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Calif. study: Prosecutors' misconduct reverses 18 convictions in 2010

By Michael Martinez, CNN
  • Researchers found 102 state and federal cases in California with prosecutorial misconduct
  • Those 102 cases had 130 instances of prosecutorial misconduct, a new study says
  • 18 of the cases resulted in conviction reversals, including eight for murder, the study finds
  • Researchers say a nationwide study of prosecutors is needed

Los Angeles (CNN) -- California prosecutors committed 130 instances of misconduct last year, some of which were so egregious that they resulted in the reversals of 18 convictions, including eight for murder, a new study said Wednesday.

In all, researchers with the Northern California Innocence Project at the Santa Clara University School of Law found 102 cases in which 130 instances of prosecutorial misconduct occurred in California's state and federal courts in 2010, said Maurice Possley, a visiting research fellow with the project.

In 26 of the cases, the misconduct resulted in the setting aside of the conviction or sentence, a mistrial, or a barring of evidence. But courts upheld the convictions in 76 other cases because the prosecutors' misconduct didn't alter a trial's fairness, the study's authors said.

The study highlights the need for further scrutiny of prosecutors' performance, and researchers said they are now trying to find ways to expand their initiative nationwide, Possley told CNN. The California researchers have been in touch with other innocence projects in North Carolina and New Jersey, he said.

"One of our goals at NCIP is essentially to branch out and take this to a national level, and in that regard, we've already had discussions with folks in two other states who want to duplicate our study," Possley said.

"This is a problem not just in California but in the country. As we've seen with the implosion in states and federal courts ranging from the collapses of the case with (the late U.S. Sen.) Ted Stevens in Alaska and other cases where prosecutors cross the line and their conduct causes cases to be set aside or cases being retried or dropped, prosecutorial misconduct is a factor in a number of wrongful convictions in this country," said Possley, a Pulitzer Prize winner and former journalist at the Chicago Tribune who helped lead that newspaper's investigations into prosecutorial misconduct in Illinois.

At stake, he said, "is the integrity of the criminal justice system and how it is perceived in the public."

Already, the State Bar of California, an arm of the California Supreme Court, is investigating prosecutorial misconduct that the California researchers found last year in a study of cases between 1997 and 2009, Possley said.

"My sense is that they are taking it seriously, and that's what we want, for folks to take it seriously and give it the attention that it needs," Possley said.

Jim Towery, chief trial counsel of the State Bar of California who oversees an office of 250 attorneys and other personnel dedicated to investigating state lawyers for professional misconduct, declined to state how many cases he's looking at as a result of the independent researchers' studies, but he confirmed there are ongoing investigations.

"When the state bar received the NCIP report last fall, we did indeed go through all of the report in detail. We examined about 150 cases specifically that involved circumstances in which the court had reversed a judgment based on allegations of prosecutorial misconduct," Towery told CNN.

"As a result of those reviews, we determined that we are going to open investigations in a modest number of cases and, if warranted, bring charges against the lawyers involved," Towery said. He decline to specify the number of ongoing investigations.

Discipline can range from private reproval to disbarment, Towery said. Suspensions of a law license can range from 30 days to four years, he added.

The state bar wasn't aware of some instances of prosecutorial misconduct resulting in verdict reversals that were found by the researchers, Towery said. That's because judges and attorneys didn't report the incidents, though state law requires it, Towery said.

"It's simply a matter of education. I think many lawyers and judges didn't know about those responsibilities," Towery said. "So we're reaching out to do an education process to tell judges and lawyers about the reporting duties."

Added Towery: "It's important that NCIP is highlighting this, and they deserve credit for focusing public attention on this."

Possley said his organization has come under criticism by prosecutors who say "most of the misconduct is not that bad, that it's a small number of cases when you consider the vast number of prosecutions that are brought."

"Well," Possley asserted, "how many are acceptable in a system that we want to be fair and just."

"The fact is that most prosecutorial misconduct occurs in trials, and in California, only 3% of the felony cases go to trial. The rest are handled by plea agreements. So when you start to focus it that way, it becomes more of a significant issue," Possley said.

The vast majority of prosecutors, Possley added, are "ethical and hard working."

"It's a relatively small number who continue to cross the line," he said. "The fact is, there is no attention paid to it, it becomes acceptable behavior, and it shouldn't be."

Wednesday's announcement combined the project's 2010 findings with its report last fall for the years between 1997 and 2009.

In all, between 1997 and 2010, the project found prosecutorial misconduct in more than 800 state and federal cases in California, and in 202 of them, the misconduct resulted in the setting aside of a conviction or sentence, a mistrial or a barring of evidence, the researchers found.

In 614 of them, the misconduct didn't affect the fairness of the trial, the studies found.

In the more than 800 cases, 107 prosecutors committed misconduct more than once; two were cited for misconduct four times; two more were cited five times; and one was cited for misconduct six times, the researchers found.

Prosecutors who committed misconduct multiple times accounted for almost a third of all misconduct cases, the researchers said.

The misconduct occurred in a wide range of cases, including burglary, rape, kidnapping, fraud, drug possession, and transporting illegal immigrants, Possley said.

The studies were conducted by the Veritas Initiative, the research and policy arm of innocence project at Santa Clara University School of Law, founded in 1911 on the site of California's oldest operating higher-education institution.