10/11/2010 12:40 pm ET Updated May 25, 2011

Prosecutorial Misconduct Documented in Northern California Innocence Project Report

The Northern California Innocence Project has published an illuminating and somewhat discouraging report on prosecutorial misconduct in California. The report analyzed 4,000 cases of alleged prosecutorial misconduct from 1997 through 2009 and found that in 707 of those cases there was a judicial finding of prosecutorial misconduct; 3,000 rejected the allegation; and 282 did not make any finding. The report emphasizes that the totals are probably much greater because instances of misconduct may not have been discovered or brought to the courts' attention.

The report stresses the lackadaisical approach of the courts and the state bar to such misconduct. In most cases, despite a finding of misconduct, convictions were permitted to stand, and rarely was the misconduct reported or disciplined, even though some prosecutors were repeat offenders. The authors (Prof. Kathleen Ridolfi of Santa Clara University School of Law and Maurice Possley serving as Visiting Research Fellow at the NCIP) contend that this problem is increasing -- not diminishing.

Although some of this conduct may be attributable to winning for the sake of winning, I suspect that it is not motivated by evil, but rather that the zealous prosecutors involved are so convinced of the person's guilt that the temptation to assure a conviction may motivate incidents of misconduct. However, good motives cannot exonerate or excuse misconduct when liberty, and in some instances, life is at stake. The misconduct violates both the oath and duty of prosecutors to seek justice. Most, however, play by the rules and conduct themselves with honesty and integrity.

The introduction to the report recounts a case in which a prosecutor withheld evidence that would have exonerated a defendant. The appellate court deemed it important enough to rule on the matter although the defendant had died in prison earlier. The prosecutor was never disciplined. How many such cases are out there is difficult to determine. What is clear from the report is that there are far too many that go unremedied and unpunished. The report renders a great service to the judicial system and makes recommendations clearly worthy of serious consideration.