Prosecutorial Misconduct is not an Epidemic!

By Marc Debbaudt

There is an old, well-known aphorism in the practice of criminal law: When the facts are against you, argue the law. When the law is against you, argue the facts. When both the facts and law are against you, attack the police, the prosecutor and the judge.

This works, and works well, when it works, which is rare. A guy commits a crime. He gets caught. He goes to court. The evidence is overwhelming. The law grants him no quarter. There is no legitimate defense. Just when you think the gavel is about to pound on the bench and the guy is going to be held accountable and punished, the ugly claim of misconduct rears its mighty head.

Most of the time, like almost every single time, the defense accusations and claims of misconduct are without substance and false and go nowhere, like most of what the defense says. The cops did nothing wrong. The prosecutor did nothing wrong.

If you would believe the defense, everything is an illegal search or seizure. Everything is a failure of proof and everywhere there is insufficient evidence. Everything is a violation of the right to privacy. Cops are running rogue and trampling on the Constitution. Anarchy is more prevalent in the courtroom than on the mean streets. Prosecutors are hiding or withholding or fabricating evidence.

Every single day across the nation a plethora of defense attorneys beg for lesser sentences, spew conceptual garbage in the courtrooms, twist and distort facts, grovel for mercy, and try to sell nonsense about their “unfortunate” clients either to judges and jurors. The only safeguard against their ludicrous requests are diligent prosecutors. Who reports that?

Everyday our time is wasted by this nonsense. Every single day citizens pay taxes to hire defense attorneys to represent criminal defendants and then pay more to man the courtrooms where the defense spews their nonsense. Cops are fabricating and lying. Blah, blah, blah. Prosecutors have done something awful to warrant a mistrial. Blah, blah, blah. These unsubstantiated, exaggerated and outright false claims by defense attorneys are universally forgiven and ignored in some mythology that this is their job and it must be tolerated. An exorbitant amount of courtroom time is consumed by this endless defense garbage where they are granted opportunity after opportunity to convolute and confound the truth.

When Cool Hand Luke’s mother died, they led him to the sweat box, because they wanted to discourage him from getting the idea of escaping from the prison. The guard said: “Sorry, Luke. I’m just doing my job.” Luke responded: “That don’t make it right.” I say, the defense claim that all the nonsense they pull is justified by the fact that they are just doing their job, well, it doesn’t make it right.

When the legal and factual arguments are eliminated by a good prosecutor, the personal attacks increase. Being attacked as a prosecutor is an all-too-frequent occurrence. Defense attorneys make it their job to find imperfections and, more frequently than not, exaggerate the fault they find.

Ironically, accusations of misconduct are generally a good sign that a prosecutor has done an excellent job and pinned down the defendant by marshaling the available facts and the law, shutting down any and all of the many contrived defenses in the guilty person’s effort to avoid accountability and responsibility, all in the pursuit of justice. That’s the job. If the defense is attacking a prosecutor, as a general rule, he or she must be doing something right. But this isn’t the way it is spun in the press or by the defense.

I tell you here and now that claims of prosecutorial misconduct are more often than not proof the prosecutors are doing a great job for the People of this state.

Most of the time, nearly invariably, the personal attacks and allegations of misconduct are fabricated and without grounds and they fail. But on those rare and infrequent occasions when there is a legitimate basis for the attack, well, Boohah! Geronimo! Cowabunga! You would think the earth opened up and swallowed Atlantis! It is like the The Ballad of Jed Clampett, the theme song of the Beverly Hillbillies. The hillbillies were all caught up in the basic business-of-living as usual, but due to the unforeseen consequences of a random act the entire life of a bunch of unsophisticated hillibillies changed overnight.

The Ballad of the Defense Attack on the Prosecutor

Come and listen to a story about a defense attorney named Jed
A poor defender, barely kept his client’s head,
Then one day he was claiming something crude,
Now instead of the defendant, the prosecutor’s being sued.

Misconduct that is, black gold, Brady tea.

Well the first thing you know ol Jed’s yelling: “It ain’t fair”
Press said: “Free his client from that concrete lair”
Said: “Prosecutor delivered to them the rusty key”
So they opened up the gates and set his client free.

Those on the inside know that when the defense resorts to an attack upon a prosecutor it is compelling evidence that the prosecutor is doing a good job! Yet, that doesn’t stop them!

