December 9th, 2010
05:00 PM ET

Report: Prosecutorial misconduct often going unpunished

[cnn-photo-caption image=http://i2.cdn.turner.com/cnn/2010/images/12/09/art.cnn_gavel.copy.jpg]Judge H. Lee Sarokin
Huffington Post

The Northern California Innocence Project has published an illuminating and somewhat discouraging report on prosecutorial misconduct in California. The report analyzed 4,000 cases of alleged prosecutorial misconduct from 1997 through 2009 and found that in 707 of those cases there was a judicial finding of prosecutorial misconduct; 3,000 rejected the allegation; and 282 did not make any finding. The report emphasizes that the totals are probably much greater because instances of misconduct may not have been discovered or brought to the courts' attention.

The report stresses the lackadaisical approach of the courts and the state bar to such misconduct. In most cases, despite a finding of misconduct, convictions were permitted to stand, and rarely was the misconduct reported or disciplined, even though some prosecutors were repeat offenders. The authors (Prof. Kathleen Ridolfi of Santa Clara University School of Law and Maurice Possley serving as Visiting Research Fellow at the NCIP) contend that this problem is increasing - not diminishing.

Although some of this conduct may be attributable to winning for the sake of winning, I suspect that it is not motivated by evil, but rather that the zealous prosecutors involved are so convinced of the person's guilt that the temptation to assure a conviction may motivate incidents of misconduct. However, good motives cannot exonerate or excuse misconduct when liberty, and in some instances, life is at stake. The misconduct violates both the oath and duty of prosecutors to seek justice. Most, however, play by the rules and conduct themselves with honesty and integrity.


Filed under: Keeping Them Honest
soundoff (6 Responses)
  1. Jude Fackelman

    Check the Michigan Supreme Court case of People vs. Aceval case #138577. It is amazing that misconduct on the part of everyone involved in prosecuting this case, including the Judge and perjury on the part of the Police Officers involved and a paid witness and the conviction stands. I was appalled. I have posted this story on Michigan Prison Talk and Facebook. What a great Justice system we have .... NOT!!!!! I am very cynical of our great country.

    December 10, 2010 at 2:30 am |
  2. Michael W. Murphy

    As a lawyer, the simple fact of life is that it is easier to defend a guilty person than it is to defend an innocent person. When defending a guilty person, you punish the prosecution for any mistakes. However, juries do not apply the reasonable doubt standard. Judges and juries assume that the defendant is guilty. Unless you have scientific evidence which exonerates the defendant does not have a "snowball's chance."

    There is no such thing as harmless error!

    Police perjury and prosecutorial misconduct are common. Neither should be tolerated!

    December 10, 2010 at 12:11 am |
  3. George C Johnson MD

    Listened with interest about your section on prosecutorial misconduct. There is no method in place to hold attorneys accountable for their errors in the same way physicians are. Many physician lawsuits are a result of, not deliberate, but accidental misconduct. Physicians have known for a long time of the lack of accountablility of lawyers in any type of activity they participate in, whether in or out of the court. It is interesting that Jeffery Toobin commented that a system wide type approach needs to be used for errors made in the courtroom, whether intentional or nonintentional. This is not an approach to error correction which most attorneys recommend for physicians in their medical practices, even though this would be the most effective. This more useful approach would, of course, not allow attorneys to file suit against physicians, something attorneys rarely have to experience. We all need to be held
    accountable for our actions and the methods we employ should not be more punitive for
    one group of professionals than another group.

    George C Johnson MD

    December 10, 2010 at 12:05 am |
  4. Kathleen Rhinehart

    I have been a criminal defense lawyer for 25 years and talking about prosecutorial misconduct is like talking about unreasonable Republicans. It is so pervasive it is frightening because the Courts do not want to deal with it, as they see it as lawyers just fighting with each other. I have had so many cases where people have had their lives ruined by prosecutors who are either incompetent, lazy or vindictive and believe me there is NO ACCOUNTABILITY. I would love to see a further investigation of this issue and it poisons the legal process and if it remains unchecked many innocent people are harmed.

    December 10, 2010 at 12:01 am |
  5. Rob in FL

    Unfortunately because prosecutors have immunity, zero accountability, and often are promoted for high conviction rates this kind of tragedy will continue, most states that have a high number of innocently convicted pass legislation to limit liability from lawsuits brought by the innocent rather than address the real problem.

    December 9, 2010 at 11:57 pm |
  6. Larry Maland

    When Kim fired a worker at her daycare, the unhappy young woman went to the WA state employee in charge of approving a license for Kim's daycare. The fired ex-employee made up a lie that Kim had spoken of hiring a hit man. The prosecutor did no misconduct, but in even taking on the case, Kim was a victim of the system. Even though the fired lady did not show up for the trial, and the case was dismissed, there was not penalty to anyone involved. Proscecutors act like robots and want to win. It was a horrible process to watch. The perp was the ex-employee who was never called to account.

    Get in trouble sometime and you learn a lot.

    December 9, 2010 at 11:00 pm |