Preventable Error:
A Report on
Prosecutorial
Misconduct
in California

1997–2009

by
Kathleen M. Ridolfi
and
Maurice Possley
Northern California Innocence Project,
Santa Clara University School of Law

Preventable Error:
A Report on Prosecutorial Misconduct
in California 1997–2009

by
Professor Kathleen (Cookie) Ridolfi
Santa Clara University School of Law
Executive Director, Northern California Innocence Project
Former Commissioner,
California Commission on the Fair Administration of Justice
and
Maurice Possley
Visiting Research Fellow, Northern California Innocence Project
Pulitzer Prize-winning Criminal Justice Journalist
October 2010

PROSECUTORIAL MISCONDUCT IN CALIFORNIA

Online Edition
Copyright 2010
Veritas Initiative™
Northern California Innocence Project
at Santa Clara University School of Law
900 Lafayette Street, Suite 105, Santa Clara, CA 95050-4966
408-554-4790 (tel)
408-554-5440 (fax)
veritas@scu.edu (email)
www.veritasinitiative.org
www.ncip.scu.edu
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We dedicate this report to

Father Paul Locatelli, S.J.
as a tribute to
his compassion and commitment
to justice for all.

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Foreword
The responsibility of a public prosecutor differs from that of the usual advocate; his
duty is to seek justice, not merely to convict.
– American Bar Association
The majority of California prosecutors successfully discharge the obligations requisite in their
two roles: acting both as advocates in seeking convictions and as ministers of justice, charged
with using only fair methods to prosecute those they believe are guilty. But, as this report
shows, some prosecutors have let their advocacy role prevail to the extent of using deceptive
and unfair tactics to secure convictions.
This study of prosecutorial misconduct was undertaken to further understand the scope of
the problem, and is a long overdue step in trying to address the issue. In 2004, the California
Senate established the California Commission on the Fair Administration of Justice (CCFAJ)
to examine the causes of wrongful conviction and recommend reforms to improve the
administration of justice. It was my honor to serve on that Commission and to work under
the extraordinary leadership of its chairman, former California Attorney General John Van de
Kamp and its executive director, Santa Clara University School of Law professor and former
dean Gerald Uelmen.
As a Commissioner, I was asked to assist the Commission in understanding the extent to
which prosecutorial misconduct is a factor in the conviction of innocent people in the state.
Until that point, very little systematic research had been done on this problem of prosecutorial
misconduct in California or on its effects on the conviction of innocent people.
Early on in my work, I came across a ground-breaking study published in 1999 in the Chicago
Tribune. It was conducted by reporters Maurice Possley and Ken Armstrong, and published
in a five-part series. The series, “Trial & Error: How Prosecutors Sacrifice Justice to Win,”
focused particularly on prosecutorial misconduct since the Supreme Court’s 1963 decision

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in Brady v. Maryland. It was a terrific piece of work and I wanted to know more about it,
so I called the Tribune and reached Possley. In our brief conversation, I told him what I was
doing, he described their work, wished me good luck and we said goodbye. Two years later,
in a Commission hearing in 2007, I reported my findings, which were later published in the
CCFAJ Final Report.
Intrigued by what I had learned from my work for CCFAJ, I continued the research to expand
upon the findings. In 2009, in the midst of the expanded project, Possley, who had left the
Tribune in 2008 after winning a Pulitzer Prize for investigative reporting, joined me in the
research. His work was essential to this report and I am deeply grateful to him.
I have many others to thank.
Thank you to Santa Clara University and in particular Santa Clara University School of Law
Dean Donald Polden for unwavering support of this project. A million thanks go to Sarah
Perez and Jessica Seargeant for their countless hours, intelligence, friendship, humor and
support of every kind that they gave to us and to this project; to Jessica Marz whose critical role
in the research and data analysis of the earlier CCFAJ study was invaluable to me; and to the
staff of the Northern California Innocence Project, all of whom in some way have contributed
to this work.
We are incredibly grateful for the support and friendship of the extraordinary Northern
California Innocence Project Advisory Board, who with remarkable intellectual power and
generosity invested hours in meetings to discuss the importance of this research and to
strategize about how best to share our findings. I want to particularly thank Jim Anderson for
carrying the flag for policy and reform from the beginning and Andy Ludwick who helped us
crystallize our vision of this project - always with humor, encouragement and wise counsel.
And, most especially, I want to thank Frank Quattrone who always encouraged excellence and
has been supportive through the years it took to complete this project.
I am grateful to all of our generous donors, in particular, the remarkable man and anonymous
donor whose commitment launched us into the final stretch, to the Frank and Denise

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Quattrone Foundation for bringing this project home, and to the law firm of Howard Rice
Nemerovski Canady Falk & Rabkin for the exceptional pro bono support they gave us to
complete this project. We are especially grateful to Denise Foderaro (Quattrone), whose critical
eye for detail and knowledge of the subject proved invaluable, and to Barbara Winters who
brought her extraordinary editing skills to this project.
Thanks to the many Santa Clara University Law students who assisted in this research over the
last five years, my heroes (you know who you are), the countless people who helped us identify
the names of the prosecutors and to the colleagues who reviewed drafts and gave us invaluable
feedback and guidance including: Madeline deLone, Cathy Dreyfuss, Barbara Fargo, Keith
Findley, Brandon Garrett, Bennett Gershman, Daniel Medwed, Theresa Newman, Carol
Sanger, Gerald Uelmen, John Van de Kamp and Ellen Yaroshefsky.
Enormous thanks go to my Associate Director Lee Raney, whose persistence and faith drove
this project to completion, and our one-woman marketing department, Audrey Redmond,
who managed to wrestle the pages out of our hands and out the door.
And to Maurice Possley, who in just over a year has been transformed from a person I respected
and whose work I admired to someone I count on every day for his professional advice,
friendship and wit.
Not least, Maurice and I want to thank our families for their patience and support during
the many hours we spent away from them to bring this report to fruition. And to my partner
Linda Starr, whose professional judgment and personal support make everything possible.
And to the prosecutors and members of the California State Bar who have helped and
supported us in this work. You have our gratitude and highest respect.

Cookie Ridolfi
October 2010
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ABOUT PREVENTABLE ERROR: A REPORT ON PROSECUTORIAL MISCONDUCT IN CALIFORNIA 1997–2009
Preventable Error: A Report on Prosecutorial Misconduct in California 1997–2009 is the most
comprehensive, up-to-date, quantitative and actionable study on the extent of prosecutorial misconduct
in California, how the justice system identifies and addresses it, and its cost and consequences,
including the wrongful conviction of innocent people. By shining a light on prosecutorial conduct,
this groundbreaking research, the work of leading experts in the field from the highly respected legal
resource, NCIP, will serve as a catalyst for reform.

ABOUT VERITAS INITIATIVE
Preventable Error: A Report on Prosecutorial Misconduct in California 1997-2009 marks the launch of
the Veritas Initiative, NCIP’s investigative watchdog devoted to advancing the integrity of our justice
system through research and data-driven reform, using the work of our preeminent experts in the field.

ABOUT THE NORTHERN CALIFORNIA INNOCENCE PROJECT
The Northern California Innocence Project (NCIP) at Santa Clara University School of Law operates as
a pro bono legal clinical program, where law students, clinical fellows, attorneys, pro bono counsel, and
volunteers work to identify and provide legal representation to wrongfully convicted prisoners.
NCIP educates future attorneys, exonerates the innocent, and is dedicated to raising public awareness
about the prevalence and causes of wrongful conviction. With its Veritas Initiative, NCIP promotes
substantive legislative and policy reform through data-driven research and policy recommendations
aimed at ensuring the integrity of our justice system.

NCIP ADVISORY BOARD
Fred Anderson

Antoine Goff

Donald Polden

Anthony Williams

Jim Anderson

Ken Goldman

Nikki Pope

Robin Wright

Margalynne Armstrong

Nancy Heinen

Elizabeth Zitrin

Brian Dennehy

Patricia Kern

Frank Quattrone,
Chair

James Donato

Ellen Kreitzberg

Gordon Eubanks

Andrew Ludwick

Barbara Fargo

Dennis McBride

Dennis Riordan
Kathleen Rydar
Barry Scheck

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Contents
Foreword . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  v
List of Charts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi
Contents  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix
Introduction and Executive Summary  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
I. Methodology  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
II. Overview of Findings  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
III. Analysis of Cases Alleging Prosecutorial Misconduct  . . . . . . . . . . . . . . . . . . . . . . . . . 18
A. Cases Finding Prosecutorial Misconduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
B. Cases Declining to Address Misconduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
IV. Role of Prosecutors in Addressing Misconduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
V. Role of the Courts in Addressing Misconduct  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
A. Reporting Prosecutorial Misconduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
B. Identifying By Name Prosecutors Found to Have Committed Misconduct . . . . . . . . 50
VI. Role of the California State Bar in Addressing Misconduct . . . . . . . . . . . . . . . . . . . . . 54
A. Failure to Discipline Prosecutorial Misconduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
B. Failure to Discipline Prosecutors with Repeat Violations  . . . . . . . . . . . . . . . . . . . . . 57
C. In Contrast, Active Discipline of Non-Prosecutors . . . . . . . . . . . . . . . . . . . . . . . . . . 59
D. The Bar’s Recent Responses to Criticism  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
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VII. Costs and Consequences of Prosecutorial Misconduct  . . . . . . . . . . . . . . . . . . . . . . . 64
A. Consequences for Innocent Defendants Wrongly Convicted  . . . . . . . . . . . . . . . . . . 64
B. Financial Costs to Taxpayers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
C. Emotional Costs of Protracted Litigation for Victims of Crime  . . . . . . . . . . . . . . . . 70
D. Consequences for the Criminal Justice System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
VIII. Prosecutorial Immunity from Civil Liability  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
IX. Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
A. Attorney-Related Reforms  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
B. Court-Related Reforms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
C. State Bar-Related Reforms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Endnotes  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Appendix A: Harmful Cases by Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
State Cases  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
Federal Cases  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Appendix B: Harmless Cases by Jurisdiction  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
State Cases  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
Federal Cases  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113

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List of Charts
How a Criminal Appeal is Processed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
Percentage of Cases that Go to Trial  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Breakdown of Misconduct Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Distribution of Harmful Case Findings by Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Comparing How Courts Characterize Misconduct  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
All Types of Misconduct Findings  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
State of California, Courts of Appeal, Appellate Districts . . . . . . . . . . . . . . . . . . . . . . . . . 51
Number of Multiple Offenders Disciplined by the State Bar  . . . . . . . . . . . . . . . . . . . . . . 56
Misconduct Committed by Multiple Offenders  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Types of Public Discipline 1997–2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

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Introduction
and
Executive Summary

PROSECUTORIAL MISCONDUCT IN CALIFORNIA

Introduction and Executive Summary
Seventy-five years ago, in reversing a conviction because of prosecutorial misconduct, the
United States Supreme Court specified the paramount obligation of a prosecutor: “[A]
prosecutor has a duty to refrain from improper methods calculated to produce a wrongful
conviction1… [While he] may strike hard blows, he is not at liberty to strike foul ones.”2 The
Court emphasized the critical role the prosecutor plays in a judicial system like ours that is
aimed at justice, not simply conviction: the prosecutor “is the representative… of a sovereignty
whose… interest in a criminal prosecution is not that it shall win a case, but that justice shall
be done.”3 Because the prosecutor had misstated evidence, bullied witnesses, put words into
the mouth of a witness and intimated facts he knew were false, the Court overturned the
conviction.
The problem of prosecutorial misconduct is even more critical today. Scores of academic
articles and books, as well as the media, have documented the extent to which some
prosecutors continue to use the very tactics the Supreme Court decried, as well as others, to
obtain convictions.4
To more fully document the scope of the problem, the Northern California Innocence Project
(NCIP) engaged in a comprehensive analysis of publicly available cases of prosecutorial
misconduct in California, reviewing more than 4,000 state and federal appellate rulings, as well
as scores of media reports and trial court decisions, covering the period 1997 through 2009.
This study—the “Misconduct Study”—is the most in-depth statewide review of prosecutorial
misconduct in the United States.
NCIP’s examination revealed 707 cases in which courts explicitly found that prosecutors
committed misconduct. In about 3,000 of the 4,000 cases, the courts rejected the
prosecutorial misconduct allegations, and in another 282, the courts did not decide whether
prosecutors’ actions were improper, finding that the trials were nonetheless fair.
Identifying 707 cases in which prosecutorial misconduct was found—on average, about one
case a week—undoubtedly understates the total number of such cases. These 707 are just

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the cases identified in review of appellate cases and a handful of others found through media
searches and other means. About 97 percent of felony criminal cases are resolved without trial,
almost all through guilty pleas.5 Moreover, findings of misconduct at the trial court level that
are not reflected in appellate opinions cannot be systematically reviewed without searching
every case file in every courthouse in the state. And of course, the number cannot capture
cases of prosecutorial misconduct that were never discovered (for example, failure to disclose
exculpatory evidence) or appealed (due, for example, to lack of resources or ineffective counsel).
The Misconduct Study’s findings as to the results in these 707 cases were as follows: In the
vast majority—548 of the 707 cases—courts found misconduct but nevertheless upheld the
convictions, ruling that the misconduct was harmless—that the defendants received fair trials
notwithstanding the prosecutor’s conduct. Only in 159 of the 707 cases—about 20 percent—
did the courts find that the misconduct was harmful; in these cases they either set aside the
conviction or sentence, declared a mistrial or barred evidence.
The Misconduct Study shows that those empowered to address the problem—California state
and federal courts, prosecutors and the California State Bar—repeatedly fail to take meaningful
action. Courts fail to report prosecutorial misconduct (despite having a statutory obligation to
do so), prosecutors deny that it occurred, and the California State Bar almost never disciplines it.
Significantly, of the 4,741 public disciplinary actions reported in the California State Bar
Journal from January 1997 to September 2009, only 10 involved prosecutors, and only six
of these were for conduct in the handling of a criminal case. That means that the State Bar
publicly disciplined only one percent of the prosecutors in the 600 cases in which the courts found
prosecutorial misconduct and NCIP researchers identified the prosecutor.
Further, some prosecutors have committed misconduct repeatedly. In the subset of the
707 cases in which NCIP was able to identify the prosecutor involved (600 cases), 67
prosecutors–11.2 percent—committed misconduct in more than one case. Three prosecutors
committed misconduct in four cases, and two did so in five.

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The failure of judges, prosecutors and the California State Bar to live up to their responsibilities
to report, monitor and discipline prosecutorial misconduct fosters misconduct, undercuts
public trust and casts a cloud over those prosecutors who do their jobs properly. The problem
is critical.
Prosecutorial misconduct is an important issue for us as a society, regardless of the guilt
or innocence of the criminal defendants involved in the individual cases. Prosecutorial
misconduct fundamentally perverts the course of justice and costs taxpayers millions of dollars
in protracted litigation. It undermines our trust in the reliability of the justice system and
subverts the notion that we are a fair society.

Prosecutorial misconduct
is an important issue for us
as a society, regardless of
the guilt or innocence of the
criminal defendants involved
in the individual cases.

At its worst, the guilty go free and the innocent are
convicted. An especially stark example is the death
penalty prosecution of Mark Sodersten, a man who
spent 22 years behind bars convicted of a murder
that the appellate court said he most likely did not
commit.

In 2007, a California Court of Appeal found that
the deputy district attorney who prosecuted Sodersten, Phillip Cline, had improperly withheld
from the defense audiotapes of his interviews with a key witness.6 After reviewing the tapes,
the justices found they contained dramatic evidence pointing to Sodersten’s innocence. Based
on this finding, the court vacated his conviction, emphasizing: “This case raises the one issue
that is the most feared aspect of our system—that an innocent man might be convicted.”7
For Sodersten, the ruling in his case came too late: he had died in prison six months earlier.
Even though the defendant’s death ordinarily ends the case, the court took the unusual step of
issuing a ruling anyway because of the importance of the issue:
“[W]hat happened in this case has such an impact upon the integrity and fairness that
are the cornerstones of our criminal justice system that continued public confidence
in that system requires us to address the validity of [Sodersten’s] conviction despite the
fact we can no longer provide a remedy for petitioner himself.”8
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The court concluded:
“To do otherwise would be a disservice to the legitimate public expectation that judges
will enforce justice. It would be a disservice to justice. Most of all, it would be a disservice
to [Sodersten] who maintained his innocence despite a system that failed him.”9
The prosecutor was never disciplined. Sodersten’s attorney filed a formal complaint with
the California State Bar, arguing that the prosecutor “asked a jury to kill a man based on a
conviction he perverted.”10 But in April 2010, the State Bar closed the investigation, because
“this office has concluded that we could not prove culpability by clear and convincing
evidence”—even though the tapes the prosecutor wrongfully withheld included interviews
with a key witness conducted by the prosecutor himself.11
The prosecutor, Phillip Cline, has never been held responsible for his actions, and it is virtually
certain that he never will. He has absolute immunity from any civil liability for his conduct as
a prosecutor. Cline was elected District Attorney for Tulare County in 1992 and remains in
that position today.
In short, as the Misconduct Study
concludes, prosecutors continue to engage
in misconduct, sometimes multiple times,
almost always without consequence. And
the courts’ reluctance to report prosecutorial
misconduct and the State Bar’s failure
to discipline it empowers prosecutors to
continue to commit misconduct. While
the majority of California prosecutors do
their jobs with integrity, the findings of
the Misconduct Study demonstrate that
the scope and persistence of the problem is
alarming. Reform is critical.

The failure of judges, prosecutors
and the California State Bar to
live up to their responsibilities
to report, monitor and discipline
prosecutorial misconduct fosters
misconduct, undercuts public
trust and casts a cloud over those
prosecutors who do their jobs
properly. The problem is critical.

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The authors recommend a number of reforms as first steps toward the goal of eliminating
attorney misconduct in criminal cases, including:
■■

Court-related reforms, such as expanding the existing judicial reporting requirement to
mandate reporting of any finding of egregious prosecutorial misconduct, as well as any
constitutional violation, even if deemed harmless; identifying in opinions the full names of
prosecutors found to have committed misconduct; California Supreme Court monitoring
of compliance with judicial reporting and notice obligations and making public the
records of compliance; and replacing prosecutors’ current absolute immunity from civil
liability with a form of qualified immunity;

■■

Remedies for the California State Bar, such as adopting revised ethical rules concerning
special responsibilities of prosecutors (modeled on the American Bar Association’s
Model Rule 3.8)12, expanding discipline for prosecutorial misconduct and increasing the
transparency of the State Bar disciplinary process; and

■■

Attorney-related reforms, such as ethical training for prosecutors and criminal defense
attorneys, establishing internal misconduct procedures and developing exculpatory
evidence policies.

Prosecutorial misconduct is wrong. It is not excusable as a means to convict the guilty, and it
is abhorrent in the conviction of the innocent. It has no place in a criminal justice system that
strives to be fair, to accurately convict the guilty and to protect the innocent. It undercuts the
public trust and impugns the reputations of the majority of prosecutors, who uphold the law
and live up to their obligation to seek justice.
By casting a blind eye to prosecutors who place their thumbs on the scale of justice, judges,
prosecutors and the California State Bar are failing to live up to their responsibilities, fostering
misconduct and opening the door to the inevitable—the conviction of the innocent and the
release of the guilty. It is time to acknowledge the problem and take needed action.

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INTRODUCTION AND EXECUTIVE SUMMARY

Organizational Summary
The organizational structure of this report is as follows: it describes the methodology the
Misconduct Study employed (Part I); provides an overview of the Study’s findings (Part
II); reviews the cases finding misconduct and those declining to decide the issue (Part III);
discusses the role of the prosecutors (Part IV), the courts (Part V) and the California State
Bar (Part VI) in addressing prosecutorial misconduct; examines the costs and consequences
of prosecutorial misconduct (Part VII); shows how absolute immunity allows prosecutors to
escape accountability (Part VIII) and makes recommendations for dealing with the problem
(Part IX).

Recommendations
The California State Bar, in conjunction with the California District Attorneys
Association, California Public Defenders Association and California Attorneys for
Criminal Justice, should develop a course specifically designed to address ethical
issues that commonly arise in criminal cases.
District Attorney offices should adopt internal policies that do not tolerate
misconduct, including establishing internal reviews of error.
District Attorney offices and law enforcement agencies should adopt written
administrative exculpatory evidence policies to govern Brady compliance.
The reporting statute should be expanded to require judicial reporting of any
finding of “egregious” misconduct as defined by the California Commission on the
Fair Administration of Justice (CCFAJ), as well as any constitutional violation by a
prosecutor or defense attorney, regardless of whether it resulted in modification or
reversal of the judgment, including violations of ethical rules.
Judges should be required to list attorneys’ full names in opinions finding
misconduct.

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(continued)

PROSECUTORIAL MISCONDUCT IN CALIFORNIA

Recommendations (continued)
The California Supreme Court should actively monitor compliance with the
requirements of judicial reporting and notification of attorneys mandated by
Business and Professions Code section 6086.7. Records of compliance—a list of
cases reported to the State Bar by the court—should be publicly available.
Prosecutors should be entitled at best to qualified immunity.
California should adopt American Bar Association’s Model Rule 3.8.
The State Bar should expand discipline for prosecutorial misconduct and increase
disciplinary transparency.

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I.
Methodology

PROSECUTORIAL MISCONDUCT IN CALIFORNIA

I. Methodology
The goals of the Misconduct Study were to identify: (1) federal and state court findings of
prosecutorial misconduct in criminal cases in California during the period 1997 through
2009; (2) consequences of that misconduct for the outcome of the cases; and (3) disciplinary
consequences for the prosecutors themselves. The Misconduct Study expands upon and
further analyzes the issues addressed in a report issued in 2008 by the California Commission
on the Fair Administration of Justice (CCFAJ) on prosecutorial misconduct,13 which covered
the period 1997 through 2006.
For the first goal, the NCIP sought to identify the state and federal criminal cases in California
during this period in which issues of prosecutorial misconduct were raised. Primarily through
online legal database searches using Westlaw, NCIP researchers identified approximately 4,000
such state and federal appellate rulings that raised the issue.
From a review of these rulings, researchers segregated out those cases in which the court
explicitly found no prosecutorial misconduct (approximately 3,000 of the cases) and those in
which the court explicitly declined to address the issue (282 cases).
The result was identification of 707 cases in which the courts made specific findings of
misconduct. Included in this number were not only the cases identified through online
research, but also a small number of cases (approximately three percent) identified by
examining scores of media reports and trial court decisions, including through the NEXIS
online media database, and by following leads generated by Westlaw database searches and
interviews with attorneys.
This number certainly understates the number of cases in which prosecutorial misconduct
was found. The 707 cases were primarily ones reviewed by appellate courts and accordingly
reflected in a trial court transcript. The overwhelming majority of cases are never subjected
to judicial review. More than 97 percent of felony criminal cases are resolved without trial,
almost all through guilty pleas.14 Some cases of misconduct are never appealed. Further,
during the first five years covered in the Misconduct Study, more than 90 percent of California

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I. METHODOLOGY

How a Criminal Appeal is Processed: This chart demonstrates the process for appealing a criminal conviction in California. Most of the
opinions reviewed by NCIP occurred at the Court of Appeal level.
Source: Self Service Center, Superior Court of California, County of Santa Clara, available at http://www.scselfservice.org/home/overview.htm

State appellate decisions were not entered into legal databases.15 As a result, these rulings, as
well as findings of misconduct at the trial court level and not reflected in appellate opinions,
cannot be systematically reviewed without personally searching every courthouse archive in
the state.

