Will Making it a Felony Curb Prosecutorial Misconduct?

Scott Sanders
Orange County Assistant Public Defender Scott Sanders speaking in Davis in 2014

It was nearly six years ago that a report from the Northern California Innocence Project documented the high level of prosecutorial misconduct and the very low level of discipline for those who were cited with the misconduct by judges in California.

Since that time, the Vanguard has brought Orange County Assistant Public Defender Scott Sanders, in 2014, to speak on prosecutorial misconduct.  Mr. Sanders in 2013 uncovered that Orange County Sheriff’s Deputies were using informants to extract information from defendants held in the jail, and now documents show that some deputies worked extensively with jailhouse informants, moving them as needed.

The case is still ongoing, a death penalty case for Scott Dekraai, who pleaded guilty to killing eight people in 2011.  At issue was whether he would receive the death penalty.  Mr. Sanders has accused jail officials and prosecutors of first hiding and then failing to turn over all records about jailhouse informants to the public defender representing Mr. Dekraai.

The judge considers this matter so egregious that last year he recused the entire Orange County District Attorney’s office and gave the case to the AG’s office.  Meanwhile, experts believe that, unless there are serious and consistent repercussions for those who intentionally withhold evidence (Brady violations, from Brady v. Maryland in 1963 ) from defense attorneys, the problem will continue.

But the landscape is starting to change and a bill, AB 1909, introduced by Assemblywoman Patty López to curb prosecutorial misconduct in our courtrooms, passed the state senate this week with strong bipartisan support and is currently on its way to the governor’s desk.

This legislation demands accountability for prosecutors by declaring it a felony for them to knowingly and intentionally withhold or falsify evidence in a case.

“I firmly believe in holding these officers of the court to a higher legal and ethical standard,” Assemblymember López explained. “What many fail to realize is that the decisions made by our criminal justice system can change people’s lives and the lives of those around them forever. No matter what the circumstances, prosecutors cannot and should not be allowed to trample on the rights of others or to pursue justice by committing their own acts of injustice.”

The bill would raise prosecutorial misconduct from a misdemeanor to a felony, imprisonable by up to 16 months to three years.

The Assemblymember’s initial press release referenced the matter in Orange County, stating, “The justice system in Orange County, California has been under intense public scrutiny since 2014, when a public defender in the capital murder case of Scott Dekraai revealed that the district attorney’s office and sheriff’s department had been operating a secret jailhouse informant program for years, and hiding that fact from judges and defense attorneys.”

The release continues, “Supporters of the legislation say the problems in Orange County are emblematic of problems in jurisdictions across the state and highlight the need for reform. The Orange County District Attorney’s Office (OCDA) has consistently denied any intentional wrongdoing and supports the bill as well, but a local attorney union says it will add costly and timely litigation to overburdened courts.”

Assemblymember López said in a statement that “accountability for California’s prosecutors is critical to ensuring that justice in our courts is truly served.”

“I consider prosecutorial misconduct to be a very serious offense,” Ms. López continued. “The decisions that are made by our criminal justice system can change people’s lives and the lives of those around them forever.”

The revelations in the Dekraai case have already affected defendants’ and victims’ families in numerous violent cases.

As we noted, “A judge eventually removed the entire OCDA from the Dekraai case—the worst mass shooting in county history—finding that two sheriff’s deputies had either lied or intentionally withheld evidence. The disclosures have also led to sentences being overturned or vacated, or charges being dropped, in nearly a dozen other cases so far, including at least six murders and attempted murders.”

In July, “[T]he California Fourth Circuit Court of Appeals found ‘substantial evidence’ that the OCDA retaliated against the judge in the Dekraai case when it had him repeatedly removed from other cases—a tactic known as ‘papering’ a judge.”

That same judge presided over a recent hearing to decide whether the OCDA should be removed from another murder trial for allegedly using a doctored California Highway Patrol report to bolster its case.

On the same day, a Santa Ana-based defense attorney filed a $10 million lawsuit against Orange County, claiming he was assaulted by an OCDA investigator in a courthouse last March after he successfully argued for a retrial for his client due to prosecutorial misconduct.

OCDA Chief of Staff Susan Schroeder said in a statement, though, that District Attorney Tony Rackauckas “supports this law and believe it should apply to all attorneys.”

Nevertheless, Deputy District Attorney Mena Guirguis, president of the Orange County Attorney’s Association, told the Orange County Register last month that “there are already safeguards in place to deal with the things the bill is trying to address. There’s no evidence there’s an explosion of intentional violations.”

