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.


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