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October 5, 2010

Potent new report about prosecutorial misconduct in California

The National Law Journal has this new article, headlined "Prosecutorial Misconduct Is Rarely Punished, Says New Study," which spotlight a potent new report about how prosecutorial misconduct is handled (or not handled) in California.  Here are the basics:

Only a tiny percentage of prosecutors who engaged in misconduct were disciplined by the State Bar of California during a 12-year period, according to a report released Monday.

The report, issued by the Northern California Innocence Project at Santa Clara University School of Law, found 707 cases between 1997 and 2009 in which courts explicitly determined that prosecutors had committed misconduct. It examined more than 4,000 cases.

Among the 707 cases, only six prosecutors -- 0.8% -- were disciplined by the State Bar of California. Only 10 of the 4,741 disciplinary actions by the state bar during the same period involved prosecutors....

The project found that judges often failed to report misconduct to the state bar despite having a legal obligation to do so. Sixty-seven prosecutors committed misconduct more than once and some as many as five times. The majority of those prosecutors were never publicly disciplined, the project said....

The report included recommendations for reform. It called for district attorneys to adopt internal policies that do not tolerate misconduct. It also called for the state bar to increase disciplinary transparency.

The State Bar of California issued a written statement in response to a request for comment. "[P]rosecutorial misconduct as indicated in the Innocence Project report does not always equate with attorney misconduct for disciplinary purposes," the association said. "The State Bar believes that it is disciplining criminal prosecutors where appropriate and where the misconduct was willful and can be establish by clear and convincing evidence." It added that misconduct is a "serious issue" and that the bar association is looking into the assertions made by the Innocence Project.

The report also found that in 282 of the cases, the courts did not decide whether a prosecutor's actions were improper. Instead, they concluded that regardless of the alleged misconduct, the defendant received a fair trial. The Innocence Project reviewed only appellate court rulings and a few other cases.

The full report is available at this link.

October 5, 2010 at 04:47 PM | Permalink


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This report leads us to believe that out of 4,000 cases, prosecutorial misconduct occurred in 707. The fact is, they cherry picked what cases the looked at. Of the 707, only 158 were actually found to be harmful to the defendant.

Has anyone ever done a study on comments by defense attorneys that are found to be improper and then compared that to disciplinary reports? Has anyone found out how often a court finding of ineffective assistance of counsel resulted in a disciplinary proceeding?

Posted by: josh | Oct 5, 2010 7:48:41 PM

i'm sure someone has. but in this case we are talking about prosecutors. what this shows is that in almsot 1/4th of the cases looked that the prosecution violated the rules... from where i sit any evidence the prosecution violated the rules autmatically means the TRIAL WAS UNFAIR and ILLEGAL. Of course i would say the same in any case where the Defense also violated the law.

that fact that out of the 25% of the cases these people found to have problems if not outright law breaking by the DA over .04% of the da's involved ever got even a cross word told them them...just proves what a joke the U.S. Justice sytem has become and one of the main reasons it's now the laughing stock of the ENTIRE WORLD

Posted by: rodsmith | Oct 5, 2010 8:39:29 PM

In addition, no one has ever challenged this separation of powers problem. The supreme court of a state writes the rules of conduct, a legislative act. It hires a prosecutor in the form of a disciplinary counsel, an executive function. This prosecutor argues before his employer, the court, for discipline. Might they be biased in favor of their employee? Only four rules are ever enforced. Drug abuse, comingling funds, sassing the judge in trial (after trial is OK), and a fourth I can't remember.

The US Supreme Court has also made the prosecutor absolutely immune from tort liability, which is unjust. So they mistakenly think themselves above the law. Isn't time for intellectuals such as Prof. Berman to stop their opposition to full tort liability of the lawyer to the adverse third party? This is an entirely neutral proposition. The people should be able to sue the defense lawyer for the filing of a dilatory or frivolous defense motion, since that is legal malpractice. The plaintiff would hire a defense bar expert to testify to that effect, and the profession would still be policing itself, given the accusation is supported by one of its own, in the same specialty as the defendant.

