of prosecutorial misconduct, as well as scores of media reports and trial court decisions, covering a time period from 1997 through 2009. Although not explicitly stated in their report, presumably one of the cases reviewed by the authors was that of Antoine Goff, who sits on NCIP’s Advisory Board. Goff, along with co-defendant John Tennison, spent 14 year in prison for a first-degree murder he did not commit after San Francisco police investigators allegedly manufactured false testimony and withheld exculpatory evidence, including the confession of the likely killer.

In a published opinion, the Ninth Circuit affirmed the district court in Goff’s case, which had held, among other things, that the prosecutor has an ongoing duty to ensure that a defendant receives exculpatory evidence that comes to light post-conviction. Goff and Tennison received a combined $7.5 million in post-release settlements with the City and County of San Francisco for their wrongful convictions. [See: PLN, July 2010, p.26].

Ridolfi and Possley found that in about 3,000 of the 4,000 cases reviewed, the courts rejected allegations of prosecutorial misconduct. In another 282 cases, the courts did not determine whether prosecutors’ actions were improper, finding in 204 of those cases that in any event the trials were fair and in the remaining 78 cases that the claim was waived because defense counsel had failed to make a timely or proper objection at trial sufficient to preserve the matter for appellate review.

The authors identified 707 cases in which the courts held that prosecutorial misconduct had occurred. They point out that this number – which averages about one such case every week over the time period examined – undoubtedly underestimates the actual number of cases (because, for example, the failure to disclose exculpatory evidence is not discovered or, due to lack of resources or ineffective counsel, misconduct is not raised as an issue on appeal).

Of the 707 cases where courts found prosecutorial misconduct, in the vast majority (548), the courts held that the misconduct constituted harmless error; that is, the misconduct did not undermine the fairness of the trial. In the remaining 159 cases (just over 20 percent of the 707 cases), the courts found that the prosecutorial misconduct was harmful.

The misconduct was of two general types – improper witness examination and improper argument – and fell into several categories: eliciting inadmissible evidence in witness examination, vouching for a witness’ truthfulness, testifying for an absent witness, misstating the law, arguing facts not in evidence, mischaracterizing evidence, shifting the burden of proof, impugning the defense, arguing inconsistent theories of prosecution, appealing to religious authority, offering personal opinion, engaging in discriminatory jury selection, intimidating a witness, violating a defendant’s Fifth Amendment right to remain silent, presenting false evidence, and failing to disclose exculpatory evidence.

The authors were able to identify 600 of the prosecutors in the 707 cases where misconduct was found to have occurred, whether it was determined to be harmless or not. Of those 600, 67 committed misconduct more than once, three committed misconduct four times, and two did so five times. Yet despite a requirement that courts report misconduct to the state bar when there is a reversal or modification of a judgment as a result of attorney misconduct, only six prosecutors were in fact disciplined – all since 2005 – for conduct arising in the handling of a criminal case.

In contrast, the state bar was not reluctant to discipline non-prosecutors, including criminal defense attorneys. The failure to publicly discipline prosecutors, the authors argue, “sends a message that prosecutors can commit misconduct with impunity.
Prosecutors, in effect, know they can commit misconduct to obtain convictions.”

With many examples, Ridolfi and Possley illustrate the important point that the egregiousness of a prosecutor’s misconduct does not determine the harmfulness of the error. Indeed, since under the appellate courts’ review the result depends on an analysis of the overall trial, the misconduct in harmless error cases can be just as egregious as that in cases where the error was found to be harmful. Thus, very serious misconduct can be deemed harmless.

The authors delineate the costs and consequences of prosecutorial misconduct in financial, emotional, psychological and societal terms. Most obvious – and most harmful – are the consequences when innocent defendants are wrongly convicted (and the true perpetrators thus remain free to commit additional crimes). Further, taxpayers are forced to bear the costs of protracted criminal and civil litigation, plus the costs of wrongful incarceration, while crime victims and their families suffer emotionally by having to relive their pain in wrongful conviction cases. No less critically, prosecutorial misconduct erodes public trust and confidence in the criminal justice system itself.

The authors make a series of recommendations, including, most controversially, 1) the reporting of all egregious prosecutorial misconduct, regardless of whether it is deemed harmless by the courts; 2) identifying (in appellate opinions) the full names of prosecutors found to have committed misconduct; and 3) replacing prosecutors’ current absolute immunity from civil liability with a form of qualified immunity.

This report provides a much-needed examination of the scope of prosecutorial misconduct, the consequences of such misconduct, and remedies that need to be pursued to reduce future incidences of prosecutorial misconduct. Prosecutors, defense counsel, judges and criminal justice watchdog groups should take heed of the report’s findings, and similar studies should be conducted in other jurisdictions. See: Preventable Error: A Report on Prosecutorial Misconduct in California 1997-2009 (NCIP, October 2010). The report is available on PLN’s website.

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