Armed with this tactic, having nowhere else to turn, the defense regularly seeks to ferret out evidence of prosecutorial misconduct. They are like boars that sniff out truffles [a relatively rare subterranean fungus]. Frankly, the failure of the defense to find more examples of prosecutorial misconduct is a testament to the general widespread epidemic of the integrity of prosecutors. It is more proof that prosecutorial misconduct is a rare thing and that the vast majority of prosecutors are good, honest and fair. They look and look for it, yet rarely if ever find it!

Defense attorneys who snort all about trying to uncover these infrequently discovered bad prosecutors, do so, for the most part, because they have learned that they can’t really win by overcoming the evidence that their client is guilty. Further, more likely than not, they are completely unable to provide any compelling evidence that their client is innocent. Like finding a gem the size of the Hope Diamond on the beach, on those few occasions when the defense actually discovers some misconduct we all have to hear endlessly about how outrageous it is. We all must suffer it, though it has nothing to do with the vast majority of us, while the defense and the press milk it until it is dry, celebrate the rare discovery, and blow it all out of proportion.

They may win their case now. They may have managed to free a bad guy not because he is innocent, but because a prosecutor did something he or she should not have done, which probably pales in comparison to what the bad guy did.

Recently in the Daily Journal there was the report on a prosecuting attorney’s fabrication of interrogation testimony. The court held that this behavior was egregious misconduct that prejudiced the defendant’s right to counsel and merited dismissal of the charges. The case was People v. Velasco-Palacios C.A. 5th DAR p. 3297 3/25/15.

In that case the defendant was charged with lewd and lascivious conduct with a child under 14 years of age. He was represented by a deputy public defender. The prosecutor offered a deal which the DPD turned down, and the DDA threatened to withdraw the charges and add more serious ones involving penetration and a possible life sentence. However, apparently unable to find evidence of penetration, the DDA fabricated interrogation testimony implying that the defendant admitted to such acts. Specifically, the prosecutor added these two lines:

Detective: “You’re so guilty you child molester.”
Defendant: “I know. I’m just glad she’s not pregnant like her mother.”

Ouch! That is depraved. When the DPD learned of this fabrication, he moved for a dismissal. In response, an affidavit was offered that the DPD told the DDA that the defendant had no viable defense. As a result, the PD’s office removed the DPD from the case. I assume another DPD was allowed to represent the defendant. Thereafter, the court dismissed the charges.

The court held: “Murray [the DA] deliberately altered an interrogation transcript to include a confession that could be used to justify charges carrying a life sentence….Further, Murray did not reveal the alterations until nine days later, and only then when he was directly confronted…by defense counsel. This is egregious misconduct and…it directly interfered with defendant’s attorney-client relationship.”

The rule of law is that where government misconduct is so egregious that it prejudices a defendant’s constitutionally guaranteed right to counsel, federal and California precedent supports dismissal as an appropriate remedy. A defendant’s right to counsel is prejudiced when government misconduct forces his or her retained or appointed counsel to withdraw.

This case, and the recent and ongoing barrage of editorial hit pieces in the newspapers about prosecutorial misconduct, got me to thinking. This is what I thought:

In People v. Velasco-Palacios basically a DA lied and that lie caused the removal of the defense attorney, and disrupted the prosecution of the case. This is wrong and the DA should be punished. Obviously. No doubt about it. The prosecutor crossed the line.

But, let’s see. Umm…the defendant allegedly molested a child, right? Uh, that seems to me to be a little worse than lying. Well, really, it seems to me to be a lot worse than lying. So, while the DA should be punished and removed from the prosecution of the case, why can’t the case go forwarded with the remaining evidence that is untarnished? Why does this justify permitting the defendant to escape accountability for molesting a child? I don’t think it should.

Why? Because, uh, supposedly this will teach other prosecutors who may consider fabricating evidence not to do that? I don’t think we need to be taught not to do that. I think we already know not to do that. I don’t think dismissing the case teaches us anything. I think punishing us for misconduct teaches that prosecutor something. Probably he should be a prosecutor anymore. But dismissing the case teaches the rest of us prosecutors nothing. It teaches the defense to look for more misconduct when everything else fails.

So, is the just result allowing the defendant to go unpunished for child molestation? Yeah, I really don’t think so.

What isn’t rare at all, but occurs all too frequently, is way too common and, consequently, is of so little interest to the media pundits that they fail to report it, are the criminals who are justly convicted of often horrendous crimes daily by prosecutors with integrity. Every day, every single day, police do a good job of keeping their communities safe, gathering compelling evidence of crime, and arresting obviously and clearly guilty criminals. Every single day across the nation honest prosecutors with an abundance of integrity convince good people called jurors that defendants are guilty and deserve punishment for their crimes. No one reports this. No one celebrates this.