Posted by: Supremacy Claus | Oct 5, 2010 9:51:27 PM

Prof. Berman, please, do not cry, litigation explosion, as a reason for opposing opening all lawyers, including judges, to full professional tort liability. The irony and hilarity of any lawyer (including leaders of the ALI) making that objection always causes a jet spray of liquid through my nose.

Posted by: Supremacy Claus | Oct 5, 2010 10:41:00 PM

I might be missing something major here, but it seems that, not only is there no 1:1 correlation between "prosecutorial misconduct" and violations of a State's Rules of Professional Responsibility, there seems to be very little overlap, such that the .08% figure, if accurate, is unremarkable.

Consider the classic case: a prosecutor who, in closing argument, comments unfavorably on the Defendant's exercise of his Fifth Amendment right to silence. Such action is obviously prosecutorial misconduct, but it certainly does not violate any specific Model Rule of Professional Conduct, and may not even violate the broadly written, catch-all Rules.

This seems to be primarily a matter of focus: "prosecutorial misconduct," at least as the term is understood in my jurisdiction, primarily concerns conduct in the courtroom, while the vast majority of each State's Rules of Professional Conduct concern conduct outside of it.

Full Disclosure: I am a (deputy) prosecutor.

Posted by: GPolando | Oct 6, 2010 2:21:32 PM

There seems to be confusion about what Prosecutorial Misconduct is. A finding of prosecutorial misconduct does not imply unethical behavior. As the ABA recently explained, "The term 'prosecutorial misconduct' has become a term of art in criminal law that is sometimes used to describe conduct by the government that violates a Defendant’s rights whether or not that conduct was or should have been known by the prosecutor to be improper and whether or not the prosecutor intended to violate the Constitution or any other legal or ethical requirement. But, the term is not the equivalent of a finding of professional misconduct on the part of a prosecuting attorney." In other words a prosecutorial misconduct can occur when the prosecutor has no reason to believe his conduct is improper. Accordingly, it makes sense that only a tiny fraction of "prosecutorial misconduct" would result in bar discipline.

Remember, when a judge makes a mistake it is called "error." When a defense attorney does, it is called "ineffective." When a proseuctor does, it is called "misconduct."

No one is arguing that every time a defense attorney is found ineffective there should be bar discpline, even though Rule 1.1 imposes an ethical obligation to "provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." In Missouri, “ineffective assistance of counsel” means, first, that counsel's performance was “deficient”, in that it fell below objective standard of reasonableness, and, second, that the deficient performance resulted in “prejudice”, meaning that there is reasonable probability that but for counsel's errors result of trial would have been different. The deficiency prong requires the a finding of unreasonable conduct. Unreasonable conduct is, by definition, a violation of Rule 1.1. A strict interpretation of Rule 1.1 would require a bar complaint every time a defense attorney is found to be ineffective.

Posted by: John Galt | Oct 6, 2010 3:15:26 PM

Remember, when a judge makes a mistake it is called "error." When a defense attorney does, it is called "ineffective." When a proseuctor does, it is called "misconduct."

But aren't these distinctions with a difference? When a judge makes an error, it could be overturned or remanded. When a defense attorney makes a prejudicial error, the defendant may get a new trial and the attorney may be subject to a malpractice suite. Usually, when a prosecutor commits misconduct, it is rare there are any consequences unless there was "plain error," and even then there may not be any consequences to the prosecutor. Indeed, the prosecutor could commit the same misconduct repeatedly without any appeal to question it in those cases. Batting near a thousand isn't bad and is worth a few strikeouts. Nancy Grace only got some slaps on the wrist before it really paid off in celebrity status.

Posted by: George | Oct 7, 2010 3:53:20 AM

From here:


"...the California Supreme Court has found that the prosecutor's role is unique within the criminal system in that not only must the district attorney diligently discharge the duty of prosecuting individuals accused of criminal conduct, but the prosecutor must also refrain from seeking victory at the expense of the defendant's constitutional rights. See People v. Trevino (1985) 39 Cal.3d 667, 681, 217 Cal.Rptr. 652, 704 P.2d 719. Thus, under Trevino, the prosecution is obligated to respect the defendant's right to a fair and impartial trial in compliance with the process of the law. People v. Trevino (1985) 39 Cal.3d 667, 681, 217 Cal.Rptr. 652, 704 P.2d 719."

