Misconduct by prosecutors frequently goes unreported and unpunished in California, according to a study released last week.
The courts are required to notify the California State Bar of prosecutorial wrongdoing only when it results in an overturned conviction. Meanwhile, 78 percent of documented courtroom misconduct cases last year did not reverse a jury verdict, and therefore were termed “harmless errors,” the Northern California Innocence Project has found.
The organization’s report, “Preventable Error – Prosecutorial Misconduct in California 2010,” shows these errors “included violating defendants’ rights to silence, improperly questioning witnesses and defendants, presenting false evidence, and making improper arguments to juries.”
The 2010 report is an update of the innocence project’s examination of cases from 1997 to 2009.
Prosecutors are at little risk of discipline unless the transgressions significantly undermine evidence against the defendant.
From that, district attorneys’ offices get the message that “misconduct is permissible as long as the person is really, really guilty,” said Maurice Possley, a visiting research fellow at the innocence project, which is based at Santa Clara University’s law school.
Possley and Jessica Seargeant, the report’s co-author, found 102 cases of prosecutorial misconduct that were confirmed in 2010. That figure represents a tiny percentage of roughly 6,000 criminal cases that go to trial each year in California.
“We believe that most prosecutors are ethical and do their best to try to do their jobs correctly,” Possley said. “It’s just that the system’s broken down.”
The State Bar agrees, at least to an extent, and is responding to the innocence project’s work.
"As a result of those reviews, we determined that we are going to open investigations in a modest number of cases and, if warranted, bring charges against the lawyers involved," said Jim Towery, chief trial counsel for the State Bar told CNN.
The State Bar does not disclose its investigations unless they result in action against an attorney. Information on the organization’s website shows that many of the prosecutors that committed misconduct at trial still have clean records with the State Bar.
In a 2008 homicide case, the trial court judge repeatedly admonished Sonia Balleste, an Orange County deputy district attorney, for showing evidence that had been barred and making inappropriate statements about the defendant. The California Court of Appeals upheld the conviction in the case, but confirmed that Balleste committed misconduct.
Balleste did not return a call for comment on Friday.
The appellate judges wrote in their opinion:
The trial court did indeed express exasperation with the prosecutor several times, and on one occasion observed outside the presence of the jury, ‘It just seems to me the [prosecutor is] willing to go to any length, whether it's permissible or impermissible to try to convict this defendant. I don't understand why. You have a great case. There is no reason to continually, intentionally violate the rules.’
Her State Bar profile page states that she has never been reprimanded.