LEGAL MISSTEPS

Investigative Reporters and Editors, Inc. The IRE Journal, Nov/Dec 2006 by Patel, Julie

Flawed judicial system results in high conviction rate, errors

It started out as a story about prosecutorial misconduct in Santa Clara County's criminal justice system, and it evolved into an investigation finding a system flawed by prosecutorial bias and miscarriages of justice.

The five-day series was three years in the making and found that a third of the 727 cases analyzed were marred by some form of questionable conduct on the part of prosecutors, defense attorneys or judges. We found nearly 100 instances of questionable behavior within our study period, and dozens in additional cases, involving more than two-dozen prosecutors.

We also revealed that the California's 6th District Court of Appeal routinely found prosecutorial and judicial error to be harmless to criminal defendants.

A systemic approach

In 2002, Noam Levey, a former courts reporter, began documenting problems with prosecutors. When Levey and Rick Tulsky, a veteran reporter with extensive criminal justice investigative experience, researched the issue, they repeatedly were told that the problem wasn't just with the prosecutors. Defense attorneys, trial judges and the appellate court also often failed to serve as checks on the system, leading to high conviction rates and few cases overturned on appeal, they were told by sources. In other words, there were problems system-wide.

"It was... the untold story of why Santa Clara County boasted of being a safe community," Tulsky said.

But if they were to report stories anecdotally, problems could be dismissed as aberrations. Borrowing from his experience on past projects, Tulsky proposed a systemic approach: examining every Santa Clara County criminal jury trial decided on appeal over a five-year period.

In order to keep the project manageable, Tulsky and Levey limited their focus to jury trials since they are often hotly contested and often use the most resources.

With the help of the 6th District Appellate Project - a court-funded organization that served to oversee and coordinate the appeals for indigents - Tulsky and Levey set up shop in the project's office. They began reading through briefs and opinions, searching for errors and summarizing each case in Microsoft Access database. The database included fields with basic information, such as the critical date of the crime, the charges, the name of the justices, and information about whether a case seemed significant and why.

As they reported initial findings to then-projects editor George Judson, they began considering how the paper would deal with cases in which errors were explained away by the appellate court, or the courts said the errors didn't influence the outcomes of cases. And what about the cases in which the appellate court did not find errors?

They decided to attack the problem in three ways: they would not attempt to find an error if the courts found no legal error and instead would call it "questionable conduct"; they'd be extremely careful when including cases in which the court did not find error; and they would have outside experts review such issues to confirm the paper's sense that questionable conduct occurred.

In the end, the project examined 727 appeals of criminal jury trials in a five-year period and found that about one in three suggested major problems. Specifically, we found;

* In nearly 100 cases, the prosecution may have engaged in questionable conduct that bolstered its effort to win convictions. Some Santa Clara County prosecutors may have withheld evidence that could have helped defendants, while others defied the judge's orders and some misled juries during closing arguments.

* In 100 cases, defense attorneys acted in ways that may have harmed their clients. In nearly 50 cases, the attorneys failed to take the most basic of measures, from properly investigating their case to presenting the evidence they gathered.

* In more than 150 cases, judges may have made missteps or made questionable rulings that favored the prosecution. Trial judges may have violated legal precedents by allowing evidence that unfairly tainted defendants and prohibited evidence that might have supported their defense.

* The 6th District Court of Appeal, the primary court of review for Santa Clara County cases, upheld verdicts in more than 100 cases even as it acknowledged errors had occurred. The appellate court concluded those errors made no difference in the outcome of the case. Sometimes those conclusions were appropriate, but a review of the appellate record and consultations with experts call into question the outcomes in more than 50 cases in which the court misstated facts, twisted logic and utilized dubious rationales to dismiss the error.

Correcting mistakes

Levey and Tulsky also reported on the people who had actually been affected. One such case was that of Miguel Sermeno, who in the summer of 1995 was standing in a crowd gathered at the scene of a hit-and-run accident. Three bystanders said Sermeno resembled the driver who had fled.

Sermeno was arrested; the police were so sure they had the right man that they did not fingerprint the car. Later, prosecutor Terence Tighe persisted in trying Sermeno, even though he was not the registered owner of the car and had no known connection to the other passengers. Tighe also withheld information that could have helped the defense find the car's owner. The trial judge found that Tighe had withheld information about the driver, like his nickname and the fact that he had a past arrest. The judge also found the defense had some responsibility to get that documentation independently. The trial judge refused to accept as evidence a photograph of the registered owner of the car, who strikingly resembled Sermeno.