A ruling this last week in Orange County shows just how high the bar has been set for the determination of prosecutorial misconduct. While the judge found ample evidence that there were improprieties in the handling of the matter, he ultimately ruled that the prosecutors in the Orange County case were negligent, not willful, in their misconduct.
This is nothing, it was was a just a few short years ago that the the US Supreme Court overturned a $14 million award for John Thompson who was convicted of murder and spent 14 years on death row before private investigators learned that prosecutors had failed to turn over evidence that would have cleared him at his robbery trial. Prosecutors also destroyed clothing that would have shown that his blood type did not match the blood on the scene.
The US Supreme Court overturned the award in what some called “one of the most cruel Supreme Court decisions ever,” with Justice Clarence Thomas ruling that the district attorney can’t be responsible for the single act of a lone prosecutor.
In July, a three-justice panel of the California Court of Appeal in a ruling noted that jail deputies at the Orange County Sheriff’s Department “engaged in abhorrent conduct and were derelict in their duties.” While they noted the “extreme nature” of this conduct and argued that it did not just “violate the public trust and the spirit of what we expect from those entrusted to enforce the law,” they found it unmatched in recorded state history.
The Orange County Sheriff’s Deputy was found to have destroyed evidence, committed perjury, doctored logs, fired weapons at inmates sitting on toilets, ignored medical emergencies, along with many other violation. Despite this, that judge panel in a ruling on July 7 argued that this failed to amount to outrageous government conduct and therefore they refused to dismiss murder convictions for “inmates who participated in beating Chamberlain to death and who claim deputies encouraged the crime by falsely branding the victim a child molester,” the Orange County Weekly reported on Monday of last week.
The stage was set for what happened on Monday in Orange County, according to the Orange County Register’s article later that afternoon, where a judge ruled that, although the prosecutors committed misconduct, the actions of Orange County prosecutors amount to “negligent rather than malicious” activity.
The paper reports, “The finding means Scott Dekraai could still face the death penalty for the murders of eight people in a Seal Beach salon in 2011. Superior Court Judge Thomas Goethals denied defense requests to bar the death penalty and remove the entire Orange County District Attorney’s Office from the case.”
However, in his 12-page ruling, “The judge found misconduct that included failing to turn over evidence helpful to the defense and allowing a jailhouse informant to illegally question Dekraai.”
“The court further finds that the misconduct was the product of woefully inadequate legal training, along with a lack of professional energy and strategic imagination,” Judge Goethals wrote.
The paper added, “He also said prosecutors committed repeated errors in other cases, most importantly not turning over evidence about informants, but did not offer an opinion on whether the misconduct in those cases was intentional.”
“The judge said nothing he heard during months of testimony proves Dekraai cannot receive a fair trial. But as he denied the major defense requests, he repeatedly underlined the words ‘this case,’ emphasizing that the evidence has broader implications,” the paper noted.
“It is not the appropriate function of this court at this time to attempt to fashion a global remedy related to all of the prosecutorial misconduct issues raised by the evidence it has heard,” Judge Goethals wrote.
The defense attorney, Orange County Deputy Public Defender Scott Sanders, has a history of uncovering prosecutorial misconduct. The paper notes that one murder conviction has been overturned due to his work. In that case, the prosecutor “admitted failing to give the attorney for Leonel Vega almost 200 pages of an informant’s notes. Both sides agreed Vega will get a new trial, and more defense attorneys have said they may seek new trials because of similar problems.”
The paper adds, “District Attorney Tony Rackauckas said Monday’s ruling supports his belief that no one in his office committed intentional misconduct. The ruling came more than six months after Dekraai’s attorneys filed a series of motions alleging widespread misconduct by prosecutors and sheriff’s deputies.”
The only sanction the judge imposed was barring the use of statements from the defendant to a “veteran informant” who questioned him after he had an attorney.
The judge found that sheriff’s deputies “routinely moved informants around within jails to get confessions from defendants, but failed to document those movements or turn the information over to defense attorneys.”
The judge also ruled that the prosecutors failed to turn over evidence. The prosecutor in this case argued that “some of the failure to turn over evidence stemmed mostly from his gang prosecutors being overworked.” Judge Goethals ruled that those excuses of being too busy, not fully understanding the law or being stymied by federal authorities “were unacceptable.”
The paper reports that the judge also said he believed many witnesses, including prosecutors and law-enforcement officers, were “credibility challenged.”
“Some perhaps suffered from a failure of recollection,” Judge Goethals wrote. “Others undoubtedly lied.”
The paper writes, “He did not name anyone he believed lied under oath, and Rackauckas said he believed no one in his office lied in the case.”
This case is yet another illustration of the reluctance of judges to overturn murder convictions based on prosecutorial misconduct.
None of this is surprising, On October 5, 2010, the Northern California Innocence Project came out with a report, “Preventable Error: A Report on Prosecutorial Misconduct in California 1997–2009,” that uncovered over 700 cases in which courts had found prosecutorial misconduct during an 11-year period. Of all of those cases, only six prosecutors were disciplined.
Judges will often, as they did in the Orange County case, rule that the error was either harmless or inadvertent. In the research by the Innocence Project, however, they argued that “harmless error cases may have involved infractions just as serious — and in some cases identical to” those in harmful error cases.
They argue further, “The egregiousness of a prosecutor’s misconduct does not determine the harmfulness of the error; the issue for harmless error review is whether despite the misconduct, the defendant received a fair trial. That means that very serious misconduct can be deemed harmless.”
They argued that appellate courts use a rather liberal application of the “harmless error” doctrine employed in the appellate review of misconduct.
The bottom line is that – even in cases where serious error occurred such as the case was in Orange County – courts tend to rule that the conduct did not impact the ability to get a fair trial and, most often, prosecutors are not sanctioned.
Scott Sanders will be the keynote speaker at the 2014 Vanguard Dinner and Awards Ceremony scheduled for November 15. More details will be forthcoming. Our theme this year will be Prosecutorial Misconduct. Tickets will be $50 in advance and $55 at the door.
—David M. Greenwald reporting