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PROSECUTORIAL MISCONDUCT IN CALIFORNIA

Percentage of Cases that Go to Trial: Ninety-seven percent of criminal cases in California do not go to trial. This chart details what
happens to them.
Source: Judicial Council of California and California Legislative Analysis Office

To determine the effect of the courts’ findings of prosecutorial misconduct for these 707
criminal cases—the second goal—the results in each case were compiled. In nearly 80 percent
of those cases, the courts nevertheless upheld the convictions (harmless error). In only about
20 percent of these cases did the finding result in setting aside of the conviction or sentence,
mistrial, or barred evidence (harmful error).

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I. METHODOLOGY

The harmful error category is defined as cases where misconduct was found and where the
finding resulted in courts setting aside convictions or sentences, declaring mistrials or barring
evidence. The harmless error category is defined as cases where misconduct was found, but
the courts nevertheless upheld the convictions, ruling that the misconduct did not alter the
fundamental fairness of the trial. After reviewing the cases, NCIP researchers developed a
third category where the court refrained from making a ruling on the prosecutorial misconduct
issues, instead holding that any error would have been harmless or that the issue was waived
because the defense failed to make a proper objection.
To address the third goal of identifying disciplinary consequences for the prosecutors found
to have committed misconduct in these cases, NCIP researchers first confronted the hurdle of
trying to identify those prosecutors by name, since reviewing courts rarely do so. Researchers so
far have identified the prosecutors in 600 of the 707 misconduct cases, through examination of
court dockets, and by making personal inquiries of prosecutors’ and public defenders’ offices, as
well as other court personnel. Efforts to identify the remaining prosecutors are ongoing.
NCIP researchers then attempted to determine whether the identified prosecutors were
referenced in any California State Bar disciplinary reports, as well as, more generally, to identify
reports of any other cases of State Bar discipline for prosecutorial misconduct. To do this,
researchers reviewed the reports of all disciplinary decisions published by the California State
Bar in the State Bar Journal during this period.16 Because the State Bar does not make these
decisions available for online searching, the published reports of every case—4,714 disciplinary
records—were reviewed. The results were that only ten public disciplinary reports in this
nearly 13-year period (1997-September 2009) involved prosecutors—all of these since 2005—
and only six of those were for conduct arising in the handling of a criminal case. Also, in the
subset of the 707 cases in which NCIP was able to identify the prosecutor involved (600 cases),
it found that 67 prosecutors committed misconduct more than once, including three who
committed misconduct four times and two who did so five times.

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II.
Overview
of
Findings

PROSECUTORIAL MISCONDUCT IN CALIFORNIA

II. Overview of Findings
The Misconduct Study identified cases alleging prosecutorial misconduct in California between
1997 and 2009. This is a summary of the findings:
■■

67 of the 600 identified prosecutors in the 707 cases where misconduct was found
committed misconduct more than once, three committed misconduct four times and two
did so five times.

■■

Only six of the prosecutors in the 707 cases where misconduct was found were disciplined
by the California State Bar: From January 1997 to September 2009, only ten of the
4,741 public disciplinary actions reported in the California State Bar Journal involved
prosecutors, and only six of those, all occurring since 2005, were for conduct arising in the
handling of a criminal case.

■■

In 707 cases, courts explicitly found that prosecutors committed misconduct.

■■

In 159 of the 707 cases where misconduct was found, the finding resulted in the setting
aside of the conviction or sentence, mistrial, or barred evidence.

■■

In 548 of the 707 cases where misconduct was found, the courts nevertheless upheld the
convictions, ruling that the misconduct did not alter the fundamental fairness of the trial.

■■

In 282 cases, the court refrained from making a ruling on the prosecutorial misconduct
issue, instead holding that any error would have been harmless or that the issue was
waived.

■■

In about 3,000 of the approximately 4,000 cases identified, the courts explicitly found no
prosecutorial misconduct.

■■

There were approximately 4,000 federal and state criminal cases in California in which the
issue of prosecutorial misconduct was raised.

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III.
Analysis
of Cases
Alleging
Prosecutorial Misconduct

PROSECUTORIAL MISCONDUCT IN CALIFORNIA

III. Analysis of Cases Alleging Prosecutorial Misconduct
As noted, NCIP research identified about 4,000 cases involving allegations of prosecutorial
misconduct. In approximately three-quarters of these, the court rejected these allegations;
those cases are not discussed in the Misconduct Study. Of the remaining cases, the court
found that there was prosecutorial misconduct in 707 of them (Part A below), and declined to
reach the issue in 282 cases (Part B below).

A. Cases Finding Prosecutorial Misconduct
“To submit this case to the jury would make a mockery of Mr. Ruehle’s constitutional
right to… a fair trial… The government’s misconduct has compromised the integrity
and legitimacy of the case.”
– United States v. Ruehle, U.S. District Court for the Central District of California 17
In December 2009, the federal district court dismissed the charges against Broadcom
Corporation’s former chief financial officer, William Ruehle, and company co-founder Henry
T. Nicholas III, on the grounds that the prosecutor, Andrew Stolper, intimidated witnesses.
The intimidation included telephoning the current employer of a former Broadcom employee
who had initially refused to cooperate with the prosecution, resulting in her being fired. The
court overturned that former employee’s guilty plea.18 The court also overturned the guilty plea
of another Broadcom employee because the prosecutor coerced him to become a prosecution
witness by inducing him to admit to a crime he did not commit. Judge Cormac Carney called
prosecutor Stolper’s conduct “shameful.”19
The ruling of harmful error in Ruehle is in the minority. Of the 707 cases in which there were
findings of prosecutorial misconduct, convictions were upheld in nearly 80 percent of the
cases—548 of the 707—despite the finding of prosecutorial misconduct. In only 159 cases
was the prosecutorial misconduct deemed sufficiently egregious in the context of the overall
trial for the courts to find harmful error and set aside convictions or sentences, declare mistrials

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or bar evidence. This is a result of the appellate courts’ liberal application of the “harmless
error” doctrine employed in appellate review of misconduct.

1. Defining Misconduct: Background on the Harmless Error Doctrine
Applying the harmless error doctrine, an appellate court may affirm a conviction even where
prosecutorial misconduct or other errors occurred, if it believes that the error did not affect
the outcome of the case.20 Only 20 percent of the prosecutorial misconduct cases were able
to surmount this high hurdle. While this doctrine was originally intended to eliminate the
need for multiple retrials for small technical mistakes, it has evolved to the point that it is now
applied even to constitutional violations.
The United States Supreme Court enunciated the federal standard in the landmark case of
Chapman v. California, holding that “there may be some constitutional errors which in the
setting of a particular case are so unimportant and insignificant that they may, consistent with
the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the
conviction.”21
In California, the harmless error rule is rooted in the California Constitution, which provides
that judgments shall not be set aside
or new trials granted on specified
Harmful
22%
grounds “unless, after an examination
of the entire cause, including the
evidence, the court shall be of the
Harmless
opinion that the error complained
78%
of has resulted in a miscarriage of
justice.”22 The California Supreme
Court has held that a “miscarriage
of justice” requires a finding “that it
is reasonably probable that a result
Breakdown of Misconduct Findings: Of the 707 cases finding misconduct in
this study, courts ruled 78 percent harmless and 22 percent harmful. Harmful
more favorable to the appealing
party would have been reached in the findings are cases where courts set aside convictions or sentences, declared
mistrials or barred evidence. Harmless findings are cases where the conviction
absence of the error.”23
was upheld despite the misconduct.
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2.	 Harmful Error: Where Misconduct Resulted in Setting Aside Convictions or
Sentence, Mistrials, or Barring of Evidence
Harmful error often involves “grossly shocking”24 prosecutorial misconduct, as in the cases of
William Ruehle and Augustin Uribe. The Court of Appeal set aside Uribe’s conviction for child
molestation in 2008 because Santa Clara County deputy district attorney Troy Benson withheld
critical evidence from the defense: a videotape of the victim’s medical exam that supported
the defense expert’s testimony that no sexual assault had occurred.25 On remand, the judge
dismissed the case; the dismissal is now on appeal.26 The discovery of the videotape in the Uribe
case led to more than 3,000 other videotapes dating back to 1991 that had never been disclosed
to defense attorneys.27
Uribe’s case is one of the 159 in which courts found that the prosecutorial misconduct
constituted harmful error and set aside convictions or sentences, declared mistrials or barred
evidence.

Distribution of Harmful Case Findings by Court: The cases reviewed in this study where convictions or sentences were set aside,
mistrial declared, and evidence barred fell into the above distribution. The misconduct findings came out of the California Appellate Courts
in about half the cases. The other half were distributed throughout the other courts.

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3. 	Harmless Error: Where The Courts Affirmed Convictions or Rejected Trial
Challenges Despite Prosecutorial Misconduct
“We find the prosecutor engaged in a troubling and extensive pattern of misconduct…
[D]espite the gravity of the misconduct, we are convinced it did not affect the verdict…
In another case… it might well require reversal.”
– People v. McKenzie, First District Court of Appeal 28
The McKenzie case is a prime example of how the harmless error standard has been applied to
affirm convictions even in the face of explicit findings of prosecutorial misconduct. The court
criticized Alameda County deputy district attorney Brian Owens for engaging in repeated
misconduct, stating, “The only conclusion we can draw from [the prosecutor’s] dogged
pursuit of this line of questioning is an intent to insinuate the existence of evidence he could
not properly bring before the jury.”29 It
compared this conduct to a prosecutor
The egregiousness of a
who “instilled a poison which the defense
prosecutor’s misconduct does
could not drain from the case.”30 Yet the
not determine the harmfulness of
court went on to affirm the conviction,
the error; the issue for harmless
relying on the harmless error doctrine
to rule that despite the misconduct, the
error review is whether despite
defendant received a fair trial. The same
the misconduct, the defendant
result occurred in nearly 80 percent of the
received a fair trial. That means
prosecutorial misconduct cases identified
that very serious misconduct can
in the Misconduct Study: convictions
were upheld based on the “harmless error”
be deemed harmless.
doctrine.
Liberal application of the harmless error rule is problematic in critical respects, for which the
Misconduct Study’s authors offer specific recommendations (see Part IX). Specifically, it has led
courts repeatedly to affirm convictions despite findings of prosecutorial misconduct, as in 548
of the 707 cases identified in the Misconduct Study.

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It also increases even further the likelihood that prosecutors will commit misconduct with
impunity. As noted, there were only six cases of public discipline for prosecutorial misconduct
in a nearly 13-year period, and none for misconduct in a case where the error was found to be
harmless.
In fact, there is not even a requirement to report misconduct found to be harmless. As is
discussed in more detail below (see Part V), California Business and Professional Code section
6086.7 requires only that courts report misconduct whenever there is a reversal or modification
in a judgment as a result of attorney misconduct. That is true even though the misconduct
in harmless error cases can be just as egregious as that in cases where the error is found to be
harmful, since the result depends on an analysis of the overall trial.

Harmful Error Conduct

Harmless Error Conduct

Perlaza, 439 F.3d 1149 (2006)

Flores-Perez, 311 Fed.Appx 69 (2009)

Shifting the Burden of Proof

Shifting the Burden of Proof

“That presumption [of innocence], when you go
back in the room behind you, is going to vanish
when you start deliberating. And that’s when the
presumption of guilt is going to take over…”
(at 1169)

“when you retire to the jury room to deliberate,
the presumption [of innocence]
is gone. You are no longer obligated to presume
innocence, but you are obligated to draw rational
conclusions from the evidence.” (at 71)

Combs, 379 F.3d 564 (2004)

Brown, 2006 WL 1062095 (2006)

Improper Examination

Improper Examination

“compel Combs to impugn the veracity of agent
Bailey’s testimony, pitting Comb’s credibility
against agent Bailey’s.” (at 573)

“forcing [defendant] to characterize all the
witnesses, including police officers as liars.” (at
22)

Sandoval, 231 F.3d 1140 (2000)

Welch, 20 Cal.4th 701 (1999)

Appeal to Religious Authority

Appeal to Religious Authority

“prosecutor argued to the jury that the death
penalty was sanctioned by God.” He paraphrased
Romans 13 saying, “But if you do what is evil, be
afraid for it does not bear the sword for nothing
for it is a minister of God an avenger who brings
wrath upon one who practices evil.” (at 1150)

“prosecutor read various passages of the Bible
apparently sanctioning capital punishment,
including Exodus, chapter 21, verse 12, which
states, ‘He that smiteth a man, so that he die,
shall be surely put to death’.”(at 761)

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III. ANALYSIS OF CASES ALLEGING PROSECUTORIAL MISCONDUCT

Harmful Error Conduct

Harmless Error Conduct

R. Guzman, 96 Cal.Rptr.2d 87 (2000)

G. Guzman, 2005 WL 435452 (2005)

Improper Comment on Right to Silence

Improper Comment on Right to Silence

The prosecutor “repeatedly emphasized Hall’s (the
other party in the incident) decision to testify…
[and] rather clumsily alerted the jury to the fact
that, unlike Hall, Guzman was not willing to
explain his side of the story in court.” (at 90)

The prosecutor argued that “the prosecution
on this case has provided to you two out of the
three murderers who come in here and tell you
themselves from their own mouths what really
happened” which “brought Guzman’s failure to
testify into sharper focus than might otherwise
have been the case.” (at 19)

Rodrigues, 159 F.3d 439 (1998)

Jordan, 2005 WL 1766387 (2005)

Impugning Defense

Impugning Defense

The prosecutor argued, “Mr. Neal [defense
counsel] has tried to deceive you from the start
in this case about what this case is really about….
[Mr. Neal] has tried to introduce a number of
nonissues, false issues.” (at 449)

The prosecutor argued, “What has gone on in this
case is a mockery of the system. You’ve seen from
start to finish the defense pull all sorts of games
and all sorts of tricks.” (at 13)

Comparing How Courts Characterize Misconduct: Courts have found the same types of misconduct in both cases where convictions
or sentences were set aside, mistrials declared, or evidence barred and cases where convictions were upheld. The misconduct does not
determine whether a trial is called fair by a court.

In short, the egregiousness of a prosecutor’s misconduct does not determine the harmfulness of
the error; the issue for harmless error review is whether despite the misconduct, the defendant
received a fair trial. That means that very serious misconduct can be deemed harmless.
Thus, the prosecutorial misconduct in the 548 harmless error cases may have involved
infractions just as serious as—in some cases, identical to—those in the 159 harmful error cases.
Yet in the harmless error cases, the courts have no obligation to report misconduct to the State
Bar or notify the prosecutor of the misconduct finding.31 Accordingly, prosecutors are not
held accountable in the vast majority of misconduct cases. In fact, even where the opinion
is published, they are rarely identified by name. In some cases, they may have no idea that a
court ruled they committed misconduct; the courts have no obligation to notify prosecutors in
cases where the error is deemed harmless.32
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Not surprisingly, some go on to repeat the exact same misconduct in other cases. For example,
of 67 prosecutors identified in the Misconduct Study as having committed misconduct in
multiple cases (some as many as five times), in the vast majority of cases the misconduct was
held to be harmless error. These prosecutors committed repeated misconduct without ever
being called to answer for it.

4. Findings of Prosecutorial Misconduct Categorized by Type
The term “prosecutorial misconduct” encompasses a wide range of improper tactics in criminal
cases. The California Supreme Court has explained that it “implies a deceptive or reprehensible
method of persuading the court or jury.”33 More broadly, the term has been used to describe
any “behavior that deliberately seeks an unfair advantage over the accused or a third person, or
otherwise seeks to prejudice these persons’ rights.”34 Black’s Law Dictionary provides specific
examples, defining “prosecutorial misconduct” as “[a] prosecutor’s improper or illegal act (or
failure to act), esp. involving an attempt to avoid required disclosure or persuade the jury to
wrongly convict a defendant.”35
The broad scope of the concept “prosecutorial misconduct” emerges upon analysis of its specific
types. To that end, NCIP researchers reviewed each of the 707 cases in which prosecutorial
misconduct was found and grouped the offending conduct—whether it was held to be harmful
or harmless—together into specific categories.
The majority of the eight types of misconduct findings fall into two types: improper witness
examination and improper argument. Witness examination—prosecutors’ direct questioning
of their own witnesses or challenging of defense witnesses through cross-examination—is
improper when it misleads the jury or unfairly prejudices the defendant. NCIP found 164
findings of improper examination misconduct.
As for misconduct in argument, there are a multitude of ways in which prosecutors use
improper methods in opening or closing arguments to try to persuade the jury to convict
the defendant. Although courts give prosecutors wide latitude during argument, there are
limitations; prosecutors who exceed them commit misconduct. NCIP found 444 improper
argument findings.
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The specific categories, discussed in more detail below, are: eliciting inadmissible evidence in
witness examination; vouching for a witness’s truthfulness; testifying for an absent witness;
misstating the law; arguing facts not in evidence; mischaracterizing evidence; shifting the
burden of proof; impugning the defense; arguing inconsistent theories of prosecution; appealing
to religious authority; offering personal opinion; engaging in discriminatory jury selection;
intimidating a witness; violating the defendant’s Fifth Amendment right to silence; presenting
false evidence; and failure to disclose exculpatory evidence. These categories do not purport
to exhaust all the ways in which prosecutors can commit misconduct; they are simply types of
misconduct California courts identified during the period reviewed in the Misconduct Study.
Courts sometimes found prosecutors committed multiple acts of different types of misconduct
in a single case. In totaling the number of cases that involved each type, each act that was
found to be misconduct was counted separately. Since some cases involved multiple acts of
misconduct, the total number of misconduct findings is greater than the total number of
misconduct cases identified by NCIP researchers. There were 782 total findings of misconduct
in the 707 cases in the Misconduct Study.

All Types of Misconduct Findings: This study found 782 separate findings of misconduct in the 707 misconduct cases. NCIP researchers
grouped these 782 findings into the types listed above. * Improper Argument includes vouching for a witness’s truthfulness, testifying
for an absent witness, misstating the law, arguing facts not in evidence, mischaracterizing evidence, impugning the defense, arguing
inconsistent theories of prosecution, appealing to religious authority, offering personal opinion and shifting the burden of proof.
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Improper Witness Examination: Eliciting Inadmissible Evidence
The most common form of improper witness examination is eliciting inadmissible evidence.
It is misconduct for prosecutors to elicit inadmissible evidence in witness examinations, and
especially improper when the examination violates a specific court order. It is standard practice
for judges to make rulings before or during trial on the admissibility of evidence. Enforcement
of such orders is critical to protect the rights of defendants and ensure that convictions are
based only on reliable and relevant evidence.
Prosecutors are required to instruct their witnesses not to testify about evidence excluded
by court order. On cross-examination, prosecutors are prohibited from asking questions
reasonably likely to result in answers containing prohibited information. While questioning
resulting in the introduction of inadmissible evidence can be unintentional, this is often not
the case. NCIP researchers found six prosecutors who committed this type of misconduct more
than once. This conduct results in irreparable harm; the jury cannot “un-hear” the evidence
once it is out.

Example: Harmless Misconduct
In the prosecution of Vincent Gatewood, the Court of Appeal found that in three
different instances, Orange County deputy district attorney Janice Chieffo continued
a line of questioning the trial court had ruled improper: “Not only did the prosecutor
demonstrate disrespect for the authority of the court, she also attempted to persuade
the jury by impermissible means.”36
Prosecutors can also improperly elicit evidence that, while not specifically excluded by court order,
is generally not allowed in criminal trials. A common example is attempting to use a defendant’s
past criminal history to establish his/her guilt of the crime for which he/she is on trial.37

Example: Harmful Misconduct
The Court of Appeal reversed the conviction of Arthur Lee for dangerous discharge of
a firearm on the ground of prosecutorial misconduct. 38 The trial judge had instructed

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the prosecutor, Los Angeles County deputy district attorney Lea D’Agostino, that
in cross-examining the defendant about his prior arson conviction, she could only
mention the name of the offense and could not ask further questions about the crime.
The prosecutor violated this order during the defendant’s cross-examination by asking
questions about the details of the arson and the alleged motive, and whether the
defendant had attempted arson before. The Court of Appeal reversed the conviction,
holding that the arson evidence had nothing to do with the firearm charge and probably
biased the jury against the defendant.

Improper Argument: Vouching for a Witness’s Truthfulness 	
“[T]he prosecutor’s opinion carries with it the [weight] of the Government and may induce the
jury to trust the Government’s judgment rather than its own view of the evidence.”39 Because
of the probability that a prosecutor will unduly influence the jury in evaluating witness’
credibility, it is improper for prosecutors to vouch for the truthfulness of a witness.

Example: Harmless Misconduct
The Court of Appeal found that in the 2002 prosecution of Daniel Parra for receiving
stolen property, San Bernadino County deputy district attorney Carolyn Youngberg
committed misconduct by stating, during closing arguments, “I submit to you that
both [prosecution witnesses] are extremely credible and very honest.”40 The court
found that it was misconduct for the prosecutor to “put the backing of the government
behind the witnesses’ honesty.”41

Improper Argument: Testifying for An Absent Witnesses
Prosecutors must restrict their arguments to reasonable conclusions drawn solely from the
evidence presented during trial; they cannot imply that they have other evidence of guilt that
for reasons they cannot explain they are unable to present to the jury. When a prosecutor
improperly tells the jury what a witness would have said, it denies the defendant the critical
right to confront and cross-examine that witness,42 leaving the jury simply to believe the
prosecutor’s version of what the testimony would have been.

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Example: Harmful Misconduct
The Court of Appeal reversed the conviction of Kenneth Hall for possession of cocaine
based on this type of prosecutorial misconduct.43 During closing argument, Los Angeles
County deputy district attorney Joseph Musso told the jury that the second police
officer present at Hall’s arrest did not testify because he would have simply supported
the prosecution’s version of the facts testified to by the officer who did testify. The
prosecutor thereby deprived the defendant of his right to cross-examine the second
officer and impeach his credibility with the jury.

Improper Argument: Misstating the Law
Rule 5-200 of the California Rules of Professional Conduct prohibits an attorney from
seeking to mislead the jury by a false statement of law.44 When prosecutors, bolstered by their
authority, misstate the law, the result may be juror confusion or worse, a miscarriage of justice.

