California caves

Commenting on the Baca habeas case from California, I caught a fair amount of guff for suggesting that federal prosecutors are a cut above their state counterparts especially when it comes to turning square corners. In Baca, California has now caved to the threats of the Ninth Circuit to wage a holy war and the state has agreed to a conditional grant of the writ. The order is here.

The LA Times has a great article on the case. See Maura Dolan, U.S. judges see ‘epidemic’ of prosecutorial misconduct in state, LA Times (January 31, 2015).* The article quotes a study regarding the behavior of state prosecutors in California, and the locus of the “epidemic” of prosecutorial misconduct alleged by some:

Santa Clara University law professor Gerald Uelmen said the judges’ questions and tone showed they had lost patience with California courts. State judges are supposed to refer errant lawyers, including prosecutors, to the state bar for discipline, but they rarely do, Uelmen said.

“It is a cumulative type thing,” Uelmen said. “The 9th Circuit keeps seeing this misconduct over and over again. This is one way they can really call attention to it.”

A 2010 report by the Northern California Innocence Project cited 707 cases in which state courts found prosecutorial misconduct over 11 years. Only six of the prosecutors were disciplined, and the courts upheld 80% of the convictions in spite of the improprieties, the study found.

I continue to believe that the huge majority of federal prosecutors (and certainly the ones I know) wouldn’t be caught dead behaving like the 707 state prosecutors in California that were identified in the study quoted above. If there are those who believe I am wrong and the “epidemic” has infected a substantial number of federal prosecutors, I would be interested in learning about solid evidence that federal prosecutors as a class engage in this type of “misconduct over and over again.”

Talk is cheap.


*H/t Howard Bashman and How Appealing.


19 responses

  1. Judge, you said:
    If there are those who believe I am wrong and the “epidemic” has infected a substantial number of federal prosecutors, I would be interested in learning about solid evidence that federal prosecutors as a class engage in this type of “misconduct over and over again.”

    I don’t think that such a “class” exists on either the state or federal level. If what you are looking for is a class you should be very pleased with what already exists especially on the federal level. There is no uniform corruption. However, if you confine your focus on “solid evidence… as a class…of misconduct over and over again). You’ll miss the corruption that does exist.

  2. You’re great at taking on everyone else’s dirty laundry. Federal courts, not so much. Judges lie all the time in their opinions, and anyone who has had substantial exposure to our system knows it.

  3. sdroar,

    Good point. The focus should always be on individual cases. But when the “epidemic” assertion is trotted out, it too deserves hard scrutiny.

    All the best.


  4. BrownLaw,

    Examples please of federal “judges lie[ing] all the time in their opinions.” That has not been my experience with other federal judges or my personal practice. All the best.


  5. Peter H.,

    Thanks for providing this report of data. It is exactly the type of information that is helpful, although it certainly has a defense spin. I note that this report acknowledges the following:

    “Over the past 10 years, the Department has filed over 800,000 cases involving more
    than one million defendants,”the Justice Department said in a March 2012 statement to the Senate
    Judiciary Committee. “In the same time period, only one-third of one percent (.33 percent) of these
    cases warranted inquiries and investigations of professional misconduct by the Department’s Office
    of Professional Responsibility.

    “Less than three-hundredths of one percent (.03 percent) related to alleged discovery violations, and
    just a fraction of these resulted in actual findings of misconduct.” (The term “discovery” refers to
    the gathering and exchange of evidence before trial; a key requirement is that “exculpatory”
    information be shared with the defense.”*’)

    All the best.


  6. It acknowledges that DOJ said those things, but in the subsequent paragraph questions the accuracy of those statements.

    I think the suggestions made at the end of the report are reasonable though, and would do a lot to root out attorneys who do engage in misconduct, as well as increasing trust in the DOJ to be fair dealers.

  7. I think that most lying by the government in criminal trials occurs, not because the liar is a bad person who is trying to frame an innocent, but because the liar believes herself to be a good person who is trying to protect society by putting away a bad person, but is impeded in this noble pursuit by silly rules. Just as an offensive tackle does not think he is cheating by holding, so long as the holding is not blatant (and just as NFL refs show their agreement by only throwing a flag if the holding is blatant), the government does not think it is lying when it misleads on procedural matters (and judges, like refs, show their agreement by accepting misleading explanations rather than calling a foul).

    Assume a prosecutor who doesn’t like the way a prospective juror looks and wants to strike him. She doesn’t like his looks because he looks black, but that would be a constitutionally impermissible reason for the strike, so she decides she’ll strike him because he’s a postal employee. But the second chair points out that two white postal employees are on the panel, which kinda makes it look like the postal worker reason is pretextual, so ultimately she tells the court that she struck him because he was young and single, and there are no young single whites on the panel so clearly her reason was not pretextual.

    I believe that if a prosecutor decides to strike a panel member, then scours the record to find a constitutionally permissible reason to do so, she has lied when she gives that reason as the basis for her strike, but after reading hundreds of cases involving Batson challenges it appears that either (1) very few judges agree with me or (2) lots of prosecutors have very peculiar ideas about the kinds of things that make for a bad juror.

    Personally, I find option (2) unlikely, so I conclude that many judges have just decided not to call the government on this. Perhaps it is harsh to accuse a federal judge of lying in his opinion when he says he accepts as true a prosecutor’s representation that race played no role in a peremptory challenge, but I can’t shake the feeling that this is an area where many judges have decided its best to avert their eyes rather than delve too deeply into whether the very nice, very ethical prosecutor is really being completely honest about how she came to her decision to strike the only black on the panel.

  8. RGH,

    Do you believe that federal circuit court judges should, during oral argument, be issuing “threats” to “wage a holy war” against prosecutors and prosecution offices when, as in Baca, the legal issue before the court is whether or not the circuit court was required by AEDPA to defer to the judgment of the state court upholding the defendant’s conviction?