Better Call Saul. S’all good, man.

A corrupt defense attorney is more interesting than a prosecutor with integrity. These simple, daily, indisputable defense attorney horrors perpetrated by masters of obfuscation all on behalf of criminal defendants are all but forgotten in the titillation of that moment when the rare opportunity arises to condemn a prosecutor. There is no better score for a defense attorney. Defense attorneys battle on behalf of the law breakers. They accomplish the release of their client, not because he was the wrong man, but because they scored some dirt on one of those who happen to be on the side of the law keepers. It’s a big, big score!

Criminals do bad things all the time, everyday, everywhere. Prosecutors occasionally, albeit rarely, cross the line trying to convict these bad people. They shouldn’t. Really, they shouldn’t. But let’s be honest. Who is worse? Criminals who do bad things or prosecutors who try to convict them?
While prosecutorial misconduct is undeniably bad, most of the time it isn’t a crime like murder or rape or child molestation or residential burglary or robbery. Fabricating evidence is really as bad as it gets with most of those rare examples of prosecutorial misconduct. Most of the time, on those rare occasions when it does happen, prosecutorial misconduct involves breaking of a procedural rule. Not good, of course. Criminals, on the other hand, are all too frequently engaged in law breaking where all too frequently someone is actually hurt physically. Violations of rules versus violations of law.

There’s a big difference. Am I going out on a limb here when I claim: One is far worse than the other?

What isn’t rare at all are defense attorneys who daily waste time and money arguing nonsense and constructing tall tales, who file frivolous motions, who attack and condemn everything done by the prosecutor the police, the law enforcement agents, or the judges. Are these defense attorneys lambasted by the press? Do judges announce to the world the epidemic of slime by the defense? The gross waste of time while they make preposterous and unsubstantiated claims? Nope. Instead, on those rare occasions when a prosecutor is brought down, now, that is newsworthy.

Yet, everyday it seems, the broadcast news, the newspapers, the reporters and defense attorneys, and others who literally embrace criminals, you can actually come to court and watch some defense attorneys hug their documented tattooed gang member clients, focus on bringing down the extremely rare and few and far between prosecutors who cross the line. Why? They ceaselessly try to bring down the prosecutors, the police and the judges, and relish and cherish and celebrate the few times they succeed, and from that success derive their outlandish claims and assertions. From these extremely rare occurrences they generate a statistic from which they extrapolate that the entire system is ill and in need of radical change. I say enough. I say bullshit.

Make no mistake. Prosecutorial misconduct is bad. It would be wrong to even think I disagree one iota with that undeniable truth. But, let’s put it in perspective.

First, There is a difference between innocence and not guilty. Jurors do not vote “innocent.” They vote “not guilty.” Innocence means that a person is pure and wholesome, untouched, inexperienced and unblemished, untainted. Innocent of the crime means the accused did not do that particular crime. The vote of reflected in a not guilty verdict does not mean that the guy is a saint or a decent man. Not guilty does not mean that the person did not do this particular crime. The defendant may be guilty as sin. Not guilty means that the jury believed that the prosecutor did not present sufficient evidence to convince a jury beyond a reasonable doubt that the accused did this particular crime.

Keep in mind that we are talking a criminal justice system that places the highest legal burden of proof that exists in the world on the prosecutor to prove that a person committed a crime. A jury can award lots of money in a civil case to a party who convinces the jury by a mere preponderance of the evidence that the civil defendant is responsible; but a prosecutor must convince a jury that a criminal defendant is guilty beyond a reasonable doubt. It is the highest and hardest burden of proof in the law. You would think freedom is more important than money in such a system.

What does innocent mean? Does it mean that a decent law abiding person was falsely accused of a crime? Because that is the rarest of the rare.
Yes, it has happened; and yes it gets a ton of press when it does, but it is meaningless in terms of the system because it happens so infrequently that nothing can be extrapolated from it. Like a whale that swims up a river, it happens, but quite rarely, and it gets a lot of press when it does. Again, more often than not those accused of crimes who are truly innocent are extremely rare.

More often, when the possibility of innocence is claimed in a criminal case, it doesn’t have to do with the character of the person who is accused. Typically, most defendants would not be described as innocents. Most people accused of crimes have lived a life of crime and have criminal histories or priors which are the landmarks of their accomplishments. Rather than witnessing a so-called “innocent” person beat the case, what we witness instead is a criminal who has engaged in a life of crime or who has a history of prior convictions and arrests, and was simply innocent of this particular crime on this particular day. He is innocent, but not an innocent. Oddly, that too is rare in the system. It happens, but not all that frequently.

