Unpunished Prosecutorial Misconduct in California Focus of Major Report by Criminal Justice Reform Coalition

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By Crescenzo Vellucci

The Vanguard Sacramento Bureau

SACRAMENTO, CA – A comprehensive, 43-page report released here Tuesday suggests misconduct by prosecutors is largely unregulated in California, despite thousands of claims of prosecutorial misconduct over the past few decades that led to people being wrongfully convicted and incarcerated for years, including some on death row. (See the report)

The “California Report on Prosecutorial Misconduct” was produced by “It Could Happen to You” (ITCHY), a criminal justice policy reform coalition that focuses on wrongful prosecutions and prosecutorial misconduct.

The report released Tuesday lists 16 cases where the report charges, “California courts have either exonerated individuals or ordered new trials as a result of the misconduct of prosecutors and/or verbally reprimanded the prosecutor for violating rules of misconduct,” including three cases where “wrongfully convicted sat on death row.”

ITCHY added in the report summary that it discovered the Northern California Innocence Project and Veritas in 2010 found more than 4,000 cases of prosecutorial misconduct in California from 1997 and 2009 where the “defense raised misconduct as an issue,” and 707 cases where there was actual prosecutorial misconduct.

The report explains that “prosecutorial misconduct includes intentionally withholding evidence the accused is legally entitled to, failure to disclose and reveal the true name and addresses of witnesses, and misleading jurors in opening and closing statements at trial.”

Adds ITCHY, “While the duty of a prosecutor is to enforce rules of conduct in society and establish just consequences for individuals who break these rules, when prosecutors break their own rules, there are no consequences.”

Sixty-seven prosecutors, said ITCHY, “committed prosecutorial misconduct on more than one occasion. Yet in 13 years only six prosecutors were disciplined.”

The report found there have been, since 1989, 282 exonerations in California—where the convicted were freed. Most of those exonerations, 217, happened since 2000, and many involved prosecutorial misconduct.  

“While not all of these wrongful convictions were directly due to prosecutorial misconduct, prosecutors are in a unique position to prevent these injustices,” said ITCHY, adding it believes the report is “just the tip of the iceberg…there is no independent, transparent body capable with the skills to investigate or deter prosecutorial misconduct.”

The report released Tuesday emphasizes “in over 26 years the State Bar has disciplined only 13 prosecutors, and does not maintain a public record of exactly how many complaints have been filed against prosecutors or the outcome of investigations pursued by the Bar.”

ITCHY added that “even when judges have strongly reprimanded the prosecutor for violating the law and rules of conduct, there was no action taken by the California State Bar. This includes three cases in which wrongfully convicted individuals received the death penalty.”

The State Bar “does not maintain a public record of exactly how many complaints have been filed against prosecutors or the outcome of investigations pursued by the Bar. Nor does the State Bar initiate its own oversight and investigation of the office of the district attorney to ascertain that prosecutors are upholding the laws and codes of professional conduct,” the report charges.

The report identifies serious misconduct, including intentionally withholding evidence the “accused is legally entitled to, inducing false testimony by witnesses who are secretly given leniency and sometimes cash payments; and misleading jurors in opening and closing statements at trial. 

“While the duty of a prosecutor is to enforce rules of conduct in society and establish just consequences for individuals who break these rules, when prosecutors break their own rules, there are few if any consequences,” the report comments.

“The California Report on Prosecutorial Misconduct shows a disturbing pattern of improper actions, leading to wrongful convictions and the prevention of fair trials,” noted Jeffrey Deskovic, founder of The Jeffrey Deskovic Foundation for Justice, which underwrote the report. 

Deskovic spent 16 years in prison before being exonerated in New York—he’s an attorney now and works in “wrongful conviction prevention around the country.” 

According to ITCHY, Deskovic has “freed 13 people.” Many of these cases involved prosecutorial misconduct.  Deskovic was deeply involved in the recent efforts that established the Commission on Prosecutorial Conduct in New York State.”

The report insists, “The time has come for the State of California to take prosecutorial misconduct seriously before more reputations are destroyed by malicious prosecutions, more individuals have years of liberty stolen from them due to wrongful convictions or worst of all, an innocent man or woman is executed.”

Bill Bastuk, National Chair of It Could Happen to You, said, “We believe the cases summarized in this report are just the tip of the iceberg.  Currently there is no independent, transparent body empowered to investigate or deter prosecutorial misconduct.”

“University of San Francisco law professor Lara Bazelon has appealed to the California Supreme Court eight cases of identified misconduct where the State Bar took no action, and the Court declined to act in every case,” said Yolo County Criminal Defense Attorney Cynthia Rodriquez.

“(E)very other profession judge, police, doctors, religious leaders, bankers, insurance agents, teachers, tradesmen, athletes, chefs and even hairdressers have enforceable codes of conduct and systems of improvements or discipline when these codes are violated,” asserted the report’s author.

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Disclaimer: the views expressed by guest writers are strictly those of the author and may not reflect the views of the Vanguard, its editor, or its editorial board.

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