It should go without saying that cheating criminal prosecutors who lie or hide evidence to bolster their cases, and cowardly state judges who cover for them, should be identified and punished. It should go without saying — but we say it in light of last month's extraordinary remarks from a panel of U.S. 9th Circuit Court of Appeals judges at a hearing for convicted murderer Johnny Baca. A lower court had determined that a Riverside County prosecutor lied on the witness stand to back up the lies of a jailhouse informant, but the conviction was repeatedly upheld anyway until it got to the federal appeals panel on a habeas corpus petition.
Judges Alex Kozinski, Kim Wardlaw and William Fletcher lit into the state deputy attorney general who was in front of them to defend the convictions, and a video of the exchange went viral. It sparked news stories and spirited exchanges on legal blogs about what Kozinski had previously called an "epidemic" of prosecutorial misconduct and assertions that too many California state trial judges are unwilling to do anything about it.
It is tempting to see prosecutorial misconduct as a less urgent problem than the front end of the justice system — the encounters between suspects and police that have become the subject of nationwide soul searching and reexamination in the wake of high-profile police killings in Ferguson, Mo.; New York; and Los Angeles, among other places.
But lives are also at stake in the criminal courtroom. A sentence of 10 years or 20 years or even more — or of death — should not be rendered without absolute assurance that the trials were fair and that the prosecutors were honest. An argument could be made that prosecutorial misconduct is far more egregious and unforgivable than a police officer's deadly error, because police officers must react in an instant to a potentially deadly threat to themselves or the public. A prosecutor's misdeed comes with ample time to reflect.
In Baca's case, Kozinski in effect directed the state's lawyer to get his boss, Atty. Gen. Kamala Harris, to drop the case. She did. It remains to be seen whether Riverside County will retry Baca. But Kozinski also made it clear that he wanted to see disciplinary action against the prosecutor who took the stand and the prosecutor who put him there.
Keep in mind that criminal prosecutors have duties that defense lawyers don't. The prosecutor's goal is not, or rather should not be, merely to win, but to ensure that proceedings are fair and verdicts are just. Prosecutors must disclose any evidence that could tend to undermine their own cases. They may not — again, it should go without saying — lie, encourage others to lie, or present witnesses they know or suspect to be lying.
California trial judges and appellate justices who encounter such misconduct have to determine whether it was so egregious — and so material to the conviction — that the verdict must be reversed. But then what?
Cheating prosecutors should be reported to their superiors for discipline, including possible firing; to the State Bar of California for further discipline, including loss of their license to practice law; and perhaps to other prosecutors, to face criminal charges for perjury. But that rarely happens, even though studies of prosecutorial misconduct or scoldings from the federal bench come far too frequently. Several studies show that judges rarely report lawyers to the state bar in the event of prejudicial misconduct. The judge ought to report the lawyer even when the misconduct doesn't result in the case being overturned. If that ever happens, the public almost never finds out.
In the hearing on Baca's case, Kozinski complained that state prosecutors will keep committing misconduct "because they have state judges who are willing to look the other way." Wardlaw noted that California state judges "are elected judges. They are not going to be reversing these things."
The legal community has latched on to those comments and is involved in a debate over whether the essential enabling factor of prosecutorial misconduct is the fact that, unlike their federal counterparts, who are appointed for life, California judges must face the electorate. The argument goes that no judge wants to overturn a conviction or nail a prosecutor for fear of being branded soft on crime at election time.
But before becoming comfortable with the assertion that the problem is state judges and elections, let's recall that Kozinski's remark about an "epidemic" of misconduct or error came not in the Baca case but in a 2013 dissent — in a federal case.
In January, environmental activist Eric McDavid left prison after serving nine years following an admission by the prosecutors' office — a U.S. attorney's office in California — that it withheld exculpatory evidence in the 2007 trial.
If violations of the prosector's duty to turn over potentially exculpatory evidence, as required under the 1963 case of Brady vs. Maryland, are indeed "epidemic," it appears to be a disease that can spring up in any courtroom in which prosecutors believe they will be rewarded for convictions and judges, whether elected or with lifetime appointments, believe there is little point in reporting cheaters.
The 9th Circuit panel's outrage at the Riverside County prosecutors serves as a reminder of this serious problem. It is incumbent upon state and federal judges and prosecutors, the state bar and others involved in the justice system to acknowledge it, and to present a solution.