It is against the law of evidence to point out the failure of the defendant to testify. This is despite the obviousness to the jury. It is common sense that an innocent party wants to make a lot of noise to show the distress from the false charge, and does not want to remain silent. However stupid the rules are, the prosecutor in the hypothetical above has violated the standard set out in Trevino, and 3.8.

The disciplinary counsel will destroy lawyers who threaten the interest of the criminal cult enterprise. It will not prosecute any other rule breaking. This study shows that to be true, even in high stakes criminal prosecutions.

Posted by: Supremacy Claus | Oct 7, 2010 6:16:43 AM

"A strict interpretation of Rule 1.1 would require a bar complaint every time a defense attorney is found to be ineffective."

And, of course, a legal malpractice claim. Because the finding is from a hearing, by a judge, the negligence should be per se.

Posted by: Supremacy Claus | Oct 7, 2010 6:19:34 AM

I am a plaintiff in a current civil action against Ben Field for Malicious Prosecution. In my case, Field was defending an equipment infraction on a vehicle at the Santa Clara Appellate Court. He proceeded to present misleading case annotations to the court. By doing so, he committed perjury in court, because any sound prosecutor would never rely on annotations alone to present to the court. And in one case, comparing my equipment infraction as equal to a violent murder. After the Appellate court ruled in my favor, because Field argued that a police officer’s word alone was sufficient evidence against a device that was not measured by the officer to exceed the legal limit, where eventually a device measured it to be legal under CA Vehicle Code. The District Attorney in court was asked if an officer’s word alone warrants a conviction, the attorney Laura Aizpuru-Sutton froze, and refused to answer the question from the judge. The attorney could not answer yes, that would have been perjury, and the attorney refused to say no because that would end the court trial right there. This was a weird thing to eye-witness.

