As it turned out, Cline’s luck held. The criminal justice system took no action against him, and the state bar association never expressed so much as mild disapproval. Thanks to Supreme Court decisions that protect prosecutors (but not police), he was immune from civil liability, accorded a legal status that mimics that of medieval monarchs who ruled their kingdoms and principalities by divine right.
The Northern California Innocence Project (NCIP), a legal group dedicated to exonerating wrongfully convicted individuals, is affiliated with the Santa Clara University School of Law. In a study of court records from 1997 to 2009, it reported that in 707 Northern California cases, courts found that prosecutors had committed misconduct. Three percent of these 707 cases went to trial, but in only six was anyone disciplined.3 There’s no reason to believe this phenomenon is peculiar to Northern California. A New York Innocence Project study found that the many cases reversed by Innocence Project offices around the country “exposed official misconduct at every level and stage of a criminal investigation.”4 Common forms of misconduct discovered include employing suggestion when conducting identification procedures; coercing false confessions; failing to turn over exculpatory evidence (although in some cases police fail to turn the evidence over to prosecutors); deliberately mishandling, mistreating, or destroying evidence; allowing witnesses to testify when authorities know or should know they aren’t being truthful; pressuring defense witnesses not to testify; relying on fraudulent forensic experts; and making misleading arguments that overstate the conclusiveness of testimony.
In the landmark case of Brady v. Maryland, the Supreme Court ruled in 1963 that prosecutors have a duty to share evidence that indicates a defendant is not guilty.5 But in case after case, prosecutors treat this decision as though it never happened. Even when a prosecutor is caught withholding evidence, nothing much happens. It’s a phenomenon that appears to have much in common with on-ice fights in the National Hockey League. If the league really wanted to end them, it clearly could do so.
The Northern California study, conducted by Kathleen Ridolfi, NCIP’s executive director, and Maurice Possley, a Pulitzer Prize–winning journalist, examined only those 3 percent of cases that went to trial. The 97 percent of cases resolved without trial nearly all ended in a guilty plea.6 These cases were no less likely to involve misconduct, but whatever transpired may as well have been on the dark side of the moon. The public sphere saw only the judge banging a gavel to pronounce the negotiated outcome.
In other developed democracies, judges and prosecutors are usually appointed civil servants. But in the United States, state prosecutors are mostly elected. And although federal prosecutors are appointed, they are more likely than their European counterparts to be angling for future political office—and are therefore more inclined to seek a spotlight. Some experts believe that this politicizing of prosecutorial duties has much to do with America’s incarceration syndrome.7 Playing the role of a crusading prosecutor is a traditional political path. Campaigns for prosecutorial office can devolve into a duel decided by which candidate best exploits the voters’ fear of victimization.
Cline, after winning a conviction in the Sodersten case, moved up to the elective office of district attorney in 1992 and kept that office for twenty years. He served in California’s mostly bleak Central Valley, where the principal industry is agriculture, primarily dairy, grapes, and citrus. Although Hispanics are in the majority in Tulare County, their voter turnout is low. Hard-core conservative Republicans rule, although criminal justice isn’t strictly a liberal-conservative issue.
Savvy defense attorney Kevin Donahue, who’s practiced almost thirty years in the Democratic stronghold of Los Angeles County, is still puzzled from time to time by the implacable attitudes of prosecutors he faces, and he’s not afraid to say so. I asked him to name an instance that particularly bothered him, and he immediately chose the case of a young man who was unquestionably guilty as charged:
I had this client who was twenty-five years old. He had two years of college. He was a good kid, and he had a clean record. But one night he got drunk and somewhere he got a gun, and he was out there and he was with these people and he was just wobbling drunk, and they were having a good time. They were all friendly. He had his arms around their necks, and at some point he said, “Give me your wallet.” And he took their jewelry too.8
His offense, Donahue readily concedes, was inexcusable and deserved conviction and punishment. But in California, the minimum for robbery at gunpoint is twelve years. With good behavior, a convict can get 15 percent lopped off the sentence, meaning his client would have to do a minimum of ten years, two months, a far lengthier term, Donahue believed, than was merited. His client needed a lesson, not obliteration. But he was up against another one of those statutes that can often be counterproductive, taking the clay of human beings who still have potential and molding them into broken or bitter ex-convicts whose survival skills aren’t taught in any scouting manuals. Donahue, wishing he could do more for the young man, knew the facts of the robbery were clear and made peace with the situation. But when he spoke to the prosecutor, he came away astonished. “She was set on giving him twenty-six years,” he recalled. He paused. “Twenty-six years. He’d never been in trouble before, and he didn’t hurt anybody. He was just a kid. And twelve years wasn’t enough?”
The assistant district attorney was adamant, but Donahue, who knows all the essential names and numbers in the Los Angeles criminal courts, managed to get his client before a judge he thought might show leniency in such a case, someone who would think twice before throwing a life away. Meanwhile the assistant district attorney continued to amaze him: “She told me, ‘If he doesn’t get at least 22 years I’ll never take a case before this judge again.’”
Finally, Donahue negotiated a deal for sixteen years with possibility for parole only after the defendant served 13 years, 6 months. Given the facts of the case, he was convinced that going to trial would have dug a deeper pit for his guilty client. Only after he banged the gavel on the sixteen years did the judge notice that no one had mentioned the other charges. There were several other charges against Donahue’s client relating to the one incident, which is typical.
“What you do in these cases,” Donahue explained, “is you plead guilty to one charge and drop the others. That’s the way it works. But the assistant [district attorney] told the judge, “We’re going to trial on the other charges.” She was trying to pile on more years. The judge looked at her and said, “I want you to go back to your supervisor and explain what’s going on here, that you made an agreement and this is what you’re doing about it.” Finally they dropped the other charges, and I was supposed to feel like I got a victory because my client got only sixteen years.
Are exceedingly stiff mandatory sentences ever a deterrent to potential lawbreakers? Probably. But the more pertinent questions are, Are they necessary? Are they fair and reasonable? Patrick Russell, a world-renowned boxing referee and retired detective who spent many years as an investigator in the San Diego District Attorney’s Office, points out that after carjackings began to surge, Congress passed a new federal statute that made them a federal crime punishable by ten years. “Word got out on the street that what looks like an easy crime isn’t so easy after all,” Russell recalled. “Just like that, carjacking pretty much disappeared.”9