Patterico's Pontifications

7/13/2007

L.A. Times Publishes Skewed Article on Prosecutorial Misconduct

Filed under: Crime,General — Patterico @ 12:03 am



Henry Weinstein has an article in yesterday’s Dog Trainer titled Lawyers clash over prosecutorial misconduct. The deck headline reads: “Some tell a state panel that occurrences are common but discipline is rare. Others say current rules guard against excesses.”

This article is skewed to the defense point of view, with misleading claptrap from beginning to end.

In other words, classic Henry Weinstein.

Here’s how Weinstein sets up the “clash.” First, we hear from the advocate for innocent defendants, who tells us that prosecutorial misconduct is rampant:

Ridolfi, who is the director of the Northern California Innocence Project, told the commission that judges had found prosecutorial misconduct in 443 of more than 2,100 California cases over the last 10 years.

Wow. That’s a lot. But that figure is disputed by a prosecutor:

But Michael Schwartz, a deputy district attorney in Ventura County, countered that a close look at the available data shows that prosecutorial misconduct occurs in less than 1% of all cases. “I am not sensing that we have a crisis of prosecutorial misconduct,” when it is found in only one of 800 appeals, Schwartz said. Consequently, he said, “it doesn’t seem like we need new rules.”

The conflict is clear. So, what’s the answer? Does prosecutorial misconduct occur in 433 out of 2,100 cases? (That’s about 21%.) Or only 1 in 800? (That’s far less than 1%.)

I’d start by looking at that 433 out of 2,100 number. What in the world does this mean? Where does this 2,100 number come from? What does it represent? Weinstein doesn’t say.

As a result, the casual reader — if he is not thinking critically — will read the innocence advocate’s statistic as follows:

Over the last 10 years, there have been a total of 2,100 cases (presumably appellate cases judging appeals from guilty verdicts obtained at trial). In 443 of those, judges found prosecutorial misconduct.

If the reader is using common sense, he will of course recognize that this can’t possibly be true. A moment’s reflection will tell the critical reader that there is no possible way that 2,100 represents the total number of criminal appeals in California over 10 years. That would amount to an average of 210 appeals per year! Obviously that number is only a tiny fraction of the total number of criminal appeals.

And indeed, the facts confirm what a little critical thinking and common sense would tell you. A 2007 Court Statistics Report of appeals in California appellate courts says:

• Filings for the Courts of Appeal totaled 23,860 in FY [Fiscal Year] 2005 –2006. This figure is composed of 15,249 notices of appeal and 8,611 original proceedings.

• Filings of notices of appeal included 6,516 criminal cases, 6,018 civil cases, and 2,715 juvenile cases. Filings of original proceedings included 5,197 criminal matters [“original proceedings” in criminal cases generally refers to habeas corpus proceedings — Patterico], 2,633 civil matters, and 781 juvenile matters.

That’s 11,713 criminal appeals — in one year. Looking at the stats, they have been reasonably consistent over the last ten years. Meaning that well over 100,000 criminal appeals have been decided in the last ten years in state courts alone.

Not 2,100.

So, again: what in the world is this 2,100 number? Here’s what Weinstein doesn’t tell us: it’s the total number of cases in which prosecutorial misconduct was alleged.

We searched California appellate court cases decided between January 1, 1997, and December 31, 2006—a period of ten years.14 Using the search term “prosecutorial misconduct,” we reviewed 2,130 relevant published and unpublished opinions.

. . . .

Of the 2,130 cases in which prosecutorial misconduct was raised on appeal, courts found misconduct in 443 cases. In 1,525 cases, the court found no error; in 162 cases, the court did not make a determination about whether misconduct occurred.

So Weinstein takes a number that denotes the percentage of prosecutorial misconduct actually occurring in cases where it was alleged (about 21%) , and (by not explaining it) makes it sound like a number that denotes the percentage of prosecutorial misconduct in all cases (a number that is in fact less than 1%).

That is incredibly misleading. In fact, that’s journalistic misconduct, Mr. Weinstein. There’s no more fitting term.

