09/22/2014 01:32 pm ET Updated Nov 22, 2014

Why Good Prosecutors Do Bad Things: Pending California Legislation on Prosecutorial Misconduct

A bill currently sits on California Governor Jerry Brown's desk aimed at limiting trial misconduct by prosecutors. Despite the U.S. Supreme Court's 1963 ruling in Brady v. Maryland --holding that a prosecutor must disclose all exculpatory evidence (evidence that helps the defense) -- there are still too many deliberate failures by prosecutors to disclose important evidence in serious criminal trials. To that end, the proposed bill, AB 885, passed by the California Assembly on August 29, 2014, is actually quite straightforward and measured: It simply allows a judge who finds an intentional failure of a prosecutor to disclose exculpatory evidence to instruct the jury that "the failure to disclose has occurred and that the jury shall consider the failure to disclose in determining whether reasonable doubt of the defendant's guilt exists."

It should be underscored that the proposed remedy is not a dismissal of criminal charges, suppression of any evidence or the opening of the jailhouse doors for the accused to go free; just a true statement to the jury about what happened in the discovery process and how they may consider that information in coming to a verdict. The motivating principle is that such a remedy will get prosecutors to more diligently comply with their discovery obligations and thus allow for fairer trials and, thereto, less appellate issues.

So why do we need to even be talking about enacting such a law? Since it is true that prosecutors -- almost uniformly -- want to only convict the guilty, it therefore may baffle many as to why such "intentional" misconduct still occurs. I hope as a prosecutor myself, I can give a little insight -- but certainly no justifications -- into the pathology that triggers the mindset of prosecutors who commit miscarriages of justice.

Let's say that you paid top dollar for a weekend seminar and, despite having some negative experiences of the event, you only gush to others about how your money was well spent... Your best friend just got dumped, and while you'd always liked his ex, you now find yourself gathering evidence as to why she'd been a terrible girlfriend all along... Your brother only listens to a particular political pundit and refuses to discuss, watch, or hear anything new that may challenge his particular viewpoints.

These are just a few examples of the all-too-human trait known as cognitive bias -- the key word here being "bias." According to the fields of cognitive science and social psychology, cognitive bias is a result of how the human brain has adapted and trained itself to take shortcuts when it comes to processing information efficiently. It's quite common for people to reaffirm what they first considered true while dismissing anything that contradicts their original premise. This kind of subconscious mental-filtering method resides in all of us. The problem? It causes errors in thinking and distorts our perceptions. It's like that first time you saw your neighbor's dog Barney doing his business on your pristine lawn. From that point on, whenever you spot another pooch pile in the front yard, you grow more convinced that Barney's behind it -- even though dozens of tail waggers stroll past your home each day.

It's easy to see how these common cognitive tendencies can produce harmful, myopic effects, especially when it comes to determining all the facts of a crime. This innate phenomenon also explains why some public corruption needn't be as obvious or overt as, say, a government employee stealing public funds or a cop planting evidence to frame a suspect. In fact, public corruption can wear many hats and unwittingly reside in our gray matter.

It is a deeply disheartening fact that throughout American history too many defendants have been wrongly convicted. For example, since 1989, post-conviction DNA testing has led to the exoneration of 280 people and, in 40 percent of these cases, also helped unmask the true perpetrator. Yet even in the face of hard biological evidence, some prosecutors refuse to admit their mistakes. Indeed, some of this bizarre stubbornness can be attributed to outright unethical conduct. That said, it's rare that any prosecutor sets out to convict an innocent person or purposefully withholds exculpatory evidence.

Alafair S. Burke, an associate professor at Hofstra University School of Law, points to a growing awareness in the criminal justice system of how different forms of cognitive bias such as confirmation bias, selective information processing, and belief perseverance can contribute to the problem of tunnel vision among prosecutors. Burke, a crime novelist and former prosecutor herself, goes on to assert, "Prosecutorial resistance to defense claims of innocence can be viewed as deep (and inherently human) adherences to the 'sticky' presumptions of guilt that result from various forms of cognitive bias that can impede the neutrality of prosecutors."
In studying wrongful convictions, University of Wisconsin Law School professor Keith A. Findley discusses this danger in a chapter titled "Tunnel Vision." Findley, also president of the Innocence Network, writes, "These cognitive biases help explain how and why tunnel vision is so ubiquitous, even among well-meaning actors in the criminal justice system."

I confess: When faced with new evidence that undermines my original theory, I'm in no way immune to this innate habit of rationalization. There are moments when I have to fight any overcommitment to my first theory of guilt. I always hope and pray that my better angels and pragmatic thinking will help inoculate me against it. But at times I've also sensed my mind instantly defaulting to the original premise -- even when I know that its foundation has in some way shifted. Fortunately, in my core, as with most prosecutors, I know that if I win by playing unfair, I no longer represent the "We the People" that our great American justice system was built on.

Susan Bandes, a distinguished research professor at DePaul University College of Law who studies prosecutorial bias, attributes this dilemma to the inherent tension between a prosecutor's divided loyalties: that is, between the duty to be a neutral, objective minister of justice and the duty to act as zealous advocate. In addition to the biases described above, the institutional environment in which a prosecutor works often compounds the conflict. Explains Bandes, "The prosecutor will establish relationships, develop empathy, and build loyalties in ways that are bound to affect her conception of justice, and how it is best served."

Professor Bandes is right. Those in our immediate circle often help us inform our opinions. Day in and day out, I talk to investigators, fellow DAs, and the victims' families about my cases. However, I also have close friendships with defense attorneys, judges and people and activities outside the justice system who, over the years, have ensured that I am grounded in the realities of the real world even when the recognition of those realities cause me to lose in the courtroom.

In the final analysis, sometimes a prosecutor should simply be content with losing; that's something that they leave out of most law school curriculum.