That’s not the opinion of Judge Alex Kozinski, a federal judge of the Ninth Circuit Court of Appeals. “There is an epidemic of Brady violations abroad in the land,” Judge Kozinski wrote in a much-cited 2013 opinion, referring to instances where prosecutors failed to disclose evidence. “Only judges can put a stop to it.”

There are also the findings of a 2010 study on prosecutorial misconduct in California by the Santa Clara University School of Law and Northern California Innocence Project, which said it was a “critical” problem.

“Courts fail to report prosecutorial misconduct (despite having a statutory obligation to do so), prosecutors deny that it occurred, and the California State Bar almost never disciplines it,” the report said.

In California’s Kern County, for example, Deputy District Attorney Robert Murray Alan confessed in 2015 to falsifying a transcript to add a defendant’s confession to sex with a minor. A state bar judge recommended a one-month suspension of Alan’s law license.

Former Kern County District Attorney Ed Jagers was never fined or disciplined at all for putting 25 men in prison through the 1980s and ’90s on felony child sex abuse charges that were later overturned. Jagers’ misconduct ultimately cost Kern County $9 million in wrongful conviction settlements.

Or, for a more recent example, last month the Ninth Circuit Court of Appeals upheld a conviction for a San Francisco gang murder, despite finding “very troubling” evidence that a police officer gave false testimony and prosecutors withheld information.

Deputy DA Guirguis said Assemblymember López’s bill would overburden courts. “Accusations will be made, investigations will have to be done, money will have to be spent, even if those things aren’t sustained, it’s going to cause a big ol’ delay,” he told the Orange County Register.

But Ms. López said any delays are better than more botched cases.

“Currently, there is a lack of oversight when it comes to these types of violations, and the individuals who are guilty of committing them are rarely disciplined. We must send a clear message that such behavior will not be tolerated,” Lopez argued. “Any additional demands that this might place on the system are a small price to pay for preventing wrongful and/or overturned convictions, which are far more time-consuming and costly for taxpayers.”

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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49 thoughts on “Will Making it a Felony Curb Prosecutorial Misconduct?”

  1. Delia .

    This is what scares me:

    Maybe new arrests will be more thoroughly investigated. Let’s pray for that to happen.

    But on existing cases, where the d.a. knows they screwed up and might get in trouble, they could become even more tenacious, trying to cover their a**. An innocent person could be faced with even more illegal harassment and trumped up charges.

    I truly wish I was not so cynical.

    Peace.

     

    1. David Greenwald Post author

      Right now prosecutors have the incentive to win at all costs, even if it means withholding evidence that is exculpatory. The hope is that the new legislation will change the incentive to structure to one where withholding evidence is too costly to engage in. No matter how hard they hold onto evidence, a lot of it comes out – is winning a case worth ending their career? Because that’s what a felony conviction would mean – end of career. I think this is a good start.

        1. Tia Will

          BP

          Will the same laws apply to defense attorneys?”

          I think that the whole point is to create a system under which all are subject to the same set of rules and no one is above the law. If you or anyone else can show that defense attorneys have the same ability to twist our judicial system by colluding with other members of the “justice system” in the same systemic fashion that police and prosecutors have been demonstrated to use in these cases, then yes, it should apply to them too. I would be very interested to see what evidence you have that this occurs.

      1. Barack Palin

        The hope is that the new legislation will change the incentive to structure to one where withholding evidence is too costly to engage in.

        Since getting at the truth is what our judicial system is based on I feel the rules should apply equally to both the DA’s office and the defense attorneys.  What say you David?

        1. tj

          There are cases in which defense attorneys withhold evidence which would clear their client(s).  Defense attorneys can be bribed or coerced by the opposition.   It happens too often.   It also happens in civil cases if the price is right.

          1. David Greenwald Post author

            I think it’s important to understand the constitutional duties of prosecutors under Brady versus the duties of defense attorneys under state law.

  2. Tia Will

    “Accusations will be made, investigations will have to be done, money will have to be spent, even if those things aren’t sustained, it’s going to cause a big ol’ delay,”

    It would appear to have escaped Deputy DA Guirguis’ attention that there would be no need for a stronger approach if there were no prosecutorial misconduct nor  withholding of evidence nor perjury taking place. Our entire law enforcement and judicial system is designed to protect us from those who would cause us deliberate harm. Should we not also be protected from those who would do so under the cover of their badge or office ?

