Towards Prosecutorial Accountability

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reisig-2009When Jeff Reisig ran for re-election this year, part of his focus had been on “increased conviction rates.”  He writes on his webpage, “Jeff has improved efficiency in the District Attorney’s Office, lowered crime rates, increased conviction rates, put more violent felons behind bars and dramatically improved services to victims of crime.”

In an October 2009 article in the Woodland Daily Democrat, again he “cited a 90 percent conviction rate” during a fundraising event.  Again in March, he emphasized, “the highest conviction  rate  in more than a decade.”

However, a group called The Justice Project argue, “All too often, prosecutors’ offices fall prey to a culture of conviction-seeking at all costs. Prosecutors who become singularly focused on conviction rates often neglect their ethical duty to protect the innocent and guard the rights of the accused.”

They cite Kern County, “the office ‘has had the highest per capita prison commitment rate of any major California County.’ What the office fails to highlight is the startling twenty five wrongful convictions that the office has accrued during Jagel’s tenure as District Attorney.”

Sound familiar?  According to the Justice Project, “The troubling culture apparent in the Kern County office is not the exception. Due in large part to the public pressure to convict and the widespread failure of state bars and disciplinary agencies to hold prosecutors accountable for ethical violations, this culture of  ‘convict at all costs’ is a nationwide problem.”

“With the unique role as both advocates and ministers of justice, prosecutors are the most powerful actors in our justice system,” they continue.  “Prosecutors have sole responsibility for decisions regarding what charges to bring against an individual, what sentence to seek, what plea bargain to offer, and what evidence to present to a jury during trial. Yet despite their power, they are rarely held accountable for violating their ethical obligations. This lack of accountability promotes the problematic culture that plagues prosecutors’ offices and contributes to wrongful convictions.”

Why focus on prosecutorial accountability?  Certainly our exhaustive reporting over the past eight months and prior shows that all levels of the Yolo County Judicial System need an overhaul.  However, the most powerful element in the criminal justice system is not the judges or the jury, but rather the prosecutor.

“Prosecutors are arguably the most powerful figures in the American criminal justice system. Prosecutors decide which charges to bring, what plea bargain to offer, and what sentence to request. Their decisions have far-reaching consequences on defendants, victims, their respective families, and the general public. Given the special duties of prosecutors, and the broad power they exercise in the criminal justice system, it is critical that prosecutors discharge their duties responsibly and ethically,” writes the Justice Project.

They go on to cite recent studies that show that prosecutorial misconduct is a “systemic reality within the criminal justice system.”  They cite research to this effect.  “In 2003, a study conducted by the Center for Public Integrity found that prosecutorial misconduct was a factor in dismissed charges, reversed convictions, or reduced sentences in at least, 2,012 cases since 1970. In 28 of those cases, involving 32 separate defendants, prosecutorial misconduct led to the wrongful conviction of innocent individuals. In 1999, a national study conducted by the Chicago Tribune found that between 1963 and 1999, the courts dismissed homicide convictions in 381 cases because prosecutors suppressed exculpatory evidence or presented false testimony,” they write.

They also make recommendations to ensure prosecutorial accountability.

The Justice Project’s Recommendations to Ensure Prosecutorial Accountability

  • States should require that prosecutors’ offices adopt and enforce clearly-defined official policies and procedures.
  • States should require open-file discovery in criminal cases.
  • States should require that prosecutors document all agreements with witnesses and jailhouse informants concerning conferment of benefits of any kind.
  • States should require trial and appellate judges to report all cases of prosecutorial misconduct, including cases where the misconduct is ruled to be harmless error.
  • States should establish a prosecutor review board with the power to investigate allegations of misconduct and impose sanctions.
  • States should require that prosecutors participate in training and continuing education programs.

Clearly there is no simple solution here, but if we take this issue seriously, we ought to consider implementing these issues.

The problem, as a blog, Gamso – For the Defense, who claims to be an Ohio criminal defense lawyer writes, is that prosecutors really do not care if the wrong person is convicted.

He argues, why would a prosecutor not want to make sure that the guilty have been punished rather than the innocent?  He cites seven cases including “one where the convicted person was dead, three where the people were no longer in prison but hoped to clear their names, one of a man on death row, and two of other current prisoners.”  In this case, letters were sent by the Governor and the Attorney Attorney to seven prosecutors in Ohio “urging each of them to permit DNA testing in a particular case where they’d opposed it.”

