A hearing of the U.S. Court of Appeals for the 9th Circuit in California provided a rare and critical examination of a murder case in which prosecutors presented false evidence but were never investigated or disciplined, the Los Angeles Times reports. The low-profile case might have gone unnoticed if not for the video, which attorneys emailed to other attorneys and debated on blogs. In a series of searing questions, the three judges expressed frustration and anger that California state judges were not cracking down on prosecutorial misconduct. By law, federal judges are supposed to defer to the decisions of state court judges. Prosecutors “got caught this time but they are going to keep doing it because they have state judges who are willing to look the other way,” said appeals judge Alex Kozinski.
Santa Clara University law Prof. Gerald Uelmen said the judges’ questions and tone showed they had lost patience with California courts. State judges are supposed to refer errant lawyers, including prosecutors, to the state bar for discipline, but they rarely do, Uelmen said. “It is a cumulative type thing,” Uelmen said. “The 9th Circuit keeps seeing this misconduct over and over again. This is one way they can really call attention to it.” A 2010 report by the Northern California Innocence Project cited 707 cases in which state courts found prosecutorial misconduct over 11 years. Only six of the prosecutors were disciplined, and the courts upheld 80 percent of the convictions in spite of the improprieties, the study found.