Example: Harmless Misconduct
The Court of Appeal found that it was misconduct for Santa Clara County deputy
district attorney Ted Kajani, in his closing arguments at the murder trial of Leonard
Thompson, to repeatedly misstate the law regarding manslaughter.45

Improper Argument: Arguing Facts Not in Evidence
A jury must decide a criminal case based solely on the evidence presented at trial; jurors are
prohibited from relying on or seeking outside knowledge. When prosecutors argue facts
unsupported by evidence, they commit misconduct.

Example: Harmful Misconduct
In 2004, the Court of Appeal overturned Damien Humphrey’s first degree murder
conviction because Los Angeles County deputy district attorney Vivian Moreno
impermissibly suggested to the jury that she had additional evidence of Humphrey’s
guilt.46 During her opening argument, Moreno continually described the defendant as

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having jumped out of a van, wearing a mask and holding a gun; no evidence was ever
presented showing any of these facts.

Improper Argument: Mischaracterizing Evidence
Prosecutors’ characterization of the evidence and what it purportedly shows can be
extremely powerful in persuading a jury, especially in closing arguments. When prosecutors
mischaracterize the evidence, they mislead the jury, unfairly prejudice the defendant and
commit misconduct.

Example: Harmful Misconduct
The Court of Appeal reversed the grand theft conviction of Curley Barrett on the grounds
of prosecutorial mischaracterization of the evidence, although the mischaracterization
may have been inadvertent.47 Los Angeles County deputy district attorney John Evans
argued Barrett testified that he had snuck the allegedly stolen disc in his briefcase before
he left for the day, implying knowledge of theft. In fact, Barrett had testified that he
had stuck the disc in his briefcase. The court held that even if the mischaracterization
was inadvertent, it still harmed the defendant’s rights and required reversal.

Improper Argument: Impugning the Defense
It is misconduct for a prosecutor to make irrelevant, insulting comments about the defendant
or his lawyer or to argue that the defense is fabricated. Such arguments can prejudice the jury
against the defense for reasons having nothing to do with the strength of the proof of guilt.48
Such attacks undermine both the presumption of innocence and the prosecution’s burden of
proof by implying that the prosecutor personally knows that the defendant is guilty.

Example: Harmful Misconduct
In 1998, the Court of Appeal reversed Guillermo Contreras’ murder conviction and
life sentence, based on prosecutorial misconduct.49 Los Angeles County deputy
district attorney Jessica Goulden had argued that the defense attorney was unethical
and dishonest and had allowed her witnesses to lie under oath. She also compared the
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defendant to Hitler, saying, “Hitler did a lot of evil, but he was nice to children and
animals. So if Hitler was on trial, [defense counsel] would be bringing in witnesses to
say how nice he was to children all the time.”50

Improper Argument: Arguing Inconsistent Theories of Prosecution 	
It is blatant prosecutorial misconduct for a prosecutor to argue irreconcilable theories to obtain
convictions against two or more criminal defendants. For example, a prosecutor is prohibited
from arguing in two separate trials, in connection with a crime in which he contends there
was a single assailant, that each of the two defendants was that single assailant. Because
a prosecutor’s duty is to seek the truth, rather than simply to obtain convictions, arguing
inconsistent theories undermines the reliability of both convictions, as well as the integrity of
the criminal justice system, and creates the real likelihood of convicting one or more innocent
individuals. Beyond the constitutional principles of fundamental fairness and reliability
ensured by the due process clause, a prosecutor’s knowing use of inconsistent arguments raises
serious ethical considerations.

Example: Harmful Misconduct
In 2005, the California Supreme Court set aside the death sentence imposed on Peter
Sakarias on the grounds that Los Angeles County deputy district attorney Steven Ipsen
deliberately manipulated evidence in aid of conflicting theories to convict Sakarias
and co-defendant Tauno Waidla in separate trials.51 In Waidla’s trial, Ipsen argued
that Waidla struck the fatal blow and presented supporting medical evidence. Then,
in Sakarias’ trial, Ipsen omitted a portion of the medical testimony and argued that
Sakarias struck the fatal blow.

Improper Argument: Appealing to Religious Authority
It is misconduct for the prosecutor to invoke religious authority. This issue generally arises in
connection with punishment in the penalty phase of a capital case, where some prosecutors
have argued that the Bible requires the death penalty or that God’s will must be carried out
by the death penalty’s application. Such arguments interfere with a jury’s responsibility to
administer state and federal law, and allow a prosecutor to substitute personal religious beliefs
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in a manner inimical to the constitutional separation of church and state. California courts
have found that prosecution reliance on religious authority in support of the death penalty
“tends to diminish the jury’s sense of responsibility for its verdict and to imply than another,
higher law should be applied.”52

Example: Harmful Misconduct
In 2000, the U.S. Court of Appeals for the Ninth Circuit set aside the death sentence
of Arthur Sandoval based on the prosecutor’s improper reliance on religious authority
to argue for the death penalty.53 Los Angeles County deputy district attorney David
Milton paraphrased quotations from the Bible saying that God’s avengers should bring
wrath upon those who commit evil; and said: “You are not playing God. You are doing
what God says. This might be the only opportunity to wake [the defendant] up. God
will destroy the body to save the soul.”54

Improper Argument: Offering Personal Opinion	
Because prosecutors are representatives of the people of the state of California, prosecutors’
statements have inherently greater authority than those of other attorneys or witnesses. For
this reason, a prosecutor may not “express a personal opinion or belief in a defendant’s guilt,
where there is substantial danger that jurors will interpret this as being based on information at
the prosecutor’s command, other than evidence adduced at trial.”55 Despite this unequivocal
rule, a number of the cases of prosecutorial misconduct in the Misconduct Study involved such
expression of opinion.

Example: Harmless Misconduct
In the 2000 conviction of Jackie Woods, the prosecutor stated during closing arguments
“we do not prosecute anybody whom we personally do not believe to be guilty beyond
a reasonable doubt.”56 The prosecutor also stated everybody in the District Attorney’s
office lives by this standard. The court affirmed the conviction finding that the jury could
have believed this was a comment on the evidence rather than his personal opinion of
Woods’ guilt.

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Improper Argument: Shifting the Burden of Proof
Prosecutorial misconduct concerning the burden of proof required for conviction is an especially
serious violation. Given the greater power, resources and authority of the state, as represented by
the prosecutor’s office, the presumption of innocence is the crucial safeguard against that power
and a protection of a person’s liberty. That is because, in the cold reality of a typical courtroom
on the first day of a jury trial, it is very difficult to really regard the “accused” as innocent. He
has been brought to trial because the police and prosecutors—respected representatives of the
authority of the state—believe he is guilty; that alone is difficult to surmount.
The presumption of innocence is designed to counterbalance these powerful persuasive forces:
it places upon the state the burden of proving the defendant guilty beyond a reasonable doubt.
As the Supreme Court characterized the presumption:
“[I]t is the duty of the Government to establish… guilt beyond a reasonable doubt.
This notion—basic in our law and rightly one of the boasts of a free society—is a
requirement and a safeguard of due process of law.”57
The presumption is based on the basic concept that it is worse to convict an innocent person
than to let a guilty person go free.
Therefore, when a prosecutor tells a jury that the burden is on the defendant to prove his
innocence, or that there is a presumption of guilt, or in any way implies that the defendant
needs to present evidence to counter the prosecution’s case, that misconduct undermines our
greatest protection against wrongful convictions.

Example: Harmful Misconduct
In 2006, the U.S. Court of Appeals for the Ninth Circuit reversed the drug smuggling
convictions of ten defendants based on the prosecutorial misconduct of Assistant
U.S. Attorney William Gallo.58 The prosecutor improperly told the jury that “the
presumption of innocence… is going to vanish when you start deliberating. And that’s

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when the presumption of guilt is going to take over you.”59 On appeal, the government
conceded the comment was improper, but argued it was harmless and cured by the
district court’s instruction. The appellate court rejected that argument and emphasized
that criminal defendants have a “constitutional right to the presumption of innocence
and to have the government prove guilt beyond a reasonable doubt.”60

Presenting False Evidence
One of the most egregious forms of prosecutorial misconduct is the presentation of false
testimony or evidence. This prohibition is absolute. As the Supreme Court has held: “The
prosecution cannot present evidence it knows is false and must immediately correct any falsity
of which it is aware even if the false evidence was not intentionally submitted.”61 Presenting
false evidence to the jury harms the defendant’s right to a fair trial by lying to the jury about
the evidence. NCIP researchers identified 10 cases in which prosecutors were found to have
presented false evidence.

Example: Harmful Misconduct
In 2009, the U.S. Court of Appeals for the Ninth Circuit ordered a new trial for
Gregory Reyes, Chief Executive Officer of Brocade Communications Systems, who
had been convicted in federal court of falsifying corporate financial statements. The
Court ruled that the prosecutor, Assistant U.S. Attorney Timothy Crudo, argued false
evidence in his closing argument to the jury. Crudo told the jury that the finance
department did not know the statements were false, even though several members of
the finance department had earlier told the FBI that they did know that the documents
were false. Crudo went so far as to show the jury a chart, explaining how each of the
finance department employees did not know about the falsified records. The Appeals
Court said, “Deliberate false statements by those privileged to represent the United
States harm the trial process and the integrity of our prosecutorial system. We do not
lightly tolerate a prosecutor asserting as a fact to the jury something known to be
untrue or, at the very least, that the prosecution had very strong reason to doubt.”62

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Engaging in Discriminatory Jury Selection
Every person accused of a crime in the United States is entitled to a trial by a jury of his or
her peers. When selecting that jury, the prosecutor and defense attorney are prohibited from
eliminating potential jurors based on their membership in specific racial, religious, ethnic or
similar groups.63 As the United States Supreme Court has explained, the Constitution “forbids
the prosecutor to challenge potential jurors solely on account of their race or on the assumption
that black jurors as a group will be unable impartially to consider the state’s case against a
black defendant.”64 It is prosecutorial misconduct to engage in discriminatory jury selection,
thereby denying potential jurors the ability to participate in the administration of justice and
perpetuating racism. NCIP found 30 cases that included discriminatory jury selection.

Example: Harmful Misconduct
In 2006, the U.S. Court of Appeals for the Ninth Circuit reversed the murder
conviction of Richard Kesser because of the misconduct of Humboldt County deputy
district attorney Worth Dikeman who struck Native Americans from the prospective
jury pool.65 The prosecutor said that he believed Native Americans were distrustful of
the criminal justice system and would not be willing to find another Native American
guilty. He also said that he heard that “child molesting is okay in certain Native
American cultures, and we can’t treat Native American child molesters the same way
we treat other child molesters…”66

Intimidating a Witness
It is misconduct for a prosecutor to intimidate witnesses to keep them from testifying on behalf
of the defendant. When prosecutors threaten witnesses, make them unavailable (for example,
by arranging to have them deported) 67 or order them not to speak to the defendant or his
lawyer, they interfere with the defendant’s right to prepare and present his or her defense.
One of the ways that prosecutors intimidate witnesses is by threatening perjury or other
charges. If such threats prevent testimony, they violate due process by interfering with
the defendant’s right to present witnesses in his own defense.68 Misconduct “include[s]…
statements to defense witnesses to the effect that they would be prosecuted for any crimes they
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reveal or commit in the course of their testimony.”69 NCIP found 7 court findings of witness
intimidation. (See, for example, William Ruehle’s case, Part III, A.)

Violating the Defendant’s Fifth Amendment Right to Silence
People arrested for crimes have an absolute right not to talk to the police or otherwise give
evidence against themselves. The privilege against self-incrimination is one of the most
important constitutional safeguards. The Supreme Court has long recognized that the right
against compelled testimony is a “fundamental right”70—indeed, it is “a ‘principle of justice so
rooted in the traditions and conscience of our people’”71 as to constitute “one of the ‘principles
of a free government.’”72 Among other consequences, it protects people from harsh, coercive
interrogations by police, which result in unreliable confessions. In numerous cases where
convicted defendants were later exonerated through DNA evidence, false confessions were
produced by prolonged, coercive interrogations.
This very important protection against governmental abuse is undermined when prosecutors
comment about the fact that a defendant invoked his right to be silent upon arrest.
Prosecutors for example are prohibited from cross-examining a defendant about post-arrest
silence. As the Supreme Court has noted, “it would be fundamentally unfair and a deprivation
of due process to allow the arrested person’s silence to be used to impeach an explanation
subsequently offered at trial.”73
The same unfairness results when a prosecutor improperly comments on the fact that a
defendant chose not to testify at trial. Indeed, to allow a prosecutor to use the defendant’s
silence at trial as evidence against him renders the right against self-incrimination meaningless:
a defendant, knowing his silence would be used against him, would feel compelled to testify.
NCIP uncovered 47 times where a prosecutor committed misconduct by this method.

Example: Harmless Misconduct
In 2006, the Court of Appeal found that the prosecutor committed misconduct
in commenting at trial on the post-arrest silence of defendant Travis Larimer.74 The
prosecutor not only questioned the defendant about his decision to remain silent, but he

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elicited testimony from a detective that “it may be inferred that an individual is a gang
member when he invokes his right to counsel and refuses to speak with police.”75 In
closing argument, the prosecutor argued that the defendant’s testimony was not believable
because he had chosen not to speak about the incident at the time of his arrest.

Failure to Disclose Exculpatory Evidence
In 1963, the U.S. Supreme Court recognized the duty of prosecutors to disclose exculpatory
evidence when it decided Brady v. Maryland.76 Under Brady, it is the prosecution’s
responsibility to locate and disclose exculpatory information obtained by the police, because
police are part of the prosecution team.

“[A] prosecutor’s violation of the
obligation to disclose favorable
evidence accounts for more
miscarriages of justice than
any other type of malpractice,
but is rarely sanctioned by
courts, and almost never by
disciplinary bodies.”

Brady violations are among the most pervasive
forms of prosecutorial misconduct identified in
the Misconduct Study. When prosecutors make
the decision as to whether evidence is Brady
material, their belief that the defendant is guilty
can create a distorting prism through which they
tend to view the evidence inaccurately as a red
herring or irrelevant. Brady violations are, by
their nature, difficult to uncover; they become
apparent only when the withheld material
becomes known in other ways.

Brady violations are among the most pernicious forms of prosecutorial misconduct. Failure
to disclose Brady material keeps the jury from considering proper and admissible evidence
supporting the innocence of the defendant. Without access to this evidence, innocent
defendants face a serious risk of being convicted for a crime they did not commit.
Yet, nearly a half-century after Brady, prosecutors still violate this constitutional imperative. As
one of the nation’s leading scholars on prosecutorial misconduct and Brady violations, Professor
Bennett L. Gershman has stated: “[A] prosecutor’s violation of the obligation to disclose

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favorable evidence accounts for more miscarriages of justice than any other type of malpractice,
but is rarely sanctioned by courts, and almost never by disciplinary bodies.”77
It is impossible to know how many Brady violations occur—by their nature they involve
evidence that is hidden from the defense. But a study of all 5,760 capital convictions in the
United States from 1973 to 1995 found that the suppression of evidence by prosecutors was
responsible for 16 percent of reversals at the state post-conviction stage.78 The Misconduct
Study uncovered 66 cases where courts found prosecutors had committed Brady violations,
including several that occurred in death penalty prosecutions.

Example: Harmful Misconduct
In 2002, the U.S. Court of Appeals for the Ninth Circuit overturned the murder
conviction of Gloria Killian because Sacramento County deputy district attorney
Christopher Cleland failed to turn over a letter written by the key prosecution witness,
stating he had lied to put Killian behind bars.79
Killian was accused of being the mastermind of a murder and robbery plot and was
convicted in 1986 primarily on the testimony of an admitted participant in the murder.
The witness, Gary Masse, had been convicted of the murder and sentenced to life
without parole; he testified at Killian’s trial that Killian concocted the murder, and he
also denied that he had any kind of deal for leniency.
Years later, Killian’s lawyers obtained a letter from Masse to the prosecutor that
the prosecutor had never turned over to the defense, saying that Masse’s testimony
implicating Killian was a lie.

Example: Harmful Misconduct
In 2004, a Santa Clara County judge overturned the conviction of Damon Auguste
for sexual assault on the ground that deputy district attorney Benjamin Field failed
to disclose exculpatory evidence: DNA lab notes and evidence indicating the victim
testified falsely against him.80
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Example: Harmful Misconduct
In 2005, the U.S. Court of Appeals for the Ninth Circuit overturned the murder
conviction and death sentence of Blufford Hayes Jr., finding that San Joaquin County
deputy district attorney Terrence Van Oss had made a leniency deal with the chief
prosecution witness, lied about it to a judge and then allowed the witness to testify
falsely in court that there was no deal.81

B. Cases Declining to Address Misconduct
“For purposes of analysis, we will assume, without deciding, that the prosecutor’s
statements during her closing argument constituted prosecutorial misconduct.”
—People v. Najera, Fourth District Court of Appeal 82
NCIP identified 282 cases in which courts, as in the Najera opinion above, declined to address
allegations of prosecutorial misconduct and, as a result, the prosecutors’ actions were never
scrutinized.  The case of Tyrone Ebaniz is an example of this failure. 
The Court of Appeal ordered a new trial for Ebaniz and set aside his life sentence on the
grounds that newly discovered evidence pointed “unerringly to [his] actual innocence” of
charges that he willingly took part in the torture and murder of a teenager.83 The new evidence
consisted of testimony from another participant that Ebaniz had been forced to take part after
being beaten and threatened with an assault rifle. “In our view, no reasonable jury could reject
the new evidence or, upon crediting it, convict Ebaniz,” the court held.84
Ebaniz also argued that Tulare County deputy district attorney David Alavezos engaged in
prosecutorial misconduct by asserting during closing argument that Ebaniz was lying about
being forced to take part in the crime. Alavezos knew that other defendants’ statements to
police supported Ebaniz’s claim. The court said that it was “bothered” by Alavezos’ conduct,
but it did not reach the question whether it constituted prosecutorial misconduct because
Ebaniz’s defense attorney had not objected to the argument at trial.85 More than a year after
the decision, Alavezos said that he had not even read the court’s ruling, claiming that he had
“never committed prosecutorial misconduct.”86
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In these 282 decisions, the courts used either of two grounds to decline to address allegations
of misconduct. In 204 of the cases, the courts held that even if the prosecutor’s actions were
misconduct, it would not have changed the verdicts. In the remaining 78 cases, courts held
that the defendants’ claims of prosecutorial misconduct were waived and so, as in Ebaniz,
ignored the issue.

1. Non-Waiver Cases
In the 204 non-waiver cases—the vast majority of
the cases—the courts bypassed the critical analysis
of prosecutorial misconduct by focusing only on
whether, overall, the trials were fair. That meant,
however, that the courts did not also provide
guidance as to whether the conduct amounted
to misconduct, and the prosecutor avoided any
consequences.

In the 204 non-waiver
cases—the vast majority
of the cases—the courts
bypassed the critical analysis
of prosecutorial misconduct
by focusing only on whether,
overall, the trials were fair.

The courts’ reluctance to address misconduct
extended even to cases where the government did
not deny that misconduct had occurred. For example, an issue in the appeal from the murder
conviction of Michael Gospel was whether the prosecutor committed misconduct in arguing
to the jury that Gospel was a womanizer who wanted to control women and when he could
not, resorted to murder.87 Even though Gospel argued that there were no facts to support
this assertion, and even though the government did not attempt to defend the prosecutor’s
conduct, the Court of Appeal nonetheless evaded the issue, holding that “the comment was
harmless because it is not reasonably probable that defendant would have (been acquitted) if
the comment had not been made.”88
In other cases, appellate courts avoided deciding whether prosecutors’ actions were misconduct
by concluding that trial judges’ corrective measures were sufficient to ensure a fair trial. For
example, in the case of Anaissa Gerwald, the prosecutor, by suggesting that the defendant had
failed to produce evidence, violated the rule precluding prosecutors from commenting on a
defendant’s right to remain silent.89 The presiding judge dressed down the prosecutor, saying,
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“You are really on thin ice. As a defendant [Gerwald] has no obligation to ever do any of that.
It’s almost—I mean it’s almost mistriable[sic].”90 Yet the Court of Appeal avoided reaching the
prosecutorial misconduct issue, holding: “Even if the prosecutor committed misconduct…
any error was harmless beyond a reasonable doubt.”91

2. Waiver Cases
In the 78 waiver cases, appellate courts refused to consider the claims of prosecutorial
misconduct because the defense attorneys failed to make a timely or proper objection at trial
sufficient to preserve the matter for appellate review. To avoid waiving a claim of prosecutorial
misconduct, defense attorneys must satisfy strict and formal requirements: they must object to
the prosecutor’s specific actions, cite the actions as prosecutorial misconduct and request that
the trial judge specifically instruct the jury about the misconduct.92 Failure to satisfy any one
of these requirements can result in the permanent loss of appellate review of the issue.
For example, the Court of Appeal
recently declined to address claims
In the 78 waiver cases, appellate
of prosecutorial misconduct, even
courts refused to consider the claims
though the prosecutor was accused of
of prosecutorial misconduct because
improperly arguing to the jury that it
the defense attorneys failed to make
could not acquit unless it rejected the
testimony of all prosecution witnesses
a timely or proper objection at trial
and of improperly commenting on
sufficient to preserve the matter for
the defendant’s failure to assert his
appellate review.
innocence after he was arrested.93 The
court avoided addressing the allegations
of misconduct on the grounds that defense counsel did not object to the alleged misconduct,
saying: “There is no reason to believe an objection to any of the alleged misconduct would
have been futile or that an admonition to the jury to disregard any misstatements of law would
not have been effective.”94

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Summary
Prosecutorial misconduct is a critical issue for the integrity of the criminal justice system,
which the Misconduct Study sought to more fully document. In 707 cases, courts found
prosecutors committed misconduct. In 548 of the cases where misconduct was found, the
courts nevertheless upheld the convictions by ruling that the misconduct did not alter the
fundamental fairness of the trial. In 159 of the 707 cases where misconduct was found, the
finding resulted in the setting aside of convictions or sentences, declaring mistrials, or barring
evidence. Courts refrained from making a ruling on the issue of prosecutorial misconduct and
instead held that any error would have been harmless or refused to consider the issue because
the defense failed to make a proper objection in 282 cases.

