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45 Cal. W. L. Rev. 373 (2008-2009)
Prosecutorial Misconduct in Death Penalty Cases

handle is hein.journals/cwlr45 and id is 377 raw text is: PROSECUTORIAL MISCONDUCT IN DEATH PENALTY CASES NATASHA MINSKER* OVERVIEW Professional responsibility by both defense attorneys and prosecutors is critical in every criminal case. But when the state seeks the ultimate punishment of death, attorneys on both sides should be expected to adhere strictly to the highest standards of professional conduct. Unfortunately, in death penalty cases in California, all too often both prosecutors and defense attorneys fall far below this ideal with little consequence.1 Indeed, our research reveals that even in the most egregious case in which prosecutorial misconduct led to the reversal of a death sentence in California, the prosecutor has never been publicly disciplined. Further, we identified the prosecutors in six out of eight death penalty cases that were reversed for prosecutorial * Death Penalty Policy Director of the ACLU of Northern California. Previously, Ms. Minsker spent five years at the Alameda County Public Defender's Office. She also served as staff attorney to the Judicial Council of California's Task Force on Criminal Jury Instructions, helping the committee research and draft the CALCRIM instructions. She clerked for the Honorable Martha Vazquez, Chief Judge of the Federal District Court of New Mexico, and is a graduate of Stanford Law School. Daniel Ballon contributed invaluable assistance to the research and writing of this article. This article was first submitted to the California Commission on the Fair Administration of Justice in conjunction with its investigation into prosecutorial misconduct in California. See http://www.ccfaj.org/documents/reports/ prosecutorial/expert/ACLU%20Letter.pdf. 1. Indeed, two of the cases of actual execution discussed at length in this article involve both prosecutorial misconduct and ineffective assistance of counsel. Thompson v. Calderon, 120 F.3d 1045 (9th Cir. 1997); People v. Babbitt, 755 P.2d 253 (Cal. 1988). Thus, although this article focuses on the role of prosecutorial misconduct in death penalty cases, it is important to consider both misconduct and ineffective assistance of counsel together as they are often both present in cases that result in questionable death sentences. 373

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