“I really think it’s irrational not to take advantage of methods that could establish either guilt or innocence when those technologies are available to us,” Ohio Governor Ted Strickland told The Columbus Dispatch. “I can think of no good argument why anyone would be denied DNA testing if, in fact, there is a reasonable or relevant opportunity to bring clarity to whether or not someone is guilty of a crime.”

However, a few days ago, the Columbus Dispatch reported, “Several prosecutors urged to permit DNA testing in specific criminal cases are firing back at Gov. Ted Strickland and Attorney General Richard Cordray, accusing them of “political grandstanding” and taking sides against victims.”

The report continued, “Four of seven prosecutors in the cases under scrutiny, as well as the Ohio Prosecuting Attorneys Association, sent critical letters in response to Strickland and Cordray’s requests this week.”

“Thus far, none has agreed to what was acknowledged as a voluntary request for DNA testing. John Murphy, head of the prosecutors’ association, said he was ‘deeply dismayed and surprised’ that prosecutors were not consulted in advance,'” the Dispatch reported.  “‘The action you have taken unfortunately gives the impression that you have taken sides, and you have done so with only the convicted criminals’ side of the arguments,’ he told Strickland and Cordray.”

Again, it would seem that prosecutors would want to punish the guilty and exonerate the innocent in the name of justice.  They, after all, purportedly represent the people.  And what do the people gain from having innocent people, or potentially innocent people (since we do not even know if they are or are not), in prison?  And yet, here we go again.

As we will see likely on Tuesday, sometimes it is not even about putting the guilty people in prison, sometimes it is simply about getting more money for the DA’s office to play with.  But more on that on Tuesday if the story is ready for publication by then.

In the meantime, given the immense power of prosecutors and the apparent political incentive to get prosecutions at all costs, perhaps we ought to have more serious oversight over the system.

—David M. Greenwald reporting

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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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32 thoughts on “Towards Prosecutorial Accountability”

  1. Roger Rabbit

    Great points. Some points that were mentioned is the influence the DA has over police officers, police departments, council members and other politicians in the area. The DA has total control over the media and what information he shares. No one wants to appear to stand up to or go against a DA since he has to ability to start and conduct criminal investigations. So a Judge, a political figure, a police chief or police officer can have serious negative implications if the DA initiates a criminal investigation and then leaks it to press. The mere implication that you are being criminally investigated does tremendous damage and puts your credibility into question.

    Which is why this tactic is so widely used and is so effective. Once an investigation is “leaked”, then the DA only makes statements that “he can’t discuss the facts since it is an on-going investigation”. So the person being investigated is put under a negative spotlight about being criminally investigated. However, no information is ever giver or required about how the investigation started, what the facts are, if charges will be filed, if the investigation is closed, if the person is cleared or other facts that could clear the targeted person.

    This cowardly act is commonly used and the general public has no clue how under handed, sneaky and destructive this act is, but the DA uses this cheap tactic without accountability and to instill fear in others that question or call him out for ethics violations. By creating this fear and possibility that you will be “investigated” keeps many people from coming forward with damaging information on the DA.

    There is no oversight of DA’s, they are not accountable to anyone except once every four years and normally that is when they do all their mass press releases about how good they are, their tough conviction rate and how they have made people safe. If the voters really knew what DA’s really did behind the scenes to get their high conviction rates, not too many DA’s would get re-elected, which would be a good thing, the longer a DA is allowed to use his power, fear and control, the more he will use it and the cycle continues.

    Great article and thanks for trying to really educate people to what really happens “behind the scenes.”

  2. Primoris

    [quote][However, no information is ever giver or required about how the investigation started, what the facts are, if charges will be filed, if the investigation is closed, if the person is cleared or other facts that could clear the targeted person./quote]

    Is that so? What is current policy @ DPD re: officer investigations. Are you familiar at all?

  3. Primoris

    [quote]There is no oversight of DA’s, they are not accountable to anyone [/quote]

    In CA = State Bar.

    You mean you don’t like judges and obviously lawyers policing themselves? BTW, who holds physicians accountable?

  4. E Roberts Musser

    “”Prosecutors are arguably the most powerful figures in the American criminal justice system.”

