Recent Prosecutorial Misconduct Statistics

The DOJ typically takes the position that some AUSA misconduct does occur within the criminal justice system, but it is infrequent and does not alter the outcome of convictions in the large percentage of cases. Some
recent statistics from several authoritative sources will enable readers to draw their own conclusions on the frequency of misconduct and the extent to which the entire federal prosecution machinery is tainted as a result.

One of the more comprehensive reports on prosecutorial misconduct is entitled “Preventable Error: A Report of Prosecutorial Misconduct in California 1997-2009.” This study was authored by Kathleen M Ridolfi and Maurice Possley, both of whom were at the time affiliated with the Northern California Innocence Project in conjunction with the Santa Clara University School of Law. The California Report is comprehensive and pulls no punches. Introducing the harm associated with prosecutorial misconduct the Report opens by stating that “prosecutorial misconduct is wrong. It is not excusable as a means to convict the guilty, and it is abhorrent to the conviction of the innocent…. It undercuts the public trust and impugns the reputations of the majority of prosecutors, who uphold the law and live up to their obligations to seek justice.” Report at 6.

Let’s remember this is only one study done in the State of California for both state and federal prosecutions. The study examined about 4,000 cases that involved allegations of prosecutorial misconduct. The courts rejected the allegations about three out of four times, i.e. roughly 75% of the time. In the remaining cases, the courts found there was prosecutorial misconduct in 707 cases and for whatever reason declined to reach the
misconduct issue in 282 cases. The Report then focused on the details and disposition of the 707 cases. Here is a startling statistic. According to the Report, only six of the prosecutors in these 707 cases where misconduct was found were disciplined by the California State Bar. Only 10 of the 4,741 public disciplinary actions reported in the California State Bar Journal between 1997 and 2009 involved prosecutors, and only six of those 10 related to conduct arising in the handling of a criminal case. In these 707 cases, prosecutorial misconduct was specifically found to have occurred. In 159 of the 707 cases, the misconduct resulted in setting aside a conviction or sentence, mistrial, or barred evidence. Here is the kicker though. In 548 of the 707 cases studied, the courts nevertheless upheld the convictions, finding that the misconduct did not alter the fundamental fairness of the trial. This process is called the harmless error doctrine and it too is subject to its own legal criticisms which is beyond the scope and purpose of this website.

Since we have focused primarily on the frequency of violations of the Brady doctrine here, it is important to identify the broad categories of prosecutorial misconduct which the study found within the 707 cases at issue. Prosecutorial misconduct, according to case law cited in the Report, encompasses a wide range of improper tactics in criminal cases that “implies a deceptive or reprehensible method of persuading the court or jury. Basically, it is a prosecutor’s effort to convict the accused through wrongful means. According to the Report, the most prevalent categories of prosecutorial misconduct within the studied cases, in the order of most prevalent to least prevalent are: (i) improper argument; (ii) improper examination; (iii) failure to disclose exculpatory or impeachment evidence (Brady violations); and (iv) violating the Fifth Amendment right to remain silent. It is notable that all but the Brady violations category is likely to occur in open court during a trial or hearing setting where defense counsel is present to object and either prevent or preserve the misconduct error. Brady violations are far more insidious since it is generally only the prosecutor who knows what the defense lawyer does not know since the evidence has not been disclosed. Many times Brady violations are only discovered after the conviction by fortuitous events such as parallel civil actions, other prosecutions relating to co-defendants, or defense counsel successfully obtaining case records through other lawful means.

Failure to disclose Brady material keeps the jury from considering proper and admissible evidence supporting the innocence of a defendant. Without access to this evidence, innocent defendants face a serious risk of being convicted for a crime they did not commit. Professor Bennett L. Gerschman, a leading legal scholar on prosecutorial misconduct, states in his treatise on that subject that “[a] prosecutor’s violation of the obligation to disclose favorable evidence accounts for more miscarriages of justice than any other type of malpractice, but is rarely sanctioned by courts, and almost never by disciplinary bodies.” Bennett L. Gershman, Prosecutorial Misconduct (2d ed. Thompson/West 2007). One wonders why? We believe the answer to that question is pretty simple, i.e. prosecutors are not being held accountable for their malfeasance in conducting prosecutions. The two primary institutions responsible for identifying, remedying, and sanctioning misconduct are just not doing their job. That is the judiciary and state bar disciplinary authorities. For example, the Supreme Court has noted that one way to deter misbehaving prosecutors is to “publicly chastise the prosecutor by identifying him [or her] in [the court’s opinion]. Reviewing courts only rarely refer to errant prosecutors by name. Another method very infrequently used is to refer an errant prosecutor to state bar disciplinary authorities or the Department of Justice’s OPR. As we’ve seen, however, both referrals are problematic in terms of a deterrent effect to the misconduct. We believe there will be no meaningful deterrent to prosecutorial misconduct until the courts set aside tainted convictions subjecting the government to retrials and double jeopardy claims or the prosecutor is sanctioned by the court where the misconduct occurred. This remedy, as one would expect, is heavily disfavored by prosecutors, law enforcement, and the courts. Fairness dictates that the person who stands to lose their freedom should benefit by the remedy for the misconduct. What do you think?

There are some other statistics reported that are truly eye opening but admittedly are not solely tethered to prosecutorial misconduct. The University of Michigan Law School maintains an annual project called the National Registry of Exoneration’s. Since 1989, detailed information about every known exoneration in the U.S. has been examined in cases in which a person was wrongfully convicted of a crime and later cleared of all charges based on new evidence of innocence. The most recent study available is dated February 3, 2016 for the year 2015. Setting an all-time record for exoneration’s, 149 defendants were exonerated in 2015 having served on average about 14.5 years in prison. As of January 27, 2016, the National Registry has compiled exoneration’s of 1,733 individuals since inception of the program in 1989. Since 2011, the annual number of exoneration’s has doubled annually. We believe there is only one reason for that trend, which is the continuing public exposure of information which reveals that our justice system is convicting some percentage of innocent defendants which is unacceptable. What are the common causes attributed to the rapid increase of exoneration’s? For 2015, the National Registry lists the following as the basis of the wrongful convictions: (i) false confessions; (ii) government officials committing misconduct; (iii) no crime actually occurred; and (iv) coercive guilty pleas served as the basis of the conviction.

Five of the 149 exoneration’s were defendants sentenced to death. 26 were exonerated in whole or part on DNA evidence. Overall, since the Registry began tracking, DNA exoneration’s now account for 24% of the total number of exoneration’s. Before you get blurry-eyed by reading more statistics, we finish with how we started, i.e. the impact that misconduct by government officials has on the justice system. According to the Registry, 75% of homicide exoneration’s during 2015 included official misconduct. In order to truly grasp the significance of the wrongfulness of these convictions, the case itself must be personalized. Other parts of this website provide this insight through short case studies. A particularly egregious and notorious conviction occurred with a women by the name of Debra Milke convicted of murder, kidnapping, child abuse and conspiracy in the State of Arizona in 1990. Milke spent 25 years in prison before being exonerated in 2015 by a federal court on a habeas petition. See Case Study No. 2.