The following op-ed was published by the San Jose, CA Mercury-News on November 11, 2009.
Prosecutor misconduct has a high public cost
By Kathleen 'Cookie' Ridolfi and Maurice Possley
Special to the Mercury News
Posted: 11/11/2009 08:00:00 PM PST
For the fourth time in as many years, Santa Clara County residents must cough up hundreds of thousands of their tax dollars due to allegations of prosecutorial misconduct.
Last month, the county authorized paying $750,000 to settle a lawsuit brought by Donna Auguste, whose Colorado home was illegally searched by police six years ago. As the citizens of Santa Clara County feel the sting of the $750,000 settlement, they should realize that this is not an isolated instance. It raises the cost to taxpayers due to prosecutorial misconduct accusations since 2005 to more than $5 million.
Earlier this year, the county forked over $1 million to settle a lawsuit alleging, in part, prosecutorial misconduct brought by Jeffrey Rodriguez, who was wrongfully convicted and released after five years in prison.
Two years ago, the county settled a similar suit brought by Rick Walker, who served 12 years in prison for a murder he did not commit. Santa Clara County paid $1.3 million in taxpayer dollars on top of $1.45 million paid by the county's insurance carrier. The state of California paid an additional $409,500 to compensate him for the 12 years he lost.
In 2005, the county paid nearly $1 million to Glen Nickerson, who spent nearly 19 years behind bars before his murder conviction was overturned following evidence of police and prosecutorial misconduct.
Remarkably, not a single prosecutor faced discipline in these prosecutions, with the exception of Santa Clara County prosecutor Ben Field. Field, who orchestrated the illegal search in the Auguste case and whose multiple prosecutorial misdeeds have been exposed by the Mercury News, has been ordered to surrender his law license for four years.
But the cost of prosecutorial misconduct goes far beyond the dollars removed from taxpayer wallets.
Donna Auguste, for example, spent $900,000 to free her nephew. There is the cost of the hundreds of hours racked up by attorneys in the office of Santa Clara County Counsel who defended the lawsuit. This is time that could have been spent on other matters of importance to the citizenry.
And what price do you put on the more than 40 years that Walker, Nickerson, Rodriguez and Damon Auguste spent behind bars before they were exonerated? The cost of housing them alone is more than $1 million. The personal cost to these men cannot be quantified. Those years are gone.
Perhaps most significant is the immeasurable cost and risk to society of having the real perpetrators still out there.
Prosecutors rarely suffer personal consequences for engaging in misconduct. They have absolute immunity for their official conduct as advocates, and when acting as investigators, they can be held liable for their misconduct only if it violates the law.
A recent study by the California Commission on the Fair Administration of Justice examined California appellate court rulings and found that during the ten year period ending in 2007, prosecutors committed misconduct in 444 cases, yet only two were disciplined. Thirty of them committed misconduct more than once. Two of them did it three times. Virtually all of these prosecutors walked away unscathed.
In these difficult economic times, taxpayers might well wonder if they can continue to spend this kind of money to support a criminal justice system that allows prosecutors to avoid personal responsibility, innocent defendants to be locked up, and true criminals to go free. But this is not a decision that should be based solely on dollars, no matter what the economy is doing.
Too much is at stake.
KATHLEEN RIDOLFI is executive director of the Northern California Innocence Project at Santa Clara University School of Law. MAURICE POSSLEY, a Pulitzer Prize winning former investigative reporter for the Chicago Tribune, is an investigator and researcher with the project. They wrote this article for the Mercury News.