More prosecutorial misconduct should be examined

The Innocence Project (November) has presented irrefutable proof of the existence of prosecutorial misconduct. The response that only a small number of prosecutors engage in such behavior is beside the point — clearly some action must be taken.

The State Bar’s recent laudatory response is to review reported cases for misconduct “which made a difference in trial and . . . weight whether further discipline is warranted.”

However, it is not clear that the Innocence Project examined all appellate cases, as there are probably substantial numbers of unpublished opinions which may deal with prosecutorial misconduct. These unpublished opinions, by implication, will not be examined by the bar. It is difficult to imagine that it would be fundamentally fair to examine (let alone charge) conduct appearing in published opinions but do nothing about such misconduct appearing in unpublished opinions.

Moreover, the 12-year span of the study, 1997-2009, even excluding the unpublished cases, presents issues of due process which were not raised in the Innocence Project study. With all due respect, an appellate opinion stating that prosecutorial misconduct had occurred in a case cannot be taken as an adjudicated fact for a subsequent disciplinary proceeding. Therefore, an examination of the trial transcripts, at a minimum, must be made before disciplinary proceedings are instituted. In connection with this, there is a possibility that in any given older case the transcripts are not extant. Finally, whether or not material relevant to the alleged misconduct has been lost over time, there must be consideration of whether misconduct occurring up to 12 years ago should now be the subject of a disciplinary proceeding.

The Innocence Project report establishes what the appellate courts thought of alleged acts of prosecutorial misconduct. The State Bar, in undertaking a review of these acts, must do more than collate the cases; it must examine these acts in a manner consistent with constitutional rights and considered prosecutorial discretion.

James Ching
Sacramento

Thanks from a vet

I am grateful to our president for bringing so many of us former military officers up to date on how our young lawyers give their skills to our government and our country (November). The new (10 years ago) change in our main military arena certainly brings forth military legal functions not even dreamt about in the past. Thank you very much, Bill Hebert.

Robert C. Schleh
Sacramento

Iowa voters were right

While legal experts are alarmed about the turn out of office of those Iowa Supreme Court judges by the election process, there is more to this than a threat to the third branch of government. That danger is that the courts in New Jersey, Massachusetts and Iowa have declared under their state’s equal protection clause that same-sex marriage is constitutional and laws forbidding it are unconstitutional. The fact is that these courts have touched an area that is beyond the legal and goes to the core of the social contract. In giving marriage a new definition — contrary to every civilization, code of laws and religion known to us — these courts are in the foundational area of these societies that only the people can decide. The nature of marriage and abortion is foundational to society and is not a legal question but moral and philosophical. These decisions by the courts undercut those societal foundations where they have no right to intrude. It is strictly up to the people to decide what their society will be in these foundational areas.

The people of Iowa therefore were correct in voting the three Supreme Court judges out of office because they overstepped the legal bounds and entered the foundational aspects of society itself. Their legal decisions in this area are utterly misplaced. It is up to the people to determine what the structure of their society will be.

Peter Riga
Houston

Welcome to the 19th century

Going on a year since the paper version was discontinued, I see you are still receiving complaints about the new-fangled electric version of your Bar Journal down there in San Francisco. Though brief, the tone of these letters evidences a longing for the communication efficiencies of the 19th century, so I must assume many of them arrive in your offices by Western Union, each word carefully pasted to the small beige half-page and hand-delivered by a sprite lad in a crisp black cap and sharply-pressed uniform with his name on a shiny brass plate pinned to his breast. Probably a solid name, too, like Tom or Jack or Buster.

No doubt others are meticulously handwritten with genuine India ink and a freshly nibbed pen, using the flowing Palmer or Peterson method and quality high-rag-content paper from the stationers down the street. When held up to the gaslight in your office, you will doubtless see that the paper bears a handsome watermark of the Statue of Liberty. With the envelope sealed with wax and a stamp firmly affixed to the corner with a generous dollop of spit or Col. Belmont's Horse Glue, they were likely delivered to the custody of the postman at the appointed hour for receiving such things and arrived in your offices within the week, provided the train was not waylaid by hooligans or savages.

Please continue to publish such letters. To a youngster barely 70, they provide a valuable historical perspective, recalling as they do a time when everyone then living is now dead, or vice versa, or in a Confederate prison. I suggest the electric version of your paper may be more widely accepted if you would put a digital watermark of Columbia the Gem of the Ocean on each page, and perhaps ran that popular comic strip, “L’il Abner.” Otherwise, as one letter writer seemed to imply, a la Yogi Berra, hardly anyone who wrote to complain about it reads it anymore.

Bob Edwards
Sonoma

Back to print, please

I just read the electronic version for the first time. It tends to get lost in the mountains of e-mail I get so it is easy to overlook. It is far from easy to read – lots of back-clicking and jumping, and it’s easy to miss things I would have routinely read otherwise. I doubt I will read it again. I wish we had a paper option.

Patrick G. Cherry
Ventura

An e-complaint

Oh no! Does everything have to operate with an “e”? Why can’t I just curl up with my magazine instead of having to look at the artificial light of the monitor again at the end of the day?

B. Keith Martin
Santa Barbara