Mimesis Law
24 September 2020

The Other Culprit Behind Prosecutorial Misconduct

May 3, 2016 (Mimesis Law) — A few weeks ago, a professor at Pepperdine University School of Law published a study taking a comprehensive look at prosecutorial misconduct. The article claims to present a viable solution to a problem that has gained widespread attention recently.

Harry Mitchell Caldwell teaches trial advocacy, criminal law, and criminal procedure. He seems to have some experience in the actual practice of law, even if it’s not from spending his days in the trenches. After he graduated from law school, Caldwell spent four years as a California district attorney before returning to his alma mater, Pepperdine, to begin teaching. He labels himself a criminal defense lawyer beginning in 1990, when he began representing death row inmates in appeals.

You may think this is going to be the beginning of a multi-part analysis of Caldwell’s 44-page, in-depth study on the concerning problem of prosecutorial misconduct. It’s not. Caldwell’s report can be summed up pretty easily.

Prosecutors sometimes cross the line while chasing a conviction. The courts don’t care. If only we added yet another government agency to the mix we could fix it.

Not really. Caldwell’s report doesn’t offer a viable solution and it really doesn’t offer any insight into a problem lawyers would really like to understand. But the article does accomplish a few things. It reveals the real culprit behind prosecutorial misconduct and that there is already a system in place to address these problems. We are all just too chicken to use it.

Caldwell decided to look at a sample of California cases to see how appellate courts dealt with allegations of prosecutorial misconduct. It’s a big job, as he apparently discovered. It’s not clear the sample he ended up with was a realistic cross-section of the day to day problems criminal defendants encounter, but it’s what he went with.  And law professors know how to write stuff, so that’s what we end up with.

Caldwell’s study looked at 13 areas in which he found appellate courts had considered what Caldwell labeled as prosecutorial misconduct. The 13 categories are interesting, because 12 of them would only occur in open court in front of both a defense lawyer and a trial judge. Brady violations are a little different. Courts don’t care much about those either, but they are different because they rarely occur in the light of a courtroom.

So what are the other 12 areas? Translated from legalese, they are:

(1) improper comments during opening or closing statements;

(2) describing the law wrong;
(3) bringing out improper testimony;
(4) improperly commenting on a defendant remaining silent;
(5) talking trash about the defendant or his lawyer;
(6) improperly stating an opinion or vouching for a witness;
(7) appealing to a jury’s emotions;
(8) commenting on how the defendant doesn’t care about what he did;
(9) talking about the effect on the victim;
(10) talking about how the defendant is going to be dangerous in the future;
(11) screwing around while questioning the jury;
(12) screwing around while actually picking the jury.

Hiding evidence is included as a category, but it is very different from the other categories. Because Brady is a different sort of misconduct, let’s set that one aside for a bit. This should make prosecutors happy. When you get rid of Brady shenanigans, otherwise known as concealing evidence, they don’t get beat up nearly as badly.

The issue with Caldwell’s study is that those claims of prosecutorial misconduct happened in the courtroom. There are two related checks on that type of conduct. There is a defense lawyer sitting next to his client who is supposed to be objecting and a judge sitting up on the bench who is supposed to be ruling correctly. Either one can fail, and often both do in some combination.

But in the same vein of not beating up on prosecutors, let’s not beat up on the defense lawyers, either. Which leaves us with the real culprits. Judges. Where are all the judges when this stuff is going on in the courtroom?

Are prosecutors responsible for overreaching during trial? Of course. But for the purposes of this post, let’s assume they are trying to win their case. That may not be their only responsibility, but it’s a safe bet by the time the case makes it to trial the prosecutor probably doesn’t think he has the wrong guy, and so he’s working hard to secure a conviction.

That doesn’t make it right, but on the other hand people act to the limit of what they can get away with. If no one is stopping them, why would they stop themselves? And that’s the real problem. No one is stopping prosecutors from going overboard in court. Each category described in the study is ultimately the responsibility of a judge to stop. And they don’t.

Why not? The answer to that question isn’t in the study. But that’s the one that should matter. If the system is set up to correct problems on the ground level, why is that not happening? We already know the appellate courts don’t seem to be the place where mistakes get fixed. And the trial court seems to be doing a pretty crappy job of stopping them in the first place.

If Caldwell’s study accurately portrays the problem of prosecutorial misconduct, the problem isn’t all on the prosecutor. It’s also on the trial judges who seem unwilling to stop the overreaching.

Caldwell suggests we can address the problem with a review board that looks at these instances and determines an appropriate punishment, ranging from warnings to disbarment. It sounds like a great idea! Yet another government agency to review things and impose things.

Just one problem. That agency already exists. Every state has an office that disciplines lawyers. They investigate misconduct and impose punishment. That punishment ranges from warnings to disbarment. They rarely consider prosecutorial misconduct. Defense lawyers can’t afford to make a complaint that will put all the rest of their clients at risk. Convicts aren’t taken seriously and even if they are, what do they care that their prosecutor got disciplined? Especially when that does exactly nothing to help the crushing sentence they just got hammered with.

At the end of the day, there is little relief for a defendant from an unfair trial if no one in the judicial system will correct the mistake. If the problem is on the ground, it needs to be fixed on the ground. And that requires a trial judge who doesn’t care about the public perception of a job or a system they have little understanding of. It will require a trial judge who will insure fair trials by enforcing the rules that are intended to keep those trials fair.

Caldwell seems to have put a lot of work into his study. Unfortunately, he reaches a conclusion that doesn’t really help the problem. His study points out problems that occur in the courtroom, which is an interesting change from the usual hidden evidence and perjured witnesses. But if most prosecutorial conduct is occurring in the courtroom right out in the open, is it really the prosecutor’s conduct we should be concerned about?

How about the real culprit stepping up and stopping in-court shenanigans? Otherwise, maybe we should do a different study. And start talking about judicial misconduct.

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