A recent column by David Greenwald in The Davis Vanguard, “Justice Watch: Prosecutorial Misconduct a Felony in California,” applauds a new law in California that punishes a prosecutor with up to three years in jail for intentionally altering or withholding exculpatory evidence from the defense during a criminal trial.
Calling this one of the “great advances, especially on the social justice front,” Greenwald cites a 2010 study by the Innocence Project that alleges there have been more than 700 cases of prosecutorial misconduct, which rarely resulted in the prosecutors being sanctioned by the courts.
This is the latest effort in an ongoing assault on the criminal justice system. As someone who considered President-elect Donald Trump’s claims of widespread election fraud to be irresponsible, I feel the same way about so many claims in this publication regarding prosecutorial misconduct.
Judge Alex Kozinski has alleged that this type of prosecutorial misconduct, known as a Brady violation, has “reached epidemic proportions in recent years” – although he only cites 29 cases to back up this supposed “epidemic.” And the New York Times wrote an editorial two years ago titled “Rampant Prosecutorial Misconduct” that claimed courts punish prosecutorial misconduct in fewer than 2 percent of the cases.
There’s no doubt that a few prosecutors occasionally overstep their bounds. But the reality is that they are rare, and there are sanction measures in place to deal with them. A more accurate picture emerges in a 2016 study by the California District Attorneys Association titled “Brady ‘Epidemic’ Misdiagnosis: A Careful Analysis of Prosecutorial Misconduct Claims and the Appropriate Sanctions Available to Punish and Deter.”
It states that the New York Times editorial “conflates court treatment of misconduct with state bar association disciplinary hearings, and cites only favorable statistics supporting its cause, and then incompletely…. [O]ther [criminal] exoneration studies show the numbers to be infinitesimally small, when properly compared to all convictions during the period of exonerations studied.”
For example, in roughly the same 15-year period cited by Kozinski’s 29 cases of prosecutorial misconduct, there were approximately 24 million felony convictions in the United States and just 1,010 exonerations, according to the CDAA study. That works out to one exoneration for every 25,000 felony convictions – and only a portion of those exonerations was the result of prosecutorial misconduct.
That was also the case in a study called “Harmful Error” by the Center for Public Integrity of 590 California cases of alleged prosecutorial misconduct from 1970 to 2003. In only 75 of those cases did a judge rule that a prosecutor’s conduct prejudiced the defendant resulting in a reversal. And just 11 of those cases involved withholding evidence from the defense.
“The majority of prosecutors are ethical and understand that any Brady violation creates an injustice,” the study says. “That overwhelming majority deems intentional withholding of favorable evidence from the defense as unconscionable – but it happens. There is error, and there are some individuals unworthy of the high calling of prosecutor.”
Long before this recent legislation, sanctions have been in place to deal with unethical prosecutors, including firing, disbarment and jail. District attorneys are in the business of convicting criminals, and it defeats the purpose to have convictions overturned due to the actions of an unethical assistant DA.
“What is rarely reported in the media are examples of prosecutorial organizations and associations committed to making the trial process more fair,” according to the CDAA study. “In California, for example, the California Commission on the Fair Administration of Justice was created in 2004.
“In its reports section on Professional Responsibility and Accountability, the Commission begins: ‘There is every indication that, overall, District Attorneys and their staffs, Public Defenders and their staffs, and private criminal defense lawyers in California provide competent and highly professional service, meeting the highest ethical standards.’”
So it is ironic that as California engages in criminal justice experiments such as the incarceration of criminals in county jails instead of state prisons and the reduction of felony crimes to misdemeanors, it is at the same time cracking down on the law enforcement professionals working to keep us safe. The result has been a dramatic increase in crime statewide over the past two years.
We need to support District Attorney Jeff Reisig and his deputies by giving them the tools they need to incarcerate criminals. Attacking those that simply are doing their job and enforcing the law is misguided. Even Greenwald noted in a column in October that, “Jeff Reisig, the DA, got elected on a tough on crime platform and Yolo County’s statistics demonstrate that. Yolo County, a middle of the tier county in terms of crime rate, is near the top in per capita incarceration rate and at the top in most trials per capita.”
We have a criminal justice system that is in great turmoil with AB 109 (2011), Prop 47 (2014), and Prop 57 (2016) all taking effect at basically the same time. It is my view that the pendulum has swung from one extreme of locking too many people up to not locking up enough. While we struggle with these major policy reforms, restoring faith in law enforcement professionals would be a step in the right direction.
Matt Rexroad is the former Mayor of Woodland and currently a Yolo County Supervisor representing parts of Woodland and West Sacramento.