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IV.
Role
of
Prosecutors in
Addressing Misconduct

PROSECUTORIAL MISCONDUCT IN CALIFORNIA

IV. Role of Prosecutors in Addressing Misconduct
“[The] duty of furthering just convictions ‘is [the prosecutor’s] highest purpose.’…
‘While lawyers representing private parties may—indeed must—do everything ethically
permissible to advance their clients’ interests, lawyers representing the government in
criminal cases serve truth and justice first. The prosecutor’s job isn’t just to win, but
to win fairly, staying well within the rules.’… This is so because ‘[s]ociety wins not only
when the guilty are convicted but when criminal trials are fair; our system of justice
suffers when any accused is treated unfairly.’”
— Thompson v. Calderon, U.S. Court of Appeals for the Ninth Circuit 95
Prosecutors have the difficult responsibility of wearing two hats. On the one hand, they are
ministers of justice. Their responsibility is to prosecute only those they believe are guilty
and use only fair methods in doing so. The California District Attorneys Association has
recognized these “strict” ethical obligations, telling its members:
“In administering justice, a prosecutor must abide by a strict code of ethics… [The
primary role of the prosecutor is to ‘investigate and prosecute impartially’ criminal
suspects on behalf of the People. Prosecutors should prosecute with ‘earnestness and
vigor’ while employing only ‘legitimate investigative techniques’ to ensure that ‘guilt
shall not escape or innocence suffer.’”96
The American Bar Association also recognizes the special place of prosecutors in our
constitutional system: “The responsibility of a public prosecutor differs from that of the usual
advocate; his duty is to seek justice, not merely to convict.”97
On the other hand, prosecutors are advocates: they aim at “winning the case” by obtaining
convictions. In that role, they can be tempted by a variety of improper tactics, such as hiding
exculpatory evidence, intimidating witnesses and presenting false evidence. While the majority
of prosecutors resist those temptations, the Misconduct Study demonstrates that many do not,

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finding 707 cases of court-identified misconduct—159 of which so undermined the trial’s
fairness that such drastic remedies as overturning convictions were required.
Not only are certain prosecutors failing to avoid misconduct, they and others may be failing
to satisfy their obligation to report it. Prosecutors, like all attorneys, are bound by the
requirements of California Business & Professions Code Section 6068(o)(7) “to report to the
agency charged with attorney discipline, in writing, within 30 days of the time the attorney has
knowledge of any of the following:… Reversal of judgment in a proceeding based in whole or
in part upon misconduct, grossly incompetent representation, or willful misrepresentation by
an attorney.”98 While the State Bar does not make public the reports of misconduct it receives,
it is unlikely that prosecutors are complying with this reporting obligation; there have only
been six cases of public discipline for prosecutorial misconduct in nearly 13 years.
Prosecutorial misconduct and failure to report do not occur in a vacuum. Nor is misconduct
the result of individual acts performed in isolation. Rather, incidents of misconduct often
involve—or are the result of—insufficient training, too much emphasis on winning trials rather
than doing the right thing, and a culture that does not talk about it.
Because prosecutors are in the best position to prevent misconduct, internal procedures are
an effective way to prevent and correct errors and misconduct. Creating a safe, non-punitive
and open learning environment where prosecutors can freely discuss and learn from mistakes
is a first important step toward a more open and fair administration of justice. It can also lead
to fewer misconduct claims and reduce the need to resort to outside agencies to regulate and
discipline attorneys.
It is imperative that prosecutorial agencies establish procedures for identifying and correcting
error, educate prosecutors in best practices to avoid error and misconduct and establish “an
environment where winning trials is not the most important measure of success, for the
individual or the office as a whole.”99 The authors offer some recommendations in this regard
in Part IX.

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V.
Role
of the Courts
in Addressing Misconduct

PROSECUTORIAL MISCONDUCT IN CALIFORNIA

V. Role of the Courts in Addressing Misconduct
“[J]udges, individually and collectively, must respect and honor the judicial office as a
public trust and strive to enhance and maintain confidence in our legal system.”
– Preamble, California Code of Judicial Ethics 100
The California Code of Judicial Ethics details the vital position of judges as leaders of the
criminal justice system, charged with guarding the integrity of the judicial process. That
responsibility includes monitoring the conduct of the attorneys in the cases over which they
preside.101 The Misconduct Study identifies two areas in which judges’ discharge of this
responsibility should be improved regarding prosecutors found to have committed misconduct:
reporting them to the State Bar for potential disciplinary proceedings; and identifying them by
name in opinions discussing misconduct.

A. Reporting Prosecutorial Misconduct
California Business and Professions Code Section 6086.7(a), the reporting statute, mandates
specific circumstances in which a court must report instances of misconduct to the State Bar:
“A court shall notify the State Bar… (2) Whenever a modification or reversal of a
judgment in a judicial proceeding is based in whole or in part on the misconduct,
incompetent representation, or willful misrepresentation of an attorney.”102
The reporting obligation applies only to cases that are reversed or modified as a result of
misconduct. The court is also required to notify any attorney that it so reports.103
The limitation of the reporting statute to cases of reversal or modification means that the
majority of misconduct findings need not be reported. Of the 707 findings of misconduct
identified by NCIP researchers, 548 did not fall under the statute.
Despite the very specific mandate articulated in California law, there is little evidence courts
are meeting even this limited reporting obligation. In July 2008, the California Commission
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on the Fair Administration of Justice (CCFAJ) issued a report quoting the Chief Trial Counsel
of the State Bar as saying that a review of nearly 30 prosecutorial misconduct reversals failed to
reveal a single instance of reporting by the appellate courts.104
One example of such failure to report is illustrative. In 2009, the Court of Appeal reversed the
conviction of Harold Ball after finding that Fresno County deputy district attorney Melissa
Baidzar Baloaian Sahatjian had failed to disclose exculpatory evidence.105 The court, however,
declined to report Sahatjian’s conduct to the State Bar, because it said it was not “egregious.”106
The reporting statute does not afford a court the discretion to choose not to report misconduct
it deems not egregious: it requires reporting “[w]henever a modification or reversal of a
judgment in a judicial proceeding is based in whole or in part on the misconduct, incompetent
representation, or willful misrepresentation of an attorney.”107 The statute evidences
recognition that any conduct on which reversal is based, even in part, is serious enough to
require notification of the State Bar concerning potential disciplinary investigation.
In any case, the seriousness of the
The California Commission on
prosecutor’s conduct in Ball cannot be
disputed. The prosecutor failed to notify
the Fair Administration of Justice
the defense attorney when an anticipated
issued a report quoting the Chief
prosecution witness, upon seeing the
Trial Counsel of the State Bar as
defendant in the courtroom, said he was
saying that a review of nearly 30
not the man who attacked the victim;
instead, the prosecutor simply sent the
prosecutorial misconduct reversals
witness home. Before trial ended, the
failed to reveal a single instance of
witness told the defense attorney what
reporting by the appellate courts.
happened, and the prosecutor conceded
she had sent the witness away without
notifying the defense. Nevertheless, the trial judge refused to allow the witness to testify, and
the defendant was convicted and sentenced to four years in prison.

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The Court of Appeal set aside the conviction and sentence, finding that the prosecutor’s
conduct required a new trial. The court nonetheless declined to report to the State Bar
the prosecutor’s withholding of crucial exculpatory evidence from the defense, despite the
unequivocal mandate of the statute, and even though the court noted that the prosecutor “did
not admit what happened until after defense counsel found out about it independently, and
there is no way to rule out the possibility that she never would have told otherwise.”108
NCIP found evidence that the court noted its intent to report misconduct in only six cases.109
This failure to report prosecutorial misconduct is also documented in the 2008 CCFAJ report.110
There is some evidence that the CCFAJ report has had some effect. After its release, the
California Supreme Court incorporated a segment on reporting misconduct into its training
sessions for judges and released a new judicial manual that includes guidelines for reporting.111
Judges are in a unique position to deter misconduct and help prosecutors better understand
their obligations through their actions and opinions. Reporting cases of misconduct is a
critical part of this role. The Misconduct Study’s authors make specific recommendations as to
ways in which the courts’ compliance with this obligation can be improved. (See Part IX.)

B. Identifying By Name Prosecutors Found to Have Committed Misconduct
As the United States Supreme Court has noted, one way to deter misbehaving prosecutors is to
“publicly chastise the prosecutor by identifying him in [the court’s opinion].”112 Unfortunately,
courts of review only rarely refer to errant prosecutors by name. NCIP’s review of the 707
appellate opinions where courts found misconduct reveals that prosecutors were identified in
only 80 cases. In 49 of those cases, the prosecutor was referred to only by last name.
The failure to fully identify prosecutors found to have engaged in misconduct has specific
adverse consequences. First, the valuable avenue of deterrence the Supreme Court identified is
undermined, since prosecutors engaged in misconduct are rarely held up to public scrutiny.
Second, determining what, if any, consequences there were to prosecutors in specific cases of
misconduct becomes extremely difficult. When opinions fail to name the prosecutors who
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State of California, Courts of Appeal, Appellate Districts
Source: California Courts website. Available at http://www.courtinfo.ca.gov/reference/documents/appdistc.pdf

engaged in the misconduct, identifying them usually requires a time-consuming and difficult
search of the trial record. It was only through such means that NCIP researchers identified the
prosecutors in 600 of the 707 cases that found prosecutorial misconduct.
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VI.
Role of the
California State Bar in
Addressing Misconduct

PROSECUTORIAL MISCONDUCT IN CALIFORNIA

VI. Role of the California State Bar in Addressing Misconduct
“[A] prosecutor stands perhaps unique, among officials whose acts could deprive
persons of constitutional rights, in his amenability to professional discipline by an
association of his peers.”
– Imbler v. Pachtman, United States Supreme Court113
The State Bar of California, the largest bar association in the nation, has the important
responsibility of investigating all complaints of attorney misconduct in California, including
prosecutorial misconduct, and prescribing appropriate discipline. Its disciplinary proceedings
and the sanctions imposed serve critical public purposes of punishment, education and
deterrence, and, more broadly, “the protection of the public, the courts and the legal
profession; the maintenance of high professional standards by attorneys and the preservation
of public confidence in the legal profession.”114 It has not been achieving these purposes in the
case of prosecutorial misconduct.

A. Failure to Discipline Prosecutorial Misconduct
The Misconduct Study reveals that the State Bar rarely publicly disciplines prosecutorial
misconduct. It is impossible to determine the reasons for this failure to discipline without
public information concerning the number of reports or complaints of prosecutorial
misconduct the Bar receives, the number of those it investigates115 and the number that result
in private discipline.116
Regardless of the reasons, the facts of disciplinary failure are undeniable: of the 4,741 public
disciplinary actions reported in the California State Bar Journal in a nearly thirteen-year
period—from January 1997 to September 2009—only ten involved prosecutors, and only six
of these were for conduct in the handling of a criminal case.117

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The six that were disciplined for prosecutorial misconduct had all withheld evidence:
■■

Santa Clara County deputy district attorney Benjamin Field was suspended for four years
in 2010 for misconduct in multiple cases over a decade, including violating a court order,
withholding evidence in two separate cases and making a deceptive closing argument.118

■■

San Joaquin County deputy district attorney Michael Freeman stipulated to withholding
evidence from the defense, resulting in a public reprimand in 2009.119

■■

Santa Clara County deputy district attorney Peter Waite was publicly reprimanded in 2009
for suppressing an expert opinion that was favorable to the defense in a burglary, rape and
robbery prosecution.120

■■

Sonoma County deputy district attorney Brooke Halsey was suspended for three years in
2007 for multiple violations, including suppression of evidence, misleading a judge and
making false representations in court.121

■■

Butte County deputy district attorney Leo Barone was suspended for one year in 2005 for
failing to disclose exculpatory evidence and making misrepresentations to the court and
defense.122

■■

San Diego County deputy district attorney James Fitzpatrick was placed on probation
for two years in 2005 for willfully failing to disclose exculpatory evidence to the defense,
violating a court order and being untruthful.123

However, there are numerous other cases where prosecutors suppressed critical evidence, just as
in the six cases of discipline, but have no public record of discipline. These include:
■■

In 1999, a conviction obtained by San Diego County deputy district attorney Keith Burt
was reversed because “the prosecution withheld crucial discoverable evidence, presented
false or misleading evidence and made misrepresentations in its closing argument to
the jury.”124

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■■

In 2006, a Federal District Court judge found Los Angeles County deputy district
attorney Sterling Norris had withheld exculpatory information.125

■■

In 2008, a Riverside County Superior Court judge dismissed a narcotics prosecution after
ruling that deputy district attorney Edward Hong intentionally withheld evidence from
the defense.126

■■

In 2005, the U.S. Court of Appeals for the Ninth Circuit found former San Joaquin
County deputy district attorney Terence Van Oss failed to turn over exculpatory evidence
and allowed a witness to falsely testify in a death penalty prosecution.127 Van Oss has
never been disciplined; he has been a judge in the Superior Court of San Joaquin County
since 1990.

The six disciplined prosecutors were all disciplined after 2004 and the establishment of the
California Commission on the Fair Administration of Justice.128 Prior to 2005, not a single
prosecutor was disciplined for conduct in a criminal case, and to date, no California prosecutor
has been disbarred for prosecutorial misconduct.
Multiple Offenders
Not Disciplined
61

Disciplined
6

3-Case Offender
1

2-Case Offenders
5

Number of Multiple Offenders Disciplined by the State Bar: Only six multiple offenders out of the 67 identified in this study have been
disciplined by the State Bar as noted in the California State Bar Journal. Of those six multiple offenders, five of them committed misconduct
in two cases and one committed misconduct in three cases.

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B. Failure to Discipline Prosecutors with Repeat Violations
The published records also reveal that many of the undisciplined prosecutors were repeat
offenders. In the cases of prosecutorial misconduct in which NCIP was able to identify the
prosecutor involved, 67 had committed misconduct multiple times, three of these committed
misconduct four times and two did so five times. All six prosecutors who were disciplined are
multiple offenders.
A striking example of repeat prosecutorial misconduct that has not been publicly disciplined
is Los Angeles County deputy district attorney Grace Rai. In October 2008, the Court of
Appeal reversed the conviction of Mark Broughton and severely criticized Rai’s conduct in
prosecuting the case.129 The court found that Rai committed serial misconduct that included
asking improper questions, eliciting inadmissible evidence and hearsay, disobeying court
orders and making improper arguments. Finding that many of Rai’s violations were of “major

Misconduct Committed by Multiple Offenders: NCIP researchers found that multiple offenders committed misconduct in both harmful
(convictions or sentences set aside, mistrials declared, or evidence barred) and harmless (convictions upheld) cases. This chart details the
breakdown of cases by how many cases were handled by multiple offenders who committed misconduct two, three, four, and five times. For
example, the first bar details the number of cases handled by two-time multiple offenders broken down into harmful and harmless.

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significance,” the court stated: “We think that absent the prosecutorial misconduct, there was
a reasonable probability the verdict would have been different.”130
This was not the first time that an appellate court criticized Rai for misconduct. In 2006, the
Court of Appeal affirmed the conviction of Calvin Benn, but found Rai engaged in regrettable
conduct that was “not to be condoned,” “fell below acceptable professional standards” and in all
likelihood knowingly violated a court order.131
Despite these explicit findings of misconduct, public State Bar records reveal no discipline of
Rai. This failure cannot be explained by the court’s failure to report the misconduct: in 2008
the court in the Broughton case specifically directed that its finding of Rai’s misconduct be sent
to the Bar.
Rai’s case is not unique. Among the prosecutors with multiple findings of misconduct who
have no public record of discipline are the following:
■■

Los Angeles County deputy district attorney Michael Duarte was cited for failing to
disclose exculpatory evidence and altering notes of an interview with a witness, causing
mistrials in two separate prosecutions.132 A trial court judge fined him $1,000 for his
conduct in one case.

■■

Los Angeles County deputy district attorney Robin Sax Katzenstein committed
misconduct by arguing facts not in evidence in two cases, resulting in reversals of
convictions in 2008 and 2009.133

■■

Orange County deputy district attorney Michael Flory has been found to have
committed misconduct in five cases—in one the conviction was reversed for his
engaging in discriminatory jury selection; in the other four the misconduct was held to
be harmless error.134

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Types of Public Discipline 1997–2009*: This chart depicts the major types of discipline reported by the California State Bar Journal to all
attorneys from 1997 through September 2009. Based on our methodology, NCIP researchers found that the Bar disciplined many attorneys
during the years reviewed. However, only 10 out of 4,462 disciplinary actions involved prosecutors.
* NCIP reviewed through September 2009

C. In Contrast, Active Discipline of Non-Prosecutors
It’s not that the State Bar does not discipline lawyers. From January 1997 through September
2009, the State Bar published 4,741 discipline records detailing a variety of offenses, primarily
financial violations and breach of duty to clients by private attorneys.135
A total of 586 lawyers were disbarred. The majority of the other public disciplinary actions
were suspensions, probation and reprovals for misconduct that ranged from the egregious to
the more innocuous. For example, in 2000, Jeffrey Nelson was suspended for 20 months after
pleading guilty to a criminal misdemeanor (later dismissed) for bouncing an $850 check from
his personal account.136
Nor is the Bar reluctant to discipline criminal defense attorneys, even when they do not
discipline the same conduct by prosecutors. For example, the Bar suspended criminal defense
attorney Maureen Kallins137 for two years because she “repeatedly crossed the line from zealous
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advocacy to contemptuous disrespect for the
courtroom.”138 Yet, the Bar never disciplined
Los Angeles County deputy district attorney
Rosalie Morton, even though courts found
she had engaged in prosecutorial misconduct
in four cases, three of which resulted in
reversal of convictions, including tactics that
were “petty and childish, heightening the
acrimonious atmosphere in the courtroom
and threatening the ability of defendant to
receive a fair trial.”139

The failure by the State Bar to
publicly discipline prosecutors
sends a message that prosecutors
can commit misconduct with
impunity. Prosecutors, in
effect, know they can commit
misconduct to obtain convictions.

The failure by the State Bar to publicly discipline prosecutors sends a message that prosecutors
can commit misconduct with impunity. Prosecutors, in effect, know they can commit
misconduct to obtain convictions.

D. The Bar’s Recent Responses to Criticism
There have been recent signs of progress in the State Bar’s approach to prosecutorial discipline.
In 2009, the California State Bar, responding to the CCFAJ report and its recommendations,
unanimously agreed to reaffirm “its commitment to establishing and monitoring disciplinary
policies that support the primary purposes of the disciplinary proceedings conducted by and of
the sanctions imposed by the State Bar of California, specifically, the protection of the public,
the courts and the legal profession; the maintenance of high professional standards by attorneys
and the preservation of public confidence in the legal profession.”140
The State Bar also unanimously agreed that it would begin separating the reports of
misconduct made to it to distinguish seven categories of attorneys, including prosecutors,
and make the number of complaints public.141 As a result, the State Bar’s Office of the Chief
Trial Counsel installed new reportable action screens into its computer system to track reports
against attorneys in a manner consistent with the CCFAJ Report.142

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Specifically, the CCFAJ had recommended that the State Bar include in its annual report
on the State Bar’s discipline system the number of reportable actions143 received from courts
pursuant to Business and Professions Code section 6068.7(a),144 any reportable actions that
involve any one of seven identified categories of egregious conduct;145 and the number of
reportable actions related to the conduct of prosecutors and defense lawyers for each county.
This data will be published in the Bar’s 2010 Annual Report to be issued in April 2011.146
We applaud these efforts to adopt the CCFAJ recommendations.147 However, more
accountability and transparency is needed. In conjunction with the California courts, records
of compliance with the reporting statute should be made public. (see Part IX)

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VII.
Costs and
Consequences of
Prosecutorial Misconduct

PROSECUTORIAL MISCONDUCT IN CALIFORNIA

VII. Costs and Consequences of Prosecutorial Misconduct
“Crime is contagious. If the government becomes a law-breaker, it breeds contempt
for the law… it breeds anarchy.”
– Olmstead v. United States, United States Supreme Court 1928; Justice Brandeis, dissenting 148
The devastating effects of prosecutorial misconduct cannot be overestimated. The costs are
financial, emotional, psychological and societal. The adversely affected include innocent
defendants wrongly convicted, taxpayers forced to bear the massive expenses of protracted
litigation and incarceration, crime victims and their family members required to relive their
pain, and, more broadly, the public in general, whose trust in the entire criminal justice system
is undermined.

A. Consequences for Innocent Defendants Wrongly Convicted
There is no more harmful consequence of prosecutorial misconduct than the conviction of the
innocent. Yet it occurs repeatedly, causing devastating damage to the lives of the innocent, as
well as those victimized by true perpetrators who remain free.
DNA exoneration cases provide an avenue to identify and analyze the consequences for
innocent persons who were wrongly convicted in connection with prosecutorial misconduct.
With the advent of DNA testing, biological material recovered from crime scenes can now be
used to identify with scientific certainty the identity of the true perpetrator. This has led to the
exoneration of more than 250 people who were wrongfully convicted of heinous crimes, as well
as, in many cases, the identification and arrest of the actual perpetrators.
In studies of these DNA exoneration cases, prosecutorial misconduct has been identified as
one of seven primary causes of wrongful conviction.149 Two recent studies have shown the
alarming frequency in which courts upheld convictions of innocent people, including in cases
of prosecutorial misconduct, incorrectly finding harmless error.

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VII. COSTS AND CONSEQUENCES

In August 2010, Dr. Emily West analyzed
255 cases where DNA proved the person
Two recent studies have shown
convicted was innocent and determined that
the alarming frequency in which
prosecutorial misconduct was raised as an issue
courts upheld convictions of
on appeal or in a civil law suit in 65 cases.150
innocent people, including
Of these 65 cases, courts rejected the claims
of prosecutorial misconduct in 34. Of the 31
in cases of prosecutorial
cases in which the courts found prosecutorial
misconduct, incorrectly finding
misconduct, they ruled 12 harmful and 19
harmless error.
harmless.151 It is troubling to see how often
courts declare misconduct to be harmless when
the defendant is in fact innocent, even holding that the evidence of guilt is “strong.”152
While DNA exonerations conclusively establish innocence, most exonerees prove their
innocence using non-DNA evidence. In California, three examples of innocence cases that
involved prosecutorial misconduct are:
■■

In 2002, the U.S. Court of Appeals for the Ninth Circuit overturned the conviction
of Gloria Killian after finding that the prosecutor had failed to turn over exculpatory
evidence: a letter written by the sole prosecution witness, stating he had lied to put Killian
behind bars. Killian won her release after 18 years in prison.153

■■

In 2003, Quedellis “Rick” Walker was freed from prison after serving nearly 12 years for a
murder he did not commit. Evidence surfaced that the prosecutor failed to disclose to the
defense leniency deals with the state witness who lied to implicate Walker.154

■■

In 2000, Oscar Lee Morris was freed after serving 16 years in prison for murder because a
Los Angeles County Superior Court judge set aside his conviction and ordered a new trial.
An appellate court in 1988 had found that the prosecutor hid evidence of a secret deal
with the state’s key witness, but found the misconduct harmless. Morris won his release a
decade later after the witness admitted he had lied.155

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It is impossible to overestimate the magnitude of the wrong done to an innocent person
wrongfully convicted of a crime. The psychological, emotional and economic harm can be
equivalent to the destruction of a life.

Of those who were able to
obtain jobs after their release,
43 percent were paid less
than they earned prior to their
imprisonment.

