I have previously writtenon these pages about the alleged prosecutorial misconduct by the Orange County District Attorney’s Office—misconduct that made national headlines. That incident prompted the California Legislature to introduce and enact a new lawthat that punishes California prosecutors who tamper with or withhold exculpatory evidence.

Prosecutorial misconduct is a problem across our nation’s criminal courts. I don’t mean to imply that all district attorneys’ offices are in the business of intentionally hiding or manipulating exculpatory or exonerating evidence, but it’s enough of a problem to be concerned. Sometimes the life of an innocent person is on the line because of—to put it charitably—overzealous prosecution.

Take the case of John Thompson. In 1984, he was convicted ofrobberyand murderin Louisiana. He was sentenced to death. Fortunately for Mr. Thompson, Louisiana is not a state quick to execute death row prisoners. After 18 years in prison—14 on death row—Mr. Thompson was exonerated and released. Turns out there was evidence that Mr. Thompson was innocent of the crime but the district attorney prosecuting the case concealed that evidence.

The evidence the district attorney concealed for 15 years until it was discovered by a private investigator included blood test that excluded Mr. Thompson as the perpetrator of the crime and information about a payment that was given to an informant to testify against Mr. Thompson. You might wonder why a prosecutor would do this. It may be that a prosecutor believes the defendant is guilty for whatever reason and doesn’t want to jeopardize a conviction or a more cynical view might be that the prosecutor is after as many convictions as possible, damn the evidence.

Mr. Thompson’s case is not unusual. As you probably know by now, the Innocence Project and other advocates have revisited hundreds, if not thousands, of prosecutions that ended up in the exoneration or the dismissal of the defendant due to prosecutorial misconduct.

The Innocence Project, along with other partners, conducted a rigorous study of prosecutorial misconduct. They published the 2016 Prosecutorial Oversight Report which resulted in some interesting findings. For example, the study found that the most common form of prosecutorial misconduct was not the withholding of evidence but improper argument.  Improper argument is, for example, inflammatory and improper comments, putting improper hypotheticals before a jury, misstating testimony at trial (say at the closing argument), or any statement or argument that is outside the record (i.e., not presented as evidence) that lead a jury (directly or indirectly) to a wrong conclusion, at least as far as the trial evidence goes.

The Innocence Project study looked at 660 confirmed cases of prosecutorial misconduct in four states; one of the states was California. Of the confirmed misconduct in those 660 cases, guess how many prosecutors were disciplined. One. The one prosecutor who was disciplined, in Texas, was disbarred after the reversal of a defendant convicted of capital murder. The prosecutor in that case intentionally withheld exonerating evidence that pointed to the defendant’s innocence. Unfortunately, the defendant spent 18 years of his life in prison, much of it on death row. Fortunately, the defendant was not executed in the high execution state of Texas.

The Innocence Project and its partners on the report are calling for tighter oversight and prosecutorial accountability. As more exonerated defendants who were victims of prosecutorial misconduct come to light, we can only hope that these injustices are addressed and prosecutors will be held accountable for any intentional misconduct.

For 25 years, Orange County criminal defense attorney William Weinberg has been a zealous advocate in service to those accused of a crime by the state. He is available for a free consultation regarding your criminal matter and can be reached at his Irvine office at 949-474-8008 or by emailing him at