Commentary: Is Harris Finally Going to Get Serious About Prosecutorial Misconduct in California?

California Attorney General Kamala Harris
California Attorney General Kamala Harris

Earlier this year, the LA Times ran a story where federal judges accused the California State Bar of turning a blind eye to an “epidemic” of prosecutorial misconduct. At one point, Judge Alex Kozinski of the 9th US Circuit Court of Appeals asked Deputy Attorney General Kevin Vienna “if his boss, Atty. Gen. Kamala D. Harris, wanted to defend a conviction ‘obtained by lying prosecutors.’ If Harris did not back off the case, Kozinski warned, the court would ‘name names’ in a ruling that would not be ‘very pretty.’”

As the Times reported, this hearing which was posted online “provided a rare and critical examination of a murder case in which prosecutors presented false evidence but were never investigated or disciplined. The low-profile case probably would have gone unnoticed if not for the video, which attorneys emailed to other attorneys and debated on blogs.”

The Times wrote, “In a series of searing questions, the three judges expressed frustration and anger that California state judges were not cracking down on prosecutorial misconduct. By law, federal judges are supposed to defer to the decisions of state court judges.”

Prosecutors “got caught this time but they are going to keep doing it because they have state judges who are willing to look the other way,” Judge Kozinski said.

Angela Davis is the former head of the Washington DC Public Defenders office and is now a professor at American University’s Washington College of Law. In a 2011 interview with the Washington Post she called prosecutors “the most powerful officials in our criminal justice system,” explaining, “They decide whether a person’s going to be charged, what to charge them with, whether there’s going to be a plea bargain and what the plea bargain will be. As they make those decisions, they exercise almost boundless discretion.”

In California, little has been done to stem the tide. In a 2010 report by the Veritas Initiative, “Preventable Error,” funded by the Northern California Innocence Project, it documented more than 800 instances of prosecutorial misconduct, including 107 where the prosecutors were found to have committed misconduct more than once – two were cited for misconduct four times, two were cited five times and one prosecutor was cited for misconduct six times.

The report hammers the California State Bar, writing, “By casting a blind eye to prosecutors who place their thumbs on the scale of justice, judges, prosecutors and the California State Bar are failing to live up to their responsibilities, fostering misconduct and opening the door to the inevitable – the conviction of the innocent and the release of the guilty.”

However, it is clear the problems go beyond the state bar. The Vanguard has covered the case of Scott Dekraai, largely because Orange County Public Defender Scott Sanders came to Davis last November as our keynote speaker on prosecutorial misconduct.

The work of Mr. Sanders has exposed huge problems with the Orange County District Attorney’s office in several cases, starting with the Dekraai case. Mr. Dekraai is the largest mass murderer in Orange County history, having in 2011 killed his wife and seven others in a Seal Beach beauty salon.

However, Mr. Sanders has showed that Orange County officials intentionally used jailhouse informants to violate constitutional protections for in-custody defendants, hid exculpatory evidence and committed perjury to cover up the tactics.

As one publication put it, “In March, Superior Court Judge Thomas M. Goethals made an unprecedented, historic move after announcing he’d lost confidence in Orange County homicide and gang prosecutors to obey simple legal rules of conduct. Goethals, a onetime prosecutor and campaign contributor to the DA, recused Rackauckas and his entire staff from People v. Scott Dekraai, the capital case stemming from the 2011 Seal Beach salon massacre.”

What did Kamala Harris’ office do in response? First of all, her office is defending the District Attorney’s office by appealing Judge Goethals’ decision. But second, in late March, her office announced that “it will conduct ‘an independent investigation’ of alleged misconduct by Orange County District Attorney Tony Rackaukas’ office in the prosecution of mass murderer Scott Evans Dekraai.”

She called the findings of “evidence discovery violations…are serious and demand further investigation.”

How does she appeal the decision of the judge on the one hand and independently investigate the allegations on the other hand?

The indifference goes further than the state bar and the Attorney General’s office and, in January, the 9th Circuit was hammering the judges.

As Santa Clara University law professor Gerald Uelmen put it in a comment to the LA Times in January, the judges have clearly lost patience with the California courts. Judges are supposed to refer attorneys who break the rules to the state bar for discipline, but they rarely do so.

“It is a cumulative type thing,” Professor Uelmen said. “The 9th Circuit keeps seeing this misconduct over and over again. This is one way they can really call attention to it.”

Judge Kim Wardlaw would complain that, in effect, the courts were “condoning” prosecutorial misconduct by upholding verdicts. The Times called it “a rare public criticism of her fellow judges.”

Judge William Fletcher “observed that the state’s attorney general had fought ‘tooth and nail’ more than a decade ago to prevent a court from seeing a transcript that revealed the false evidence.”

Meanwhile, Judge Kozinski “demanded to know why the informant and the testifying prosecutor were not charged with perjury. He suggested the state bar should pull the law license of the prosecutor who presented the evidence.”

Judge Kozinski, a Reagan appointee, in December of 2013 lashed out in a dissent that “there is an epidemic of Brady violations abroad in the land.” He dissented from a ruling against a man who argued that prosecutors had withheld crucial evidence in his case.

As the LA Times wrote in a 2014 editorial, “The majority of the federal appeals court panel ruled that the overall evidence of Mr. Olsen’s guilt — including websites he visited and books he bought — was so overwhelming that the failure to disclose the scientist’s firing would not have changed the outcome.

“This is the all-too-common response by courts confronted with Brady violations. Judge Kozinski was right to castigate the majority for letting the prosecution refuse to turn over evidence “so long as it’s possible the defendant would’ve been convicted anyway,” as the judge wrote. This creates a “serious moral hazard,” he added, particularly since prosecutors are “virtually never punished for misconduct.”

The question we are left with is – who will step up? If Kamala Harris wishes to be Senator, perhaps she ought to show that she has the fortitude to do her current job correctly and stop defending the misconduct of other prosecutors.

—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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  1. Davis Progressive

    kamala deserves criticism on this.  she has dragged her feet and often defends bad conduct and i don’t exactly understand why.

    that said, i think she can both challenge the judge’s ruling while investigating the ocda.  it’s a big office and the left hand and right hand are not necessarily knowing what each other are doing.

    1. Miwok

      Of course, Jerry Brown was AG before her, and there is no criticism of that era either. Since he is Guv now, he should know that department better than most?

      1. Davis Progressive

        the judge in the 9th circuit case cited the original prosecution which would have happened under brown.  but it’s been since 2010 that brown was ag.  and he’s gone by 2018 and that’s probably it for his political career (though i’m sure we said that a few times before).

  2. sisterhood

    “Is Harris Finally Going to Get Serious About Prosecutorial Misconduct in California?”
    I hope so. Perhaps she could start by reviewing Ajay Dev’s wrongful conviction.

    1. tj

      Perhaps an online petition would get the AG’s attention focused on prosecutorial misconduct.

      I suspect some of her staff have engaged in prosecutorial misconduct themselves.

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