By Jeff Adachi and Peter Calloway
State bar organizations have the power to discipline prosecutors, but they studiously ignore bad behavior.
A man is accused of stealing a laptop. On the prosecutor’s desk is a secret DNA report showing that a different man was the culprit. The prosecutor withholds the report from the defense for a year while the man sits in jail.
Another man is convicted of murder. Prosecutors never tell the defense that someone else confessed to the crime. The confession is eventually discovered, and after nearly 14 years in prison, the man is released.
These aren’t outlier cases. They are part of an epidemic of prosecutorial misconduct that plagues our nation’s courts, severely undermining the rights of people accused of crime and driving America’s human caging crisis. It’s an epidemic allowed to thrive because when prosecutors are caught hiding evidence or using other crooked tactics, they’re almost never punished by 
their own offices or by the bodies that govern professional standards for attorneys. The State Bar of California, like its counterparts across the country, enables the status quo by refusing to take allegations of prosecutorial misconduct seriously.
Protecting the public
The primary duty of state bar organizations, which license and govern conduct by attorneys in their jurisdiction, is to protect the public. They are supposed to hold attorneys accountable when they violate legal and ethical obligations. But when it come to prosecutors, they rarely do so.
One study found that in California, from 1997 to 2009, there were 707 instances where a judge found that a prosecutor committed misconduct. Only six of those—less than 1 percent—resulted in a public sanction by the state bar. And even that number significantly underrepresents the problem: Most instances of prosecutorial misconduct do not result in a judicial finding in the first place, because the misconduct either goes undiscovered or is not taken seriously by the courts.
Other states are no better than ours. In Massachusetts, as of April 2016, only two prosecutors had been publicly disciplined since 1980, despite at least 142 instances over that same period where a judge reversed a guilty verdict or dismissed charges based on a prosecutor’s misconduct. In contrast, over 1,400 non-prosecutors have been disciplined in Massachusetts over roughly the last 15 years. And in Louisiana, the first professional sanction against a prosecutor didn’t occur until 2005.
The primary duty of state bar organizations, which license and govern conduct by attorneys in their jurisdiction, is to protect the public.
Our office confronts this problem regularly. In 2017, we filed a complaint with the State Bar of California about an assistant district attorney, Benjamin Mains. We presented evidence of his misconduct from seven serious cases he prosecuted against our clients. We included transcripts, emails, and other evidence showing, among other things, that Mains failed to disclose exculpatory DNA evidence that, when disclosed later by another prosecutor, led to a burglary charge being dismissed; that he improperly and illegally commented on our client’s invocation of his Fifth Amendment right not to testify at trial, leading a judge to grant our motion for a new trial; and that he failed to disclose exculpatory witness statements that left him without probable cause to prosecute.
Despite our meticulously documented and substantial claims, and the fact that Mains was terminated from his job with the district attorney’s office, the state bar declined to file charges. The bar’s letter informing us that it would not prosecute did not draw on any investigation beyond our submissions and Mains’s response. The bar didn’t interview a single witness, not even the prosecutors who inherited the cases from Mains and ultimately turned over the evidence in question. Instead, the investigators seemed to accept at face value Mains’s claim that he simply wasn’t aware of the existence of exculpatory evidence in multiple cases, blaming his errors in part on a high caseload.
Seeing people, not ‘criminals’
Prosecuting 1 percent of cases is better than prosecuting none of them, and the bar does sometimes take action. In October, it charged Andrew Ganz, an assistant DA in San Francisco, with multiple ethical violations for suppressing evidence in a homicide case in another county. The State Bar Court recommended that Ganz be suspended for 90 days. The bar should be commended for its efforts in prosecuting Ganz, who is still a prosecutor in San Francisco.
But when such an outcome is exceedingly rare, it’s time to rethink the bar’s role in addressing the epidemic of prosecutorial misconduct.
There are many reasons for our state bar’s extremely low rate of prosecution. One is a lack of resources; the bar simply does not have enough staff to fully investigate and prosecute the many instances of prosecutorial misconduct that occur daily across California. This could be resolved through additional funding from the legislature, perhaps starting with 10 new investigators devoted solely to this critical issue.
But another reason relates to systemic issues that infect the criminal legal system more broadly. Because of the racial and socioeconomic biases that pervade American society, poor people and people of color are significantly overrepresented in the criminal legal system. Due in part to these biases, people who become ensnared in that system are routinely dehumanized by it. And when their rights are violated, the wrongdoing is often either ignored or dismissed as a necessary part of the machine’s perpetual grind. The state bar works within this framework.