    Actually law enforcement is just as powerful, since they decide whether to bring the initial charges or not. Law enforcement has a lot of discretion…

    “However, a few days ago, the Columbus Dispatch reported, “Several prosecutors urged to permit DNA testing in specific criminal cases are firing back at Gov. Ted Strickland and Attorney General Richard Cordray, accusing them of “political grandstanding” and taking sides against victims.”

    It is not surprising that DAs would not want to be proven incorrect in having obtained a wrongful conviction – it would hurt the DAs reputation/could get the DA fired or a DA’s chances of getting re-elected to a pretty lucrative job.

    roger rabbit: “There is no oversight of DA’s…”

    Yes there is, the voters and the appellate courts… but as in other professions, usually DAs, politicians, higher ups in gov’t agencies, etc who get caught in wrongdoing get a slap on the wrist if anything…

  5. Mr Obvious

    [quote]What the office fails to highlight is the startling twenty five wrongful convictions that the office has accrued during Jagel’s tenure as District Attorney.”

    Sound familiar?[/quote]

    Not really. I haven’t heard of any wrongful convictions, much less 25.

    [quote]In 1999, a national study conducted by the Chicago Tribune found that between 1963 and 1999, the courts dismissed homicide convictions in 381 cases because prosecutors suppressed exculpatory evidence or presented false testimony,” they write.
    [/quote]

    Doesn’t that show that the judicial system is working?

    [quote]In the meantime, given the immense power of prosecutors and the apparent political incentive to get prosecutions at all costs, perhaps we ought to have more serious oversight over the system.[/quote]

    What percentage of cases are charges not filed prior to going to court? The DA’s office has the authority do dismiss charges prior to court proceedings. Is it possible the DA is only prosecuting cases they believe are winnable?

    The reoccurring theme of this article is “prosecutorial accountability”. With the many accusations that the DA’s office isn’t playing fair why haven’t we seen a push by YJW for the defense attorneys to cry foul when the DA’s office does something illegal or unethical. Defense attorneys are in court all day everyday and are more educated about the process than the average person. If the DA’s office isn’t playing by the rules then we would see convictions overturned on appeal because of prosecutorial misconduct or insufficient representation.

    If defense attorneys are not providing adequate defenses to the accused and prosecutorial misconduct could be proven in the appeals process I’m sure we would be hearing about it, if no other way than through this site. To this date I have heard no such substantiated claim, other than lay persons opinion, to prove the DA’s office has done anything illegal or unethical in our criminal courts.

  6. biddlin

    According to The Innocence Project’s study of the first 70 death penalty cases reversed: Over 30 of them involved prosecutorial misconduct. 37% of the prosecutorial misconduct cases involved suppression of exculpatory evidence. 25% involved knowing use of false testimony. That’s just in death penalty cases.

  7. Roger Rabbit

    [quote]Over 30 of them involved prosecutorial misconduct. 37% of the prosecutorial misconduct cases involved suppression of exculpatory evidence. 25% involved knowing use of false testimony. That’s just in death penalty cases. [/quote]

    That sounds familiar, didn’t two cops in the DA’s office report this DA for that exact thing?

    [quote]

    The DA has total control over the media and what information he shares.

    ROFLOL
    [/quote]

    When you stop laughing tell me who controls what the DA’s office tells the media?

  8. David M. Greenwald

    [quote]The DA’s office has control over what they release but that is a far cry from having total control over the media.[/quote]

    While correct, I think the objection is that the local newspapers often just reprint the DA’s stories verbatim. That’s certainly the newspapers’ problem, but I think it reasonably give rise to such complaints.

  9. JustSaying

    Is this article about Jeff Reisig? I see his picture. I see his name in the opening sentence, noting his record of “improved efficiency…lowered crime rates, increased conviction rates, put more violent felons behind bars and dramatically improved services to victims of crime.”

    Is this article about Jeff Reisig? Oh, yeah, The Justice Project has got something on him…oops, no they’re talking about other communities around the country.

    Is this article about Jeff Reisig? “What the (Kern County) office fails to highlight is the startling twenty five wrongful convictions that the office has accrued during Jagel’s tenure as District Attorney.” ” Sound familiar?”

