Date: September 13, 2017


SANTA ANA, Calif. – The Orange County District Attorney’s Office (OCDA) Special Prosecutions Unit announced that it has debunked the false information put out by the Fair Punishment Project (FPP), a newly formed group affiliated with Harvard Law School, when it fact-checked the report as part of the Unit’s conviction integrity function. The public is being misled about the record and the integrity of the prosecutors in the OCDA.

District Attorney Tony Rackauckas states, “OCDA prosecutors handle over 60,000 new cases each year, which equates to well over 300,000 cases within the study period. Without a doubt, the OCDA will never stop looking for ways to improve.” Rackauckas continued, “That is why we wanted to delve into the numbers, which simply do not add up. Five of the seven appellate decisions designated by the FPP as cases showing reversals for prosecutorial misconduct contained no finding of prosecutorial misconduct, including one that explicitly said, ‘We do not find fault with the prosecution.’”

Harvard’s Original Report

On July 13, 2017, Harvard Law School’s FPP published a report titled “The Recidivists: New Report on Rates of Prosecutorial Misconduct.” The report stated it reviewed appellate court decisions from 2010 to 2015 in various jurisdictions, and compared the frequency of misconduct findings to determine which counties had the highest rates of both prosecutorial misconduct and reversals due to prosecutorial misconduct. According to the FPP, Orange County ranked as one of the worst offenders, and was one of four counties highlighted as a “recidivist” in their report.

The original FPP report ranks the OCDA as first out of 58 California counties in conviction reversals per capita, but after a correction on Sept. 11, 2017, the OCDA dropped to fourth. Their report provided no raw data or a list of which cases it references. Media were initially told that there were seven reversals due to prosecutorial misconduct and 25 findings of prosecutorial misconduct between 2010 and 2015. Since the update, the FPP has changed their figures, but their numbers are still incorrect. The FPP revision states, “it came to our attention that an extremely small percentage were either incorrectly categorized, or the county was previously unknown but has now been identified, or they were “close calls” that could have gone either way.” In the study FPP originally published, five out of the seven claimed case reversals were categorized incorrectly – 71 percent – and even with their updated figure of four reversals due to prosecutorial misconduct, only two are appropriately counted.

A local newspaper’s editorial board states, “These are not cases of errors, but of willful and serious misconduct, which can include the use of fabricated evidence, introduction of false testimony, and withholding of evidence that points to innocence.” According to the California Supreme Court in 2014 however, “The term prosecutorial misconduct is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind. A more apt description of the transgression is prosecutorial error.” (Justice Corrigan, People v. Centeno, 2014). The media, politicians, and others will likely continue repeating the “worst record in the state” claim, creating widespread and unwarranted distrust of the Office in our community. The mission of the OCDA is to establish a sense of security in the community, which is why we have invested the time to objectively proving the falsity of the FPP’s claims.

OCDA Exposes Truth Using FPP’s Own Data

The OCDA was able to obtain a copy of the raw data for California which FPP used to calculate their findings. The Special Prosecutions Unit analyzed the actual language of each appellate decision for objective evidence of misconduct. The result? The FPP’s “study” was grossly inaccurate.

Seven “Reversals” Listed in Initial FPP Report

Two of the cases were not reversals at all.

  •  People v. Edward Rezek (Case # 10CM00225) – no allegation or finding of prosecutorial misconduct

Rezek was convicted and did not appeal.

The Pitchess motion (which is a motion by the defense to obtain the personnel records of a police officer) between the Tustin City Attorney and the defense attorney did not affect the jury trial.

  •  People v. Daniel Alvarez (Case # 12NF3284) – no finding of prosecutorial misconduct

The case was dismissed due to a Trombetta motion (a defense motion moving to dismiss alleging police failure to preserve physical evidence) because video evidence was destroyed by the police department.

Three of the cases were reversed for judicial error, not prosecutorial misconduct.

  •  People v. Sunyhe Choi (Case # 05HF1371) – the court found that the trial judge improperly sustained foundation objections

“As noted, because we reverse for other, independent reasons, we need not decide in this opinion whether the prosecutor committed misconduct, or whether the defense counsel’s failure to object was ineffective assistance, or whether the trial judge, simply to prevent a miscarriage of justice based on an argument to a jury whose emotions were being rubbed raw, should have stepped in.” (Justice Sills)

  •  People v. Richard Mendoza (Case # 08CF2187) – the court found that the trial judge failed to disclose Juvenile Records to the defense

“We do not find fault with the prosecution because it acted on the direction of the court and we find nothing in the record to even suggest that the prosecution urged the court to withhold this evidence from defendant. But the result was the same and requires a reversal of the unlawful driving charge.” (Justice Rylaarsdam)

  •  People v. Venson Villapando (Case # 10WF0127) – the court found that the trial judge erred by not instructing on entrapment

“Because we reverse for a new trial on this ground, we need not reach Villapando’s other contention of error.” (Justice Fybel)

OCDA agrees that two cases were appropriately included in the study as cases where the Court of Appeal reversed due to improper prosecutorial argument at closing.

  • People v. Christopher Lloyd (Case # 12WF1654)
  • People v. Thomas Ramirez (Case # 07CF0359)

In the FPP’s update published on Sept. 11, 2017, People v. Daniel Alvarez and People v. Richard Mendoza were still includedin their calculation for reversals due to prosecutorial misconduct, despite the fact that those cases clearly do not fit that definition.

Original 25 Findings of Prosecutorial Misconduct Claimed by FPP

Several of the 25 cases the FPP originally claimed had findings of prosecutorial misconduct were proven incorrect, including:

  • Three cases that were reversed due to judicial, not prosecutorial error, as listed above.
  • One case that was decided in 2016 and thus outside of the study’s self-imposed date range (People v. Kyle Kahn).
  • Three additional cases that were not reversed, and did not have a finding of prosecutorial misconduct.
  • People v. Thomas Prieto (Case # 08WF2400)
  • People v. Rubicel Perez (Case # 09CF0303)
  • People v. Phillip Sanders (Case # 08NF3566)

A correct analysis of the cases contained in the FPP’s data reveals two cases reversed for prosecutorial misconduct, not seven as initially claimed by FPP, or even four as revised by the FPP.

To put these numbers in context:

  •  140 out of 158 appellate decisions where prosecutorial misconduct was alleged had no such finding by the Court of Appeal (89 percent)
  •  16 of 18 instances of prosecutorial misconduct found by Court of Appeal to be harmless (89 percent)
  •  156 of 158 cases where a defendant claimed he or she did not get a fair trial due to prosecutorial misconduct, our Court of Appeal disagreed (99 percent)

“Speaking Truth to Power” is a noble and worthwhile objective for the media and politicians to pursue and should be first and foremost about the truth. Blindly repeating claims of misconduct is reckless at best, and promotes an unwarranted and dangerous distrust within our community, even when those claims are proven false.

Rackauckas concluded, “Scholars, reporters, and politicians also have their respective responsibilities to seek and state the truth. It is my hope that they will take their responsibility as seriously as we take ours.”

The summary of charges for each defendant, “Exposing the Truth of the Harvard Study – News Conference PowerPoint” is available at by selecting Reports under the Reports pull-down menu.