Posted by: Goldy | Dec 10, 2010 9:40:52 PM

A matter that needs investigated
On case#VA107160
People Vs buddy lee George 
Los Angeles superior court norwalk California division S
Judge the Honorable Roger Ito
Los Angeles county district attorney Kang. 
A case that can be proved as unconstitutional due to the following
1.) I was denied my due process rights. 
2.) the district attorney had me charged with prison priors and strikes that I did not have and it was not until after the verdict did she admit her mistakes. 
3.) I was denied to confront witnesses I supoened 5 officers and only one showed up. 
4.) the only witness that showed up was detective hakala from Whittier police department he was the lead detective and expert witness. 
5.) there was bias with the processing of evidence he used his own lab. 
6.) he lied under oath by saying he removed the drugs before the pre search video because he had a dog. 
7.) the evidence in the case had been destroyed before the trial
Evidence was destroyed 5-29-09
The verdict was read on 8-15-09
8.) henry salcidos law firm that represented me right before the trial caused a conflict of interest by violating attorney client privilege by having a meeting with the city of la mirada without my permission nor knowledge were he discussed my case were he was convinced by the city saying I should take a deal under the condition I move out of la mirada when I get out of prison. 
9.) Henry salcido also told me at one point he didn't care If I was innocent or guilty I should take a deal. 
10.) he also told me at one point he was best friends with steve Cooley and if I gave him $180.000 and sign over the deed to our home he could make the case disappear. 
11.) their was two retired district attorneys that were working for Henry salcidos law firm that were also over familiar with sheriffs and narcotics department that were involved in my case. 
12.) through the whole case the la mirada mayor and council members had law enforcement harassing me their was about 300 or more calls made to law enforcement with the intent to have me harassed 
13.) I can also prove false imprisonment. 
14.) I was charged with possession for sales when no drugs were ever found to be in my possessing neither was any money ever recovered and according to the detective he found $13 dollars worth of drugs in our home all together in separate bags and only one had been tested the second one was never tested. 
15.) it was unconstitutional for detective hakala to target me when their was 5 occupants living in our home at the time. 
16.) the search warrant he used to get in our home the day he supposedly found the drugs was stamped denied. 
17.) the second search warrant had a type -o- error and the name on the search warrant was Walter Eugene Farris a guy that I don't know and neither did any one els that lived in our home and he had never been in our home. 
18.)The attorney that represented me during the trial had not been given enough to to familiarize her self with my case the judge refused to give her time to overlook the case.
19.) after we picked the jurors one of the jurors was prejudice he said no matter what he would find me guilty because he hates drug dealers the judge still allowed juror # 19 to hang out with all the other jurors until he was replaced. 
The following needs to be investigated
1.) violation of due process rights
2.) my state and federal rights were violated. 
3.) false imprisonment
4.) harassment 
5.) negligent
6.) malpractice
7.) wrongful conviction
8.) officer misconduct
9.) judicial misconduct
10.) cruel and unusual punishment. Email below evidence when the evidence had been destroyed a email from detective hakala to district attorney kang. 
11.) the city of la mirada offered to buy our home at cost saying under the condition I couldn't live in la mirada nor Whittier. 
12.)la mirada law enforcement was raiding our home practically daily. 
13.) before this case started detective jerry Reyes told me as he handed me his card with his hand writing on it that if I dident help him he would screw me.
14.) detective hakala and district attorney kang kept inflicting lies on the jury. 
15.) I was not on probation or parole when this case started. 
16.) our car had also been impounded 3 to 4 times every time officers said just tell us were the drugs are we won't impound the vehicle and every time I was honest by saying I don't have any drugs they impounded it any way. 
17.) detective hakala went through my confidential legal mail violating my constitutional rights instead of using normal mail he used a 42 u.s.c 1983 to identify me as living here during The trial mentioning a law suite involving Copley
18.) during the proceedings of the case no one had any idea I studied law I even represented my self in the federal courts I studied criminal and civil for about five years including 42 u.s.c $1983"s torts writs civic codes ethics even the CCR title 15 rules and regulations. 
19.) I'm hoping to resolve this with out filing in the federal courts I'm exhausting all remedies if the matter is not resolved then I'm given not much choice because I was wronged 
Sorry but this is frustrating I just want this matter looked into. 
20.) I can prove the following. 
1.)defamation of character. 
2.) false imprisonment. 
3.) negligence. 
4.) harassment. 
5.) malpractice. 
6.) wrongful conviction. 
7.) constitutional violations with my civil rights. 
8.) including $10.000 dollars of damage to our home. 
9.)reckless disregard.  
10.) coaxing
11.) including due process rights involved in a criminal court proceeding involving corruption. 
12.) the situation that escalated 
Into this case was a incident involving a parole officer mr verimontes he worked for la mirada public safety and the Santa fe springs parole department in the year 2001
He was contracted by both at the same time their was a incident involved with are daughters boy friend driving a vehicle in a irate speed going to autozone test driving a 1997 ford explorer some car was parked 3 ft out from the curb 
And some kids were playing in the middle of the street they moved out of the street as he was driving up hill and swerved to miss the car when we got back a neighbor showed up cussing and yelling in a violent manner as I got out of the passenger side he was trying to provoke me I asked him to calm down he told me fuck you I said I have kids and theirs no need for this he stated bull I ignored him and went next door and eventually went to the store with our cousin next door not knowing while we were gone the neighbor had called the sheriffs by time I got home their was no law enforcement around but when I reported to parole I was giving him the heads up about possible call made to law enforcement with our address he asked did you have any police contact I stated no he said don't worry about it then that nite shows up with law enforcement to arrest me for driving with out a license I was in jail double the normal time waiting for my bpt hearing mean while I hired a attorney for ADA issues he had no idea that the attorney representing me at board had investigated his wrong doing because he went to every neighbor showing first my whole criminal past then mug shots asking if they seen me driving the attorney caught him lying under oath at least 12 times the commissioner let me go home when I had got out mr verimontes told me pack up your shit your moving back to Sacramento in such a irate manner to were other people eventually had to get him he told me that if I appealed him he would get a petition with our neighbors so I reported to parole in Sacramento and while I was there I filed a 602 inmate appeal demanding It to be exhausted so I could file a 42 u.s.c $1983 I charged him with the following
1.) racial profiling 
2.) negligence
3.) harassment 
4.) deformation of character 
5.) false imprisonment 
6.) I filed to a copy of the bpt hearing tape only to find out it had been damaged 3 days after the hearing when it was not suppose to be damaged for 120 days were I was entitled to a copy of it only to be denied eventually the 602 complaint allowed me to come home after he was involuntarily moved from both jobs. 
7.) the city mayor and council members had sheriffs going through any lengths to get me for anything just to send me to prison also to force me to move from la mirada. 
8.) we had a 2002 ford explorer literally torn apart to the point it was not worth having the interior completely destroyed. 
9.) our home was stalked by sheriffs to the point our kids moved out. 
10.) their are witnesses to two sheriff deputies named Morris and tousey that work for the city of la mirada telling every drug addict that I am a kingpin and a drug dealer. 
11.) we even called the sheriffs about some one driving a car into our garage door they showed no interest in the damage done to our home. 
12.) the sheriffs also known our home had been broken into and vandalized on numerous occasions. 
13.) Morris and tousey also were telling people say his name you go free Morris and tousey are Los Angeles county sheriffs. 