The impact of incarceration is devastating;
defendants lose much more than their freedom.
In addition to the pain of separation from friends
and family, imprisonment can result in loss of
education, employment, job skills, earnings and
physical health. The innocent further must deal
with the psychological dissonance of having been
profoundly wronged by society.156

In 2007, a New York Times study of 137 DNA exonerees found that most “have struggled to
keep jobs, pay for health care, rebuild family ties and shed the psychological effects of years of
questionable or wrongful imprisonment.”157 Economic harm, of course, is significant. Studies
have found that more than 90 percent of exonerees lost all their assets—savings, vehicles,
houses —while imprisoned.158 Of those who were able to obtain jobs after their release, 43
percent were paid less than they earned prior to their imprisonment.159
Only in extremely limited circumstances can the exonerated prevail in civil litigation against
the prosecutors whose misconduct caused their wrongful conviction. In 1976, the United
States Supreme Court decided Imbler v. Pachtman,160 holding that when prosecutors act within
the scope of their duties they are absolutely immune from civil liability. The Court based
its conclusion on its belief that “[p]rosecutors must be free to make discretionary decisions
without constant dread of retaliation,” even though it openly acknowledged that their decision
would “leave unredressed the wrongs done by dishonest [prosecutors].” 161 As a result, civil
lawsuits against prosecutors usually are dismissed soon after the cases are brought to court; the
rare cases of recovery against prosecutors is for conduct in a non-prosecutorial capacity.162 (See
Part VIII.)

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VII. COSTS AND CONSEQUENCES

B. Financial Costs to Taxpayers
“Needless to say, the conduct which compels the result we reach in this case has
generated substantial costs to the public. The expense of the lengthy trials, which
have now gone for naught, the costs of the proceedings undertaken in this court in
order to uncover the misconduct in the earlier trials, and the cost of an additional
retrial, should that take place, are very high and wholly regrettable.”
– People v. Butler, Fourth District Court of Appeal 163
Prosecutorial misconduct imposes a heavy
financial cost on cities and counties, primarily
borne by taxpayers, through prolonged criminal
litigation and incarceration. These massive costs
provide another reason that society should care
about prosecutorial misconduct, even in cases
where the defendants in fact are guilty. Moreover,
it has resulted in substantial payments by cities
and counties in several civil cases alleging
prosecutorial misconduct. And taxpayers also
ultimately bear the costs of any compensation
paid those who were wrongly convicted.

The costs of the prolonged
criminal litigation that
prosecutorial misconduct can
entail are staggering, through
retrials—some defendants
were tried as many as four
times—and multiple appeals.

1. Financial Costs from Prolonged Criminal Litigation
The costs of the prolonged criminal litigation that prosecutorial misconduct can entail
are staggering, through retrials—some defendants were tried as many as four times—and
multiple appeals.
The Butler case quoted above, which lasted more than 12 years, is a prime example. In
1999, the court reversed the 1994 convictions of Stacy Butler and three other defendants
for murdering a police officer, based on the “serious prosecutorial misconduct” of San Diego
County deputy district attorney Keith Burt. It found that Burt not only used false and
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misleading evidence at trial, but he provided a key witness numerous benefits, including
transferring the witness from prison to the District Attorney’s office to have sex with his wife,
none of which was disclosed to the defense. In 1991, nine years before the case would be
concluded, the San Diego Union-Tribune164 estimated the cost of the prosecution of the case
would likely top $2 million.
The NCIP investigation found cases that dragged on even longer, some for more than two
decades, no doubt costing taxpayers many millions more. The prosecution of Blufford Hayes
Jr. is currently in its 30th year. Granted a retrial on murder charges because former San Joaquin
County district attorney Terrence Van Oss hid evidence and presented false evidence,165 Hayes
has been awaiting retrial since 2005. The cost of the prosecution exceeds $1 million.166
Taxpayers also bear the high cost of prolonged incarceration resulting from the drawn-out
litigation of prosecutorial misconduct cases. The financial cost of housing inmates is high: in
2009 California spent $45,000 per year per inmate. Taxpayers have paid over $240,000 to
house Blufford Hayes in the San Joaquin County Jail since 2005.167

2. Financial Costs from Civil Lawsuits
Another source of financial cost to taxpayers resulting from prosecutorial misconduct is
settlements and judgments in civil lawsuits. While the doctrine of absolute immunity
for prosecutors acting within the scope of their duties usually results in their dismissal in
such cases, a civil case involving prosecutorial misconduct that includes other defendants
nonetheless can result in payments by cities and counties.
For example, in 2006, David Genzler, who had been convicted of involuntary manslaughter
and served five years in prison, sued the county of San Diego as well as former prosecutor Peter
Longanbach168 and a district attorney’s office investigator.169 The lawsuit sought $5.5 million
in damages, alleging that Longanbach had committed prosecutorial misconduct by coaching
a witness to lie against Genzler and by failing to turn over information favorable to his
defense.170 Two years after a federal judge ruled that Longanbach was not covered by immunity
provisions because he was acting in an investigative capacity, the case settled, with the county
of San Diego paying Genzler an undisclosed sum.171
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In Santa Clara County, four lawsuits alleging prosecutorial misconduct have cost taxpayers over
$5 million in settlements over the past five years, in addition to litigation costs. In 2005, Santa
Clara taxpayers paid nearly $1 million to Glen Nickerson, who spent almost nineteen years in
prison before his murder conviction was overturned due to evidence of police and prosecutorial
misconduct. 172 In 2007, the county paid exonerated criminal defendant Rick Walker $2.75
million in settlement of a lawsuit alleging prosecutorial misconduct. 173
In 2009, the county authorized a $750,000 settlement of a lawsuit alleging prosecutorial
misconduct against deputy district attorney Benjamin Field, in a rare case in which the
prosecutor was not dismissed before trial on the basis of immunity.  The settlement occurred
after the court held that trial was required to determine whether Field was entitled to
immunity, because factual issues remained as to whether he sought to obtain a search warrant
in direct violation of a court order.174 That same year, the county paid $1 million to Jeffrey
Rodriguez to settle a lawsuit that also included allegations of prosecutorial misconduct.175
Santa Clara County is not the only county with high incidences of prosecutorial misconduct,
as well as big payouts. For example, in August 2010 the city of Long Beach paid out an $8
million settlement in a case alleging prosecutorial misconduct brought by Thomas Goldstein.176
Goldstein, who was convicted of a 1979 murder in Long Beach, spent 24 years in prison
before being released after a federal judge ruled that Los Angeles County prosecutors withheld
evidence of deals with a jailhouse informant and failed to correct perjured testimony.
Goldstein sued the prosecution, Long Beach police officers and the City of Long Beach,
asserting that former Los Angeles County district attorney John Van De Kamp and his chief
deputy failed to adequately train and supervise their deputies on their obligations relating to
informants and failed to establish a system that would have facilitated information-sharing
among deputy prosecutors.  Although the Supreme Court rejected Goldstein’s argument
and expanded the prosecutorial actions covered by absolute immunity to activities that cast
them “in the role of an administrator or investigative officer rather than that of advocate,” 177
Goldstein was permitted to pursue his lawsuit against Long Beach, resulting in the settlement.

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Lawsuits continue. In May 2010, Augustin Uribe filed a suit against Santa Clara County
and deputy district attorney Troy Benson seeking $38 million, alleging that Benson’s failure
to turn over exculpatory evidence violated his constitutional right to a fair trial.  A motion to
dismiss is pending.178

3. Financial Costs of Compensation
Taxpayers may also be liable for the statutory costs of compensation to victims of wrongful
imprisonment due to prosecutorial misconduct.  California’s compensation statute requires
that exonerees receive compensation in the amount of  $100 a day for each day of wrongful
incarceration. 179   To date the California Compensation Board has approved payout of over $3
million under this statute.180

C. Emotional Costs of Protracted Litigation for Victims of Crime
When criminal cases are prolonged as a result of prosecutorial misconduct, crime victims
and their families also suffer. Retrials and the lengthy appellate process harm surviving crime
victims and their families, as they endure the unraveling of convictions and are forced to relive
the crime on retrial. Because the lapse in time often weakens the prosecution’s case, they watch
helplessly as prosecutors negotiate plea agreements rather than seek retrial, frequently resulting
in lesser sentences or the release of the defendants.

D. Consequences for the Criminal Justice System
Prosecutorial misconduct also has significant adverse implications for the criminal justice
system as a whole.
First, there can be major damage to the viability of the prosecutions in proceedings drawn out
due to prosecutorial misconduct. With the passage of time, testimony becomes less exact, and
evidence is lost or destroyed. Memories fade. Witnesses disappear or die. In some cases, the
misconduct itself so damages the credibility of the prosecution that after a reversal, the only
pragmatic approach is to negotiate a plea agreement that allows the defendant to walk free.

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Second, when the innocent are convicted through prosecutorial misconduct, the guilty remain
free and often commit other crimes. In some cases where DNA profiles exonerated the
innocent and were linked to the true criminals, authorities discovered that many continued
engaging in crime.
A stark example is the 1980 wrongful conviction of Kevin Green in Orange County Superior
Court for assaulting his pregnant wife and murdering her unborn fetus. 181 By the time he was
exonerated in 1996, police had discovered that the real assailant was Gerald Parker, nicknamed
the “Bludgeon Killer.” Parker had committed five murders prior to the attack on Green’s wife;
and while law enforcement and prosecutors focused on Kevin Green, Parker remained free and
committed other crimes, including the rape of a 13-year-old girl.182
Third, prosecutorial misconduct is perpetuated through failure to deter. The Supreme Court’s
assumption in Imbler v. Patchman that prosecutors would be deterred as a result of state bar
disciplinary proceedings has proven to be false. As this study demonstrates, the California
State Bar rarely disciplines prosecutors who are found to have engaged in misconduct. Because
the Bar has not fulfilled its responsibility to educate and deter misconduct through discipline,
prosecutors know they can continue to commit misconduct to obtain convictions with almost
no risk of reversal.
Finally, prosecutorial misconduct undermines public confidence in the entire criminal justice
system. As the Supreme Court emphasized in Brady v. Maryland, “our system of justice suffers
when any accused is treated unfairly.” 183 Prosecutors bear a heavy responsibility entrusted
by the public, and they are expected to discharge their duties honestly and, most of all, fairly.
When they do not, the costs extend beyond the damaging consequences in the individual
case.   Prosecutorial misconduct fundamentally undermines public trust in the reliability of the
justice system and subverts the notion that we are a fair society. 

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VIII.
Prosecutorial Immunity
from Civil Liability

PROSECUTORIAL MISCONDUCT IN CALIFORNIA

VIII. Prosecutorial Immunity from Civil Liability
“[I]t is by no means true that such blanket absolute immunity is necessary or even
helpful in protecting the judicial process.”
	

– Imbler v. Pachtman, United States Supreme Court, Justice White, concurring 184

The injustice to the exonerated continues after incarceration: they are denied any recourse
against the prosecutors whose misconduct resulted in their wrongful conviction. In 1976, the
United States Supreme Court held in Imbler v. Pachtman185 that prosecutors are absolutely
immune from liability for conduct within the scope of their duties; they can be sued only
when they are engaged in other activities, such as investigative or administrative tasks. Most
recently, in Van de Kamp v. Goldstein,186 the Court expanded absolute immunity by limiting
the scope of that exception, protecting a district attorney and a former chief deputy district
attorney from liability for training and supervisory failures that resulted in withholding of
impeachment material. The Court, reiterating Imbler’s rationales, held that while training and
supervision concerning “how and when to make impeachment information available at a trial”
were management responsibilities, they nonetheless were absolutely immunized from liability
because they were “directly connected with the prosecutor’s basic trial advocacy duties.”187
The adoption of the absolute immunity doctrine resulted from the Imbler Court’s attempt
to balance competing interests. The Court explicitly recognized the irreparable harm to the
innocent that the absolute immunity doctrine causes: “To be sure, this immunity does leave
the genuinely wronged defendant without civil redress against a prosecutor whose malicious
or dishonest action deprives him of liberty.”188 However, it reasoned that applying a doctrine
of qualified immunity—where a prosecutor could be held liable depending on the specific
“circumstances and motivations of his actions”189 —“would prevent the vigorous and fearless
performance of the prosecutor’s duty.”190 On balance, the Court held, it is “better to leave
unredressed the wrongs done by dishonest officers than to subject those who try to do their
duty to the constant dread of retaliation.”191 The Court emphasized that misconduct would
still be deterred and prosecutors punished, because a prosecutor is subject “to professional
discipline by an association of his peers.”192
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VIII. PROSECUTORIAL IMMUNITY

The Court’s reasoning does not withstand scrutiny, as a variety of commentators have pointed
out.193 First, the balance the Court struck is incorrectly skewed because the Court misjudged
how qualified immunity would affect honest prosecutors. The stringent requirements to
surmount a qualified immunity defense provide ethical prosecutors adequate protection to
ensure independent performance of their duties: the victim of misconduct would need to
prove that the prosecutor violated clearly-established constitutional law with a culpable state
of mind. As the Supreme Court has noted in other contexts, the qualified immunity defense
“provides ample protection to all.”194 Other professionals, like physicians, are required to
perform under the pressure of potential liability for gross negligence or willful misconduct;
there is no reason prosecutors cannot do the same.
Second, as the Misconduct Study has shown, the Court was incorrect in its assumption that
prosecutorial misconduct would be deterred and punished by the disciplinary bodies charged
with the responsibility of regulating attorney conduct. In California, six cases of State Bar
discipline in 13 years shows that public discipline is rare; 707 cases finding prosecutorial
misconduct show that deterrence, if it exists, is inadequate. In contrast, allowing the possibility
of civil liability under the limited circumstances of qualified immunity would greatly increase
deterrence. As Justice White pointed out in Imbler: “It should hardly need stating that,
ordinarily, liability in damages for unconstitutional or otherwise illegal conduct has the very
desirable effect of deterring such conduct.”195 Absolute immunity allows prosecutors to
commit misconduct with impunity, knowing that they are immune from any consequences,
even if they act intentionally, in bad faith or with malice.
Finally, the doctrine of absolute immunity not only denies the innocent a remedy and fails to
deter prosecutorial misconduct; it violates the integrity of the criminal justice system. As one
commentator noted:
“Absolute prosecutorial immunity undermines this compelling obligation to protect
the innocent and to see that justice shall be done. We are not concerned here with
minor breaches of professional etiquette. Prosecutors who engage in misconduct strike
not just hard blows, but criminal blows. Specifically, when a prosecutor violates a
person’s due process rights, the violation is a crime. Subornation of perjury is a crime.

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Tampering with and coercing witnesses is a crime. Using false evidence before a grand
jury or court is a crime. Yet the prosecutors who engage in this criminal conduct are not
prosecuted, are not disciplined, and are not held liable for their crimes.”196
The Supreme Court recently has shown a heightened interest in addressing issues of
prosecutorial immunity, agreeing to hear three such cases in the past two years.197 Hopefully,
the Court will recognize the injustice of the absolute immunity doctrine and instead adopt
qualified immunity for prosecutorial misconduct, as the authors recommend (see CourtRelated Reforms, Part IX,B,4).

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IX.
Recommendations

PROSECUTORIAL MISCONDUCT IN CALIFORNIA

IX. Recommendations
This in-depth analysis of prosecutorial accountability in California has proven that the
system is flawed. Prosecutors commit misconduct, some repeatedly. Courts fail to report
this misconduct despite their legal obligation to do so. The State Bar almost never holds the
prosecutors accountable.
Each of these actors has an important role in prosecutorial accountability. The authors
recommend reforms affecting each of them as first steps toward the goal of eliminating
prosecutorial misconduct in criminal cases.

A. Attorney-Related Reforms
1. Ethics Training
The California State Bar, in conjunction with the California District Attorneys Association,
California Public Defenders Association and California Attorneys for Criminal Justice, should
develop a course specifically designed to address ethical issues that commonly arise in criminal cases.
These sessions should include the specific obligations to disclose exculpatory evidence;
guidelines for avoiding misconduct in court, such as improper impeachment and arguments;
and other areas where there is a demonstrated recurrence of misconduct. Training would
help both prosecutors and defense counsel better understand their ethical obligations. Public
defenders, prosecutors and private attorneys handling predominately criminal cases should be
required to take the course once every three years.

2. Internal Misconduct Policies
District Attorney offices should adopt internal policies that do not tolerate misconduct,
including establishing internal reviews of error.
As part of their internal policies, District Attorney offices should establish internal disciplinary
processes and institute uniform procedures for tracking and investigating complaints of
misconduct. Examples from other professions provide good models. Many large medical
centers hold “Morbidity and Mortality” conferences that conduct peer reviews of any errors
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IX. RECOMMENDATIONS

that led to serious complications or patient death. Comparable models should be instituted to
address misconduct in criminal cases.

3. Exculpatory Evidence Policies
District Attorney offices and law enforcement agencies should adopt written administrative
exculpatory evidence policies to govern Brady compliance.
These exculpatory evidence policies should be publicly available, and the agencies should
provide in-house trainings regarding them.198 The policies should include procedures for
collecting Brady material, tracking its delivery and disclosing it to the defense. Prosecutors
should develop checklists for Brady disclosure obligations that can help ensure that police
are turning over all Brady material to prosecutors and that prosecutors are turning over that
material to defense in turn.199 Material relevant to factual innocence or an affirmative defense
should be disclosed as soon as that determination is made, and prior to entry of a guilty plea.200

B. Court-Related Reforms
1. Expansion of the Reporting Requirement of Business and Professions Code
Section 6086.7
The reporting statute should be expanded to require judicial reporting of any finding of
“egregious” misconduct as defined by the California Commission on the Fair Administration
of Justice (CCFAJ), as well as any constitutional violation by a prosecutor or defense attorney,
regardless of whether it resulted in modification or reversal of the judgment, including
violations of ethical rules.
As noted, California Business and Professional Code section 6086.7 currently requires that
courts report misconduct to the State Bar only when there is a reversal or modification in a
judgment as a result of attorney misconduct.
As noted by the CCFAJ report, noncompliance is a problem. To address it, following the
publication of the CCFAJ report in 2008, the California Supreme Court introduced a
component into their judicial education program explaining the court’s obligation to report
under the statute. The authors applaud this effort, but more is needed.
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The Misconduct Study shows that prosecutorial misconduct has serious adverse consequences
(see Part VII), regardless of whether in the context of the overall case it constituted harmful error.
The authors therefore recommend that section 6086.7 be expanded to include a requirement
to report any “egregious” misconduct, as defined by but not limited to the types detailed in the
CCFAJ Final Report: willful misrepresentation, appearance while intoxicated, willful unlawful
discrimination, suppression of exculpatory evidence, willful presentation of perjured testimony,
willful unlawful disclosure of information and failure to properly identify self. Further, the
courts should report any misdeeds amounting to a constitutional violation, such as interfering
with defense witnesses and commenting on the Fifth Amendment right to silence.
For reporting to deter misconduct adequately, a prosecutor should be reported based on
the seriousness of the conduct and not on the guilt of the defendant. Any doubt whether
misconduct is egregious should be resolved in favor of reporting the misconduct.

2. Inclusion of Attorney Names In Opinions
Judges should be required to list attorneys’ full names in opinions finding misconduct.
Full identification of the attorneys whose misconduct would be reported under an expanded
version of section 6086.7 (see Court-Related Reform number 1) not only will provide more
transparency and a potential deterrence due to being publicly named, but will provide notice to
those attorneys that what they did was improper.

3. California Supreme Court Monitoring of Reporting
The California Supreme Court should actively monitor compliance with the requirements of
judicial reporting and notification of attorneys mandated by Business and Professions Code
section 6086.7. Records of compliance—a list of cases reported to the State Bar by the courts—
should be publicly available.
The findings of the Misconduct Study show that it is virtually impossible to assess judicial
compliance with the obligation to report misconduct to the State Bar and to notify attorneys
found to have committed misconduct. It is also clear that there is a critical need to track
misconduct so that it may be identified and addressed. More transparency is needed to restore
trust in the justice system and therefore, records of compliance should be made public.
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IX. RECOMMENDATIONS

4. Elimination of Absolute Immunity for Prosecutorial Misconduct
Prosecutors should be entitled at best to qualified immunity.
As noted, under current law prosecutors are absolutely immune from civil liability for their
misconduct, even where they acted intentionally, in bad faith or with malice. The authors
recommend that absolute immunity for prosecutors be abandoned and replaced in all
circumstances by qualified immunity, to deter and ensure accountability for such misconduct
and allow redress for its victims. Qualified immunity protects “government officials…from
liability for civil damages insofar as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.”201 When applying
qualified immunity, courts ask whether the law governing the official’s conduct was clearly
established; and whether, under that law, a reasonable officer could have believed the conduct
was lawful.202
Qualified immunity will still protect honest prosecutors whose misconduct results from actions
taken in good faith and without malice. But victims of prosecutorial misconduct will have
recourse against prosecutors who commit misconduct knowingly and intentionally.

C. State Bar-Related Reforms
1. Special Responsibilities of Prosecutors
California should adopt American Bar Association’s Model Rule 3.8.
The California State Bar is currently in the process of adopting ethical rules more in line with
the ABA Model Rules, including Rule 3.8. Model Rule 3.8 deals specifically with the special
responsibilities of prosecutors, making it a disciplinary offense to prosecute a charge without
probable cause, seek to have an unrepresented defendant waive rights, subpoena a lawyer in a
grand jury proceeding or make public comments that might harm a defendant. The rule also
mandates that prosecutors disclose all exculpatory or mitigating evidence and make reasonable
efforts to ensure a defendant knows of their right to counsel.203 The authors recommend
that California join the other 49 states who have already adopted some form of Rule 3.8 by
adopting it in its entirety.

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2. Enforcement and Accountability
The State Bar should expand discipline for prosecutorial misconduct and increase disciplinary
transparency.
Revisions to the Rules of Professional Conduct will not deter misconduct unless the State
Bar disciplines prosecutors for their ethical violations. While the Bar has limited resources,
and while financial violations and client protection are crucial, the Misconduct Study’s
demonstration of the importance of prosecutorial misconduct warrants heightened scrutiny
in this area. The lack of transparency of the Bar’s disciplinary process makes it difficult to
monitor the extent to which the Bar is addressing issues of prosecutorial misconduct.
As discussed in Part VI, the California State Bar has agreed to separate reports of misconduct
to the State Bar in a manner consistent with the CCFAJ Report. It also agreed to include in
its 2010 Annual Report the number of reportable actions pursuant to Business and Professions
Code section 6068.7(a),204 any reportable actions that involve any one of seven identified
categories of egregious conduct205 and the number of reportable actions related to the conduct
of prosecutors and defense lawyers for each county.
While these changes are an important step towards progress, more is required in connection
with disciplining errant prosecutors and increasing transparency. The State Bar’s reasons for
closing investigations where courts reported misconduct should be made public, and the Bar’s
annual discipline report should include more specific numbers as to how many prosecutors
and criminal defense attorneys were investigated and received discipline.206 The State Bar must
also address the problem of multiple offenders, by directing any criminal justice attorney found
to have committed misconduct more than once to take an ethics class specifically designed to
address ethical issues that occur in criminal cases.

