6 responses

  1. Upon analysis, the NCIP Report, like many of its ilk, is not a study in the scientific tradition. Rather, it is an unscientific survey of published cases and media stories conducted by law
    school students. Riddled with inaccuracies, misleading information, and unprofessional
    analyses, it makes recommendations for reform based upon questionable data. Not only
    does this report ignore the historical context of time-tested principles and how they apply to
    the modern judicial and prosecution function, it is singularly lacking in any understanding
    of how a District Attorney’s Office actually operates and the training provided to deputy
    district attorneys. Lastly, it fails to anticipate the consequences to the justice system were its
    recommendations adopted.

    Well, that settles things.

  2. Of course, it’s only “misconduct” if the prosecutor intended to do something wrong and if the intended act is actually performed and some later court determines that it was harmful. And since prosecutors never intend to do anything wrong (certainly, it’s never proved to the satisfaction of a higher court), there’s no misconduct. Just the occasional oopsie. And even that’s something so rare as to be almost impossible to find.

    You’ll note that in Baca we wouldn’t really know if the oral argument weren’t out there on YouTube. All we’d have would be the order granting the conditional writ without explanation.

    Here’s a real-life example:

    Prosecutor filed a motion, which was granted, to prevent a lawyer from testifying to what the defendant had told him about what had happened (it was exculpatory if the jury believed it) shortly before he was arrested. The defendant told the same thing to a reporter a couple of months later, and the judge let the reporter testify to that. In rebuttal closing argument, the prosecutor told the jury that the defendant had spent a couple of months sitting in the jail and making up the story before he ever told anyone.

    It was a lie. Not a mistake, a lie. Everyone in the courtroom knew it was a lie. Except the jurors.

    It was also the main issue on appeal. The court of appeals did not address the lie. At all. They affirmed the conviction. So no misconduct, right? That was Ohio, not California. But hey, these things do happen, even if the California District Attorney’s Association denies it.

  3. RGH,

    So what do you think of the distinction between “prosecutorial misconduct” (which requires an intentional act by the prosecutor designed to deceive the court or the jury) and “prosecutorial error” (which, like unintentional errors made by trial court judges, are not designed to deceive anyone or to pervert justice) drawn by the CDAA report?

    And, if one believes — as Judge Kozinski does — that there is an “epidemic” of “prosecutorial misconduct” in America, doesn’t that perception taint one’s ability to distinguish intentional misconduct from unintentional errors?

    Finally, since this discussion involves ethics (albeit prosecutor’s ethics), do you personally believe that Judge Kozinski should preside over cases where the defendant is alleging prosecutorial misconduct (in order to get his/her conviction overturned) given his preconceived belief that there is an “epidemic” (of such intentional conduct) and, indeed, his having written the Foreward to a for-profit book which castigates prosecutors by name for allegedly being unethical?

    If you held the belief that Judge Kozinski did would you recuse yourself from presiding over this category of cases? Or, at a minimum, would you agree to step aside if the government requested you do so based upon the appearance of impropriety?

    Be well,


  4. FPG, why would believing an epidemic of misconduct exists prevent a judge from applying an appropriate standard of inquiry into a question of fact?

    If a judge said there was an epidemic of murder in America, that would not indicate to me that the judge couldn’t fairly tell murder from manslaughter.

  5. I agree, Peter, if the judge with the preconceived, publicly expressed, belief applied the “appropriate standard of inquiry.”

    But threatening to write an opinion “naming names” if the government doesn’t cave in and dismiss a case isn’t appropriate.

    Rather, it appears to be bullying designed to obtain a result that couldn’t be obtained by properly applying the law — by applying the AEDPA standard of review.

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