But, make no mistake, simply because a verdict is returned that the defendant is not guilty does not mean he is either type of innocent. It doesn’t mean his character is one of innocence or that he did not do the crime. It simply means that the jury was not convinced by the available and admissible evidence beyond a reasonable doubt. And, please remember, some damning inculpatory evidence just may have been, which happens all too frequently, excluded under some rule of law.

I’m tired of hearing defense attorneys rant about prosecutorial misconduct. I’m tired of newspapers that devote columns to these lopsided ravings with no rebuttal. I’m tired of the lambasting. I’m tired of the hyperbole, spin, false extrapolations, and the distortion. I’m tired of the Innocent Project trumpeting their latest DNA “exoneration” and extrapolating about all the innocents who are locked up behind bars. It is an unjustifiable exaggeration. It’s a deception.

I’m tired of hearing that prosecutorial misconduct is an epidemic, or egregious. “Epidemic” means a widespread occurrence of a particular undesirable phenomenon, typically an infectious disease, an outbreak, an eruption, a torrent, rampant, pervasive.

Prosecutorial misconduct is not an epidemic! It is nowhere close to that.

Prosecutorial misconduct is not business as usual. It is highly unusual. It occasionally happens. It is not typical or of epidemic proportions.

It is not egregious. In comparison to criminals who do bad things it is not outstandingly horrendous or abhorrent or even shockingly horrible, atrocious or abominable. Yes, it is shameful, unforgivable, intolerable and grievous. But, as a general rule, it is nowhere near as bad as the crimes that criminals commit. Furthermore, if the truth be told, it doesn’t approach the seedy games that some defense attorneys practice every day and which are tolerated as though it is business as usual. But, come on, the misconduct of defense attorneys get no air time.

Prosecutorial misconduct is a statistically insignificant event. It is an anomaly which every system has. It does not define the system. It’s interesting like being hit by lightning or winning the lottery. Just as the odds of winning the lottery are the same whether you play or don’t play, that is, highly unlikely, the presence of misconduct in the Administration of Justice does not demonstrate, does not come anywhere close to proving a plan or design or flaw in the system. Not at all.

Overall prosecutorial misconduct is so rare as to be a meaningless criticism of the system and the prosecutors who work in it. Sure, and it goes without saying, which is why I have to say it repeatedly or suffer the obvious follow-up rant by the extremists, to those affected by misconduct, any misconduct, it is tragic. I’m sorry. It should never have happened. It should not be tolerated. But it is no reason to condemn the system.

Prosecutorial misconduct is an event not unlike those events when patients are mistreated by bad doctors, or children are molested by priests. Yes, obviously, when it happens it should be addressed, corrected and punished. Yes, it is wrong. Yet the fact that it happens doesn’t mean we condemn medicine and redesign the hospital or condemn religion and theology and tear down the church. The fact that prosecutorial misconduct happens does not mean we need to construct more hoops for prosecutors to jump through. The fact that some priests molest children does not mean that we need to invent more chastity belts.

The fact that 5 federal judges claim that there is “an epidemic of Brady violations abroad in the land” is like saying it is time to wipe out all snakes and kill all bugs because a few people got bit. Sure it needs to be dealt with. Nowhere in any field of human endeavor is any system perfect. Prosecutors are, of course, human. Some are, like in every other career known to man, broken, damaged or corrupt. But those who engage is misconduct amount to less than a fraction of a fraction of one percent. In others words, misconduct is nothing that arises to or merits indicting the entire system or overhauling the administration of justice.

So why the onslaught? It is the unrelenting effort of those who relish undermining and condemning law enforcement and those who prosecute crimes in the pursuit of social attention. It is an advertising ploy to get new clients. It is Mad Men. Ironically, they use the very system they criticize to assist them in accomplishing their goal of devaluing the effort to address the problem of crime. It’s never that we did a good job. It’s always that we are flawed and need to re-integrate our character and redesign the entire system.

If you’ve read some of these false news articles, here’s what they claim. 2.5% or 53 cases out of 2,131 claims, made over a 9 year period, which is 6 cases a year, or a case every 2 months, involve prosecutorial misconduct, according to the Northern California Innocence Project. Uh, do you notice any missing information in this major political pronouncement of prosecutorial misconduct?

How many cases were prosecuted from which these 2131 claims of misconduct during this nine year period are derived, with only 53 of those 2131 claims having any apparent validity?

