Why The Bad Prosecutors Never Pay: California Disciplines About One Percent Of Prosecutors Identified For Misconduct

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To find out more on that "why," the Northern California Innocence Project is hostingInnocence Matters Breakfast Briefings this Fall.Once again, Blogger and I are not getting along when it comes to page breaks, so please bear with me until I figure out how to fix this.Join NCIP for its September 12, 2012 Breakfast Briefing, Absolute Immunity vs. Qualified Immunity: Why the Bad Prosecutors Never Pay. Margaret Johns, UC Davis Law Senior Lecturer, will discuss the history of absolute immunity and explain why the lesser qualified immunity could be the better solution for addressing prosecutors who commit misconduct. Coffee and pastries starting at 7:30 am; presentation from 8:00-9:00 am. General admission is free (registration is required); attorneys can receive 1 hour of MCLE credit for $20. Click here to register or call 408-551-3000 x 5604.Click here for more information.Prepare questions by studying this extensive report. Preventable Error:A Report on Prosecutorial Misconduct in California 1997–2009(The entire report is in .pdf form at the link.)(From the report)The problem of prosecutorial misconduct is even more critical today. Scores of academic articles and books, as well as the media, have documented the extent to which some prosecutors continue to use the very tactics the Supreme Court decried, as well as others, to obtain convictions. To more fully document the scope of the problem, the Northern California Innocence Project (NCIP) engaged in a comprehensive analysis of publicly available cases of prosecutorial misconduct in California, reviewing more than 4,000 state and federal appellate rulings, as well as scores of media reports and trial court decisions, covering the period 1997 through 2009. This study—the “Misconduct Study”—is the most in-depth statewide review of prosecutorial misconduct in the United States. NCIP’s examination revealed 707 cases in which courts explicitly found that prosecutors committed misconduct. In about 3,000 of the 4,000 cases, the courts rejected the prosecutorial misconduct allegations, and in another 282, the courts did not decide whether prosecutors’ actions were improper, finding that the trials were nonetheless fair. Identifying 707 cases in which prosecutorial misconduct was found—on average, about one case a week—undoubtedly understates the total number of such cases.These 707 are just the cases identified in review of appellate cases and a handful of others found through media searches and other means. About 97 percent of felony criminal cases are resolved without trial, almost all through guilty pleas.Moreover, findings of misconduct at the trial court level that are not reflected in appellate opinions cannot be systematically reviewed without searching every case file in every courthouse in the state. And of course, the number cannot capture cases of prosecutorial misconduct that were never discovered (for example, failure to disclose exculpatory evidence) or appealed (due, for example, to lack of resources or ineffective counsel). The Misconduct Study’s findings as to the results in these 707 cases were as follows:In the vast majority—548 of the 707 cases—courts found misconduct but nevertheless upheld the convictions, ruling that the misconduct was harmless--that the defendants received fair trials notwithstanding the prosecutor’s conduct. Only in 159 of the 707 cases—about 20 percent—did the courts find that the misconduct was harmful; in these cases they either set aside the conviction or sentence, declared a mistrial or barred evidence. The Misconduct Study shows that those empowered to address the problem—California state and federal courts, prosecutors and the California State Bar—repeatedly fail to take meaningful action. Courts fail to report prosecutorial misconduct (despite having a statutory obligation to do so), prosecutors deny that it occurred, and the California State Bar almost never disciplines it. Significantly, of the 4,741 public disciplinary actions reported in the California State Bar Journal from January 1997 to September 2009, only 10 involved prosecutors, and only six of these were for conduct in the handling of a criminal case. That means that the State Bar publicly disciplined only one percent of the prosecutors in the 600 cases in which the courts found prosecutorial misconduct and NCIP researchers identified the prosecutor.Further, some prosecutors have committed misconduct repeatedly. In the subset of the 707 cases in which NCIP was able to identify the prosecutor involved (600 cases), 67 prosecutors–11.2 percent—committed misconduct in more than one case. Three prosecutors committed misconduct in four cases, and two did so in five cases.