SUMMARY:

This position paper addresses some serious ethical issues in the Santa Clara County District Attorney’s Office that were revealed in a series of articles printed in the San Jose Mercury News called “Tainted Trials, Stolen Justice.”

The First Installment of this position paper provides background on the ethical problems identified by the San Jose Mercury News and introduces the role of office management in creating them.

The Second Installment identifies two flawed management practices that contribute to the problems: an over-emphasis on winning as a criterion for promotion,; and micromanagement.

This installment explores the nature and consequences of two additional flawed management practices employed by the Office.

As an accompaniment to this general piece on ethics, I have written a Briefing Paper intended primarily for professionals in the District Attorney’s Office. This paper outlines certain principles and policies that I would put in place following my election to the Office. I invite prosecutors, investigators, and other professionals who work in the Office to review this paper by clicking on the link, Management Policies.)

INSTALLMENT THREE:

A Dangerous View of the Courts and the Defense

1. Treating Other Stakeholders in the Criminal Justice System as Adversaries

We operate in an adversarial system. In this rough and tumble environment, some defense attorneys may bend the rules of criminal procedure and evidence (or even violate them with impunity). Some judges may not always properly apply those rules. When the system does not work properly, prosecutors often can only watch as criminals are freed to commit additional crimes against the community.

In this environment, it is not surprising that most prosecutors’ offices feature a certain “us against them” mentality. However, in the Santa Clara County District Attorney’s Office, a healthy esprit de corps may have turned into a disregard for the interests, opinions and complaints of the other stakeholders in our criminal justice system—and in a few cases, the integrity of the system itself.

A. Flawed Practice #3: Disregarding Checks and Balances

The Mercury News cited instances where complaints by judges and defense attorneys that prosecutors had crossed ethical lines did not appear to motivate management to take decisive action, even after internal investigations showed those complaints to be valid. A few parts of the Mercury News series are particularly troubling. For example, “[y]ou cannot do wrong by pushing too far,'' one former Santa Clara County prosecutor said of the tenor of the office. “You only can go wrong if you don't push hard enough.''

It is tempting to discard claims from anonymous sources. But two incidents appear to support this assessment that “the ends justify the means.”

Incident #1: The Training Tape. The Mercury News reports that a videotape of a training session in the Office “shows a session before a room full of prosecutors, where [a supervisor] advises his colleagues to take advantage of their status as the only people in the courtroom versed on the laws of evidence. ‘There is not a great body of knowledge on our bench,’ he said -- meaning prosecutors can expect defense attorneys to fail to protest and judges to fail to exclude some forms of evidence that should not be admitted. ‘So what the hell,’ [the supervisor] told the prosecutors, ‘keep doing it.’ As laughter rang from the audience, [the supervisor] went on: ‘Right? If they don't object, it's all good.’ ”

I requested a copy of the tape from the District Attorney’s Office, and reviewed it. It should be noted that the Mercury News report quoted above combined isolated comments from the entire session. However, the tape does show the supervisor training junior prosecutors that:

• Judges are generally ignorant of the rules of evidence, particularly the rules governing the admissibility of hearsay evidence.
• Prosecutors should take advantage of that fact by introducing hearsay evidence which at least one appellate court has stated is inadmissible.
• BUT if the defense seeks to admit that evidence in cases where it helps the defendant, prosecutors should object that the evidence is inadmissible based on that same appellate case.

Management Attitude Discourages Ethical Approach. The border between aggressive advocacy and gamesmanship is not always clear, but this episode supports claims that:

• Management did not always clearly communicate that there is a line, and that prosecutors should be careful not to cross it.
• The manager’s advice was also risky. Prosecutors who rely on ill-prepared defense lawyers and novice judges to admit inadmissible evidence risk reversal on appeal. Prosecutors should not depend upon mistakes by judges and opponents to win cases.
• The published response of a senior manager to the manager’s exhortation suggests that she also failed to see the big picture. When the Mercury News asked the Chief Assistant about the manager’s statement, she said that the legal advice was correct, although she added: “I don't think it would necessarily look good to people outside the office.”

Analysis of Behavior. First of all, prosecutors should not seek to admit evidence which case law states is inadmissible. Secondly, a culture which encourages conduct that does not “look good” to people on the street or the rest of the criminal justice stakeholders is a broken culture. An ethos where “pushing too far” is condoned, while “not pushing hard enough” is criticized, invites over-reaching. Management which views the other stakeholders in the system as unworthy of respect isolates itself from warning signals that prosecutors may be crossing ethical boundaries.

Incident #2: The Kan/Lee Case. The Kan/Lee Palo Alto police brutality case suggests that this ethos did indeed foster unethical conduct. Mercury News and the Metro articles on the case, as well as court transcripts, paint a disturbing picture about the prosecution in this case. From the Mercury News:

“Weeks before two Palo Alto police officers went on trial last March for beating a motorist, the prosecutor asked a San Jose police training specialist to determine if the officers acted appropriately. But Sgt. Jeff Martin came to a conclusion at odds with the prosecution's case: The officers, he told deputy district attorney Peter Waite, had acted properly and legally. When Martin handed Waite a written report confirming those conclusions, Waite refused to accept it. Although he had a legal duty to provide the defense with any evidence that could help its case, Waite delayed telling the officers' lawyers about Martin or his report until the eve of the trial -- after Martin complained to supervisors that Waite was improperly withholding evidence.”