I think the Los Angeles County District Attorney prosecutes about 65,000 felony cases per year, not including misdemeanors, not including L.A. City Attorney prosecutions, not including the cases that other cities in Los Angeles County prosecute. There are 88 cities in Los Angeles County. Some of these have their own prosecutors. How many cases do they prosecute?

Furthermore, this does not include juvenile cases and does not include federal prosecutions in Los Angeles County.

There are 58 counties in the State of California. There are 460 cities and 22 towns in California.

Uh, I don’t know. I’m just guessing, but I think we are talking over a million cases a year, if not millions!
So, the not so innocent Innocence Project is talking, what, 53 cases out of millions? This is a statistic with little significance. It means we are doing a splendid job of policing these rare instances and that the system is running nearly perfectly! Epidemic? Nonsense.

There are 50 constituent states and one district in the United States. How many cases are prosecuted across the entire nation in every state, county, city and town? Tens of millions. Do we have an epidemic of misconduct? Not hardly. Do we have an epidemic of distortion and exaggeration and nonsense by defense attorneys and papers and holier than thou judges and the Innocence Project selling their nonsense? It would seem so.

53 cases are too many, but they don’t amount to a fraction of one percent of anything. Rather, what that number represents is, quite simply, is evidence that the system is running to near perfection and that the system does not deserve the criticism nor warrant the attack of the Innocent Project or these arrogant Judges. Nonsense. They would consume the entire system is their never-ending entropy pursuing an impossible perfection when the system is literally purring at an unbelievable state of virtual purity!

We’ve heard from the Innocent Project, an extremely liberal group of defense attorneys. One can only conclude that these “Innocence Project” pronouncements, because they are so terribly analytically flawed, are designed not to address legitimate concerns, but to taint future jury pools with concocted doubt. The IP scours the nation in the search of extremely rare cases in which later DNA testing excluded some of their clients. They then unjustifiably stitch these unique exceptions into a global indictment of the entire system of eyewitness identifications, and police abuse, etc.

The 300 cited “exonerations” due to DNA by the Innocence Project are derived from the entire nation at large. These 300 cases were mined from 20 or more years of prosecutions. How many cases have been prosecuted over the course of 20 or more years across the entire nation? Probably we are talking multi-millions. These 300 amount to not even a fraction of a fraction of one percent of the cases prosecuted, insufficient for a proper statistical analysis. 300 DNA “exonerations” out of millions of prosecutions is a statistically insignificant, irrelevant anomaly that, rather then condemning the police and prosecution actually demonstrates they function at an exceptionally high level of honesty and integrity! Clearly the IP asserts an unjustifiable conclusion so broad that it is merely cut out of whole cloth. Yet they nevertheless rail that there is a systemic problem. That is a lie! They demand that the established system of justice should be overhauled based upon their reckless extrapolation and speculation when nothing is wrong with the system.

They insist that their subjects were “wrongfully” convicted based upon DNA done long after the crimes and trials. At the time of conviction, jurors, judges and prosecutors made sincere decisions based upon the best available evidence. There was nothing “wrong” with the process. Further, the new DNA evidence does not means that they were innocent, but only that their conviction can no longer be said to meet the legal standard of guilty beyond a reasonable doubt. There is a big difference between “innocence” and “exoneration.” In an imperfect world, that is, the world in which we live, achieving a “more perfect justice” in light of new evidence does not establish that there was ever an injustice.

The IP never discusses how many of the millions of cases prosecuted over the past 20 years across the entire nation have also had corroboration of eyewitness identification, such as CONFESSIONS. Why? Because it would undermine their theory of eyewitness unreliability since in the vast majority of cases there is corroboration that confirms the accuracy of the identification.

What is remarkable is that the defense bar initially lobbied to exclude DNA, but now it’s their friend. Yes, the end result of their work has supplied new evidence that is extremely important to the involved individual. However, their broader conclusions are neither valid nor justifiable. Have you noticed how we never hear from the IP about how many people they have tried to prove were innocent, but gave up for unstated reasons?

Are we really supposed to take the word of defense attorneys that the system is flawed or that there is an epidemic of prosecutorial misconduct based on an insignificant statistical anomaly that they have extrapolated from extremely rare events? They insist upon an expensive entropy trying to improve a tested system and, along the way, jeopardize public safety in the name of what they declare is fairness.

Marc Debbaudt is President of the Association of Deputy District Attorneys. The view and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of ADDA, which represents nearly 1,000 Deputy District Attorneys.