When people are accused of crime—most of them former victims—they cease to be seen as people by our legal system and become merely “criminals.” If the accused were seen as fully human—people with family and friends, feelings and desires, people with flaws but who are capable of redemption—it would be impossible for the system and the actors in it to so thoughtlessly process our clients’ bodies. Prosecutors might be less likely to hide evidence or misrepresent facts to coerce a plea. Judges might be less tolerant of misconduct, and would privilege justice for people over moving these cases, these numbers, through their courtrooms. And the state bar would take allegations of misconduct by prosecutors as seriously as it takes allegations that a civil attorney mishandled client funds.
By failing to hold prosecutors to basic professional and constitutional standards, the state bar facilitates the mechanical processing of so many Black and brown bodies that has come to characterize modern American criminal “justice.”
Misconduct and mass incarceration
Even when working as designed, our criminal system functions to protect the privileged and harm the disenfranchised. When powerful prosecutors don’t play fair, things become even worse. The ethical rules that bind all attorneys recognize the potential for harm by declaring that a “prosecutor has the responsibility of a minister of justice and not simply that of an advocate.” But too often, instead of seeking justice, prosecutors seek convictions at any cost.
Prosecutorial misconduct undermines the presumption of innocence, a fundamental principle of our criminal system that applies to all people the state accuses of crime. It erodes the constitutional right to a fair trial. And it contributes to some of the most shameful statistics produced by our society: Around 2.3 million people are caged in this country at any given moment, more than in any other country now or in recorded history. And 4.5 million more are on probation or parole. One of two adults in the United States has had a family member in jail or prison. The suffering behind these numbers, the devastation they represent—not just to individuals, but to communities and through generations—is profound.
When people are accused of crime…they cease to be seen as people by our legal system and become merely “criminals.”
How does misconduct help drive these numbers? Mostly through plea bargaining, a coercive process that results in around 97 percent of criminal cases being resolved without a trial.
Imagine you’re charged with a robbery you didn’t commit. The prosecutor’s case is based solely on an eyewitness who says you match the description of the suspect. You’re confused and scared—you’ve heard the stories of innocent people going to prison. The prosecutor doesn’t tell you, but the witness has a history of lying under oath.
If you knew about the witness’s past, you could use that information to show the jury that the witness shouldn’t be trusted. There would be no other evidence against you, and you would most likely be acquitted or the case would be dismissed. But you don’t know about it. All you know is that if you go to trial, the prosecutor will put a witness on the stand who will tell the jury that you definitely committed the robbery. You also know that if you’re found guilty, you could face up to nine years in prison.
The prosecutor offers to let you plead guilty to a lesser charge, one that carries a potential sentence of just two years and will probably result only in probation. What would you do?
Now repeat that process, and variations of it, tens of thousands of times.
Without plea bargaining, our criminal system could not process the nearly 11 million arrests that occur every year; so many trials would cause the system to collapse. And without misconduct, particularly in the form of hidden or late-disclosed evidence, many fewer people would plead guilty.
Prosecutors wield immense power in the plea bargaining process because they decide what charges to bring and when and what evidence to disclose, and their misuse of that power has helped create our mass caging crisis. They won’t face criminal consequences because even when their behavior rises to the level of illegality, their colleagues are unlikely to bring charges against them. And civil liability won’t work because prosecutors are essentially absolutely immune from civil suits. But professional discipline by state bar organizations could help remedy this problem.
Given their capacity for harm, when prosecutors act unethically, state bar organizations should take seriously their duty to protect the public. They should rigorously investigate credible claims of misconduct and impose meaningful penalties on errant prosecutors, using the power we confer upon them for precisely that purpose.
State bars must be for the people. And the people who place faith in the criminal system—the accused, the victims, and the rest of us—deserve better than we’re getting from our prosecutors and from our state bars.
Note: On February 22, 2019, while this piece was in its final editing stages, Jeff passed away unexpectedly. His loss is deeply tragic, for his family, of course, and for our office, but also for San Francisco and the nation. Jeff was a visionary. A warrior for justice unlike any I’ve known. He saw the humanity of all people and fought tirelessly to free them from literal and figurative constraints so they could reach their potential. Jeff’s impact was wide and deep—immeasurable, really—and he has inspired an army of lawyers and activists who are dedicated to carrying on his fight: to bring justice to the criminal system. It is my great honor to have written this with him, and to have worked closely with him over the past year on an issue that we both care so much about. – Peter Calloway
Jeff Adachi was the public defender of the City and County of San Francisco. Peter Calloway is an attorney working with the San Francisco Public Defender’s Office on prosecutorial accountability.
