'Epidemic' in need of an intervention

When federal appellate judges, not often known for their anarchist sympathies and pro-defense biases, describe prosecutorial misconduct as "epidemic," people naturally take notice. When major newspapers like the New York Times and the Los Angeles Times publish editorials about the subject, as they have recently done, the issue seems critical.

When prosecutors will commit misconduct in a case like that of Ted Stevens, it's hard to argue there is not a feeling of impunity among government lawyers. One wonders what they might do with a defendant who did not have financial resources, who was not famous, who was not, in fact, a sitting United States senator, like Stevens was.

Ventura County District Attorney Gregory D. Totten defends prosecutors on the grounds that the instances of misconduct are so small that the word "epidemic" is reckless. "Prosecutorial misconduct is sad, but not an epidemic," The Daily Journal, March 2. He points out that in a nine-year period, only 2.5 percent of the 2,131 claims of prosecutorial misconduct studied by the Northern California Innocence Project were upheld by judges, and that's hardly an epidemic.

The truth is not that it's good there's so little misconduct; the truth is that it's bad there's any. No prosecutor ever should commit misconduct. We're not talking negligence, but intentional misconduct: We're talking malfeasance, not misfeasance. And 2.5 percent is a little more than 53 cases. That's about six cases a year over the nine-year period, or a case every two months. And that's only the known cases.

I'm sure Totten thinks 53 cases are too many, but they can be remedied, and they should not tarnish the reputations of other prosecutors. I'm even surer that those 53 men and women who were victimized by rouge prosecutors believe their lives were ruined just as certainly as if criminals had victimized them. It is something more than "painful" if it happens to you.

Other than "serious consequences" are necessary, Totten has no solution. I have many. We can start with "serious consequences," such as disciplining prosecutors who commit misconduct. But how about taking the guesswork out of what material should be provided? What about mandatory "open file" policies for discovery, or statutory timelines by which prosecutors must provide discovery before trial? What about stipulated reversals in instances of misconduct? And the list can go on and on.

There is, however, a clearer and easier solution to avoid the "epidemic." The solution has been provided by law enforcement itself. New York in the 70s and 80s had an alarming crime rate. Quite controversially, Police Chief William Bratton began implementing the theory of "broken windows" policing. The theory holds that small crimes, i.e., vandalism and broken windows, create an atmosphere of lawlessness that enable larger crimes. Whatever one thinks of this theory, New York in the 90s was a much different, and much safer, place.

A number of commentators have urged applying this "broken windows" theory to prosecutorial misconduct. In other words, in all those cases that don't make it to the 9th U.S. Circuit Court of Appeals - when the prosecutor provides discovery "strategically" late, or vouches for a witness, or commits some other misconduct but there's "overwhelming" evidence of guilt, so no reversal - perhaps we should discipline that prosecutor for the minor violation on the theory that it will avoid the greater violation? Discipline need not always mean termination or disbarment. Let's establish a Prosecutorial Review Board, staffed with lawyers and judges, just like judicial conduct bodies, and have them conduct impartial discipline reviews. That way, the decision to impose discipline does not rests solely with the prosecutor's own office or court.

I've been a lawyer a long time. The office of the prosecutor is essential for our democracy to function, and I've known many fine prosecutors. We're not worried about the good and honest lawyers, and the good and honest lawyers shouldn't worry about the disciplining of bad prosecutors. In fact, they should be the first to point out the misconduct. That is the thing that most saddens me. How many of those 53 cases of misconduct that courts had found were revealed by fellow prosecutors? Or, once known, how many lawyers are punished? An investigation by USA Today determined that out of the 201 instances of proven prosecutorial misconduct by Department of Justice attorneys, only one lawyer was disbarred. "Prosecutors' conduct can tip justice scales," USA Today (Sept. 23, 2010). Of those 53 cases of misconduct in the Innocence Project study, how many of them were disciplined by their own office?

Riverside County has experience with allegations of misconduct. Former Ventura County prosecutors have told the press that they were pressured "to take cases to trial regardless of whether there was proof beyond a reasonable doubt," and one even said, management wanted prosecutors to "take a swing at it even though the defendant is probably innocent." "Former prosecutors say DA's office held trial competitions for years," Ventura County Star (Dec. 2, 2011). How often do the prosecutors' own desires for advancement create an atmosphere in which misconduct is not reported?

Amazingly, Totten sees one of the sources of the problem, and then disregards it. When he writes "[i]n my experience, judges have no hesitation ruling against the prosecution when they believe that is the fair ruling," he - to use a Hollywood expression - jumps the shark and loses all credibility.

Has Totten never heard of disgruntled prosecutors challenging state judges, who have the temerity to rule against them, for their seats? I have. Has Totten never heard of prosecutors and law enforcement funding challengers to judges they disfavor? I have. Has Totten never heard of prosecutors using their peremptory affidavit for "blanket excusals" of judges who are deemed to be insufficiently sympathetic to the district attorney's office. I have. I wonder just how safe state court judges think their job is if they have the "recklessness" to find prosecutors have committed misconduct. I'm not saying that state court judges are intentionally unfair; I'm saying that their conception of fairness is colored by their individual circumstances.

Prosecutorial retaliation against state court judges is all too often an established fact. One of Totten's colleagues, Santa Clara District Attorney Dolores Carr, said it was "not unheard of" for prosecutors to disqualify a judge from all criminal cases. She had ordered her prosecutors to file blanket challenges to a state court judge. These recusals were not by voters or citizens, but by prosecutors trying to find judges they believe are more favorable to them. But what, after all, was the judge's offense? The judge had recently held that a trial prosecutor had committed misconduct. "Santa Clara County DA defends boycott of judge: outside experts liken move to nuclear option," San Jose Mercury News (Jan. 26, 2010).

One can argue over the words, but the problem identified by the federal appellate court judges is real and damaging. It hurts the defendants, it hurts the legal system, it hurts the public who needs to pay for new trial or judgments, and it hurt prosecutors themselves. Your credibility, we advise new attorneys, is everything. If prosecutors start to lose that, will anyone care whether or not the source was an "epidemic" or just a few hundred "rare instances" of misconduct?