Buddy George - VA107160From: joanne alberry
View Contact To: LAURIE YTARTE -----------------
-- Laurie,here is the email from the Detective 
telling the court that all the property was
destroyed. Sorry about all of it. Feel free to mail
me any payments you can at my office address
4229 Main St Suite 4 Riverside CA 92501 I will
let you know when I find an attorney who will
take on a governemtn entity. good luck to you
and Buddy,Joanne ---------- Forwarded message
----------From: Date: Fri, Sep 25, 2009 at 7:23
AMSubject: Fw: Buddy George - VA107160To:
[email protected] Hi Joanne, Per our
conversation, here is the email from Detective
Hakala confirming that the evidence was
destroyed. I will request that our matter be taken
off calendar today. Thanks. ----------------------
Forwarded by Miriam Kang/DAUsers/NLADA on
09/25/2009 07:22 AM --------------------------- To:
cc: Subject: RE: Buddy George - VA107160 I
contacted our central property and the items
seized in the Buddy George case (408-15814-
0460-184) were dispoed on 05-29-09. Any other
questions just let me know. Eric ---------------------
From: [email protected]
[mailto:[email protected]]Sent: Thu
9/24/2009 2:49 PMTo: Hakala, Eric J.Subject:
Buddy George - VA107160 Hi Detective Hakala,
Just as a reminder, please email me a letter
confirming that the the property booked into
evidence for this case has been disposed of and
the date of disposal. Thanks so much!
Sincerely,Miriam KangDeputy District
AttorneyTel: 562-807-7211 

Posted by: Buddy George | Dec 11, 2010 6:12:26 AM

Any violation of an individuals constitutional rights is a violation. I read some remarks on this page that sounded like children making excuses for their behavior. I personally have a child that is being held on a $130,000.00 bail and I don't own a home or do I have 13,000.00 to lay down for a bondsman. My daughter is a victim in this case as well as my grandchildren. She was in a very volatile relationship with an individual that abused her and her children and the
District attorney is taking her to trial when he and the dectectives know she did not hurt her children. She has been kept form the children for 6 months at this point. What is wrong with the Justice system when prosecutors know someone is innocent and they continue to prosecute. The detective stated to me several times that she wonders why my daughter is protecting the punk. She was scared for herself and her children. Can anyone help me or give me some advice on how to file a prosecutorial misconduct suit against the District Attorney.

Posted by: Charles Knighten | Mar 31, 2012 9:34:46 PM

Just a concerned citizen. Father.

Posted by: Charles Knighten | Mar 31, 2012 9:35:39 PM

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