Epidemic of Prosecutorial Misconduct Noted by 9th Circuit Court of Appeals

In a 9 th Circuit Court of Appeals case, the court openly criticized prosecutors, describing prosecutorial misconduct in criminal cases as an "epidemic". The case involved an appeal in a murder case against defendant Johnny Baca. Mr. Baca was originally convicted of murder in Riverside County, California. It had been determined that prosecutors had presented false evidence in the case against Mr. Baca.

Prosecutors "got caught this time but they are going to keep doing it because they have state judges who are willing to look the other way" said Judge Alex Kozinski.

A 2010 report by the Northern California Innocence Project cited 707 cases in which state courts found prosecutorial misconduct over a period of eleven years. Out of these cases, only six prosecutors were disciplined.

The problem is that prosecutors experience a great deal of political pressure to get convictions and judges are elected on the basis of how tough they are in criminal cases. It takes courage to resist such pressure and there are far too few prosecutors and judges who have the courage to make tough decisions. It is easier to "tow the line" and convict "criminals" rather that ensure that miscarriages of justice do not occur.

When my partner, Jeff Gold, was working as a deputy district attorney in Los Angeles, he was required to try a case involving an allegation of battery. During the jury trial, the victim admitted that he threw the first punch. Jeff asked for a recess and went to discuss the case with his supervisor. Jeff felt that the case should be dismissed as the evidence in the trial tended to indicate that the defendant was defending himself and was not guilty. Despite the evidence, Jeff was instructed by his supervisor to continue to prosecute the case to a jury verdict as it would make the DA's office "look stupid" if they requested a dismissal. Shortly thereafter, Jeff decided to leave the DA's office.

The moral of the story is that anyone charged with a DUI or other criminal offense should not assume that the system is fair and that a prosecutor or judge will be lenient if they plead guilty without a lawyer. The system can be extremely unfair and prosecutors and judges are not always interested in doing justice.


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