Commentary: Is the California State Bar Finally Getting Serious About Prosecutorial Misconduct?

Earlier this week, we reported on a study from ProPublica that, in analyzing state and federal court rulings from 2001 to 2011, in particular “scrutinizing instances in which state or federal courts identified misconduct serious enough to throw out a conviction,” found that of 30 cases that met their very specific criteria, only one prosecutor would be disciplined in a meaningful way for misconduct.

Those findings mirrored earlier findings from the 2010 report from the Veritas Initiative, “Preventable Error,” funded by the Northern California Innocence Project, which documented more than 800 instances of prosecutorial misconduct, including 107 where the prosecutors were found to have committed misconduct more than once – two were cited for misconduct four times, two were cited five times and one prosecutor was cited for misconduct six times.

Of all of these cases, only six prosecutors were disciplined by either the state bar or their immediate supervisors.

In their “Preventable Error” report, the researchers recommended more monitoring and public scrutiny, but also “replacing prosecutors’ current absolute immunity from civil liability with a form of qualified immunity.”

This would mark a sea change in the way prosecutors are held accountable for actions that threaten potentially the lives not only of those wrongfully convicted, but current victims and potential future victims if the wrong individual is apprehended.

The case of Maurice Caldwell is illustrative of this risk.  Mr. Caldwell, due to errors in the investigation process, ended up spending two decades in prison for a crime he did not commit.  In the ensuing years, the man identified now as the actual killer, who has admitted to being the actual killer, killed another individual.

So, the wrongful conviction in the case of Mr. Caldwell actually cost someone else’s life.

The Veritas Initiative report also calls the state bar to the task.  They write, “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,” they write.

The report calls for the State Bar to adopt revised ethical rules concerning the special responsibilities of prosecutors and “expanding discipline for prosecutorial misconduct and increasing the transparency of the State Bar disciplinary process.”

Perhaps the State Bar is finally getting the message.

The Vanguard received a release on Friday afternoon that indicated, “A State Bar Court hearing judge has recommended disbarment for Del Norte County District Attorney Jon M. Alexander for communicating with a defendant without her attorney’s consent, withholding evidence from the defense and acts of moral turpitude.”

Mr. Alexander has been placed on involuntary inactive status, effective April 7, “which means he will not be entitled to practice law.”

The disbarment would not go into effect until approved by the California Supreme Court.

In her April 4 decision, Judge Armendariz found Mr. Alexander “64, culpable of communications with a represented party without consent, suppression of evidence contrary to legal obligation and committing acts that involved moral turpitude, corruption or dishonesty. She also noted that Alexander’s extensive record of public service did not outweigh his three prior records of discipline and his apparent lack of remorse for the more recent misconduct.”

“Although respondent presented an impressive array of good character testimony, attesting to his high standing in the Del Norte County community, the mitigation does not outweigh the substance and nature of his extensive record of prior discipline and the egregiousness of his current misconduct,” the judge wrote. “Respondent’s refusal to recognize his misdeeds and the severity he had harmed the administration of justice and the integrity of the legal profession concerns this court.”

Mr. Alexander was initially charged with seven counts of misconduct in three matters, although Judge Armendariz ultimately found him culpable of three of the charged counts.

Specifically, Judge Armendariz found that Alexander talked with a defendant privately in his office about her drug case, despite knowing she had an attorney.

During the conversation, the woman recanted statements made at the time of her arrest, in which she implicated her co-defendant and admitted to Alexander that the drugs at issue in the case actually belonged to her. Alexander failed to tell defense attorneys about the conversation or share the woman’s incriminating statement with the co-defendant’s lawyer.

Jon Alexander had a lengthy prior discipline record, as well.

The bar association cites, ” A 1996 private reproval for failing to abide by agreements that were made in lieu of disciplinary prosecution and for two misdemeanors convictions for driving with a suspended license.”

“A six-month actual suspension in 2003 for failure to return unearned fees and the unauthorized practice of law while he was suspended for not paying his State Bar dues,” they cite, and “A 60-day actual suspension in 2011 for misconduct in four matters, including failure to perform services competently, failure to communicate with clients, engaging in the unauthorized practice of law and engaging in an ex parte communication with a sentencing judge in a criminal case in order to influence the sentence.”

While this might represent a step in the right direction, it may also reflect the egregious nature of the misconduct.

As ProPublica noted in their report, the one instance involved Queens assistant district attorney, Claude Stuart, who while being disciplined for his actions in a murder case, in which he withheld exculpatory evidence that could have exonerated the defendant, had also committed other acts of misconduct previously.

Writes ProPublica, “Stuart’s wrongdoing in the Bennett case wasn’t his only act of misconduct. He manipulated evidence in another case, and that conviction wound up being reversed by the courts, too. But his bosses took no action after that misconduct became known.”

“A state disciplinary committee reprimanded Stuart, but that fact remained secret from the public. Indeed, Stuart’s superiors did not act until another conviction was overturned, and Stuart was found to have lied to a trial judge about the whereabouts of a key defense witness.”

Nevertheless, given that the Veritas Initiative found only six cases of discipline by the Bar Association over their decade of work, finding even on, perhaps, is a move in the right direction.

But putting public scrutiny on this issue likely has forced the bar association to be more proactive, at least in handling the more egregious examples that come its way.

—David M. Greenwald reporting

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