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Conclusion

PROSECUTORIAL MISCONDUCT IN CALIFORNIA

Conclusion
“Our criminal justice system depends on the integrity of the attorneys who present
their cases to the jury. When even a single conviction is obtained through perjurious or
deceptive means, the entire foundation of our system of justice is weakened.”
	

– Hayes v. Brown, U.S. Court of Appeals for the Ninth Circuit 207

Our criminal justice system aims at a difficult and critical balance. The requirement that
prosecutors only use fair means of conviction means that they sometimes are unable to convict
people they believe are guilty. But that is the balance we have struck, recognizing that it is
better that some guilty go free than the fairness of trials be compromised and the innocent
convicted.
The Misconduct Study demonstrates that the system is failing to achieve this balance. Those
charged with ensuring it—the courts, prosecutors, and the State Bar—are not fulfilling their
obligations to monitor, report and discipline prosecutorial misconduct. It is difficult to
imagine a stronger wake-up call than the Misconduct Study’s finding that out of 707 cases of
court-identified misconduct, only six prosecutors were disciplined.
The authors have made specific recommendations for dealing with the problem. But the real
remedies lie with the public, which must recognize the severity and importance of the problem
and keep pressure on those responsible until reform occurs. The terrible consequences of
prosecutorial misconduct for innocent defendants, taxpayers, crime victims and the entire
criminal justice system mandate action.
The time for change and professional accountability is now.

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Endnotes

PROSECUTORIAL MISCONDUCT IN CALIFORNIA

Endnotes
1.	

295 U.S. 78, 88 (1935).

2.	

Id.

3.	

Id.

4.	

James Liebman, Jeffrey Fagan, and Valerie West, A Broken System: Errors in Capital Causes 1973–1995
(2000) (reviewed 5,760 capital cases nationwide to examine prejudicial error, including prosecutorial
misconduct); Kathleen Ridolfi, California Commission on the Fair Administration of Justice: Prosecutorial
Misconduct: a System Review (2007) (reviewed all appeals alleging PMC in California between 1996 and
2007 and reported the court findings and any subsequent prosecutorial disciplining.); Ken Armstrong
and Maurice Possley, Trial & Error: How Prosecutors Sacrifice Justice to Win (Parts 1–5), Chicago Tribune
(1999) (reviewed court record and appeals across the country between 1963 and 1999 to determine how
many homicide convictions were overturned because of prosecutorial misconduct); Bill Moushey, Win at
All Costs (10-part series) Pittsburgh Post-Gazette (1998) (review of federal prosecutorial misconduct across
the country); The Center for Public Integrity, Harmful Error: Investigating America’s Local Prosecutors,
(2003).

5.	

2010 Court Statistics Report, Statewide Caseload Trend 1999-2000 through 2008-2009, Judicial Council
of California, available at http://www.courtinfo.ca.gov/reference/documents/csr2010.pdf. While guilty
pleas do create a court record of the plea and sentencing, there is no record of the facts of the case or the
defendant’s interactions with the prosecutor prior to entering the guilty plea.

6.	

In re Mark Sodersten, 146 Cal. App.4th 1163 (Ct.App. 2007).

7.	

Id. at 1236.

8.	

Id. at 1171.

9.	

Id.

10.	

Letter from Michael Cross to Scott J. Drexel, Chief Trial Counsel, State Bar of California (Mar. 30, 2007).

11.	

Letter from Donald K. Steedman, Supervising Trial Counsel, State Bar of California (Mar. 15, 2010).

12.	

American Bar Association, Model R. of Prof ’l Conduct 3.8 (2008).
Special Responsibilities of A Prosecutor
The prosecutor in a criminal case shall:
a.	 refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
b.	 make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for
obtaining, counsel and has been given reasonable opportunity to obtain counsel;
c.	 not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right
to a preliminary hearing;
d.	make timely disclosure to the defense of all evidence or information known to the prosecutor that tends
to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose

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ENDNOTES

to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor,
except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;
e.	 not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or
present client unless the prosecutor reasonably believes:
i.	 the information sought is not protected from disclosure by any applicable privilege;
ii.	 the evidence sought is essential to the successful completion of an ongoing investigation or
prosecution; and
iii.	 there is no other feasible alternative to obtain the information;
f.	 except for statements that are reasonably necessary to inform the public of the nature and extent of
the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making
extrajudicial comments that have a substantial likelihood of heightening public condemnation of the
accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or
other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial
statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.
g.	 When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that
a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor
shall:
i.	 promptly disclose that evidence to an appropriate court or authority, and
ii.	 if the conviction was obtained in the prosecutor’s jurisdiction,
A.	 promptly disclose that evidence to the defendant unless the court authorizes delay, and
B.	 undertake further investigation, or make reasonable efforts to cause an investigation, to
determine whether the defendant was convicted of an offense that the defendant did not
commit.
h.	When a prosecutor knows of clear and convincing evidence establishing that a defendant in the
prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor
shall seek to remedy the conviction.
13.	

Final Report, California Commission on the Fair Administration of Justice, (Gerald Uelmen, ed. 2008)
available at http://www.ccfaj.org.

14.	

Judicial Council of California, supra note 5.

15.	

Interview with Ed Jessen, Reporter of Decisions, California Court of Appeal (Jan. 2010).

16.	

The Bar also privately reproves attorneys; there is no way to review these private decisions.
http://www.calbar.ca.gov/Attorneys/LawyerRegulation/FAQ.aspx.

17.	

Transcript of Record at 5195-5201, United States v. William J. Ruehle, SACR 08-00139-CJC
(C.D. Cal. 2009).

18.	

Stuart Pfeifer, Charges against Nicholas dropped; The co-founder of Broadcom had been accused of providing
drugs to friends and business associates, L.A. Times, Jan. 29, 2010.

19.	

Transcript of Record at 5195-5201, United States v. William J. Ruehle, SACR 08-00139-CJC.
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20.	

28 U.S.C. §2111 (1994).

21.	

386 U.S. 18, 22 (1967).

22.	

Cal. Const. art. VI, §13. The harmless error rule was also codified in Sections 353 and 354 of the
California Evidence Code, providing that reversal for evidentiary error is precluded unless the erroneous
admission or exclusion of evidence resulted in the “miscarriage of justice.”

23.	

People v. Watson, 46 Cal.2d 818 (Cal. 1956).

24.	

People v. Uribe, 162 Cal.App.4th 1457 (Ct.App. 2008).

25.	

Tracey Kaplan, Sex abuse conviction dismissed, DA berated citing “numerous acts of misconduct,” judge orders
man freed after serving four years of possible life sentence, S.J. Mercury News, Jan. 7, 2010, 1A.

26.	

Tracey Kaplan, Freed man sues Santa Clara County for $38 million, S.J. Mercury News, May 19, 2010.

27.	

Tracey Kaplan, Judge orders new trial in second case as before, tape of exam wasn’t given to defense,
San Jose Mercury News, 30 Oct. 2009, 1B.

28.	

People v. McKenzie, 2007 WL 2193548 (Cal. Ct.App. 2007).

29.	

Id. at 8.

30.	

Hardnett v. Marshall, 25 F.3d 875, 879 (9th Cir. 1994).

31.	

Cal. Bus. & Prof. Code §6086.7

32.	

Interview with David Alavezos (Aug. 2010).

33.	

People v. Price, 1 Cal.4th 324, 448 (Cal. 1991).

34.	

Bennett L. Gershman, Prosecutorial Misconduct, (2d ed., Thompson/West, 2007).

35.	

Black’s Law Dictionary, (Bryan A. Garner ed. Thompson/West 8th ed. 2004).

36.	

People v. Gatewood, 2002 WL 31667940 (Cal. Ct.App. 2002).

37.	

United States v. Dow, 457 F.2d 246 (1972).

38.	

People v. Lee, 2001 WL 1346013 (Cal. Ct.App. 2001).

39.	

U.S. v. Young, 470 U.S. 1, 18-19 (1985).

40.	

People v. Parra, 2003 WL 22064473, 4 (Cal. Ct.App 2003).

41.	

Id.

42.	

U.S. Const. amend VI.

43.	

People v. Hall, 82 Cal.App.4th 813 (Ct.App. 2000).

44.	

California Rules of Professional Conduct Rule 5-200(B) (2009) (emphasis added).
In presenting a matter to a tribunal, a member:
a.	 Shall employ, for the purpose of maintaining the causes confided to the member such means only as are
consistent with truth;

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ENDNOTES

b.	 Shall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law;
c.	 Shall not intentionally misquote to a tribunal the language of a book, statute, or decision;
d.	Shall not, knowing its invalidity, cite as authority a decision that has been overruled or a statute that has
been repealed or declared unconstitutional; and
e.	 Shall not assert personal knowledge of the facts at issue, except when testifying as a witness.
45.	

People v. Thompson, 2009 WL 3809657 (Cal. Ct.App. 2009).

46.	

People v. Humphrey, 2004 WL 289629 (Cal. Ct.App. 2004).

47.	

People v. Barrett, 2003 WL 22272309 (Cal. Ct.App. 2003).

48.	

People v. Cash, 28 Cal.4th 703, 732-733 (Cal. 2002).

49.	

People v. Contreras, 78 Cal.Rptr.2d 349 (Cal.App. 2 Dist. 1998) (depublished).

50.	

Id.

51.	

In re Peter Sakarias, 35 Cal.4th 140 (Cal. 2005).

52.	

People v. Wrest, 3 Cal.4th 1088, 1107 (Cal. 1992).

53.	

Sandoval v. Calderon, 231 F.3d 1140 (9th Cir. 2000).

54.	

Id. at 1149, n.1.

55.	

People v. Bain, 5 Cal.3d 839, 848 (Cal. 1971).

56.	

People v. Woods, 2001 WL 1649216, 11 (Cal. Ct.App. 2001).

57.	

Leland v. Oregon, 343 U.S. 790, 802-3 (1952).

58.	

United States v. Perlaza et al, 439 F.3d 1149 (9th Cir. 2006).

59.	

Id. at 1169.

60.	

Id. at 1170-1171.

61.	

Napue v. Illinois, 360 U.S. 264 (1959).

62.	

United States v. Reyes, 577 F.3d 1069, 1077 (9th Cir. 2009).

63.	

People v. Wheeler, 22 Cal.3d 258, 276 (1978).

64.	

Batson v. Kentucky , 476 U.S. 79, 83 (1986).

65.	

Kesser v. Cambra, 465 F.3d 351 (9th Cir. 2006).

66.	

Id. at 355-356.

67.	

See People v. Pigage, 112 Cal.App.4th 1359 (Ct.App. 2003).

68.	

People v. Warren, 161 Cal.App.3d 961, 973-977 (Ct.App.1984).

69.	

People v. Hill, 17 Cal.4th 800, 835 (Cal. 1998).

70.	

Malloy v. Hogan, 378 U.S. 1, 6, 9 (1964) (citation omitted).
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PROSECUTORIAL MISCONDUCT IN CALIFORNIA

71.	

Palko v. Connecticut, 302 U.S. 319, 325 (1937), overruled on other grounds, 395 U.S. 784, 794 (1969)
(citation omitted).

72.	

Malloy, 378 U.S. at 9 (citation omitted).

73.	

Doyle v. Ohio, 426 U.S. 610, 618 (1976).

74.	

People v. Holguin, 2006 WL 760718 (Cal. Ct.App. 2006).

75.	

Id. at 5.

76.	

Brady v. Maryland, 373 U.S. 83 (1963).

77.	

Gershman, supra note 34.

78.	

James S. Liebman et al., Capital Attrition: Error Rates in Capital Cases, 1973-1995, 78 TEX. L. REV. 1839,
1846, 1850 (2000).

79.	

Killian v. Poole, 282 F.3d 1204 (9th Cir. 2002).

80.	

State Bar Court Case No. 05-O-00815

81.	

Hayes v. Brown, 399 F.3d 972 (9th Cir. 2005).

82.	

People v. Najera, 2004 WL 1345123, 5 (Cal. Ct.App. 2004).

83.	

People v. Ebaniz, 94 Cal.Rptr.3d 606, 612 (Ct.App. 2009).

84.	

Id. at 627.

85.	

Id. at 625.

86.	

Interview with David Alavezos (Aug. 2010).

87.	

People v. Gospel, 2006 WL 1413545 (Cal. Ct.App. 2006).

88.	

Id. at 8.

89.	

People v. Gerwald, 2003 WL 21324399 (Cal. Ct.App. 2003).

90.	

Id. at 2.

91.	

Id. at 4.

92.	

People v. Price, 1 Cal.4th 324, 447 (Cal. 1991).

93.	

People v. Ocampo, 2009 WL 2437698 (Cal Ct.App. 2009).

94.	

Id. 8.

95.	

Thompson v. Calderon, 120 F.3d 1045 (9th Cir.1997) (en banc), reversed on other grounds sub nom.
Calderon v. Thompson, 523 U.S. 538 (1998); internal citations omitted.

96.	

California District Attorneys Association, What is a Prosecutor?, available at http://www.cdaa.org/
whatpros.htm, (quoting Berger, 295 U.S. 78 at 88).

97.	

ABA Model Code of Prof. Responsibility EC 7-13 (1981); see also ABA Standards for Criminal Justice
§3-5.8(c)(d) (2d ed.1981) (prosecutor has responsibility to guard rights of accused and those of society).

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ENDNOTES

98.	

Cal. Bus. & Prof. Code §6068(o)(7) (2009).

99.	

Barry Scheck, Professional and Conviction Integrity Programs: Why We Need Them, Why They Will Work,
And Models for Creating Them (forthcoming).

100.	 Cal. Code of Judicial Ethics, Preamble (2008).
101.	 Cal. Code of Judicial Ethics, Canon 3B(3), 3B(6) (2008).
102.	 Cal. Bus. & Prof. Code §6086.7(a)(2) (2009).
a.	 A court shall notify the State Bar of any of the following:
i.	 A final order of contempt imposed against an attorney that may involve grounds warranting
discipline under this chapter. The court entering the final order shall transmit to the State Bar a
copy of the relevant minutes, final order, and transcript, if one exists.
ii.	 Whenever modification or reversal of a judgment in a judicial proceeding is based in whole or in
part on the misconduct, incompetent representation, or willful misrepresentation of an attorney.
iii.	 The imposition of any judicial sanctions against an attorney, except sanctions for failure to make
discovery or monetary sanctions of less than one thousand dollars ($1,000).
iv.	 The imposition of any civil penalty upon an attorney pursuant to Section 8620 of the Family Code.
b.	 In the event of a notification made under subdivision (a) the court shall also notify the attorney
involved that the matter has been referred to the State Bar.
c.	 The State Bar shall investigate any matter reported under this section as to the appropriateness of
initiating disciplinary action against the attorney.
103.	 Cal. Bus. & Prof. Code §6086.7(b).
104.	 CCFAJ, supra note 13 at 71.
105.	 People v. Ball, 2009 WL 1942427 (Cal. Ct.App. 2009).
106.	 Id. at 7.
107.	 Cal. Bus & Prof. Code §6086.7(a)(2) (emphasis added).
108.	 Ball, 2009 WL 1942427 at 7.
109.	 Not all 159 harmful cases reviewed in this study fell under the reporting statute. Also, there is no data on
how many cases were actually reported. This number represents the number of cases reviewed by this study
that specifically mentioned in the written opinions that the court was sending the decision to the State Bar
pursuant to §6086.7.
110.	 CCFAJ, supra note 13 at 71.
111.	 Qualifying Ethics Core Faculty Manual, Judicial Council-Adminstrative Office of the Courts, Education
Division/Center for Judicial Education and Research, tab 4 (2010).
112.	 United States v. Hasting, 461 U.S. 499, 506 n.5 (1974).
113.	 Imbler v. Pachtman, 424 U.S. 409, 428-429 (1976)

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114.	 Cal. State Bar R. Proc. tit. IV, Standards for Attorney Sanctions for Prof ’l Misconduct 1.3.
115.	 Under the State Bar Act, the Bar has discretion about whether to investigate a complaint; and holds
that it may decline to review complaints that are not made by a judge who heard a matter related to the
complaint—another reason judicial reporting of misconduct is so critical. See The California State Bar,
Notices and Terms of Use, available at http://www.calbar.ca.gov/Notices.aspx.
116.	 For example, through private sources NCIP researchers ascertained that in 2005, Sacramento County deputy
district attorney Christopher Cleland was privately admonished for his conduct in the case of Gloria Killian.
Private reprovals are not included in the records of public discipline.
117.	 The remaining four prosecutors were disciplined for conduct outside the courtroom. Ernest Licalsi (now
elected judge for Madera County Superior Court) and Peter Longanbach (State Bar Court Case No. 04-V12515) were disciplined for misuse of office. George Dunlap (State Bar Court Case No. 02-O-14001) was
suspended for failing to report a felony indictment against him. B. Iver Bye (State Bar Court Case No. 98-O01162) was suspended for 30 days for improperly intervening in the prosecution of an acquaintance.
118.	 State Bar Court Case No. 05-O-00815
119.	 State Bar Court Case No. 06-O-15162
120.	 State Bar Court Case No. 06-O-11208
121.	 State Bar Court Case No. 02-O-10195
122.	 State Bar Court Case No. 04-O-14030
123.	 State Bar Court Case No. 95-O-18080
124.	 People v. Butler, 1999 WL 33601521, 36 (Cal. Ct.App. 1999).
125.	 Gantt v. Roe, 389 F.3d 908 (9th Cir. 2004).
126.	 People v. Medina, 2009 WL 498686 (Cal. Ct.App. 2009).
127.	 Hayes, 399 F.3d 972.
128.	 S. Res. 44, (Cal. 2004).
129.	 People v. Broughton, 2008 WL 4648984 (Cal. Ct.App. 2008).
130.	 Id. at 14.
131.	 People v. Benn, 2006 WL 2382918 (Cal. Ct.App. 2006).
132.	 See Caitlin Liu, “New Trial Ordered in Slayings of 2; Courts: A judge throws out Kenneth Leighton’s conviction
and criticizes the prosecutor’s “prejudicial misconduct,” L.A. Times, Aug. 14, 2001 and Twila Decker, Trial
Stopped; Actions of Prosecutor Criticized, L.A. Times, May 10, 2001.
133.	 See People v. Brewer, 2009 WL 4609067 (Cal. Ct.App. 2009); People v. Valera, 2008 WL 1087943 (Cal.
Ct.App. 2008).
134.	 See Harmless cases: People v. Guzman, 2004 WL 552973 (Cal. Ct.App. 2004); People v. Pacheco, 2004
WL 1053654 (Cal. Ct.App. 2004); People v. Pigage, 112 Cal.App.4th.1359 (Ct.App. 2003) and People v.
Echevarria, 2005 WL 1030128 (Cal. Ct.App. 2005) and Harmful case: People v. Gomez, 2001 WL 1003295
(Cal. Ct.App. 2001).
92
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ENDNOTES

135.	 Cal. State Bar R. Proc. tit. IV, Standards for Attorney Sanctions for Prof ’l Misconduct 2.2, 2.4.
136.	 State Bar Court Case No. 98-C-00852
137.	 State Bar Court Case No. 97-O-15422
138.	 Id.
139.	 People v. Hill, 17 Cal.4th 800 at 834 (Cal. 1998).
140.	 E-mail from Itzel D. Berrío, Office of the Chief Trial Counsel of the California State Bar to Maurice
Possley, Visiting Research Fellow at the Northern California Innocence Project (Sept. 10, 2010, 02:47 p.m.
PDT) (on file with author).
141.	 Id.
142.	 CCFAJ, supra note 13 at 81.
143.	 For the purposes of this report, Reportable Actions refer to any judgments reversed or modified by a court
due to attorney misconduct.
144.	 These include Contempt (i.e., a final order of contempt issued against an attorney); Reversal (i.e., a
modification or reversal of a judgment based upon attorney misconduct); Sanction (i.e., the imposition of
judicial sanctions against an attorney); and Judgment (i.e., a judgment issued against an attorney).
145.	 These categories of egregious misconduct include willful misrepresentation, appearance while intoxicated,
willful unlawful discrimination, suppression of exculpatory evidence, willful presentation of perjured
testimony, willful unlawful disclosure of information and failure to properly identify self.
146.	 California State Bar, 2009 Annual Discipline Report, pg. 15.
147.	 CCFAJ, supra note 13 at 81.
148.	 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting).
149.	 See www.innocence project.org—know the causes wrongful convictions: Eyewitness misidentification,
invalidated or improper forensic science, false confession or admissions, police misconduct, prosecutorial
misconduct, informants, and bad lawyering.
150.	 Emily M. West, Court Findings of Prosecutorial Misconduct Claims in Post-Conviction Appeals and Civil
Suits Among the First 255 DNA Exoneration Cases, August 2010, available at
http://www.innocencenetwork.org.
151.	 Id.
152.	 Brandon Garrett, Judging Innocence, 108 Colum. L. Rev 55 (Jan. 2008). Professor Brandon Garrett examined
the appellate histories of the first 200 DNA exonerations for which he found 133 written opinions. Garrett’s
analysis revealed that 14 percent of appellants won reversals - just 9 percent when separating out the capital
cases, where there is a much higher reversal rate. In other words, appellate courts failed to recognize innocence
or grant relief in 86 percent when including capital cases or 91 percent of non-capital cases. In 10 percent of
the cases they based their decisions on what they perceived to be “overwhelming” evidence of guilt and in half
of all the cases, “strong” evidence of guilt. Of the 18 cases reversed where there were written opinions, judges
made statements in 8 cases, (i.e. 6 percent of all 133 cases with a written opinion) suggesting the defendant
might be innocent.