    It seems to me that Judge Kozinski is on to something: If he believes that AEDPA requires the Ninth Circuit to defer to a state court judgment upholding a conviction (in the face of an allegation of prosecutorial misconduct), but he doesn’t like AEDPA’s constraints or the state court result, all he need do is threaten the government prosecutors that he will write an opinion that they won’t like unless they cave in to his demand. This way around the constraints of AEDPA worked for Judge Kozinski in Baca and in another case handled by the United States Attorney in San Diego. Success breeds success. Thus, one would expect Judge Kozinski and his colleagues on the Ninth Circuit who hate AEDPA’s constraints to use the “threat” or “holy war” tactic in the future.

    Your thoughts on the propriety of the “threat” or “holy war” tactic?

    Be well,


  9. From where I sit, it seems that prosecutors are rarely face significant sanctions for misconduct. In North Carolina (where I practice) there have been three significant actions by the State Bar against prosecutors. The Michael Nifong case is well-known, Nifong was disbarred. However four other prosecutors were investigated by the State Bar and were found to have withheld evidence in capital cases where the defendant was later exonerated. In the Alan Gell case the two prosecutors received a reprimand. Today one of those prosecutors is assistant director of the statewide court system, the other is an assistant federal public defender.
    In the Jonathan Hoffman case the ethics case against the two prosecutors who withheld evidence of a plea agreement with a witness was dismissed because the State Bar waited too long to bring charges. One of those prosecutors is now a judge, and the other is in private practice after having served as the District Attorney from 1994-2004.
    Then there is the prosecution of Senator Ted Stevens. Two prosecutors in that case were found to have withheld evidence, one was punished with a 40-day suspension while the other received a 15-day suspension.
    I’m not saying that each of the prosecutors should have been disbarred, but I don’t think our current system provides much of a deterrent.

  10. I assume there were very few complaints about misconduct by prosecutors. The relevant figure would the percentage of complaints that were justified.

  11. FPG,

    I believe Judge Kozinsky was trying to be kind to the prosecutors (and their superiors) who would have been torn apart by a published opinion. I also think the judge was being properly practical in an effort to avoid an unnecessary published opinion. For both of those reasons, I deeply admire the judge. Despite your suggestion, I do not think he was trying to screw with AEDPA and I have no criticism of him for speaking bluntly.

    All the best.


  12. Asked and answered, Your Honor. Last I looked, you ignored the example I cited, which I know that you have knowledge of. I would have thought that a judge deciding an appeal in which she was a defendant in tort when state law and common decency forbid it would have been so far beyond the pale that it would offend any decent human being. That federal courts refused to come to the victim’s aid — and not just once! — is so outrageous, it would even offend Russian jurisprudence.

    The best way to describe the case is that federal judges forsook their oaths to protect their friends and colleagues. And you had the chance to weigh in, but you circled your wagon, as well.

    Federal judges went out of their way to deny the victim the protections of the law. He filed a facial challenge to a statute directly affecting him, and the trial court dismissed it under Rooker-Feldman. The Court of Appeals specifically acknowledged that fact, but affirmed the ruling in open defiance of Feldman. And after he had been victimized by one, when he filed a facial challenge to the constitutionality of the issuance of unpublished opinions, they denied it on grounds of a lack of standing. Twice.

    When he sued the state justices on the grounds that they were acting coram non judice in federal court, the judge (whose husband and one of the justices were close personal friends) dismissed the suit on Rooker-Feldman grounds. And when he challenged the constitutionality of discretionary certiorari review in an official capacity action, the lower courts said they didn’t have jurisdiction, and when he appealed to SCOTUS, they recused themselves en masse. Just try to reconcile that with how Scalia defended his decision to sit in the Cheney case.

    Most of the examples I have in mind are more subtle (you can also ask Prof. Richman, who has described this kind of chicanery as judges violating the law), but if this isn’t enough to shock your conscience, you don’t have one left to shock. I could cite a hundred cases, but one makes my point.

  13. In fairness, that strikes me slightly as one of those “after a lengthy investigation by the government, the government has determined that the government has done no wrong.”

    I doubt Nifong thought he was being naughty, too.

  14. I am now aware of evidence as a class, but a cursory search of Google and Westlaw reveals an abundance of cases were Federal Prosecutors play “fast and loose.”

    I thought you would find this article interesting. It is regarding AUSA Jeff Auerhahn in Mass. Ultimately he was “privately reprimanded” by the DOJ.

    The way it played through the Grievance system is even more appalling than what actually happened at trial (multiple Brady and Giglio violations amongst others).


    1. Boeri, David, “Evidence of Misconduct: The Smoking Gun,” WBUR February 18, 2010.

    How it turned out much to everyone’s surprise:

    2. Boeri, David, “Federal Prosecutor Cleared of Charges to Surprise of Some” WBUR September 16, 2011.

  15. Judge
    Respectfully, that study of prosecutorial misconduct by the Northern California Innocence Project is an analysis of BOTH State AND Federal prosecutions.

    It wasn’t clear from the study what percentage of cases were state v. federal, but of 707 cases where misconduct was found, 159 resulted in reversible error. Of those 159 cases, 32% occurred in federal court. Without knowing case volume of criminal cases in state court and California federal court, it may not be an apples to apples comparison. For example, if there are four California state criminal prosecutions to every one California federal prosecutions, then that would actually mean that prosecutorial misconduct occurs at a higher percentage in federal prosecutions than it does in State prosecutions.

    This isn’t to say that your belief that federal prosecutors are less likely to cut corners is necessarily wrong. However, citing to the Innocence Project study does not provide empirical evidence in support of that belief.

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