The Northern California Innocence Project at Santa Clara University School of Law has released a troubling study of prosecutorial misconduct in California. The report, “Preventable Error: A Report on Prosecutorial Misconduct in California 1997-2009,” opens by pointing out that of course the majority of prosecutors behave ethically, but then it dives right into more than a hundred pages of statistics and analysis of a systemic and system-wide crisis, and the ineffectual attempts to deal with it. (For those in a hurry, the 8-page executive summary is here.)
The period of this study coincides with our own career — we got our JD in ’97, and spent the next several years prosecuting before joining the side of the angels. We were intrigued to see if the results of the California study meshed with our experiences in New York. (The overwhelming majority of our colleagues at the Manhattan DA’s office were extremely ethical and took such things seriously, but we did have occasion to note and object to certain practices. On the defense side, dealing with all kinds of state and federal offices, we’ve seen more sloppiness and lack of judgment than actual misconduct, though again there has been the occasional bad act.)
The study reviewed a sample of 4,000 cases during that 12-year span, where an appellate court was asked to make a finding of prosecutorial misconduct — the most in-depth such study anywhere, ever — and found 707 where a court decided there really had been misconduct. As the summary puts it, that’s about a case a week. When you consider the simple fact that only the rarest case of prosecutorial misconduct gets appealed — only about 3% of cases even go to trial — plus the fact that a great deal of such misconduct can never be discovered by the defense (such as Brady violations), the true quantity of misconduct must necessarily be a dramatic multiple of the study data.
Most of the prosecutors who commit misconduct, the study found, do so repeatedly. Why? Because they get away with it. They almost never get caught. And when they do get caught, there aren’t any personal repercussions. Disciplinary action is so rare as to be practically unheard of. And civil liability isn’t going to happen, because they have absolute immunity for their official conduct.
The study concludes that “the scope and persistence of the problem is alarming. Reform is critical.” It’s not a problem just of a few rogue prosecutors. It’s a problem of the judges who don’t deal with it, a system that doesn’t deter it, offices that don’t stop it. It’s the problem of the good prosecutors, whose authority and trust suffer by association. It’s the problem of the innocent, who find themselves convicted time and again because the prosecutor sought a victory rather than justice. It’s the problem of the guilty, who are denied their rights to due process and constitutional protections. And it’s the problem of the criminal justice system, which relies entirely on prosecutors doing their job right in order for the system to function at all.
What reforms do they suggest? Revised ethical rules, for one, to bring them more in line with the ABA’s model rules. Some actual disciplinary action by the state bar, when the rules are broken. Replacing absolute immunity with immunity only for official conduct that wasn’t misconduct. Better reporting of misconduct findings, including the prosecutor’s name and the kind of violation. Better ethical training for prosecutors, and internal procedures for preventing and dealing with misconduct. It’s all pretty much common-sense stuff, already in practice in plenty of states.
It’s a shocking report. The players in California’s criminal justice system need to get their act together, and fast. This is a wakeup call — let’s hope they heard it.