  3. Delia .

    P.S. I do understand that often their is a somewhat thorough investigation by well meaning police officers. But, like c.p.s. and other govt. agencies, the police only have so many resources.

    If the police, and c.p.s., are wasting their precious hours on trivial matters, everyone suffers.

  4. Delia .

    For example, if students in Davis are throwing an extremely loud party and neighbors inundate the cops with complaints, those cops might not be able to help someone else.

    If you call the cops over a trivial dispute with your neighbor, then those cops or their staff can’t help someone truly in need.

    If c.p.s. is tenaciously hounding a woman overseas, they cannot attend to the bruised, battered child in the U.S.

    1. quielo

      If they ignore people who abscond with their kids to avoid scrutiny than more people will do so. It will be like a “get out of jail free” card. If you don;t cal the cops when there is an “extremely loud party” then you will have more of them.

        1. quielo

          You can believe that “neighbors night out” is more powerful than the desire of some college students to have loud parties if you like. Having attended numerous such functions (loud parties) in my life I will disagree. I have included the definitive published work on this topic below.

          “You wake up late for school, man you don’t want to go
          You ask you mom, please?, but she still says, no!
          You missed two classes, and no homework
          But your teacher preaches class like you’re some kind of jerk
          You gotta fight for your right to party”

        1. quielo

          So Delia, here is an imaginary example so please do not confuse it with any real people living or dead.

          Two people with serious mental illness hook up and have a child. One of these stays here and one absconds with the kid and goes overseas to hide.

           

          What is the best interest of the child?

           

           

        2. Delia .

          Quielo,

          Every situation is unique. Would you want the courts to pigeonhole your family?
          And which “expert”determined the mental illness you describe? The d.a.’s medical expert? CDSS’s medical “expert”?

        3. Delia .

          Quielo, you replied with a non-answer. In your hypothetical sitch, who diagnosed the “mental illness”?

          And when you attended those wild parties (I have, also) did you know the neighbors?

          I’ve met many wonderful responsible party throwers in Davis.

          Neighbors night out does help.
          Heading outside to enjoy the lovely late summer afternoon. Sincerely hope you also enjoy your day.
          Peace.

  5. Delia .

    The topic is not defense misconduct. The topic is d.a. misconduct. Write an article and submit it to David’s staff if you want to discuss defense misconduct.

    1. Barack Palin

      The topic is in part the sharing of or mishandling of evidence in a case.  If what we’re truly looking at is getting to the truth in cases the same standards should apply to both party’s.

      My post is totally on topic so I suggest you just worry about yourself.  Who made you the head honcho of the blog?

  6. Tia Will

    BP

    You don’t think that defense attorneys have ever discovered evidence which proves their client is guilty and withheld it?”

    “Ever” is a very inclusive word. Perhaps you did not notice that you entirely changed the premise being discussed. You went from what has been proven in fact to be a systemic problem with police withholding and or falsifying evidence which is then knowingly used by prosecutors to obtain convictions to asking me to speculate on whether or not such an event could “ever” have occurred on the part of a defense attorney. Honest error on your part, or do you honestly not see a difference ?

    1. Barack Palin

      “Ever” is a very inclusive word.

      Kind of like the definition of “is”.  I see you dodged my question.  I know you’ve posted in the past that trials shouldn’t be about winning but more about getting to the truth.  So if a prosecutor or a defense attorney has evidence that will get at the truth don’t you think both sides should be held to the same standards?  Yes or no?

      1. David Greenwald Post author

        Did you read any of the links I posted? You haven’t responded to any of them. There is also the Fifth Amendment: “No person shall be compelled in any criminal case to be a witness against himself.”

      2. Tia Will

        BP

        So if a prosecutor or a defense attorney has evidence that will get at the truth don’t you think both sides should be held to the same standards?  Yes or no?”

        All other things being equal, my answer would be “yes”. But all other things are not equal. To provide this equality would require scrapping out entire current justice system from one which is adversarial to one which is collaborative. This is a move that I would highly endorse but will  not see in my lifetime. So here is just a sampling of what would have to change.

        1. We nominally have a system in which one is presumed innocent until proven guilty. And yet it is the prosecutors specific job to cast that presumption aside in order to “win” their case. In our system, the prosecutor builds their career upon the number of cases “won” as opposed to the number of cases in which the truth was successfully revealed. This is a clear conflict of interest that would have to be changed.

        2. We have the concept of lawyer/client confidentiality. Unless you are ready to completely scrap this protection, the exact same law cannot be applied. I would favor no one having the right to hide the truth, but our constitution states that we do not have to provide evidence against ourself. Unless you are willing to change the constitution, I don’t see a way around that.

