Prosecutorial misconduct is sad, but not an epidemic

"Guilt shall not escape nor innocence suffer."

Eighty years ago, the U.S. Supreme Court articulated this solemn responsibility that is borne by every prosecutor every day in every decision and action they take as law enforcement officials. During more than 32 years as a prosecutor, I have had the privilege of knowing and working with hundreds of local, state and federal prosecutors. I know these courageous men and women to be people of great character and integrity motivated by the highest legal and moral principles. For that reason, those rare instances in which a prosecutor fails to uphold these standards are particularly painful. But I am equally offended when people who know better describe these aberrations with reckless words like epidemic.

In January, the state attorney general agreed that another county's murder conviction of Johnny Baca be vacated. The outcome was based upon two grounds: that a prosecutor had lied to the jury under oath, and that Baca's attorney failed to effectively represent him. I will not attempt to justify the prosecutor's reported testimony in that case.

I do not agree, however, with the comments of Judge Alex Kozinski regarding the prevalence of prosecutorial misconduct, echoed in an editorial by the Los Angeles Times. ("The case against cheating prosecutors," Feb. 15). Kozinski's comments during oral argument in the Baca case follow similar comments he made in a dissenting opinion in the ricin poison case against Kenneth Olsen. Kozinski claims the failure of prosecutors to disclose evidence has "reached epidemic proportions" constituting an "unsettling trend." He supports his claim with a list of 29 cases gleaned from various state and federal courts, some more than 15 years ago. Such lapses, when they occur, must be taken seriously. But the extent of such violations must be taken in proper context.

In California state courts alone, almost a million felony and misdemeanor cases are resolved each year. Court of Appeal statistics show that about 4,800 felony appeals are filed annually, and that the convictions are affirmed in 94 percent and 2 percent are rejected by the court for procedural error. Of the 4 percent of appeals that the defendant wins, many are based on legal issues that have nothing to do with prosecutorial misconduct.

I served on the California Commission on the Fair Administration of Justice, which issued its report in 2008. The director of the Northern California Innocence Project presented the Commission with a survey that found 2,131 claims of prosecutorial misconduct in California over a nine-year period; in only 2.5 percent of these cases did the court find an error serious enough to overturn the conviction. While no instance of prosecutorial misconduct should be tolerated, these numbers obviously do not constitute an epidemic.

Another judge in the Baca case, Judge Kim Wardlaw, claimed that state court judges uphold convictions because they are elected, unlike the lifetime appointments of federal judges. But accountability to the public encourages judges to do justice and is fundamental to our system of democracy. In my experience, judges have no hesitation ruling against the prosecution when they believe that is the correct ruling. The Times' assertion that judges are "cowardly" is just plain wrong and unfairly demeans California's jurists.

Regrettably, no group of professionals is perfect. We are all aware of disturbing incidents of misconduct by professionals as diverse as top military leaders, journalists, doctors, and even state and federal judges. But it would not be fair or accurate to characterize the misconduct in any of these groups as an epidemic. In truth, as with prosecutors, incidents of misconduct are exceedingly rare.

We should all be proud of the professionalism and ethical standards of our criminal prosecutors. When prosecutors intentionally violate ethical standards, serious consequences are necessary to uphold the integrity of the system. But to portray such unusual lapses as commonplace does a disservice to our profession, and worse, undermines public trust in the best justice system ever created by man.