Accountability for prosecutorial misconduct

Something rare is happening in San Francisco -- a prosecutor who has been accused of misconduct is being tried by the State Bar on charges of intentionally suppressing evidence in a murder trial.

Cases of prosecutorial misconduct almost never go before the State Bar Court, but not because misconduct doesn't occur. No, these cases are rarely tried because often other prosecutors do their best to protect their own.

The case against San Francisco Assistant District Attorney Andrew Ganz is a good example. Ganz was a Solano County prosecutor in a 2013 homicide case involving a man who was accused of murdering his ex-girlfriend the previous year. The State Bar's main allegation is that Ganz failed to tell the defense about a meeting in which the county pathologist told prosecutors she could not classify the victim's death as a homicide. When she eventually testified, the pathologist indicated that the death was "most likely" a homicide, but Ganz allegedly failed to disclose her previous inconclusive assessment.

Ganz's behavior, according to the judge who presided over the case, demonstrated "a prosecutorial attitude either incapable of or disinterested in maintaining the minimum ethical standards that all prosecutors are sworn to uphold."

Yet if found by the State Bar Court to have committed misconduct, Ganz will be an anomaly in San Francisco. Not all prosecutors break the rules to get convictions, but the ones who do are rarely held accountable. For the few who are implicated, they can rely on one group to zealously rush to their defense -- other prosecutors. And that's the way it's playing out right now in Ganz's case.

Ganz has gathered a veritable who's who of current and former Bay Area prosecutors for his defense. They've circled the wagons, eager to protect their own.

On Ganz's list of potential witnesses, you'll find 17 assistant district attorneys and five judges, two of whom are former prosecutors themselves. More than one of these attorneys -- including Linda Allen and John Rowland, Ganz's colleagues in San Francisco -- were responsible for convictions that were later overturned based on their misconduct. The same is true for Ganz's attorney in the State Bar trial, former fellow San Francisco ADA, Al Giannini. Jerry Coleman, who Ganz hired as an expert witness, was once disciplined by the San Francisco DA's office after dressing in traditional Arab garb and imitating a Middle Eastern accent during a training on search warrant procedures.

Prosecutors cannot be trusted to purge the system of "bad apples" when they themselves comprise the barrel.

Given how seldom the State Bar charges any prosecutors for wrongdoing, one could easily make the leap that misconduct by prosecutors is rare. But in fact, the dearth of charges by the State Bar has virtually nothing to do with the actual frequency of misconduct.

One study revealed that in California between 1997 and 2009, there were 707 instances where a judge found that a prosecutor had committed misconduct. Only six of these instances -- or less than 1 percent -- resulted in the State Bar taking public disciplinary action against the attorney. This is an appalling statistic, but even this underrepresents the scope of the problem.

Judges are often reluctant to find that misconduct has occurred in the first place. And the nature of some violations, such as hidden evidence, means that the misconduct goes undiscovered.

The harm to human lives that underlies this reality should disturb us all.

Prosecutors have the highest ethical duty of any actor in the legal system. It is a duty commensurate with the immense power with which they are entrusted. In a system where around 95 percent of cases end in pleas -- often for reasons unrelated to innocence or guilt, like whether the defendant can afford bail or whether they can withstand the pressures of an ongoing criminal case -- the charges a prosecutor decides to bring can determine the trajectory of a person's life. And this is happening on a massive scale.

Fordham University Law professor John Pfaff 's book "Locked" In argues that the immense rate of criminal charges filed by prosecutors since 1990 is the single greatest contributor to mass incarceration. With around 2.3 million people locked up on any given day -- more than in any other country now or in recorded history -- this reality dominates contemporary American society.

San Francisco, of course, has its own shameful statistics. For example, African-Americans make up around 4 percent of our community, but comprise nearly 50 percent of our jail population. The San Francisco Public Defender's Office collaborated with the Quattrone Center in a study that determined that African-Americans are booked on average for more charges overall than white defendants, particularly for felonies. The severity of these booked offenses is 48 percent higher than their white counterparts. And a study by the Burns Institute found that African-Americans in San Francisco are 10 times as likely as whites to have a conviction in court. Behind all these statistics stand the prosecutors that facilitate these outcomes.

When prosecutors violate their ethical duties, the people they harm have extremely limited remedies. Thanks to a series of decisions by The U.S. Supreme Court, prosecutors can almost never be sued.

But there is a remedy for prosecutorial misconduct: disciplinary action by the State Bar.

That's why it is so important that they have taken on the Ganz case.

Real justice for all Californians requires that prosecutors, like the rest of us, be held accountable when they break the rules. This unusual step by the State Bar is welcome, and way overdue.