        3. We have an adversarial system which promotes deception and the “spinning” of information on both sides. One problem that we have now is that the system is heavily weighted towards the prosecutors who have the ability to decide whom to charge, what charges to pursue, and how many times to prosecute in instances in which there is judicial error or a hung jury. Further, they see the evidence first and thus have the advantage of making the first assessment of what to share and what to withhold. Until we create a greater balance, ( such as both sides seeing all the evidence at the same time)  it is certain that “all other things are not equal”.

         

        1. Biddlin

          ” We have an adversarial system which promotes deception and the “spinning” of information on both sides.”

          Instead of perpetuating nonsense and illustrating your ignorance of American jurisprudence., why don’t you read a bit about it.

          “All of the lawyer’s roles require the investigation of relevant facts, including locating and interviewing witnesses.

          A lawyer is to be a zealous advocate of his / her client. In this respect, the lawyer must advocate on the client’s behalf and avoid conflicts of interest. The lawyer is also an officer of the court and is required to deal fairly and honestly with the court and with its other officers, including the lawyer’s opponents.

          There are specific ethical rules applicable to these issues, but in most circumstances, when the client’s interests and those of the lawyer as officer of the court conflict or otherwise interfere with each other, the lawyer is generally expected to favor his or her role as advocate of the client.”- American Legal Systems: a research and reference guide by Toni M. Fine

           

  7. Marina Kalugin

    the whole defense/prosecutor system should be thrown out..

    the truth is overlooked in attempts to “win”….

    prisons and cemeteries are full of the innocent…and those who put them there go scott free….

    PS>   If you choose to take the 5th….that is as good as admitting guilt in the US…..and it may be because one simply doesn’t want to snitch on the person who actually was at fault….for whatever feelings of misplaced loyalty or whatever….or perhaps it was truly only an accident and why should someone be held out to dry for that?

     

     

  8. quielo

    “.and it may be because one simply doesn’t want to snitch on the person who actually was at fault” For those unfamiliar with the constitution the 5th amendment is about self incrimination, not about testifying against others.

  9. Delia .

    Sh*t also happens when bully police try to threaten people by insinuating if they don’t cooperate with the bully police. the bully police will call CDSS on you.

  10. MamaBear

    I think it absolutely should be a felony. And not limited o a maximum sentence of three years but something more relevant to whatever sentencing innocent people suffered at their crimes.

    I noticed Quielo’s post and have already concluded he is likely someone with an ulterior motive.

    I hardly think this article relates exclusively to my case but in MY case, I think it is absurd that common sense is not allowed even when it is necessary for the safety of children. I do understand custody cases of mutually involved parents/married couples/etc etc.

    The “father” of my kids isn’t even on their birth certificates because he was in a mental institution for one of many suicide attempts for the birth of “our” first child. “Our” second child resulted from rape. (I am opposed to abortion, just my stance).

    I have no mental illness, although I would not put it past a Yolo Court Appointed “specialist” to try o peg me with one now if given the opportunity. I suppose for the dull-witted, it could justify their misconduct for the past nine months.

    I wont go into the violent criminal history either. 😛

    I believe there are plenty of courts that could, at the very least, give more sensitive and logical treatment to a case involving serious domestic violence, one parties very valid and longstanding mental illness history, and parental absenteeism preceding efforts for financial support from the sole lone custodial parent.

    My children and I are victims of misconduct 100%. As nice as a lawsuit sounds at this point, I care about the people of Davis too much to add to the robbery thy are already enduring in the hands of corruption.

    I just want the harassment of my children and me to cease. And I want Tiffany Susz and anyone collaborating with her awful unethical behaviors to be held accountable however appropriate. Remiss of costing local taxpayers money.

    Please sign my petition if you can (not sure I can  post this here?)

    https://www.change.org/p/protectmybabies

    Thank you!

    1. quielo

      “he is likely someone with an ulterior motive” My motive is very simple and my apologies if I have not been clear about it. What is in the best interests of the children?

      1. MamaBear

        Well Quielo,

        You seem extremely interested in my case and particularly inclined to cast a lot of doubt on my story…  even though the DV has pointed out several times their articles were based on eyewitness accounts AND the majority of my testimony is substantiated by EVIDENCE.

        So it just sounds a lot like someone who has some interest. I am not convinced that most people are so thick in the head unless they want to be. And wanting to be foolish usually indicates an ulterior motive.

