The numbers were startling.
According to media reports, a newly formed group affiliated with Harvard Law School called the “Fair Punishment Project” supposedly reviewed court decisions from 2010 to 2015 involving the Orange County District Attorney’s Office. The “study” found that the OCDA had seven convictions reversed due to prosecutorial misconduct and 24 overall findings of prosecutorial misconduct, and these numbers were ranked amongst the highest in the state.
Curiously, the authors of the report chose not to show their work behind their claims, or list any of the qualifying cases they had deemed to be prosecutorial misconduct. The media accused our prosecutors of “cheating” to win, and wrote an editorial stating “these are not cases of errors, but of willful and serious misconduct,” while a local politician who covers the Office of the District Attorney proclaimed we had “the worst record in the entire state.”
There was just one problem: The numbers in the study were completely wrong.
In their rush to criticize the men and women of the OCDA who handle over 60,000 new cases each year, the media, politicians and other opportunists all neglected to take the time to confirm whether the report’s information was actually correct.
The truth is the claims do not match the evidence.
What’s even more puzzling, the FPP got wind that they may be exposed and they “corrected” their study, yet the numbers were still wrong.
Publicly available records show that in five of the seven alleged reversals, the appellate decision contained no finding of prosecutorial misconduct. In fact in one decision, the Court of Appeal explicitly stated, “We do not find fault with the prosecution,” yet the report included it anyway as a reversal due to prosecutorial misconduct.
Two of the seven cases were not even reversals, but rather legal motions that did not involve misconduct by the prosecutors.
In reality, of the seven cases there were more reversals due to decisions by trial judges (three), than due to decisions by prosecutors (two). Interestingly enough, nobody is suggesting there is a “systemic” effort by our trial judges to cheat defendants. Such a suggestion would be wrong, just as it is wrong to suggest that there is a systemic effort by OCDA prosecutors to do so.
Further, the appellate justices deciding these cases understood what the media did not: that as a legal term, “prosecutorial misconduct” can include unintentional…