Prosecutorial Misconduct Is Rarely Punished, Says New Study
The National Law Journal
October 05, 2010
Only a tiny percentage of prosecutors who engaged in misconduct were disciplined by the State Bar of California during a 12-year period, according to a report released Monday.
The report, issued by the Northern California Innocence Project at Santa Clara University School of Law, found 707 cases between 1997 and 2009 in which courts explicitly determined that prosecutors had committed misconduct. It examined more than 4,000 cases.
Among the 707 cases, only six prosecutors -- 0.8% -- were disciplined by the State Bar of California. Only 10 of the 4,741 disciplinary actions by the state bar during the same period involved prosecutors.
"In the most populated state in the country, we have a legal system that does not hold prosecutors accountable who have abused public trust," said Kathleen "Cookie" Ridolfi, executive director of the Northern California Innocence Project, in a press release.
The project found that judges often failed to report misconduct to the state bar despite having a legal obligation to do so. Sixty-seven prosecutors committed misconduct more than once and some as many as five times. The majority of those prosecutors were never publicly disciplined, the project said.
"Preventable Error: A Report on Prosecutorial Misconduct 1997-2009," issued by the Innocence Project's Northern California chapter, was written by Ridolfi and Maurice Possley, a visiting research fellow at the project. Possley won a Pulitzer Prize for his reporting at the Chicago Tribune. Ridolfi is a professor at Santa Clara University School of Law.
The report included recommendations for reform. It called for district attorneys to adopt internal policies that do not tolerate misconduct. It also called for the state bar to increase disciplinary transparency.
The State Bar of California issued a written statement in response to a request for comment.
"[P]rosecutorial misconduct as indicated in the Innocence Project report does not always equate with attorney misconduct for disciplinary purposes," the association said. "The State Bar believes that it is disciplining criminal prosecutors where appropriate and where the misconduct was willful and can be establish by clear and convincing evidence." It added that misconduct is a "serious issue" and that the bar association is looking into the assertions made by the Innocence Project.
The report also found that in 282 of the cases, the courts did not decide whether a prosecutor's actions were improper. Instead, they concluded that regardless of the alleged misconduct, the defendant received a fair trial. The Innocence Project reviewed only appellate court rulings and a few other cases.