        In case I am wrong (or right) I try to ignore your post. But it seemed you were subtly implying my case along with a false assertion, so I responded.

        If you want to see photos of one of the times Gilson beat his ex wife or some excerpts of  his record of violence & stalking, along with my postnatal medical record (which substantiates my youngest being from rape) – It is part of the collage on my petition. Bless.

        1. quielo

          “You seem extremely interested in my case” no not really. “If you want to see photos of one of the times Gilson beat his ex wife” his being a bad parent does not make you a good one. What’s in the best interest of the children?

    1. MamaBear

      Quielo, someone does need to be a really bad parent to warrant a CPS investigation. They’d need be so bad that no professional/government official in a civilized western country would write a letter on their behalf stating that children are healthy. Countries with higher standards than America. A CPS investigator from Woodland being deployed to check on us is absurd.

      We can agree to disagree but unless there’s abuse, neglect (like malnourishment, leaving kids alone etc etc), drug use/alcoholism; opening a CPS case up against someone because a DA or judge is angry at them is a misuse of manpower, tax dollars, and a violation of privacy and freedom…

      Nevermind the implication that there is likely a conflict of interest that would compromise the integrity of such an investigation.

      And the tragedy of  traumatizing children with a foster home placement, when it is unwarranted? Match that against the tragedy of dead babies who were sent home with meth addicts because CPS does not have time (or the lack of housing available to kids who truly undoubtedly need foster homes?).

      My case is ridiculous. And I am sorry but I don’t believe you can be intelligent and not see that, unless you just don’t want to see it…

      Anyway, I have too many people left to write tonight :-/

      (Just got a letter from Gilson’s attorney that they are blocking release of Gilson’s mental records. Of course, makes total sense for the “best interest of the children.” SIGH)

      No more arguing with you. Take care.

  11. Tia Will

    Biddlin

    ” We have an adversarial system which promotes deception and the “spinning” of information on both sides.”

    Instead of perpetuating nonsense and illustrating your ignorance of American jurisprudence., why don’t you read a bit about it.”

    I actually have read quite a bit about our judicial system over the years having been a political science major considering becoming a lawyer during my undergraduate years. While I admittedly have not followed up as thoroughly as I would like due to the need to remain current in my own field, I follow some cases here on the Vanguard closely ( usually asking questions when not clear on an issue) and read widely about cases of regional and national interest as time allows.

    I am not sure what I said to have caused such a strongly worded response. For example, do you not agree that during their remarks both prosecutors and defense attorneys will try to convince the jurors that their version of events is the accurate one ?  To me, this is the same as presenting “spin” although I can see how an attorney might find that word objectionable.

    As for the rest of your post, I really do not see anything that you have said that is in conflict with what I posted.

      1. Tia Will

        “Now that’s spin”

        Do you actually think that I am in error ?  If so, why not point out why you feel that is the case ?  Unlike some posters on the Vanguard, I do not have the ability to read minds and thus do not know what you found objectionable in my post.

  12. MamaBear

    Thank you Marina! I made a free ebook for children missing their moms. It also directs people to my petition.

    https://amzn.com/B01KXYR5TG

    I thought it was a more pleasant way to spread the message.

    Vanguard forgive me if these posts have broken any posting rules; I am assuming it is okay.

  13. Biddlin

     
    “I firmly believe in holding these officers of the court to a higher legal and ethical standard,”
    “The bill would raise prosecutorial misconduct from a misdemeanor to a felony, imprisonable by up to 16 months to three years.”
    Wrongly convicted victims spend much longer in prison.

    1. MamaBear

      Exactly, the time limitation is lame. But I guess prisons do waste a lot of money with little return. So a couple thoughts:

      A hated DA will have a rougher three years in prison than most others

      I assume they’d lose all ability to practice law or any other position endowing similar authority (or they should). So a permanent career change would be necessary (and hard for someone whose invested so much into being an attorney)

      A felony will prevent them from getting a lot of work

      They should also be directly accountable for civil damages (E.G. Assuming Ajay Dev is innocent; he should be able to personally sue whoever is responsible for his imprisonment for everything they’ve got and then some).

  14. Biddlin

    “This isn’t about bad men, though they were most assuredly bad men,” Thompson says. “It’s about a system that is void of integrity. Mistakes can happen. But if you don’t do anything to stop them from happening again, you can’t keep calling them mistakes.”…John Thompson, convicted and held by a broken system for 14 years and sentenced to death, because an exculpatory blood test was buried by a crooked DA .

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