93
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153.	 Killian, 282 F.3d 1204.
154.	 Bandon Bailey, Falsely imprisoned East Palo Alto man to get $2.75 million settlement, S.J. Mercury News,
Sep. 28, 2007.
155.	 People v. Morris, 46 Cal.3d 1 (Cal. 1988). See also Neda Raouf, L.B. faces $10 million civil suit; Court:
Freed man says city, detectives withheld vital evidence in case, L.B. Press-Telegram, Nov. 2, 2002.
156.	 Making Up for Lost Time: What the Wrongfully Convicted Endure and How to Provide Fair
Compensation, 2009, available at http://www.innocencenetwork.org.
157.	 Janet Roberts and Elizabeth Stanton, A Long Road Back After Exoneration, and Justice is Slow to Make
Amends, New York Times, Nov. 25, 2007.
158.	 Frequently Asked Questions, Burden of Innocence, Frontline, http://www.pbs.org/wgbh/pages/frontline/
shows/burden/etc/faqsreal.html (citing Life After Exoneration Program, http://www.exonerated.org).
159.	 Id.
160.	 424 U.S. 409.
161.	 Id. at 428.
162.	 Id. at 430.
163.	 Butler, 1999 WL 33601521.
164.	 Jim O’Connell, Costs rise for public defender; County probing why expense up 34 percent in 4 years, San
Diego Trib., Dec. 2, 1991.
165.	 Hayes, 399 F.3d 972.
166.	 Interview with Rod Kawano, Senior Deputy County Administrator for San Joaquin County (Aug. 2010).
167.	 Id.
168.	 Peter Loganbach, State Bar Court Case Nos. 01-C-0583 and 04-V-12515-RMT.
169.	 Leslie Wolf Branscomb, Man convicted of 1996 killing suing county and DA: Civil rights violated, says exSDSU student, San Diego Union-Tribune, Sept. 11, 2006.
170.	 Id.
171.	 Id.
172.	 Kathleen “Cookie” Ridolfi & Maurice Possley, Prosecutor misconduct has a high public cost, S.J. Mercury
News, Nov. 12, 2009 at A8.
173.	 Id.
174.	 Tracey Kaplan, High tech entrepreneur to get $750,000 from Santa Clara County in settlement over
questionable house search, S.J. Mercury News, Oct. 9, 2009.
175.	 Ridolfi & Possley, supra note 182.
176.	 Rebecca Cathcart, Wrongfully Convicted Man Gets $7.95 Million Settlement, N.Y. Times, Aug. 12, 2010.

94
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ENDNOTES

177.	 Van de Kamp, 129 S.Ct. 855 at 861.
178.	 Uribe v. County of Santa Clara, et.al, Docket Number 10-cv-01758-LHK (dismissal pending).
179.	 Cal. Penal Code §4900
180.	 Letter from Jennifer A. Chmura, Senior Staff Counsel, California Victim Compensation & Government
Claims Board to Cookie Ridolfi, Executive Director, Northern California Innocence Project, Sept. 20,
2010.
181.	 Anna Cekola and H.G. Reza, O.C. Grand Jury Heard Parker Admit 6 Killings, L.A. Times, Aug. 20, 1996.
182.	 Id.
183.	 373 U.S. 83 at 409 87.
184.	 424 U.S. 409 at 442, 442 (White, J., concurring)
185.	 424 U.S. 409.
186.	 129 S. Ct. 855 (2009).
187.	 Id. at 863.
188.	 424 U.S. at 427.
189.	 Id. at 419 n.13. As the Court explained the distinction: “An absolute immunity defeats a suit at the
outset, so long as the official’s actions were within the scope of the immunity. The fate of an official with
qualified immunity depends upon the circumstances and motivations of his actions, as established by the
evidence at trial. “ Id.
190.	 Id. at 427.
191.	 Id. at 428.
192.	 Id. at 429.
193.	 See generally, Margaret Johns, Reconsidering Absolute Prosecutorial Immunity, 2005 B.Y.U. L.Rev 53
(2005), Douglas J. McNamara, Buckley, Imbler, and Stare Decisis: The Present Predicament of Prosecutorial
Immunity and an End to its Absolute Means, 59 Alb. L.Rev. 1135 (1996), Malia N. Brink, A Pendulum
Swung Too Far: Why the Supreme Court Must Place Limits on Prosecutorial Immunity, 4 Charleston L.Rev. 1
(Fall 2009).
194.	 Malley v. Briggs, 475 U.S. 335 (1986).
195.	 Imbler, 424 U.S. at 442 (White, J., concurring)
196.	 Margaret Johns, 2005 B.Y.U. L.Rev 53, 123 (citations omitted).
197.	 Aside from the Van de Kamp case, discussed in text, the Court had full briefing and heard argument prior
to the settlement in Pottawattamie County, Iowa, et al. v. McGhee, 547 F.3d 922 (8th Cir. 2008) (cert.
dismissed, 130 S.Ct. 1047 2010), in which prosecutors had used perjured and fabricated testimony to
convict two men; Iowa paid $12 million to settle the lawsuit before the Court ruled. Connick v. Thompson
is currently before the Court, with oral argument scheduled for October 6, 2010. The Supreme Court will
decide whether a district attorney’s office can be held liable for the admitted actions of a prosecutor who
withheld exonerating evidence in a death row inmate’s case.
95
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198.	 CCFAJ, supra note 13 at 87.
199.	 Symposium: New Perspectives on Brady and Other Disclosure Obligations: Report of the Working Groups on
Best Practices, 31 Cardozo L. Rev. 1961, 1974 (2010).
200.	 CCFAJ, supra note 13 at 89-90.
201.	 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
202.	 Tribble v. Gardner, 860 F.2d.321, 324 (9th Cir.1988).
203.	 ABA Model R. 3.8 (See note 12 for full text).
204.	 Cal. Bus. & Prof. Code §6086.7 (See note 95 for full text).
205.	 These categories of egregious misconduct include willful misrepresentation, appearance while intoxicated,
willful unlawful discrimination, suppression of exculpatory evidence, willful presentation of perjured
testimony, willful unlawful disclosure of information and failure to properly identify self. See Final Report,
CCFAJ at 75-77.
206.	 Similar to the ABA Discipline Surveys, See http://www.abanet.org/cpr/discipline/sold/ for more
information.
207.	 Hayes, 399 F.3d. at 988.

96
NORTHERN CALIFORNIA INNOCENCE PROJECT

Appendix A:
Harmful Cases
by Jurisdiction

PROSECUTORIAL MISCONDUCT IN CALIFORNIA

Appendix A: Harmful Cases by Jurisdiction
State Cases

Humboldt
Kesser, 2006 WL 2589425 (2006)

Alameda
Cooper, 314 F.Supp.2d 967 (2004)
Green, 532 F.3d 1028 (2008)
Laviene, 2003 WL 22285604 (2003)
Parham, 2002 WL 1767430 (2002)
Young, 2002 WL 31175909 (2002)

Inyo
Phillips, 2005 WL 2746769 (2005)

Kern
Alexander, 2006 WL 1431195 (2006)
Alonso, 2002 WL 99504 (2002)
Cheadle, 2002 WL 31223538 (2002)
Cumberworth, 2006 WL 3549939 (2006)
McCombs, 2002 WL 31863511 (2002)
Sons, 164 Cal.App.4th 90 (2003)

Butte
Little, 68 Cal.Rptr.2d 907 (1997)
Pickett, State Bar Court Case
No. 04-O-14030 (2004)
Song, 124 Cal.App.4th 973 (2004)
Stanley, 2006 WL 1523128 (2006)

Kings

Contra Costa

Alves, 2003 WL 502762 (2003)

Allen, 2004 WL 179472 (2004)
Cameron, Contra Costa Times 12/12/2006
(2006)
Currie, 2005 WL 2187271 (2005)
Johnson, Contra Costa Times
12/15/2000 (2000)
Johnson, 545 U.S. 162 (2005)

Lassen
Silva, 416 F.3d 980 (2005)

Los Angeles
Alvarado, 141 Cal.App.4th 1577 (2006)
Barrett, 2003 WL 22272309 (2003)
Batts, 134 Cal.Rptr.2d 67 (1999)
Beltran, Daily News of L.A. 3/4/1997
(1997)
Beltran, Daily News of L.A. 2/11/1998
(1998)

Fresno
Addison, 2005 WL 2812263 (2005)
Ball, 2009 WL 1942427 (2009)

All reasonable measures have been taken to ensure the quality, reliability, and accuracy of the information in this
report. If you believe there is an error, we encourage you to contact us via email at veritas@scu.edu.
98
NORTHERN CALIFORNIA INNOCENCE PROJECT

APPENDIX A: HARMFUL CASES BY JURISDICTION

Tillman, L.A. Times 5/10/2001 (2001)
Townsend, 2005 WL 665572 (2005)
Turner, 121 F.3d 1248 (1997)
Turner, 2001 WL 7231333 (2001)
Valera, 2008 WL 1087943 (2008)
Vasquez, 2009 WL 2059902 (2009)
Walton, 2009 WL 3284027 (2009)
Williams, 2009 WL 2381756 (2009)
Woods, 2006 WL 3438603 (2006)
Wright, 2006 WL 217803 n.8 (1998)

Brewer, 2009 WL 4609067 (2009)
Broughton, 2008 WL 4648984 (2008)
Carrocci, 2004 WL 65251 (2004)
Cleland, 134 Cal. Rptr.2d 479 (2003)
Collins, Appellate Case No. B120993
(1999)
Contreras, 78 Cal.Rptr.2d 349 (1998)
Conway, U.S Dist. Case No. CV-0007350-VAP (2009)
Donan, 2001 WL 1261935 (2001)
Gantt, 389 F.3d 908 (2004)
Garcia, 2005 WL 2387474 (2005)
Goldstein, (2002)
Hall, 82 Cal. App. 4th 813 (2000)
Hill, 72 Cal.Rptr.2d 656 (1998)
Humphrey, 2004 WL 2896929 (2004)
Kurwa, Pasadena Star-News 7/15/2003
(2003)
Lee, 2001 WL 1346013 (2001)
Leighton, L.A. Times 8/14/2001 (2001)
McClain, 2000 WL 873798 (2000)
McGee, 2009 WL 6615481 (2009)
Muhammad, 2003 WL 1963202 (2003)
Nino, 2007 WL 2111011 (2007)
Paulino, 2008 WL 4070694 (2008)
Pratt, L.A. Times 5/30/1997 (1997)
Ramirez, 141 Cal. App. 4th 1501 (2006)
Sakarias, 25 Cal.Rptr.3d 265 (2005)
Salazar, 2004 WL 957701 (2004)
Sandoval, 231 F.3d 1140 (2000)
Sasson, 2002 WL 18314 (2002)
Silva, 25 Cal. 4th 345 (2001)
Smith, The Press Enterprise 6/4/2002
(2002)
Smith (2nd mistrial), The Press Enterprise
6/4/2002 (2002)
Smith, 2007 WL 1817107 (2007)

Madera
Arroyos, 2008 WL 116344 (2008)
Rangel, 2002 WL 31009418 (2002)

Marin
Pelfini, State Bar Court No. 02-O-10195
(2001)

Monterey
Hughes, 2004 WL 2418364 (2004)

Orange
Brown, 17 Cal. 4th 873 (1998)
Carrillo, 119 Cal.App.4th 94 (2004)
Gomez, 2001 WL 1003295 (2001)
Guzman, 2000 WL 670004 (2000)
Leyva, 2003 WL 1605777 (2003)
Luong, 2006 WL 1682636 (2006)
Martinez, 127 Cal. Rptr. 2d 305 (2002)
McCain, Appellate Case No. G025408
(2000)
Thompson, 120 F.3d 1045 (1997)

99
VERITAS INITIATIVE

PROSECUTORIAL MISCONDUCT IN CALIFORNIA

Riverside

San Francisco

Chester, The Press Enterprise 10/13/2006
(2006)
Collier, The Press Enterprise 5/20/2003
(1998)
Fernandez, 2002 WL 519491 (2002)
Medina, 2009 WL 498686 (2009)
R.T.P., 43 Cal.Rptr.3d 536 (2006)

Duran, 106 F.3d 407 (1997)

San Joaquin
Gonzales, 165 Cal.App.4th 620 (2008)
Hayes, 399 F.3d 972 (2005)
Le, 2006 WL 2949021 (2006)
Vasquez, 2006 WL 978948 (2006)

Sacramento

San Mateo

Johnson, 2008 WL 4998770 (2008)
Johnson D, 2007 WL 2372579 (2007)
Killian, 282 F.3d 1204 (2002)
Thomas, 2001 WL 1539616 (2001)

Ali, 2009 WL 1924792 (2009)
Hunter, U.S. Dist. Case No.
C 90-3275 (1998)
Quartermain, 1997 WL 474421 (1997)
Ricardo, 1999 WL 561595 (1999)
Valenzuela, San Mateo C. Times
6/9/2004 (2004)

San Benito
Westfall, 2004 WL 171654 (2004)

San Bernardino

Santa Barbara

Jimenez, The Press Enterprise
12/10/2006 (2006)
Singh, 142 F.3d 1157 (1998)

Lewis, 321 F.3d 824 (2003)

Santa Clara
Auguste, State Bar Court Case No.
05-O-00815 (2004)
Ballard, State Bar Court Case No.
05-O-00815 (2004)
Deal, 2003 WL 22094433 (2003)
Kanda, 2009 WL 4263638 (2009)
Lopez, 2005 WL 1349813 (2005)
Pham, U.S. Dist. Case No. C 02-1348
(2007)
Sampson, 2002 WL 462279 (2002)
Shazier, 42 Cal.Rptr.3d 570 (2006)
Uribe, 162 Cal.App.4th 1457 (2008)

San Diego
Anzalone, 29 Cal.Rptr.3d 689 (2005)
Berardi, 57 Cal.Rptr.3d 170 (2007)
Butler, 1999 WL 33601521 (1999)
Guzman, 2002 WL 819255 (2002)
Harrell, Copley News Service
11/21/1997 (1997)
Kasim, 56 Cal. App. 4th 1360 (1997)
Roquemore, 2006 WL 636805 (2006)
Terrones, S.D. Tribune 1/20/2001 (2001)
Tolliver, 2002 WL 498168 (2002)
100

NORTHERN CALIFORNIA INNOCENCE PROJECT

APPENDIX A: HARMFUL CASES BY JURISDICTION

Santa Cruz

Stanislaus

Gomez, 2006 WL 1991740 (2006)

Dustin, 99 Cal.App.4th 1311 (2002)

Sierra

Tulare

Miller, L.A. Times 2/15/2003 (2003)

Perez, 2006 WL 3518137 (2006)
Sodersten, 53 Cal.Rptr.3d 572 (2007)

Solano
Allen, 2008 WL 2673363 (2008)
Gaines, 54 Cal.App.4th 821 (1997)

Yolo
Racimo, 2006 WL 3365860 (2006)

Sonoma
Joseph, 2008 WL 5274808 (2008)
Rutledge, S.F. Chronicle 8/24/2007 (2004)

Federal Cases
United States Central District

United States Southern District

Combs, 379 F.3d 564 (2004)
LaPage, 231 F. 3d 488 (2000)
Leung, 351 F.Supp.2d 992 (2005)
Ruehle, U.S. Dist. Case No. 08-00139CJC (2009)
Welton, 2009 WL 2390848 (2009)

Alvarado, 2006 WL 3487005 (2006)
Carter, 2001 WL 32068 (2000)
Caruto, 2008 WL 2440558 (2008)
Fimbres, 2002 WL 31395960 (2002)
Fitzgerald, 615 F.Supp.2d 1156 (2009)
Geston, 299 F.3d 1130 (2002)
Killins, U.S. Dist. Case No. 98CR3608T
(1999)
Leon-Gonzalez, 2001 WL 1485876 (2001)
Perlaza, 439 F.3d 1149 (2006)
Robledo-Vela, 2002 WL 1941166 (2002)
Shaver, 607 F.Supp.2d 1168 (2009)
Velarde-Gomez, 2001 WL 1262610 (2001)

United States Eastern District
Derington, 229 F.3d 1243 (2000)
Urie, 2006 WL 1525832 (2006)

United States Northern District
Blueford, 312 F.3d 962 (2002)
Reyes, 577 F.3d 1069 (2009)
Rodrigues, 159 F.3d 439 (1998)

101
VERITAS INITIATIVE

PROSECUTORIAL MISCONDUCT IN CALIFORNIA

102
NORTHERN CALIFORNIA INNOCENCE PROJECT

Appendix B:
Harmless Cases
by Jurisdiction

PROSECUTORIAL MISCONDUCT IN CALIFORNIA

Appendix B: Harmless Cases by Jurisdiction
State Cases

Noche, 2003 WL 21977077 (2003)
Simmons, 2005 WL 480176 (2005)
Terry, 2006 WL 75346 (2006)
Welch, 85 Cal.Rptr.2d 203 (1999)
Young, 34 Cal.4th 1149 (2005)

Alameda
Allen, 366 F.3d 823 (2004)
Baxter, 2005 WL 3150256 (2005)
Boyette, 29 Cal.4th 381 (2002)
Brambila, 2005 WL 950588 (2005)
Byrd, 2006 WL 1493795 (2006)
Crawford, 2006 WL 3493046 (2006)
Darden, 2001 WL 1613768 (2001)
Ervin, 22 Cal. 4th 48 (2000)
Friend, 211 P.3d 520 (2009)
Gilbert, 2006 WL 2687043 (2006)
Gipson, 2004 WL 1059766 (2004)
Harrison, 2002 WL 467715 (2002)
Hasley, 2005 WL 3100718 (2005)
Hernandez P, 2002 WL 490601 (2002)
Hiskas, 2003 WL 21018410 (2003)
Hovey, 458 F.3d 892 (2006)
Irias, 2003 WL 205163 (2003)
Johnson D, 2003 WL 21186656 (2003)
Jordan, 2005 WL 1766387 (2005)
Juniel, 2006 WL 350371 (2006)
Lang, 2003 WL 122783 (2003)
Lee, 2006 WL 2329431 (2006)
Loeun Sa, 2009 WL 1133337 (2009)
Love, 2002 WL 31117263 (2002)
McCowan, 2001 WL 1407689 (2001)
McKenzie, 2007 WL 2193548 (2007)
Moore, 2006 WL 3813619 (2006)
Morales, 2004 WL 2850547 (2004)
Morales, 2005 WL 1693800 (2005)
Nichols, 1999 WL 459362 (1999)

Amador
Alders, 2001 WL 1338035 (2001)
Frye, 77 Cal.Rptr.2d 25 (1998)

Butte
Cooper, 2004 WL 407156 (2004)
Gilbert, 2003 WL 22413690 (2003)
Rogers, 2003 WL 21101820 (2003)

Calaveras
Smithey, 86 Cal.Rptr.2d 243 (1999)

Contra Costa
Bland, 2006 WL 217968 (2006)
Bryden, 73 Cal.Rptr.2d 554 (1998)
Hilton, 2006 WL 1125233 (2006)
Levine, 2003 WL 21541274 (2003)
McCaffery, 1999 WL 1097989 (1999)
Payton, 2003 WL 22040421 (2003)
Pratcher, 2009 WL 2332183 (2009)
Ramirez F, 2009 WL 1027554 (2009)
Sutton, 2003 WL 932524 (2003)
Young, 1997 WL 557972 (1997)

All reasonable measures have been taken to ensure the quality, reliability, and accuracy of the information in this
report. If you believe there is an error, we encourage you to contact us via email at veritas@scu.edu.
104
NORTHERN CALIFORNIA INNOCENCE PROJECT

APPENDIX B: HARMLESS CASES BY JURISDICTION

Del Norte

Flores, 2007 WL 852864 (2007)
Garza, 2003 WL 21641496 (2003)
Gibson, 2006 WL 1163270 (2006)
Lopez, 2003 WL 22683400 (2003)
Lucas, 2002 WL 1473114 (2002)
Quiroga, 2009 WL 3034319 (2009)
Siler, 2006 WL 3759526 (2006)
Welch, 2006 WL 401694 (2006)
Williams, 2006 WL 3802620 (2006)
Williams, 2007 WL 1653054 (2007)

Stephens-Miner, 2003 WL 1958850
(2003)

El Dorado
Caico, 2006 WL 3191135 (2006)
Coddington, 23 Cal.4th 529 (2000)
Cox, 30 Cal. 4th 916 (2003)

Fresno
Anderson 2005 WL 356838 (2005)
Calderon, 2006 WL 306920 (2006)
Contreras, 2004 WL 1303654 (2004)
Fanady, 2007 WL 155179 (2007)
Flores F, 2002 WL 66151 (2002)
Garcia, 2005 WL 1941341 (2005)
Jacome, 2005 WL 1189036 (2005)
Johnson E, 2007 WL 1247062 (2007)
Kephart, 2006 WL 2000035 (2006)
Lor, 2002 WL 31320348 (2002)
McCombs, 2002 WL 31097693 (2002)
Ortiz, 2005 WL 3471784 (2005)
Phaphonh, 2005 WL 3494952 (2005

Kings
Baday, 2004 WL 49715 (2004)
Bowen, 2005 WL 775752 (2005)
Serna, 2004 WL 759248 (2004)

Lake
Boone, 2009 WL 190999 (2009)

Los Angeles
Aguilar, 2004 WL 170625 (2004)
Aguilar, 2001 WL 1530898 (2001)
Aguilar, 2006 WL 2556927 (2006)
Ahumada, 2006 WL 2349170 (2006)
Alfaro, 2005 WL 1077575 (2005)
Amadi, 2004 WL 119401 (2004)
Anderson, 2003 WL 21995454 (2003)
Anderson, 2005 WL 2496839 (2005)
Anderson, 2008 WL 241088 (2008)
Archer, 2004 WL 103354 (2004)
Arcila, 2003 WL 194948 (2003)
Baker, 2002 WL 3176409 (2002)
Bautista, 2005 WL 1744414 (2005)
Beaghan, 2004 WL 1558467 (2004)
Belden, 2002 WL 90992 (2002)

Humboldt
Evers, 2001 WL 3095769 (2001)
Holland, 2005 WL 1799429 (2005)
Leon, 2002 WL 1880747 (2002)

Imperial
Foster, 2006 WL 3412538 (2006)

Kern
Barboza, 2003 WL 21310573 (2003)
105

VERITAS INITIATIVE

PROSECUTORIAL MISCONDUCT IN CALIFORNIA

Gonzalez, 2006 WL 1314029 (2006)
Gonzalez, 2006 WL 711100 (2006)
Graham, 2009 WL 2623331 (2009)
Grandy, Appellate Case No. B186687
(2006)
Greenwood, 2004 WL 473643 (2004)
Grizzelle, 2005 WL 1763621 (2005)
Gutierrez, 2005 WL 1524666 (2005)
Guzman, 2002 WL 1904426 (2002)
Hagenno, 2001 WL 1486786 (2001)
Hamilton, 2003 WL 22079585 (2003)
Harris, 2004 WL 1879894 (2004)
Hernandez M, 2002 WL 1375998 (2002)
Higuera, 2005 WL 3073354 (2005)
Hinton, 37 Cal.4th 839 (2006)
Holguin, 2006 WL 760718 (2006)
Howell, 2002 WL 596477 (2002)
Hutson, 2002 WL 397724 (2002)
Jacobs, 2004 WL 1842553 (2004)
Jaramillo, 2006 WL 178628 (2006)
Jefferson, 2005 WL 1971274 (2005)
Jelks, 2003 WL 21949145 (2003)
Johnson, 2009 WL 3166649 (2009)
Johnson S, 109 Cal.App.4th 1230 (2003)
Jones, 2005 WL 2822410 (2005)
Jones, 2007 WL 4410377 (2007)
Jones, 2009 WL 2037382 (2009)
Kipp, 26 Cal.4th 1100 (2001)
Lampel, 2002 WL 31087844 (2002)
Laney, 2007 WL 178436 (2007)
Larsen, 2002 WL 31873618 (2002)
Leichman, 2005 WL 1017926 (2005)
Lewis A, 2003 WL 147772 (2003)
Linson, 2004 WL 1171182 (2004)
Loseman, 2004 WL 689259 (2004)
Martinez, 2007 WL 2307034 (2007)
Martinez M, 2002 WL 1154577 (2002)
Martinez R, 2009 WL 4936759 (2009)
Medina, 2002 WL 1046023 (2002)

