PM – Endorsements

Endorsement – Bennett Gershman

Thanks for sharing with me your impressive and important report. It was an obviously a difficult and complex task of documentation, description, and analysis, and I have to say that you and your co-author Maurice Possley accomplished it exceptionally well.
To be sure, your report builds on the work of the Commission on the Fair Administration of Justice, but goes much further and in much greater detail and analysis. I can’t think of another report from any other state which has researched as exhaustively as you have done, and examined so closely, the numerous federal and state court decisions in the state of California finding serious misconduct by prosecutors.

Apart from detailing the many faces of prosecutorial misconduct, your report is noteworthy for highlighting the ongoing problem of recidivist prosecutors and identifying those prosecutors who are repeat offenders. Moreover, your report goes beyond the familiar complaint about the absence of professional discipline for prosecutors who commit misconduct. Your report details the dramatic –indeed, almost unbelievable discrepancy — between the extent of identifiable misconduct by prosecutors and the virtually total lack of professional discipline.

Your report points the fingers of blame for this scandal in the absolutely right direction — the failure of the judiciary, the disciplinary bodies, and the prosecutors offices themselves to identify the offending prosecutors, hold them accountable, and establish procedures to prevent further misconduct. As you note, your state imposes just such an explicit reporting duty on the judiciary, and the courts have failed dismally in this regard.

I found your chapter on the “costs and consequences” of prosecutorial misconduct especially powerful. Commentators don’t usually focus on the financial and emotional costs of the misconduct, which your report does most effectively. As well, your recommendations on how to prevent misconduct — particularly training, transparency, and self-discipline — are so realistic and meaningful that it is difficult to fathom why courts, lawmakers, bar associations, and prosecutors offices would not be quick to implement them.

Your report — and the title “Preventable Error” — will be cited often.

Congratulations on a most difficult and vitally important project so well done.
-BENNETT L. GERSHMAN, PACE UNIVERSITY SCHOOL OF LAW

(Note: A law professor at Pace University in New York, Gershman is one of the nation’s leading authorities on prosecutorial misconduct and has written two books on prosecutorial and judicial ethics. He is a former prosecutor for the Manhattan district attorney’s office.)


Endorsement – Harvey Silvergate

My 43 years in the field of criminal defense and civil liberties litigation and agitation have taught me much of what Kathleen Ridolfi and Maurice Possley have concluded in their epochal study of prosecutorial misconduct in California, “Preventable Error.” However, this vast and often complex and subtle subject has never occupied my mind in as orderly a fashion as it is found – skillfully distilled and powerfully demonstrated – in this invaluable report. Importantly, the report convinced me that the scandal of prosecutorial misconduct, especially when it results in the conviction of the innocent and the escape of the guilty, can in fact be addressed if the case is presented clearly, forcefully, and with sensible recommendations for reform.
Ridolfi and Possley perform a huge public service when they name the names of the errant prosecutors, and highlight the courts and judges who take too lightly their duty to see that justice be done when prosecutors fall down on their own obligation to do justice. Double standards are mercilessly exposed in this report – where unethical prosecutors get away with murder (sometimes nearly literally so, when a defendant is wrongly convicted in a death penalty case) while judges and professional disciplinary bodies bring down the hammer on defense counsel who wander from the ethical path. The intellectual dishonesty and fallacious reasoning of “harmless error” analysis is mercilessly stripped of its veneer and exposed for what it is: judges and courts seeking to evade what in their hearts and minds they surely recognize – that the enormous power of the state has been perverted for unjust ends. Ridolfi and Possley obviously value transparency and hence are not afraid to name the names of those who cause justice to be perverted or who fail to redress demonstrable misconduct and error. This report is a skillful combination of statistical evidence and riveting reporting.
This is an absolutely invaluable undertaking and resulting report. It should be emulated by innocence projects and other organizations in every state. It is by the accumulation of this kind of evidence, and the forceful presentation of sensible recommendations for reform, that we might indeed one day achieve the stated goal of justice – the conviction of the guilty, and the acquittal of the innocent, all accomplished by means both constitutional and ethical.

-Harvey A. Silverglate
(Harvey A. Silverglate is a criminal defense and civil liberties litigator who practices out of Cambridge and Boston, Massachusetts. He is a former President of the ACLU of Massachusetts; co-founder of the Massachusetts Association of Criminal Defense Lawyers; former lecturer at the Harvard Law School; author, most recently, of Three Felonies a Day: How the Feds Target the Innocent (Encounter Books, 2009); adjunct scholar at the Cato Institute; and regular on-line columnist on legal issues for forbes.com.)


Endorsement – John Van de Kamp

The Ridolfi-Possley Report on Prosecutorial Misconduct is an important contribution to the debate over how we should deal not only with prosecutorial conduct but attorney misconduct generally in criminal cases. It’s particularly important when the misconduct unfairly undermines the constitutional rights of defendants, placing their lives and that of their loved ones in great jeopardy.

Transparency is the buzz word of the day. But clearly, better reporting of attorney misconduct should be required of the Courts to the State Bar, followed by careful and appropriate follow-up by the State Bar’s disciplinary operation. Then too prosecutorial and defense offices need to make high ethical standards a key part of their culture through ongoing training, and monitoring breaches of those standards followed up by appropriate discipline when justified.

– John Van de Kamp
Former California Attorney General