So 2,100 is a highly skewed subset of well over 100,000 total criminal cases. [Actually, because the study’s search included state and federal cases, and my number related only to state appeals, the total number of appeals decided over 10 years exceeds 100,000 by a very significant amount.] I believe the number provided by the Deputy D.A.: that prosecutorial misconduct appears in 1 of every 800 appeals. (Keep in mind that “prosecutorial misconduct” doesn’t always mean what you think it means. It’s not all hiding exculpatory evidence and filing baseless charges. “Prosecutorial misconduct” includes arguments to the jury like “I think the defendant is guilty” or “Don’t let the defendant do something like this again.” Here is an example of an argument that was found to constitute misconduct:

“I would suggest that if this happened in a lot of other neighborhoods, say in Golden Valley, or Edina, or Minnetonka, the reaction of the citizenry would be a whole lot different from the reaction of the people in North Minneapolis. . . . I would suggest that if this happened in a neighborhood in Edina, people couldn’t get to the phone fast enough to tell the police what they saw, to ensure that this kind of conduct would never happen in their neighborhood ever again. But this is a different environment, and it’s a challenge for you, because it’s not in an environment that most, if not all of you people, are familiar with.

This was found to be misconduct, because, as the person summarizing the case explained:

[T]he prosecutor invited the jurors to view the entire occurrence as “involving three young black males in the hood in North Minneapolis,” a world wholly outside their own. Such an invitation asks the jury to apply racial and socio-economic considerations that would deny a defendant a fair trial.

Really? OK — if you say so, oh wise and all-knowing appellate judges.

The fact of the matter is that a lot of what is termed “misconduct” ends up being conduct that some appellate judges didn’t like — even if it’s not what you’d typically think of as “prosecutorial misconduct.”)

Weinstein’s nonsense continues with this:

Ridolfi said that figure was just “the tip of the iceberg,” because about 97% of criminal cases are resolved by plea bargains.

Oh, what nonsense. As if you can extrapolate from appeals from criminal trials to plea bargains. There’s a courtroom in the Compton courthouse that disposes of somewhere between a third to a half of all cases in the courthouse. Our office gives very reasonable dispositions on more minor criminal cases as a reward for those defendants who want to take responsibility early in the proceedings. Of course, per Henry Weinstein, a good 21% of these cases involve prosecutorial misconduct. As my colleagues sit in court, read files, and try to negotiate reasonable dispositions, it stands to reason that they are committing misconduct in a good 21% of those cases. After all, a mysterious skewed subset of criminal appeals suffers from prosecutorial misconduct in 21% of cases . . . so it must be taking place across the board — even if the prosecutor is doing nothing but making reasonable offers.

Right?

Finally, we get this:

Benner’s study also revealed a significant disparity in resources for prosecution and defense offices around the state. For example, in Los Angeles County, the indigent defense budget is $196.8 million compared with the prosecution’s budget of $259.3 million.

“Until we reduce the glaring disparity in the resources allocated to prosecutors and defenders, we destroy the promise” of the criminal justice system “to provide effective assistance of counsel guaranteed by the Constitution,” Benner said.

This is certainly compelling, because as we all know, 100% of all criminal defendants come within the “indigent defense budget.” No defendants anywhere are represented by private attorneys. That’s how you know that you’re comparing apples to apples when you compare all prosecution resources for all cases to defense resources for indigent clients.

What’s that, you say? Only 80% of criminal defendants are represented by appointed counsel? So you mean that $259 million represents all prosecutorial resources, whereas $196 million represents only resources going to 80% of defendants?

Well, that’s a little different. Henry Weinstein didn’t tell us that!

So, let’s assume that all criminal defendants represented by paid counsel have the same per capita budget as public defender clients do. (Yes, it’s a silly assumption. I’ll address that point in a moment.) In that case, if $196 million were the budget for 80% of defendants, then $235.2 million would be the total budget for all criminal defendants. That’s not as far from $259 million as $198 million. And even this “disparity” rests on two assumptions that I’m willing to bet aren’t true: 1) private lawyers spend the same amount per client on case investigation as public defenders do, and 2) competent criminal defense costs as much as competent prosecution.

