Legal Missteps

By Patel, Julie | Investigative Reporters and Editors, Inc. The IRE Journal, November/December 2006 | Go to article overview

Legal Missteps

Patel, Julie, Investigative Reporters and Editors, Inc. The IRE Journal

Flawed judicial system results in high conviction rate, errors

It started out as a story about prosecutorial misconduct in Santa Clara County's criminal justice system, and it evolved into an investigation finding a system flawed by prosecutorial bias and miscarriages of justice.

The five-day series was three years in the making and found that a third of the 727 cases analyzed were marred by some form of questionable conduct on the part of prosecutors, defense attorneys or judges. We found nearly 100 instances of questionable behavior within our study period, and dozens in additional cases, involving more than two-dozen prosecutors.

We also revealed that the California's 6th District Court of Appeal routinely found prosecutorial and judicial error to be harmless to criminal defendants.

A systemic approach

In 2002, Noam Levey, a former courts reporter, began documenting problems with prosecutors. When Levey and Rick Tulsky, a veteran reporter with extensive criminal justice investigative experience, researched the issue, they repeatedly were told that the problem wasn't just with the prosecutors. Defense attorneys, trial judges and the appellate court also often failed to serve as checks on the system, leading to high conviction rates and few cases overturned on appeal, they were told by sources. In other words, there were problems system-wide.

"It was... the untold story of why Santa Clara County boasted of being a safe community," Tulsky said.

But if they were to report stories anecdotally, problems could be dismissed as aberrations. Borrowing from his experience on past projects, Tulsky proposed a systemic approach: examining every Santa Clara County criminal jury trial decided on appeal over a five-year period.

In order to keep the project manageable, Tulsky and Levey limited their focus to jury trials since they are often hotly contested and often use the most resources.

With the help of the 6th District Appellate Project - a court-funded organization that served to oversee and coordinate the appeals for indigents - Tulsky and Levey set up shop in the project's office. They began reading through briefs and opinions, searching for errors and summarizing each case in Microsoft Access database. The database included fields with basic information, such as the critical date of the crime, the charges, the name of the justices, and information about whether a case seemed significant and why.

As they reported initial findings to then-projects editor George Judson, they began considering how the paper would deal with cases in which errors were explained away by the appellate court, or the courts said the errors didn't influence the outcomes of cases. And what about the cases in which the appellate court did not find errors?

They decided to attack the problem in three ways: they would not attempt to find an error if the courts found no legal error and instead would call it "questionable conduct"; they'd be extremely careful when including cases in which the court did not find error; and they would have outside experts review such issues to confirm the paper's sense that questionable conduct occurred.

In the end, the project examined 727 appeals of criminal jury trials in a five-year period and found that about one in three suggested major problems. Specifically, we found;

* In nearly 100 cases, the prosecution may have engaged in questionable conduct that bolstered its effort to win convictions. Some Santa Clara County prosecutors may have withheld evidence that could have helped defendants, while others defied the judge's orders and some misled juries during closing arguments.

* In 100 cases, defense attorneys acted in ways that may have harmed their clients. In nearly 50 cases, the attorneys failed to take the most basic of measures, from properly investigating their case to presenting the evidence they gathered.

* In more than 150 cases, judges may have made missteps or made questionable rulings that favored the prosecution.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Cite this article

Cited article

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)


1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25,

Cited article

Legal Missteps


Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25,

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.