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