A year ago, the Vanguard brought in Orange County Deputy Public Defender Scott Sanders as the keynote speaker for its event on Prosecutorial Misconduct. Mr. Sanders has uncovered massive amounts of evidence that the Orange County DA’s Office along with the Orange County Sheriff’s Department misused jailhouse informants in an effort to get incriminating information on various defendants and then concealed this information from defense attorneys, often in violation of Brady (regarding disclosure of exculpatory evidence) requirements.
Last weekend, Governor Brown signed AB 1328, sponsored by Assemblymember Shirley Weber, into law. The bill authorizes courts to instruct a jury when a prosecutor has intentionally concealed evidence of innocence.
“Brady violations have become an epidemic in our justice system, where rogue prosecutors prioritize a conviction over the truth or the integrity of the courts,” said Assemblymember Shirley Weber. “The ‘convict at all costs’ mentality of some prosecutors undermines our system of justice and robs Californians of their due process rights.”
Her press release from June states that AB 1328 allows a court to inform a jury when a prosecutor intentionally conceals evidence that may prove the innocence of a defendant. The United States Supreme Court, in Brady v. Maryland, makes clear that prosecutors are required by the Constitution to turn over materially exculpatory evidence to the defense when available.
The press release continues, saying that the ruling in Brady v. Maryland set the standard for prosecutors as officers of the court, who have an exclusive obligation to the truth and due process. Yet, despite this obligation, there have been continuous reports of violations, even in high profile cases around our state and nation.
“Providing the defense with any exculpatory evidence is a constitutional duty of the prosecutor,” said Jeff Thoma, President of the California Attorneys for Criminal Justice. “When the courts don’t hold prosecutors accountable for this duty then there is nothing stopping then from abandoning it. Fighting this misconduct is not only about protecting innocent defendants, it’s about protecting the public’s trust of our justice system.”
California Attorneys for Criminal Justice (CACJ), a statewide association of defense attorneys, was a sponsor for this legislation.
The proposal also clarifies the ability of the court to disqualify an individual prosecutor for a Brady violation, and an entire DA’s office from a particular case due to a pattern of intentional Brady violations, CACJ explained in a release.
“In the past few years CACJ has been in the State Capitol leading the fight against prosecutorial misconduct,” stated Ignacio Hernandez, CACJ’s longtime Legislative Director. “This is a first but major step forward.”
California becomes the first state to have a law of its kind.
CACJ noted that AB 1328 was “a hard fought battle over prosecutorial misconduct.” Last year, CACJ pushed a proposal to create a specialized jury instruction addressing intentional Brady violations. The bill was vetoed.
“This year’s proposal pivoted to clarify and strengthen a court’s authority to report a prosecutor to the State Bar of California for intentionally withholding evidence,” they explained. “In light of the recent Orange County D.A.’s office scandal, AB 1328 also puts into statute clear authority to disqualify an individual prosecutor, as well as the entire office, upon a finding of a pattern of Brady violations.”
As noted in a New York Times editorial last week, “Prosecutors who bend or even break the rules to win a conviction almost never face any punishment. But even given lax controls, the blatant and systemic misconduct in the Orange County district attorney’s office in Southern California stands out. In a scheme that may go back as far as 30 years, prosecutors and the county sheriff’s department have elicited illegal jailhouse confessions, failed to turn over evidence that is favorable to defendants and lied repeatedly in court about what they did.”
The Times continues: “These unconstitutional abuses are all the more troubling because Orange County is not some corrupt backwater with one rogue prosecutor. With more than three million residents, the county itself is more populous than nearly half the states in the country. Its district attorney’s office employs 250 prosecutors.”
“Among other things, the defense argued, deputies intentionally placed informants in cells next to defendants facing trial, including Mr. Dekraai, and hid that fact,” the Times writes. “The informants, some of whom faced life sentences for their own crimes, were promised reduced sentences or cash payouts in exchange for drawing out confessions or other incriminating evidence from the defendants. This practice is prohibited once someone has been charged with a crime. Even when using an informant is allowed, defendants and judges must be told of the arrangement.”
However, in Orange County there was no disclosure that this occurred. As Mr. Sanders discovered, “the sheriff’s department kept secret a computer file showing where jailhouse informants were placed that went back decades. The prosecutor’s office kept separate files of data on informants and their deals. Some of the informants have helped law enforcement repeatedly in exchange for favors, a fact that is highly relevant in weighing their credibility.”
The Times writes: “The debacle in Orange County may be notable for its sheer size and impact — already, some murder convictions have been thrown out while other prosecutions have fallen apart — but such misconduct is an all-too familiar scenario when prosecutors value winning above justice. Alex Kozinski, a federal appeals court judge in San Francisco, has written that the withholding of exculpatory evidence has reached ‘epidemic’ levels, and that the only way to stop it is for judges to hold prosecutors accountable.
“Judge Goethals has set an important example on that count. The district attorney’s office continues to deny any wrongdoing, and has recently sought to have the judge removed from dozens of cases. Meanwhile, District Attorney Tony Rackauckas says the office’s failings are no more than the result of overworked prosecutors making isolated mistakes. Given the scope of what has been uncovered, that explanation is implausible.
“The Justice Department should conduct a thorough investigation. But there is no indication that’s going to happen. In fact, it appears that Erik Petersen, one of the prosecutors Judge Goethals found had withheld key information from the court and defense lawyers, was offered a job in the federal prosecutor’s office in Omaha. When questioned about this inexplicable decision, a Justice Department spokesman would say only that Mr. Petersen will not become an employee in the department.”
—David M. Greenwald reporting