Misconduct by Prosecutors in Criminal Cases Going Unreported – and Undisciplined – Says Most Comprehensive Research Report Conducted on the Subject

SANTA CLARA, Calif.--(BUSINESS WIRE)--The Northern California Innocence Project (NCIP) at Santa Clara University School of Law today released Preventable Error: A Report on Prosecutorial Misconduct in California 1997-2009, the most comprehensive statewide study ever undertaken on the misconduct of public prosecutors in state and federal courts.

“What this groundbreaking research demonstrates is that here, in the most populated state in the country, we have a legal system that does not hold prosecutors accountable who have abused the public trust”

Attorneys and researchers reviewed over 4,000 specific cases of alleged prosecutorial misconduct in California from 1997 to 2009. Through its research, the NCIP found:

Courts explicitly found that a prosecutor had committed some form of misconduct in 707 (18%) of the cases, or on average about once a week.
The California State Bar rarely disciplines misconduct by prosecutors. From 1997 to 2009, the California State Bar only publicly disciplined six for misconduct in the prosecution of criminal cases, despite findings of prosecutorial misconduct in more than 700 cases.
Judges often failed to report misconduct to the California State Bar despite having a legal obligation to do so. In 282 of the cases, the courts chose not to decide whether prosecutors’ actions were improper. They avoided making such findings by concluding that regardless of the alleged misconduct, the defendant received a fair trial.
67 prosecutors committed misconduct more than once and some as many as five times. The majority of these prosecutors were never publicly disciplined.

“What this groundbreaking research demonstrates is that here, in the most populated state in the country, we have a legal system that does not hold prosecutors accountable who have abused the public trust,” said Kathleen “Cookie” Ridolfi, co-author and Executive Director of the NCIP. “While the majority of prosecutors uphold the law and serve the public admirably and with integrity, those who choose the blind pursuit of conviction over the pursuit of justice can do so with little regard for the consequences.”

The 707 instances of prosecutorial misconduct identified in this report undoubtedly understate the total number of cases where misconduct occurred during the thirteen year period examined. In California, approximately 97% of felony criminal cases are resolved without trial. The NCIP reviewed only appellate court rulings and a handful of other cases. Findings of misconduct at the trial court level that are not reflected in appellate rulings were not examined and could not be without searching every case file in every court house in California.

To illustrate the point, one of the individual cases the report cites is the case of Mark Sodersten, who spent 22 years behind bars serving a sentence of life without parole after a murder conviction. In 2007, a California Appellate Court found that the prosecutor had improperly withheld from the defense taped interviews with a key witness during his prosecution of the case. After reviewing the tapes, the court vacated the conviction. For the wrongfully accused, the ruling came too late as Sodersten died in prison six months earlier. The prosecutor has never been disciplined by the California State Bar and has immunity from any civil liability for his conduct as a prosecutor. He is currently the District Attorney in Tulare County.

“The problem of prosecutorial misconduct has been denied or ignored for too long,” said Maurice Possley, co-author and Visiting Research Fellow at the NCIP. “Our research demonstrates the failure of judges, prosecutors and the California State Bar to report, monitor and discipline misconduct. Allowing this type of misconduct to persist undercuts public trust and undermines prosecutors who do their jobs properly. The terrible consequences of prosecutorial misconduct are pervasive, adversely affecting innocent defendants, crime victims, taxpayers, and the entire criminal justice system.”

After concluding their research, the NCIP developed a series of recommendations outlined in the report to address the issue of prosecutorial misconduct, including:

Court-related reforms, such as expanding the existing judicial reporting requirement to mandate reporting of any finding of egregious prosecutorial misconduct, as well as any constitutional violation, even if deemed harmless; identifying in opinions the full names of prosecutors found to have committed misconduct; California Supreme Court monitoring of compliance with judicial reporting and notice obligations and making public the records of compliance; and replacing prosecutors’ current absolute immunity from civil liability with a form of qualified immunity.
District Attorney-related reforms, such as increasing and expanding ethics training within prosecutor’s offices; implementing a system for deconstructing prosecutorial misconduct when it occurs to determine what went wrong; using these deconstructed cases in trainings to prevent future occurrences; and instituting better procedures to facilitate the disclosure of exculpatory evidence.
Remedies for the California State Bar, such as adopting revised ethical rules concerning special responsibilities of prosecutors (modeled on the American Bar Association’s Model Rule 3.8); expanding discipline for prosecutorial misconduct; and increasing the transparency of the State Bar disciplinary process.

A press conference for the report will be held on Monday, October 4, 2010 at 10:30 AM PDT. The press conference will be available live via dial-in at:

Call-in: 918-583-3261

Telephone access code: 465498

A complete copy of the report and additional information about prosecutorial misconduct can been found on the Veritas Initiative website at www.veritasinitiative.org. Tools on the website include a “Case Locator” feature, tabulations of cases by county, articles, case studies, links to relevant California legislation and statutes, amicus briefs filed by NCIP and the Innocence Network, and links to additional resources.

About Preventable Error: A Report on Prosecutorial Misconduct in California 1997-2009

Preventable Error: A Report on Prosecutorial Misconduct in California 1997-2009 is the most comprehensive, statewide review of prosecutorial misconduct ever done in the United States. The report includes detailed findings of specific cases of prosecutorial misconduct in California, covers how the justice system identifies and addresses it, and makes specific recommendations for reform. The report addresses its cost and consequences, including the wrongful conviction of innocent people. By shining a light on prosecutorial conduct, this groundbreaking research, the work of leading experts from the highly respected, NCIP, will serve as a catalyst for reform.

About the Veritas Initiative

The report Preventable Error: A Report on Prosecutorial Misconduct in California 1997-2009 marks the launch of the Veritas Initiative, NCIP's investigative watchdog organization devoted to advancing the integrity of our justice system through research and data-driven reform, based on the work of leading experts. By shining a light on issues like prosecutorial misconduct, the Veritas Initiative and the studies it publishes will serve as a catalyst for reform.

About the Northern California Innocence Project

The Northern California Innocence Project (NCIP) at Santa Clara University School of Law operates as a pro bono legal clinical program, where law students, clinical fellows, attorneys, pro bono counsel, and volunteers work to identify and provide legal representation to wrongfully convicted prisoners.

NCIP educates future attorneys, exonerates the innocent, and is dedicated to raising public awareness about the prevalence and causes of wrongful conviction. Through the Veritas Initiative, NCIP promotes substantive legislative and policy reform with data-driven research and policy recommendations aimed at ensuring the integrity of our justice system.

About Santa Clara University School of Law

Santa Clara University School of Law, founded in 1911 on the site of California’s oldest operating higher-education institution, is dedicated to educating lawyers who lead with a commitment to excellence, ethics, and social justice. One of the nation’s most diverse law schools, Santa Clara Law offers its 975 students an academically rigorous program, including graduate degrees in international law and intellectual property law; combined J.D./MBA degree; and certificates in intellectual property law, international law, and public interest and social justice law. Santa Clara Law is located in the world-class business center of Silicon Valley, and is distinguished nationally for our top-ranked program in intellectual property. For more information, see law.scu.edu.