In California, the odds that a prosecutor will face discipline for misconduct in a criminal case are miniscule.
An analysis of appellate cases and media reports [PDF] released this week by the Northern California Innocence Project revealed that from 1997 to 2009, the courts found prosecutorial misconduct in 707 cases. But here's what happened:
"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."
Despite these rulings of misconduct, the report said, "those empowered to address the problem — California state and federal courts, prosecutors and the California State Bar — repeatedly fail to take meaningful action."
According to the report, of the 4,741 public disciplinary actions reported in the California State Bar Journal, only 10 involved prosecutors, and only six of these were for conduct in the handling of a criminal case. That’s less than one percent of the 600 cases in which the courts ruled prosecutors had violated rules (such as withholding evidence) and where researchers were able to identify the prosecutor.
In total, the report found that in 282 cases where prosecutors were accused of misconduct, the appellate court declined to examine the allegation, but found that the trials themselves were fair.
According to the study, judges used two justifications for passing on the prosecutorial misconduct questions. Most common, the jurists decided that the alleged violation would not affect the verdict, so there was no cause for further inquiry.
That doesn’t mean the misconduct was irrelevant, as this excerpt from the study shows:
For example, in the case of Anaissa Gerwald, the prosecutor, by suggesting that the defendant had failed to produce evidence, violated the rule precluding prosecutors from commenting on a defendant’s right to remain silent.
The presiding judge dressed down the prosecutor, saying, ‘You are really on thin ice. As a defendant [Gerwald] has no obligation to ever do any of that. It’s almost—I mean it’s almost mistriable [sic].’
Yet the Court of Appeal avoided reaching the prosecutorial misconduct issue, holding: ‘Even if the prosecutor committed misconduct … any error was harmless beyond a reasonable doubt.’
Other allegations were shelved because defense attorneys failed to properly call out the misconduct during trial.
Cookie Ridolfi, the study’s co-author and a Santa Clara University law professor, argues that any instance of prosecutorial misconduct should be targeted, regardless of whether it impacts the final results.
Not doing so “reflects the wrong attitude by our courts,” Ridolfi said. “I think the courts, part of their job is to make clear what the laws are, and to just disregard, to ignore, obvious misconduct is really an imprimatur. It tolerates it and in that sense, condones it.”
The study, titled “Prosecutorial Misconduct in California,” has come under criticism from prosecutors and the state bar for suggesting misconduct is rampant.
In fact, the study states that judges found no basis in about three-fourths of all misconduct allegations during the period reviewed.
The state bar recently approved 67 new ethics rules that apply to all Golden State attorneys. California’s regulations for attorneys are the only in the nation not based on the American Bar Association’s “Model Rules.”
And attorneys here continue operate under a more lax set of rules than their peers in other states. As the California Bar Journal reports:
The snitch rule: Model Rule 8.3 requires a lawyer to report certain misconduct committed by another lawyer, as long as the lawyer does not disclose information otherwise protected under the duty of confidentiality. The current California rules have no such requirement and the rules adopted by the board of governors will continue the status quo. Attorneys will not become their brother’s keeper.
And regarding discipline:
Competence: The Model Rule broadly states that a lawyer shall provide competent representation to a client. The current California rule has a more precise formulation that subjects a lawyer to discipline only if incompetent conduct is reckless, repeated or intentional. The key difference is possible disciplinary exposure for single acts of simple negligence. Under the Model Rule language this is possible, but under the California rule, more egregious conduct must be shown.