Assumption #1 is laughable on its face. Assumption #2 is, I believe, unsupportable. Prosecutors have the burden of proof, and must spend all sorts of money just marshaling their evidence for trial. For example, you wouldn’t believe what it costs to have audiotaped interviews in foreign languages translated and transcribed. Transcription and translation of an hour-long interview can easily cost thousands of dollars. [UPDATE: We’re also responsible for filing cases, which requires a lot of paperwork and a lot more support staff.]

In sum, Henry Weinstein is full of it. He twists the facts to favor the defense position throughout his article. And he gets the lazy reader believing that prosecutorial misconduct is rampant.

P.S. I know that the extensive research and argument this post took will be lost on many readers, whose main reaction will be “Fitzfong was out of control!!! Patterico is biased!!!1!!111!1!”

I hope it was instructive to somebody.

UPDATE: Commenter alphie located the study referred to in the article, which supports my argument. I have reworked the post accordingly, and explain more in a comment below.

19 Responses to “L.A. Times Publishes Skewed Article on Prosecutorial Misconduct”

  1. Can you imagine if Weinstein was a prosecutor? Oh, wait, Nifong.

    What I find amazing is that behavior that no prosecutor would tolerate in another prosecutor is lauded as a virtue in a defense lawyer (see Cochran, Johnny). I’m pretty sure that the hoops that prosecutors have to jump through, and all the Is and Ts, are pretty much waived for the defense, since they don’t have to prove anything.

    Kevin Murphy (0b2493)

  2. Page 4 of this .pdf file:

    http://tinyurl.com/28kh92

    Took me all of 3 minutes to find it.

    alphie (015011)

  3. I wonder if a summation that brings in an unproven allegation that was never subjected to evidence and cross examination might constitute misconduct. For example, a man is being tried for perjury and obstruction of justice during an investigation of a crime that turned out not to be a crime and for which he was never charged. If the prosecutor, in his summation to the jury, revives the original discredited allegation and argues as if it had been proven. Would that fit the definition of misconduct? Just wondering.

    Mike K (86bddb)

  4. Fitzfong!

    Patterico (2a65a5)

  5. Thanks, alphie.

    I just deleted this passage from the post:

    I have no idea, because Weinstein doesn’t tell us . . . but I have a theory. My theory is that 2,100 is the number of cases dealt with by the Northern California Innocence Project. But that organization is very selective in the cases it takes. Its website says that it takes only cases from inmates who were convicted of serious felonies, or in three strikes cases — and: “There must be strong evidence of the inmate’s actual innocence of the crime(s).The Project does not assist inmates with legal claims or procedural challenges.”

    That is not the typical criminal case, friends. It wouldn’t shock me to find that this unusual little universe of cases is rich in examples of prosecutorial misconduct. After all, I agree that such misconduct is one major reason that innocents sometimes end up in prison. But to suggest to readers that fully 1/5 of all criminal appeals suffers from prosecutorial misconduct?

    It made no sense to leave it in there, now that I could say precisely what the 443 of 2100 number is. So I deleted that passage, added a sentence in brackets, removed “almost certainly” from the description of the numbers as skewed, and added several sentences describing the study. This comment is simply my documentation of the changes, which were so extensive that it required a reworking of the post.

    Patterico (2a65a5)

  6. It costs more to run a prosecutor’s office than a defense office. In a small branch office, it would be typical to have one support staff to three public defenders. On the prosecution side, you need at least 7 support staff and at least 6 attorneys.

    sam (08292a)

  7. I agree with you about this article, Patterico. People like statistics and 21% sounds a whole lot better than 21% of 2%. And I’m the sort of attorney that this article is geared towards, with my recent bad experiences with prosecutors (promise me you’ll never attempt to try an inattentive driving (for crying out loud) case without your officer present and then, when you lose, make a long impassioned speech about what a travesty of justice it is that you were forced to dismiss the case because the defense counsel wouldn’t stipulate to a continuance). I mean, I’m sure that wouldn’t be included as prosecutorial misconduct but it sure doesn’t inspire confidence in the system.

