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Tony Rackauckas

Harvard Study on Prosecutorial Misconduct Filled With Falsehoods; Should Be Retracted

The numbers were startling.

Tony Rackauckas, Orange County District Attorney

Tony Rackauckas, Orange County District Attorney

According to media reports, a newly formed group affiliated with Harvard Law School called the “Fair Punishment Project” (FPP) 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 covets 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 errors and the slightest of misstatements. As a result, the Court of Appeal did not find the vast majority of misconduct cited in the report to be willful or serious, and instead used descriptions like “a rather minor digression,” “a few stray words,” or in one instance, “a single improper question in the course of a lengthy trial.”

Putting the correct numbers of the FPP in perspective, they cite over 150 cases between 2010 and 2015 where a convicted defendant claimed he/she didn’t get a fair trial due to prosecutorial misconduct, and in all but two cases, over 98 percent of the time, the Court of Appeal disagreed. While a single reversal due to misconduct is unacceptable, these numbers in context display what I have long known to be true: that the OCDA has a consistent superb record of fairly convicting guilty defendants to keep our community safe, and give victims and their families a sense of justice.

It’s unfortunate Harvard University has sullied itself by publishing such an unscholarly study. It is irresponsible for the group, no matter its anti-prosecutorial and public safety agenda, to publish such a “study” and double down when they are about to be exposed, and for the media to parrot it even when they had the raw data. Finally, it is pathetic for a politician to try to cheer on case reversals and seek political gain from pain to crime victims.

The OCDA is aware of the huge responsibility that the prosecution has and our number one duty is to do justice while seeking public safety. Academics, reporters, and politicians also have their respective responsibilities to state the truth. Blindly repeating claims of misconduct is reckless at best, and promotes an unwarranted and dangerous distrust within our community, even when those claims are proven false.

Let us hope the next time such claims are made, the response is to search for the truth, rather than a headline.

Tony Rackauckas is Orange County District Attorney.