    David, please report the number of wrongful convictions Reisig has had overturned in the 13 years he has been Yolo Co. DA. Does it even approach the Kern rate? If so, our local situation could “sound familiar” to that of the so-called worst District Attorney ever. Without telling how many Reisig convictions have been overturned, raising the “sound familiar?” question is more tabloid technique than the serious blog you’ve been managing for four years deserves. Whatever problems you have with Reisig, charging guilt by non-association isn’t a convincing way to present them.

    No, this article is not about Jeff Reisig. Whatever problems you have with him, charging guilt by non-association isn’t a convincing way to present them.

  10. David M. Greenwald

    It’s actually an article about prosecutors, since Reisig is the DA, his picture is on the article.

    In terms of numbers overturned, one thing I would point out Reisig has only been DA since 2007, so he has not even been DA for four years. Based just on what I have seen in the last year, my guess is a healthy number of these get overturned. We’ll find out.

    But no, this was an article about prosecutorial accountability, and Reisig is our prosecutor.

  11. Mr Obvious

    [quote]While correct, I think the objection is that the local newspapers often just reprint the DA’s stories verbatim. That’s certainly the newspapers’ problem, but I think it reasonably give rise to such complaints. [/quote]

    I would say it gives rise to the complaint bu those who are uninformed, firebomb throwing individuals who are unable to view both sides of an issue. Incessantly stating the DA is bad with no proof is the same way individuals who immediately claim racism in any argument without proof.

    You admit that the DA doesn’t control the media, blame the local paper for printing what the DA provides, then say one can make the argument that the DA controls the media. It can’t be both ways.

  12. jimt

    Could not a higher conviction rate also be attributable to more careful screening of cases for prosecution?

    In other words, only deciding to prosecute those cases for which there is sufficient evidence
    for a high liklihood of conviction.
    By excluding from prosecution those cases for which the evidence may not be adequate for conviction;
    a higher conviction rate is attained.

    I don’t know if this is the case or not for Yolo; but this is one way to attain high conviction rates.

  13. Fight Against Injustice

    ERM: “Actually law enforcement is just as powerful, since they decide whether to bring the initial charges or not. Law enforcement has a lot of discretion… “

    Law Enforcement may have some power, but here in Yolo County they are not as powerful as the DA.

    Do you remember the story on the Vanguard about Anthony Roman. His family called the police because he was having a mental breakdown and needed to be taken to a mental health hospital which the police did. The public defender in this case made it clear that the problem was not with the police who arrested him for a misdemeanour, resisting arrest. The problem was with the DA who unecessarily charged Roman with a felony even though the police disagreed.

  14. Fight Against Injustice

    Mr. Obvious “What percentage of cases are charges not filed prior to going to court? The DA’s office has the authority do dismiss charges prior to court proceedings. Is it possible the DA is only prosecuting cases they believe are winnable?”

    The Yolo County DA prosecutes more cases than any other DA in the state. They prosecute 99.4% of all complaints. A couple of months ago the Sac Bee compared the prosecution rates and conviction rates of 10 counties. Yolo County had the highest prosecution rate, and was 8th out of 10 for conviction rate. So this illustrates the fact that they prosecute more cases than they should. We have also seen on this Judicial Watch many cases cited that were weak cases pushed forth by the DA.

    People need to ask:
    1. Is justice being served? Or are convictions more important?
    2. Are tax dollars being spent wisely?
    3. Is the DA making smart decisions or this DA so wrapped up in getting convictions that the cost doesn’t matter.

    Saving tax dollars is worth….thousands
    Justice for the citizens of Yolo…..priceless

  15. JustSaying

    I meant that Reisig”s been with DA’s Office for 13 years, plenty of time to make plenty of prosecutorial mistakes that could be overturned. And, you’re correct that he’s only been making the DA decisions for nearly four.

    But, still, this writeup sure looks like an attempt to paint Reisig with the prosecutorial misconduct uncovered by the Justice Project, Center for Public Integrity, [u]Chicago Tribune[/u], [u]Columbus Dispatch[/u] and Gamso blog.

    The only evidence: He lists accomplishments, including his conviction rate–a measurement when carried to extreme The Justice Project warns as “…prosecutors’ offices fall(ing) prey to a culture of conviction-seeking at all costs. Prosecutors who become singularly focused on conviction rates often neglect their ethical duty….” [quote]“As we will see likely on Tuesday, sometimes it is not even about putting the guilty people in prison, sometimes it is simply about getting more money for the DA’s office to play with.”[/quote] It’ll be interesting to see how a claim that prosecuting is “simply about getting more money” can be supported in the next installment.