Belei, 99 Fed.Appx. 813(2004)
Beltran, U.S. Dist. Case No.
CV 01-3404-GAF (2004)
Benavente, 2009 WL 5067615 (2009)
Benn, 2006 WL 2382918 (2006)
Bodnar, 2004 WL 1172980 (2004)
Bowles, 2007 WL 1203711 (2007)
Braddock, 2001 WL 1566430 (2001)
Brown, 2009 WL 2170487 (2009)
Broyles 2003 WL 1984557 (2003)
Buckhalter, 2008 WL 224366 (2008)
Caballero, 2008 WL 1778068 (2008)
Cabrera, 2009 WL 4809884 (2009)
Cantabrana, 2006 WL 3423267 (2006)
Carlsen, 2008 WL 217881 (2008)
Caro, 2008 WL 62531 (2008)
Carrier, 2004 WL 1447754 (2004)
Castro, 2005 WL 2387463 (2005)
Cruzata, 2003 WL 22093914 (2003)
Duran, 2001 WL 1656607 (2001)
Earp, 85 Cal.Rptr.2d 857 (1999)
Eckman, 2009 WL 1277733 (2009)
Edwards, 2007 WL 2028863 (2007)
Espinoza, 2008 WL 315785 (2008)
Estrada, 2002 WL 1883373 (2002)
Faltisco, 2004 WL 1798067 (2004)
Fields, 309 F.3d 1095 (2002)
Fisher, 2003 WL 1875136 (2003)
Flores, 2006 WL 414815 (2006)
Flores, 2008 WL 852822 (2008)
Flowers, 2001 WL 1154634 (2001)
Friendly, 2004 WL 1558793 (2004)
Frierson, 2006 WL 2637658 (2006)
Garcia, 2003 WL 1958431 (2003)
Garcia, 2004 WL 1682775 (2004)
Garcia, 2006 WL 1828016 (2006)
Gautt, 2003 WL 25600060 (2003)
Gonzales, 2007 WL 2247423 (2007)
Gonzales, 2007 WL 586635 (2007)
106

NORTHERN CALIFORNIA INNOCENCE PROJECT

APPENDIX B: HARMLESS CASES BY JURISDICTION

Menser, 2008 WL 803420 (2008)
Miranda, 2002 WL 59672 (2002)
Mitchell, 2005 WL 1670710 (2005)
Moore, 2004 WL 1465697 (2004)
Moreno, 2004 WL 2966024 (2004)
Munns, 2004 WL 1759153 (2004)
Navarro, 2004 WL 1753184 (2004)
Ochoa, 79 Cal.Rptr.2d 408 (1998)
Orozco, 2002 WL 1399124 (2002)
Pimentel, 2006 WL 772895 (2006)
Pintor, 2005 WL 1819374 (2005)
Ponce, 2004 WL 1146449 (2004)
Presley, 2006 WL 416204 (2006)
Quintero, 2004 WL 1730279 (2004)
Ratnaweera, 2005 WL 296927 (2005)
Reeda, 2004 WL 35810 (2004)
Reyes, 2004 WL 2943240 (2004)
Rivera, 2004 WL 2601335 (2004)
Rodriguez, 2004 WL 237985 (2004)
Rodriguez, 2006 WL 619340 (2006)
Rodriguez W, 2003 WL 22451361 (2003)
Salazar, 2006 WL 177247 (2006)
Salcedo, 2005 WL 2671324 (2005)
Samson, 2006 WL 2942925 (2006)
Sasser, 2002 WL 259949 (2002)
Sassounian, 2000 WL 1593388 (2000)
Schmidt, 2004 WL 246023 (2004)
Silva, 25 Cal.4th 345 (2001)
Simmons 2009 WL 5127115 (2009)
Sims, 2006 WL 3222508 (2006)
Sinuhe, 2003 WL 734240 (2003)
Sirizzotti, 2004 WL 1879879 (2004)
Smith, 2001 WL 1447249 (2001)
Smith, 2007 WL 902252 (2007)
Smith P, 179 Cal.App.4th 986 (2009)
Stitely, 35 Cal.4th 514 (2005)
Stordahl, 2005 WL 2143956 (2005)
Tatum, 2004 WL 36212 (2004)

Taylor, 2007 WL 2028861 (2007)
Thomas, 2003 WL 68261 (2003)
Thorpe, 2005 WL 798855 (2005)
Tomasian, 2001 WL 1545502 (2007)
Toscano, 2005 WL 1546207 (2005)
Valdez, 2006 WL 1401742 (2006)
Vargas, 2004 WL 2030234 (2004)
Vega, 2005 WL 3146833 (2005)
Velasquez, 2001 WL 1295374 (2001)
Venegas, 2007 WL 2398196 (2007)
Verdin, 2008 WL 241256 (2008)
Victor, 2005 WL 914751 (2005)
Waggoner, 2003 WL 42561 (2003)
Waidla, 25 Cal.Rptr.3d 265 (2005)
Weathington, 2001 WL 1192283
Weldon, 2002 WL 31124762 (2002)
Wilkerson, 2002 WL 66150 (2002)
Williams, 16 Cal.4th 153 (1997)
Williams, 2002 WL 2006328 (2002)
Williams, 2009 WL 795124 (2009)
Wilmont, 2005 WL 1385269 (2005)
Zurinaga, 148 Cal.App.4th 1248 (2007)

Marin
Payne, 2009 WL 2612481 (2009)

Merced
Hundal, 2002 WL 31045538 (2002)
Lamb, 2005 WL 2248865 (2005)
Victor, 2006 WL 13470 (2006)

Monterey
Garcia, 2008 WL 1823639 (2008)
Viray, 36 Cal.Rptr.3d 693 (2005)

107
VERITAS INITIATIVE

PROSECUTORIAL MISCONDUCT IN CALIFORNIA

Orange
Alashanti 2005 WL 1995323 (2005)
Alvarado, 2003 WL 22312098 (2003)
Berry, 2006 WL 1633841 (2006)
Cardenas, 2003 WL 40812 (2003)
Carter, 2009 WL 5102964 (2009)
Chachagua, 2004 WL 440924 (2004)
Chesko, 2005 WL 289712 (2005)
Claude, 2006 WL 1493732 (2006)
Cook, 2005 WL 1785962 (2005)
Craft, 2006 WL 1778901 (2006)
Davila, 2006 WL 880187 (2006)
Del Valle, 2005 WL 383721 (2005)
Delgado, 2004 WL 1535640 (2004)
Denny, 2006 WL 1778961 (2006)
Derian, 2003 WL 21311245 (2003)
Doran, 2003 WL 21246597 (2003)
Echevarria, 2005 WL 1030128 (2005)
Edwards, 2003 WL 21241212 (2003)
Enciso, 2006 WL 3004204 (2006)
Fischer, 2007 WL 4443868 (2007)
Gallegos, 2004 WL 2044062 (2004)
Gatewood, 2002 WL 31667940 (2002)
Gomez, 2004 WL 1465526 (2004)
Guzman, 2004 WL 552973 (2004)
Ho, 2005 WL 102963 (2005)
Lagera, 2002 WL 1354406 (2002)
Leon, 2009 WL 249362 (2009)
Lin, 2002 WL 2005676 (2002)
Maldonado, 2009 WL 580744 (2009)
Marin, 2002 WL 1161595 (2002)
Morales, 2007 WL 1879826 (2007)
Morgan, 2004 WL 1166562 (2004)
Murphy, 2004 WL 1903486 (2004)
Murray, 2005 WL 2814028 (2005)
Najera, 41 Cal.Rptr.3d 244 (2006)
Nguyen, 1997 WL 753601 (1997)

Pacheco, 2004 WL 1053654 (2004)
Payton, 544 U.S. 133 (2002)
Perez, 2003 WL 211978872 (2003)
Pigage, 112 Cal.App.4th 1359 (2003)
Solomona, 2003 WL 22906711 (2003)
Studebaker, 2007 WL 264301 (2007)_
Tafoya, 42 Cal.4th 147 (2008)
Tran, 2007 WL 1207414 (2007)
Trejo, 2003 WL 22962807 (2003)
Ubina, 2004 WL 1381213 (2004)
Venzor, 2005 WL 1231512 (2005)
Webber, 2007 WL 763206 (2007)

Placer
Lynott, 2005 WL 299697 (2005)

Riverside
Abbott, 2004 WL 2898155 (2004)
Bench, 2009 WL 4987879 (2009)
Blair, 2008 WL 101724 (2008)
Blaze, 2006 WL 2350006 (2006)
Bowie, 2006 WL 205272 (2006)
Brian J., 150 Cal.App.4th 97 (2007)
Burgener, 29 Cal.4th 833 (2003)
Busby, 2007 WL 466131 (2007)
Carcamo, 2009 WL 323354 (2009)
Chick, 2008 WL 946222 (2008)
Coronado, 2007 WL 4112142 (2007)
Dixon, 2009 WL 885337 (2009)
Doughty, 2008 WL 1801346 (2008)
Gonzalez J, 2009 WL 2158589 (2009)
Hall, 2003 WL 22238960 (2003)
Hernandez, 2004 WL 392724 (2004)
Huff, 2007 WL 805890 (2007)
Jackson, 2005 WL 3605143 (2005)
Jackson, 2007 WL 1207257 (2007)

108
NORTHERN CALIFORNIA INNOCENCE PROJECT

APPENDIX B: HARMLESS CASES BY JURISDICTION

Jordan, 2002 WL 50594 (2002)
Keith, 2005 WL 1766388 (2005)
Kelly, 2004 WL 60712 (2004)
Lungberg, 2006 WL 1087110 (2006)
Martin, 2003 WL 1919424 (2003)
Martin, 2006 WL 1067286 (2006)
McBride, 2002 WL 22361 (2002)
Medina, 2009 WL 4882646 (2009)
Merchant, 2007 WL 2333156 (2007)
Nelson, 2009 WL 1709302 (2009)
Perez, 2004 WL 1932669 (2004)
Ramirez, 2003 WL 1071170 (2003)
Rea, 2009 WL 4987956 (2009)
Riggs, 1997 WL 1168650 (1997)
Riggs, 44 Cal.4th 248 (2008)
Rizo, 2002 WL 937651 (2002)
Ross, 2009 WL 3713700 (2009)
Sams, 2009 WL 3404007 (2009)
Seaton, 26 Cal.4th 598 (2001)
Vanderberg, 2006 WL 2223795 (2006)
Villa, 2005 WL 1039980 (2005)
Washington, 2004 WL 1626205 (2004)
West, 2008 WL 922787 (2008)
Zendejas, 2002 WL 31151644 (2002)

Jones, 15 Cal. 4th 119 (1997)
Jones, 2005 WL 1539262 (2005)
Kallo, 2001 WL 1284190 (2001)
Kendricks, 2005 WL 1660673 (2005)
Lute, 2006 WL 620781 (2006)
Maes, 2006 WL 1281847 (2006)
Martinez, 2002 WL 1800504 (2002)
McFadden, 2006 2913313 (2006)
Pham, 2008 WL 176473 (2008)
Reed, 2005 WL 1901559 (2005)
Roach, 2004 WL 1447943 (2004)p
Savidge, 2003 WL 1908062 (2003)
Strain, 2006 WL 2246355 (2006)
Trillo, 2004 WL 2943242 (2004)
Turner 2003 WL 21711569 (2003)
Vang, 2004 WL 551431 (2004)
Vu, 2005 WL 3387732 (2005)
Wallace, 2006 WL 951307 (2006)
Weston, 2006 WL 1467040 (2006)

San Bernardino
Amankrah, 2009 WL 4693524 (2009)
Boyd, 2008 WL 287822 (2008)
Chapman, 2006 WL 2338226 (2006)
Derick, 2001 WL 1589377 (2001)
Gutierrez, 2007 WL 2697310 (2007)
Gutierrez, 28 Cal.4th 1083 (2002)
Hernandez F, 2001 WL 1510616 (2001)
Hodge, 2005 WL 3484197 (2005)
Kernes, 2002 WL 1486379 (2002)
McCall, 2001 WL 1382746 (2001)
Mendoza, 42 Cal.App.4th 686 (2007)
Moran, 2006 WL 205196 (2006)
Parra, 2003 WL 22064473 (2003)
Reyes, 2007 WL 4427856 (2007)
Sandoval, 2003 WL 257908 (2003)
Smith, 2008 WL 2010374 (2008)

Sacramento
Banks, 2005 WL 1303552 (2005)
Brown, 2007 WL 2687595 (2007)
Canody, 2002 WL 1732781 (2002)
Chism, 2003 WL 353487 (2003)
Clark, 2004 WL 2326373 (2004)
Colabine, 2004 WL 1616574 (2004)
Dietz, 2006 WL 189289 (2006)
Garcia, 2003 WL 23002743 (2003)
Hearne, 2003 WL 22451877 (2003)
Jackson, 2009 WL 323274 (2009)
Jones, 2001 WL 1346775 (2001)
109

VERITAS INITIATIVE

PROSECUTORIAL MISCONDUCT IN CALIFORNIA

Smith, 2008 WL 241384 (2008)
Turner, 34 Cal.4th 406 (2004)
Wriden, 2006 WL 2790433 (2006)
Zambrano, 124 Cal.App.4th 228 (2004)

San Francisco
Calloway, 2005 WL 1244651 (2005)
Drayden, 1998 WL 398157 (1998)
George, 2003 WL 22384884 (2003)
Gray, 2006 WL 2025023 (2006)
Hopkins, 2002 WL 31175951 (2002)
Nawi, 2004 WL 2944016 (2004)
Noel, 28 Cal.Rptr.3d 369 (2005)
Robblee, 2004 WL 473982 (2004)
Robertson, 2004 WL 2521221 (2004)
Sundquist, 2003 WL 22884021 (2003)

San Diego
Avelino, 2004 WL 247099 (2004)
Baker, 2005 WL 2375052 (2005)
Bowman, 2004 WL 759525 (2004)
Chavez, 2005 WL 1532361 (2005)
Cordeiro, 2006 WL 1099473 (2006)
Davis, 91 Cal.Rptr.2d 179 (1999)
Del Pozo, 2004 WL 2106575 (2004)
Douglas, 2006 WL 2361884 (2006)
Fuller, 2005 WL 2077748 (2005)
Gallegos, 2002 WL 595053 (2002)
Gaylord, 2003 WL 21403797 (2003)
Hill, 2005 WL 327042 (2005)
Hutto 2005 WL 1021253 (2005)
Jacobs, 313 Fed.Appx. 42 (2001)
Jacques, 2002 WL 31862703 (2002)
Jones, 2003 WL 1989674 (2003)
Martin, 2002 WL 89720 (2002)
McIntosh, 2002 WL 1004092 (2002)
Palmer, 2004 WL 621710 (2004)
Remsen, 2004 WL 2137809 (2004)
Romero, 2004 WL 608281 (2004)
Roybal, 79 Cal.Rptr.2d 487 (1998)
Samayoa, 15 Cal.4th 795 (1997)
Sosa, 2002 WL 922716 (2002)
Thomas, 2001 WL 1261942 (2001)
Thomas, 2002 WL 126960 (2002)
Williams, 2004 WL 2283531 (2004)
Ziskin, 2008 WL 1813012 (2008)

San Joaquin
Alcaraz, 2002 WL 1970069 (2002)
Arellano, 97 Fed.Appx. 84 (2004)
Bechtel, 2003 WL 253924 (2003)
Brooks, 2009 WL 4350563 (2009)
Chhoeun, 2002 WL 502523 (2002)
Garcia-Sanchez, 2009 WL 3536650
(2009)
Hernandez D, 2002 WL 1904408 (2002)
Howard, 2003 WL 21518843 (2003)
Jackson, 2003 WL 1231945 (2003)
McCoy, 2002 WL 864283 (2002)
Ratsavongsy, 135 Fed.Appx. 10 (2001)
Tran, 2003 WL 21061575 (2003)
Wise, 2003 WL 22535043 (2003)
Woods, 2001 WL 1649216 (2001)
York, 2003 WL 122288 (2003)

San Mateo
Beardslee, 358 F.3d 560 (2004)
Dow, 2004 WL 236799 (2004)
Ellington, 2004 WL 649577 (2004)

110
NORTHERN CALIFORNIA INNOCENCE PROJECT

APPENDIX B: HARMLESS CASES BY JURISDICTION

Sengpadychith, 2002 WL 120558 (2002)
Thompson, 2009 WL 3809657 (2009)
Trevino, 2002 WL 31304238 (2002)
Vasquez, 2007 WL 1207245 (2007)
Villareal, 2003 WL 21504493 (2003)
Williams, 1998 WL 125147 (1998)
Wilson, 2007 WL 1536943 (2007)
Wright, 2002 WL 31769052 (2002)

Kupferman, 2003 WL 1996067 (2003)
Ramirez P, 2009 WL 963119 (2009)

Santa Barbara
Jones, 2009 WL 3019939 (2009)
Ray, 2002 WL 64543 (2002)
Vistro, 2008 WL 315788 (2008)

Santa Clara
Abarquez, 2002 WL 31677173 (2002)
Acosta, 84 Cal.Rptr.2d 370 (1999)
Almanza, 2006 WL 3034964 (2006)
Barron, 2009 WL 3923160 (2009)
Blackstone, State Bar Court Case No.
06-O-11208 (1999)
Chatman, 38 Cal.4th 344 (2006)
Contreras, 2005 WL 1041124 (2005)
Dannenberg, 2001 WL 1104714 (2001)
Duarte, 2006 WL 2076847 (2006)
Flores P, 2002 WL 3172672 (2002)
Foster, 2003 WL 1460006 (2003)
Galloway, 2002 WL 368648 (2002)
Guzman, 2005 WL 435452 (2005)
Hernandez, 2006 WL 1633862 (2006)
Klein, 2006 WL 3775836 (2006)
Lee, 2003 WL 21795746 (2003)
Lopez, 2006 WL 1727313 (2006)
Muaddi, 2005 WL 1208854 (2005)
Nieblas, 2002 WL 31097674 (2002)
Pimentel, 2001 WL 1571468 (2001)
Reynard, 2008 WL 821737 (2008)
Riffel, 2004 WL 187601 (2004)
Rodriguez, 2005 WL 2643166 (2005)
Ruiz, 2005 WL 3020122 (2005)
Sears, 2006 WL 1085877 (2006)

Santa Cruz
Cardona, 2006 WL 2413655 (2006)
Gonzalez N, 2009 WL 1664839 (2009)
Rogers, 2005 WL 3560588 (2005)

Shasta
Cain, Trial Court Case No. 98F56500
Hess, 2003 WL 2008287 (2003)
Millner, 2009 WL 3166672 (2009)
Morrison, 2008 WL 352356 (2008)
Sutherland, 2003 WL 22954173 (2003)

Siskiyou
Schwerin, 2005 WL 3477562 (2005)

Solano
Hernandez, 2008 WL 1736061 (2008)
Morgande, 2006 WL 1454792 (2006)
Thomas, 2006 WL 2699033 (2006)

Sonoma
McLaughlin, 2003 WL 22022024 (2003)
Pinola, 2002 WL 1457764 (2002)

111
VERITAS INITIATIVE

PROSECUTORIAL MISCONDUCT IN CALIFORNIA

Stanislaus

Tulare

Hicks, 2005 WL 1671814 (2005)
Leinweber, 2007 WL 1192185 (2007)
Rodriguez, 2002 WL 31341622 (2002)
Slaughter, 120 Cal.Rptr.2d 477 (2002)
Vieira, 35 Cal.4th 264 (2005)

Brown, 2002 WL 31888260 (2002)
Canning, 2006 WL 3317941 (2006)
Gonzalez, 2002 WL 31045537 (2002)
Livermore, 2004 WL 339649 (2004)

Ventura

Sutter

Ballesteros, 2006 WL 772005 (2006)
Johnson, 2003 WL 1309091 (2003)

Katzenberger, 101 Cal.Rptr.3d 122 (2009)

Trinity

Yolo

Brown, 2006 WL 1062095 (2006)

Lindeman, 2007 WL 1098634 (2007)
Massey, 2005 WL 775869 (2005)
Morales, 2006 WL 459348 (2006)

112
NORTHERN CALIFORNIA INNOCENCE PROJECT

APPENDIX B: HARMLESS CASES BY JURISDICTION

Federal Cases
United States Central District

United States Southern District

Bakhskekooei, 1997 WL 129093 (1997)
Blanton, 1998 WL 783948 (1998)
England, 1999 WL 412954 (1999)
Latysheva, 2006 WL 44782 (2006)
Lefebvre, 1997 WL 120861 (1997)
Rojas, 2003 WL 22839332 (2003)
Ross, 2005 WL 2297568 (2005)
Sahibi, 2009 WL 393135 (2009)
Turman, 1997 WL 22403 (1997)
Washington, 462 F.3d 1124 (2006)
Williams, 2004 WL 5542771 (2004)

Baltazar-Murrieta, 2002 WL 961819
(2002)
Batista, 1999 WL 1049412 (1999)
Cline, 2007 WL 1031572 (2007)
Cuevas, 82 Fed. Appx. 546 (2003)
De La Rosa-Sanchez, 1999 WL 362840
(1999)
Flores-Perez, 311 Fed.Appx. 69 (2009)
Hernandez-Miranda, 2006 WL 2990125
(2006)
Inzunza, 2009 WL 2750488 (2009)
Lopez, 469 F.3d 1241 (2006)
Navarro-Duarte, 1997 WL 471181 (1997)
Nelson, 1998 WL 78959 (1998)
Nordby, 1998 WL 476113 (1998)
Perez-Zazueta, 2006 WL 1316976 (2006)
Ramirez Lopez, 315 F.3d 1143 (2003)
Vargas, 2003 WL 21378861 (2003)

United States Eastern District
Bauman, 2009 WL 4895318 (2009)
Bridgeforth, 1999 WL 521237 (1999)
Candler, 1998 WL 4727 (1998)
Castro, 1999 WL 61897 (1999)
Derington, 2000 WL 155461 (2000)
Nobari, 574 F.3d 1065 (2009)
Price, 1999 WL 511442 (1999)
Sarkisian, 1999 WL 1083966 (1999)

United States Northern District
Hermanek, 289 F.3d 1076 (2002)
Jackson, 2006 WL 1737193 (2006)
Lewis, 2001 WL 1313786 (2001)
Younger, 398 F.3d 1179 (2005)

113
VERITAS INITIATIVE