 

The Mercury News article also discussed Waite’s response to those charges:

“Prosecutor Waite, in court and in interviews, offered a series of explanations to demonstrate that his actions were proper. He said Superior Court Judge Andrea Bryan indicated before trial that she was not inclined to allow expert testimony on the officers' conduct. During trial, however, the judge allowed such expert testimony. In any event, he said, he notified the defense of Martin's report before a jury was selected and that it echoed what their experts already had concluded. He also said the defense delayed providing him with the names of their experts and details of their reports. In court, Waite said that he believed the accusation that he improperly withheld evidence was a ‘sham'’ intended to ‘destroy my credibility in front of the jury.’ During the trial, Judge Bryan expressed disapproval over Waite's decision, but she did not sanction him, ruling that the defense was not harmed by the delayed disclosure.”

 

Flawed Rationale for Not Turning Over Evidence Can there be any question that withholding Sgt. Martin’s opinion violated the prosecutor’s obligation to turn over exculpatory evidence? Here was a police expert stating that the defendants were not guilty of the charges. The obligation to turn it over began the moment the prosecutor became aware of its existence. Mr. Waite’s excuses for his misconduct are unavailing and reveal what happens when a “win at all costs” culture collides with the prosecutor’s duty to seek and disclose the truth.

• Mr. Waite’s claim that the judge indicated that she was “not inclined” to allow expert testimony on whether Kan and Lee acted properly fails for two reasons. First, Judge Bryan did not know that the prosecution’s own expert believed that the defendants were not guilty--that information had been suppressed. Second, and more important, the obligation to turn over exculpatory evidence exists regardless of whether that evidence is ultimately ruled admissible at trial.
• Mr. Waite’s claim that Sgt. Martin’s report could be suppressed because the defense had its own experts is specious. Defense experts can be impeached on the grounds of bias; a prosecution expert who reaches the same conclusion as the defense experts is a rare and valuable asset for the defense. The prosecutor in effect attempted to withhold a key witness from the defense.
• The claim that the defense also delayed providing discovery to the prosecution is also irrelevant. The obligation to turn over evidence pointing to innocence does not disappear simply because the defense may not fulfill its discovery obligations; the Constitution does not operate on a “two wrongs make a right” basis.

Sanctions by the Court. One item that the press did not get right: Judge Bryan viewed this prosecutorial misconduct seriously. In addition to noting her disapproval of Waite’s actions, she sanctioned the People by allowing the defense attorney to examine Sgt. Martin in front of the jury about Waite’s failure to turn over the report to the defense. As any trial lawyer knows, this is a serious evidentiary sanction which belies any claims of “no harm, no foul.”

In other words, although the court did not make a formal finding of a Brady violation, she did allow the jury to hear the circumstances under which the prosecutor had hidden important expert opinion from the defense.

Perhaps the court assumed that Mr. Waite would be held accountable by his superiors. If so, apparently top management did not get the message. Mr. Waite is still prosecuting homicide cases.

B. Flawed Practice #4: Failing to Recognize Confirmatory Bias

One consequence of training prosecutors to consider judges and defense attorneys to be mere obstacles to the pursuit of justice is that prosecutors are NOT trained to recognize and combat confirmatory bias.

What is “confirmatory bias”? Generally, when someone reaches a decision about a problem, that person can find it very difficult to change his or her mind. Confirmatory bias means that, when presented with new information about that problem, the person tends to credit information that supports the decision and ignore information that does not. This is particularly true after the person has spent time and resources in reliance on that decision. Nobody wants to admit to him or herself and others that he or she wasted time and resources moving down the wrong path.

Confirmatory Bias in Law. As that term is used here, confirmatory bias means that a prosecuting attorney operates proactively on a theory and/or conclusion without being open to considering that it might be wrong. This creates a significant problem because prosecutors are often faced with new claims of innocence well after charges are filed. Defense attorneys work to create reasonable doubt, and the news that a defendant faces charges may bring other witnesses, credible or otherwise, to report new evidence to investigators and prosecutors. The danger here is that prosecutors who have been trained to dismiss defense attorneys as mere obstacles to convictions are more likely to ignore valid claims of innocence.

We all recognize the risk of human error and wrongful conviction. Confirmatory bias is one of the risk factors for such convictions, and it deserves serious attention within the Office. Senior management’s efforts to do so have been perfunctory at best.

For example, after the Mercury News published its series, it printed an assurance by top management that it had taken several steps to re-emphasize the need to be vigilant against wrongful prosecutions. Those steps included “mandatory training of assistants.”

The public (and even the Mercury News) may have been confused by nomenclature. In most counties, the line prosecutors are called “assistants”, and the term “deputy” is reserved for the top managers. In Santa Clara County, those terms are reversed. “Assistants” refers to the half dozen top managers; the trial lawyers are “deputies.” In other words, the District Attorney’s Office apparently trained the top managers, but not the 170 line prosecutors, (the lawyers actually handling cases), to recognize confirmatory bias.

Smart organizations learn from their experiences and communicate those lessons to all employees. The District Attorney’s Office needs to confront its past. Part of that discussion should include the problem of confirmatory bias.

C. Summary

Some senior managers in the District Attorney’s Office have cultivated a culture that is overly focused on winning cases. This focus is manifest in flawed management practices that encourage risky and occasionally unethical behavior. Prosecutors are encouraged to disregard concerns expressed by other stakeholders in the criminal justice system about these practices. There are documented instances where misconduct by prosecutors that lead to sanctions and reversals in the courts has been accepted by senior management.

The net result can be a dangerous disregard of checks and balances built into the criminal justice system that can work against the fair administration of justice. One consequence of training prosecutors to consider judges and defense attorneys as obstacles to conviction is that they are not trained to recognize and combat confirmatory bias, and hence, are even more prone to disregard valid claims of innocence.

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The next installment of this paper will discuss the lessons to be learned from the Mercury News series, and top management’s apparent failure to learn those lessons.