  16. David M. Greenwald

    Understood but that wasn’t my intent with this story. There are times when newspapers take what is essentially a national story and put a tiny local spin on it, put a local picture and then run it. That’s really all this is. The important point was to introduce some of the ideas of Justice Project for Prosecutorial Accountability and see if that idea gets any local traction. To extent that this did not happen is probably my fault, but it was not my intent to do as you suggest at all.

  17. Bystander

    We know that Jeff Reisig has no morals or conscious. I just hope he rots in hell when his time comes. If you don’t feel this way then you have not had any personal contact with the DA’s office and Reisig. He is out to make a name for himself and doesn’t care who he convicts. We used to have decent DA’s in Yolo County. Surely someone out there can run against this horrible person.

  18. Primoris

    R.Rabbit: [quote]When you stop laughing tell me who controls what the DA’s office tells the media? [/quote]

    Why the sudden change of position Roger?

    Previous quote is as follows: “The DA has total control over the media and what information he shares.”

    First, explain how the DA has TOTAL CONTROL OVER THE MEDIA.

    I must say, however, I am still LOL.

  19. Primoris

    DG indicated re: media control [quote]While correct, I think the objection is that the local newspapers often just reprint the DA’s stories verbatim. That’s certainly the newspapers’ problem, but I think it reasonably give rise to such complaints.[/quote]

    Therefore, IMO, the complaint(s) should be correctly stated and directed to the proper party(ies).

  20. Primoris

    FAI: [quote] The problem was with the DA who unecessarily charged Roman with a felony even though the police disagreed.[/quote]

    As noted elsewhere, both Police and DA have discretion. It is NOT rare that Police arrest for A,B,C,D,E,F, and the District Attorney’s Office files charges differently i.e., B,C, H,I, J. But I think I read in a press release somewhere that in a land far far away consensus always exists…

  21. Alphonso

    The DA works for the people and the people deserve honest information from the DA’s office. That means they should report information about cases they win as well as cases they lose.

    The Yolo DA only issues press releases about cases his office wins. He also knows the local papers do not have the resources to cover any of the cases so in fact he knows he controls what is seen in the press. Did anyone see a DA press release about the man who was mistakenly id’d and held in jail for two months? The DA appologized to the victim in court, but intentionally kept the public in the dark. It is a very biased communication process.

  22. Superfluous Man

    Alphonso,

    “The DA works for the people and the people deserve honest information from the DA’s office. That means they should report information about cases they win as well as cases they lose. “

    In what world would an elected official willingly release information to the public that would make him or her look bad, unless otherwise legally required or obligated to do so?

    “The DA appologized to the victim in court, but intentionally kept the public in the dark. It is a very biased communication process.”

    Do you think the DA has an obligation to the public (a la press release) to inform them of cases lost and mistakes had?

    BTW, I agree re: DA’s office knowing that they, to an extent, control the flow of info between the office/cases charged and prosecuted and the public, because the local press do much in terms of balancing out what the DA’s office sends them.

  23. Alphonso

    Do you think the DA has an obligation to the public (a la press release) to inform them of cases lost and mistakes had?

    We would have a better System if the potential jury pools (the Public) had a more balanced view of what really happens. Of course, the lack of balance coming from the DA makes sites like the Yolo Judicial Watch important sources of information.

  24. Fight Against Injustice

    Read David’s new article, “Four Defendants in Memorial Park.” This article clearly demonstrates that Reisig’s policies should be questioned by the public.

    Why is he allowing people to walk away from jail time for beating up minors if they admit to gang membership?

    Why is he so interested in verifying gang membership numbers?

    Why is he so insistant that a permanent gang injunction be placed in Broderick/Bryte when many people have come forth to say that it doesn’t make sense–including Rick Gore who worked in the DA’s office.

    David mentions money from grants is involved. Is money the real motivator to making these decisions that don’t make sense?

  25. Primoris

    FAI, opined[quote]Why is he allowing people to walk away from jail time for beating up minors if they admit to gang membership? [/quote]

    Clear something up for me please. Exactly “Who walked away from jail time?”

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