Earlier this year, the LA Times ran a story where federal judges accused the California State Bar of turning a blind eye to an “epidemic” of prosecutorial misconduct. That was just the most recent example, as a a 2010 report by the Veritas Initiative, “Preventable Error,” funded by the Northern California Innocence Project, documented more than 800 instances of prosecutorial misconduct, including 107 where the prosecutors were found to have committed misconduct more than once – two were cited for misconduct four times, two were cited five times and one prosecutor was cited for misconduct six times.
The report hammers the California State Bar, writing, “By casting a blind eye to prosecutors who place their thumbs on the scale of justice, judges, prosecutors and the California State Bar are failing to live up to their responsibilities, fostering misconduct and opening the door to the inevitable – the conviction of the innocent and the release of the guilty.”
Now a report from the State Auditor concludes “that the State Bar has not consistently fulfilled its mission to protect the public from errant attorneys and lacks accountability related to its expenditures.”
“The State Bar has struggled historically to promptly resolve all the complaints it receives, potentially delaying the timely discipline of attorneys who engage in misconduct,” the Auditor writes.
A primary measurement of the effectiveness of the State Bar’s discipline system is the number of complaints it fails to resolve within six months of receipt, which it refers to as its backlog.
“In 2010 the backlog reached 5,174 cases, prompting the State Bar to take steps to quickly reduce it.” However, while the Bar has succeeded in decreasing the backlog by 66 percent, the method it used to do so made the problem worse.
The auditor writes, “Although the State Bar succeeded in decreasing the backlog by 66 percent within a year, it may have compromised the severity of the discipline imposed on attorneys in favor of speedier types of resolutions.”
“In particular, in 2010 and 2011, the years the State Bar focused on decreasing the backlog, the State Bar settled a total of 1,569 cases; more cases were settled in each of those years than in any of the other four years in our audit period,” the Auditor continued. “The level of discipline that the State Bar recommended as part of these settlements was, in some cases, inadequate.”
The California Supreme Court returned for further examination 27 cases that the State Bar settled in 2011 “due to the appearance of insufficient levels of discipline. Upon further consideration by the State Bar, 21 of the 27 cases resulted in greater discipline recommendations, including five disbarments. Thus, to reduce its backlog, the State Bar allowed some attorneys whom it otherwise might have disciplined more severely—or even disbarred—to continue practicing law, placing the public at risk.”
The kicker: “Instead of focusing its resources on improving its discipline system—such as engaging in workforce planning to ensure it had sufficient staffing—it instead spent $76.6 million to purchase and renovate a building in Los Angeles in 2012.”
The audit report focused on discipline processes and resource allocation in general. However, although the Bar has been under some scrutiny for several years, clearly, disciplining of prosecutors has been a problem.
Maurice Possley, an award-winning journalist who worked on the study by the Northern California Innocence Project, said in 2010, “Prosecutors aren’t held accountable. Absent that, why should they change their habits?”
Back in January, Federal judges accused the California Bar of turning a blind eye to an epidemic of prosecutorial misconduct.
The LA Times ran a story on a hearing in front of the 9th Circuit Court of Appeals. As the Times reports, a deputy attorney general was arguing to uphold murder convictions against Johnny Baca for two 1995 killings in Riverside County.
The Times reports, “Judge Alex Kozinski asked Vienna if his boss, Atty. Gen. Kamala D. Harris, wanted to defend a conviction ‘obtained by lying prosecutors.’ If Harris did not back off the case, Kozinski warned, the court would ‘name names’ in a ruling that would not be ‘very pretty.’”
The three judges in this case “expressed frustration and anger that California state judges were not cracking down on prosecutorial misconduct.”
Judge Kozinski said, “(Prosecutors) got caught this time but they are going to keep doing it because they have state judges who are willing to look the other way.”
The LA Times spoke with Santa Clara University law professor Gerald Uelmen who said that clearly the judges’ questioning and tone shows that they have lost patience with California courts. “State judges are supposed to refer errant lawyers, including prosecutors, to the state bar for discipline, but they rarely do.”
“It is a cumulative type thing,” Professor Uelmen told the Times. “The 9th Circuit keeps seeing this misconduct over and over again. This is one way they can really call attention to it.”
In March, the San Jose Mercury News ran the story, “Prosecutor with checkered record is training legal watchdogs.”
Writes the Mercury News:
“The agency in charge of disciplining California’s lawyers has the pick of the litter when it comes to contracting with legal specialists. So the State Bar’s decision to hire a Bay Area attorney with a checkered record is raising eyebrows.
“Alfred F. Giannini, a retired San Mateo County deputy district attorney, has been criticized by the Northern California Innocence Project for committing misconduct in three murder trials that led to a reversal or a mistrial.
“Now he’s coaching trial attorneys on how to win cases against lawyers the State Bar accuses of stealing, cheating or lying.
“It’s a bizarre choice. He’s like the poster boy of misconduct,” said Kathleen M. Ridolfi, the project’s former director, who teaches at Santa Clara University’s law school. “It’s a very sad statement about the Bar in California.”
Mr. Giannini defends his record, “offering detailed explanations for each problematic case and criticizing the Innocence Project’s research in annual reports about prosecutorial misconduct as incomplete.”
The question is now whether scrutiny from the State Auditor will get the Bar to take disciplinary cases more seriously.
—David M. Greenwald reporting