    Linus (cc24db)

  8. Patterico –
    Removing Mike K’s question from any political issue or current events, I’d like to know somewhat the same thing. Technically, I’d like to know about it from both sides of the issue; if either counsel submits unproven hypotheses as part of a summation to the jury, could misconduct be shown?

    My curiosity stems from one of the “infant death by vegan diet” cases. The defense presented in closing arguments a claim that the other children of the household had “also grown up on the vegan diet” and had “never been ill”. The issue here was twofold: the parents’ own testimony showed that none of the other children had started the vegan diet from infancy, and testimony from the prosecution’s M.D. expert witness said that all of the children were suffering some form of malnutrition. The parents had merely said they’d “never had to take the children to the doctor”, which in their particular community at best means “we decided they weren’t really sick” or “we dosed them with OTC medication and assumed they were better when the symptoms went away”.

    Could one claim misconduct on the part of counsel for the defense for making misleading statements during summation? If so, what sort of recourse would there be?

    Rick Wilcox (bb4b76)

  9. Re: the comment on defense and prosecution costs. You can’t compare the cost of public defense to the cost of prosecution, even though I think your example is actually wrong about the relative size of those budgets. You have to compare the total cost of defense, public and private, to the cost of prosecution. Far less is spent on prosecution.

    Rob Ives (8f4c50)

  10. Generally, when one side or the other commits misconduct, there must be an objection in order to allow the court to cure the error.

    What attys say is not evidence.

    Summation is often a very heated or emotional time for the attys. They are human and make mistakes. It is rare that mistakes are so egregious that they result in a verdict being overturned.

    sam (08292a)

  11. Patterico, this post is hardly fair. You have four layers of editors and fact-checkers at the Los Angeles Times to back up your own work. Plus, you get paid to write this stuff.

    In contrast, hapless blogger Henry Weinstein tries to out-argue you while sitting at home in his pajamas.

    Oh. wait…

    AMac (c822c9)

  12. In my opinion, the most ubsurd “statistic” that was sited in the article was the comparison of the small rural county budget for indigent defense with the cost to put on the county fair. Let’s compare apples to codfish.

    MOG (f57a20)

  13. Patterico,

    Besides the statistical errors and the over-the-top descriptions, like “stark” and “stinging”, I thought you would have taken exception with the other researcher’s allegation of an “informal agreement among district attorney’s office not to cooperate.” It gives everything a conspiratorial tone.

    Maybe people don’t want to educate her on all of their processes. It could be suspicion about unnecessary or unrewarded work. No rebuttal or follow-up to that assertion.

    pwr (8656ff)

  14. By my count, there are 11 paragraphs of quotes or information supporting the contention of prosecutorial wrongdoing, versus three graphs countering that argument.

    “Until we reduce this glaring discrepancy…” in journalistic balance, I think we can fairly judge this piece to be just another example of leftish LAT bias.

    JonSK (67ca85)

  15. Perhaps we should bring back dueling, limited to attorneys and journalists?
    Then, we could finally have some closure.

    Another Drew (8018ee)

  16. I like to add professors and actors to the dueling elite.

    Alta Bob (e43e07)

  17. Give the guy a break. Henry Weinstein isn’t exactly lying about weapons of mass destruction in that article, nor did he commute Libby’s sentence or out a secret CIA agent.

    Wesson (f09249)

  18. No, Wesson, he’s just a “journalist” completely mischaracterizing reality to make a disingenuous ideological point.

    So you’re right. He’s no Joe Wilson. He’s just a garden variety hack, and if the shoe fits…

    Pablo (99243e)

  19. There are efforts in the California State Legislature to enact measures to reduce the frequency of wrongful convictions. They involve better procedures for eyewitness identifications, recording custodial interrogations, and requiring corroboration for the use of jailhouse informants.

    I’ll give you two guesses as to which pressure groups are opposing these safeguards.

    nosh (de5a83)


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