Lawyers clash over prosecutorial misconduct

Times Staff Writer

A veteran law professor and a civil liberties lawyer clashed sharply with several district attorneys Wednesday over the extent of prosecutorial misconduct in California and what, if anything, should be done about it.

“Prosecutorial misconduct occurs with some frequency in this state and prosecutors are rarely disciplined for their misconduct,” Santa Clara University law professor Cookie Ridolfi said at a hearing at Loyola Law School.

For the record:

12:00 AM, Jul. 13, 2007 For The Record
Los Angeles Times Friday July 13, 2007 Home Edition Main News Part A Page 2 National Desk 1 inches; 37 words Type of Material: Correction
Prosecutors: A photo caption in Thursday’s California section with an article about a debate over prosecutorial misconduct incorrectly identified Kate Flaherty, a deputy district attorney from San Diego, as Lael Rubin, an L.A. County deputy district attorney.

Both the Los Angeles County district attorney’s office and the California District Attorneys Assn., however, submitted statements saying the state’s current rules of professional conduct are an adequate safeguard against prosecutorial excess.

The debate occurred at the latest hearing held by the California Commission on the Fair Administration of Justice, created by the state Senate in 2004 to study problems in the criminal justice system that have put innocent people in jail.


Ridolfi, who is the director of the Northern California Innocence Project, told the commission that judges had found prosecutorial misconduct in 443 of more than 2,100 California cases over the last 10 years. Ridolfi said that figure was just “the tip of the iceberg,” because about 97% of criminal cases are resolved by plea bargains.

In addition, she said “at least four major studies in recent years have identified prosecutorial misconduct as a significant factor in the conviction of innocent people.”

But Michael Schwartz, a deputy district attorney in Ventura County, countered that a close look at the available data shows that prosecutorial misconduct occurs in less than 1% of all cases. “I am not sensing that we have a crisis of prosecutorial misconduct,” when it is found in only one of 800 appeals, Schwartz said. Consequently, he said, “it doesn’t seem like we need new rules.”

Natasha Minsker of the American Civil Liberties Union of Northern California countered: “The question for the commission is not whether misconduct is rampant or rare, but whether there are systemic problems and do we need systemic solutions. Our answer to both questions is yes.”

Three bills are currently before the state Legislature based on the commission’s work on other issues in wrongful convictions, including false confessions in custody, jailhouse informants and the use of lineups in witness identifications.

What became clear Wednesday was that it is going to be more difficult for the commission to come up with a clear stance on what to do about misbehavior by prosecutors, if anything. “These are tough issues,” said commission Chairman John Van de Kamp, former Los Angeles County district attorney and state attorney general.

There also were signs at the meeting that some prosecutors and law enforcement agencies mistrust the commission. Loyola law professor Laurie Levenson is researching for the commission how district attorney’s offices deal with prosecutorial misconduct, among other issues. She said her project had been hampered by “at least an informal agreement among many district attorney’s offices not to cooperate. There was a great deal of suspicion.”

She emphasized, however, that there were notable exceptions, including the Los Angeles County district attorney’s office.


Thus far, Levenson said, she has found that “one major gap” is that the offices do not track misconduct complaints.

Lael Rubin, a veteran deputy district attorney in Los Angeles, said three separate committees in her office were concerned with ethics, including one dealing exclusively with the office’s responsibility to turn over exculpatory information to defense lawyers.

“Prosecutors care about these issues,” said Kate Flaherty, a deputy district attorney from San Diego who maintains a hotline for prosecutors on ethics matters.

The 21-member bipartisan commission also heard a stinging preliminary report on the quality of legal representation defendants receive in California, prepared by professor Laurence A. Benner of Cal Western Law School in San Diego and two students at the school.


Lorenda S. Stern, a third-year student, began the presentation with a very stark piece of data: Rural Plumas County, in a recent year, spent $692,117 on its county fair, but only $420,300 on indigent defense.

“That may seem funny, but not if you are counting on Plumas County” to provide adequate representation, Stern said.

“The most significant finding from our study is the discovery that criminal defense counsel in many counties lack the resources necessary to conduct the defense investigation required by the Constitution, and by both national and California state bar standards,” Benner told the commission.

“This finding is especially troubling because” the lack of adequate investigation “concerns more than the technical right to a fair trial; it goes directly to the heart of guilt or innocence,” he added.


Benner’s study also revealed a significant disparity in resources for prosecution and defense offices around the state. For example, in Los Angeles County, the indigent defense budget is $196.8 million compared with the prosecution’s budget of $259.3 million.

“Until we reduce the glaring disparity in the resources allocated to prosecutors and defenders, we destroy the promise” of the criminal justice system “to provide effective assistance of counsel guaranteed by the Constitution,” Benner said.