How to Fix the 'Systemic Problem' of Prosecutorial Misconduct in California
Between 1997 and 2009, California judges explicitly found that state prosecutors engaged in misconduct during criminal trials more than 700 times, from intimidating witnesses to witholding evidence that would exonerate the defendant, actions that led not only to innocent people being locked behind bars for years, but to actual criminals being set free. And don't expect that sort of behavior to stop anytime soon. Only six were ever disciplined for their misconduct by the California State Bar over that period, and none will ever need to pay restitution to their victims: California prosecutors enjoy absolute immunity from civil liability for their conduct in court.
Those figures are from a recent report by the Veritas Initiative, a new watchdog group launched last month by the Northern California Innocence Project (NCIP) at the Santa Clara University School of Law that aims to promote "data-driven reform" in California's dysfunctional criminal justice system. Founded by NCIP Executive Director Kathleen "Cookie" Ridolfi, a law professor and former trial lawyer, the initiative hopes to do away with the culture of impunity that's arisen among California prosecutors, 67 of whom were found to have engaged in gross misconduct more than once during a criminal trial.
In a particularly galling example, one man, Mark Sodersten, spent 22 years behind bars for a murder he didn't commit, convicted only because the deputy district attorney in the case, Phillip Cline, withheld an interview with a witness that would have exonerated him. But despite a court finding that the case raised "the most feared aspect of our system -- that an innocent man might be convicted," Cline has faced no repercussions. In fact, he's moved up in the world, becoming Tulare County's District Attorney.
In an interview with Change.org, Ridolfi discusses the link between prosecutorial immunity and misconduct and what the average person can do to make a difference.
Change.org: What spurred you to form the Veritas Initiative? And what does it mean to pursue “data-driven reform”?
Kathleen Ridolfi: The Veritas Initiative was created largely in response to my experience as a Commissioner on the California Commission on the Fair Administration of Justice. It became very obvious to me that in order to effectively promote law reform to address problems of wrongful conviction, there had to be concrete data to support it.
The Veritas Initiative is a vehicle through which we can raise issues and publish research that can support needed law reforms. Data-driven reform employs research that is analytical and based in facts derived from research conducted on the criminal justice system rather than anecdotal evidence based on just a few instances.
What are the most pressing issues affecting California’s criminal justice system?
The most pressing issues include the need for accountability by prosecutors, reforms in eyewitness identification procedures to address problems of eyewitness misidentification, the need for taping interrogation to protect against false confessions and our prison system, which is an enormous problem in this state.
Just how did California’s prison and court system get to be as screwed up as it is today?
Big question that requires a long answer.
But, the short answer is complacency and official disregard ... based on decades of reliance on a false assumption that we convict the guilty and protect the innocent. DNA exonerations in the past 20 years have turned that assumption on its head, but the system is extremely resistant to admitting problems and doing anything about them.
The Veritas Initiative’s first report, Preventable Error, documented 707 cases where prosecutors engaged in misconduct. And it noted that many more cases were likely never reported or discovered, as most defendants never even go to trial. Doesn’t that suggest prosecutorial misconduct is a systemic problem?
Yes. There is most definitely a systemic problem, documented not only by our study but by many other studies. I cite some in the report.
The majority of prosecutors are ethical, hard-working men and women who perform their jobs well. However, a significant number of prosecutors engage in misconduct, some of them repeatedly. The problem is due to a failure of the courts and California State Bar to adequately address it or discipline it when it occurs. A lack of transparency contributes to the lack of accountability. The worst thing that happens when a prosecutor commits misconduct is the conviction may be reversed—they are not disciplined and their conduct is rarely examined.
As your report shows, prosecutors engage in misconduct with near-total impunity, with only six ever punished for their conduct during a criminal trial. Does that in turn make misconduct more likely? And should we consider removing prosecutors’ absolute immunity from liability for their actions?
Most definitely, yes!
The lack of discipline promotes an atmosphere where prosecutors can commit misconduct without fear of sanction—absent an occasional tongue-lashing by a judge. In effect, prosecutors can commit misconduct with impunity. Prosecutors are emboldened to continue committing misconduct because there are no sanctions. Removing absolute immunity would create an atmosphere where prosecutors would have to be more careful to follow their ethical obligations in pursuing convictions. Many other professions operate without the protection of absolute immunity -- doctors and private lawyers, for example. Prosecutors should be no exception. Absolute immunity protects the unethical prosecutor -- the ethical prosecutor does not need it.
What can the average person do to affect change in California’s criminal justice system? Who and what should they focus on if they want to have an impact?
The average citizen should pressure their legislators and local governments, the State Bar and district attorney offices to put a stop to prosecutorial misconduct. Misconduct costs taxpayers millions of dollars as a result of multiple trials and convictions of the innocent. Taxpayers should demand that prosecutors seek justice, not convictions that can result in guilty criminals going free.
And finally, if you could institute just one reform, what would it be?
The elimination of absolute immunity.
Photo Credit: Santa Clara Law
Charles Davis
has covered Congress and criminal justice issues for public radio and Inter Press Service.
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