Commentary: California Has to Figure Out a Way to Hold Prosecutors Accountable

Scott Sanders
Orange County Deputy Public Defender Scott Sanders speaking in Davis in 2014 about the Orange County jailhouse informant practices

There is a rare occurrence happening in Texas, where John Jackson, the Texas prosecutor who convicted Cameron Todd Willingham of murdering his family by setting his own house on fire, is now facing charges because new forensic techniques have discovered that Mr. Willingham was convicted on what is now known to be junk science and false testimony from a jail house informant – and was likely innocent.

Mr. Jackson is accused of hiding exculpatory evidence from the defense and the Texas bar is attempting to prosecute Mr. Jackson – in public, no less.

The Intercept reports that the state’s attorneys believe that Mr. Jackson “made a deal with a jailhouse snitch who agreed to testify against Willingham and then hid that deal from Willingham’s defense attorneys — a clear violation of both law and ethics. They say that Jackson took extraordinary measures over the next two decades to conceal his deceitful actions.”

“It is a duty of the prosecution — an ethical obligation — to turn over that evidence,” state bar lawyer Kristin Brady told jurors in her opening arguments last Wednesday afternoon. “For years he protected this snitch; for years. It wasn’t for [the snitch’s] protection, it was for his own protection.”

While this is great news for those who have long been concerned with wrongful convictions and prosecutorial misconduct, the problem is that Mr. Willingham was executed and that such corrective actions are rare.

In California, such decisions to throw sanctions at prosecutors who engage in misconduct are exceedingly rare.  But the bar has made efforts to beef up their handling of such matters, which were exposed back in 2010 as being completely inadequate when, in 2010, a study found that prosecutors were not being sanctioned for misconduct.

The Veritas Institute, a project funded by the Northern California Innocence Project, 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.

Of all of these cases, only six prosecutors were disciplined.

This week, the California Bar implemented Rule 5-110 which, among other things, includes a requirement that when a prosecutor “knows of clear and convincing evidence” establishing that a wrongful conviction occurred, the prosecutor must seek to remedy the conviction.

But, like so much else, the rule has no real teeth and simply pays lip service to the problem.

California legislators passed a state law that makes it a felony, rather than a misdemeanor, for prosecutors to alter or intentionally withhold evidence that could be used to exonerate defendants. Violators of the law could be sentenced to up to three years in prison.

While the sponsor of the legislation told the LA Times she was not directly inspired by the situation in Orange County where prosecutors and the sheriff’s department allegedly planted jailhouse informants near certain defendants to pump them for information and then prosecutors withheld that evidence from the defense, it is clear that the situation helped to inform the debate.

“The prosecution in [Orange County] seemed to be acting with impunity,” CACJ (California Attorneys for Criminal Justice) President Matthew Guerrero told the Times. “So we wanted to send a strong signal that the criminal justice system needs to do the right thing in the right way.”

At the same time, that case demonstrates why these state laws are inadequate.

The only one who can prosecute the prosecutors is the Attorney General’s office.

And yet, the AG’s office, under both Xavier Becerra and his predecessor Kamala Harris, basically has a conflict of interest.

In late March, Attorney General Becerra announced that his office will continue to seek the death penalty in the case of Scott DeKraai, who pleaded guilty to murdering eight people and attempting to murder a ninth person at a Seal Beach hair salon in 2011.

“This tragic event has caused so much harm to far too many families,” said Attorney General Becerra. “After weighing the evidence, considering the law and the responsibilities of my office, I have concluded that the appropriate course of action is to seek the death penalty in this case.”

The Attorney General assumed responsibility for the prosecution of the penalty phase of the case after the California Court of Appeal upheld Orange County Superior Court Judge Timothy Goethals’ order recusing the Orange County District Attorney’s Office from the prosecution.

Meanwhile, the AG’s office under Ms. Harris had fought the decisions by Judge Goethals to recuse the Orange County DA’s office.

The AG put blame on the sheriff’s department for the misconduct, and argued that the DA did not have a conflict of interest.

The appellate court concluded that “it was well within the court’s discretion to recuse the entire OCDA’s office from prosecuting the penalty phase because the OCDA had a disqualifying conflict of interest.”

The three-judge panel described the argument made by the AG’s office: “The trial court’s order recusing the OCDA from prosecuting Dekraai’s penalty phase trial was a remedy in search of a conflict,” and called that, “Nonsense” (emphasis in the original).

How bad is this case?

“The magnitude of the systemic problems cannot be overlooked,” the court continued. “Wagner, a 20-year veteran of the OCDA and supervisor of the homicide unit, admitted his legal reasoning on a prosecutor’s fundamental ethical obligations under Massiah was flawed. Simmons, a 24-year veteran of the office, explained his understanding of his ethical obligation was ‘evolving.’”

The court concluded, “This record does not support a finding there was a reasonable basis for the trial court to have confidence the OCDA will prevent future misconduct from occurring in this case.”

Judge Goethals took  the step of reading a series of internal OCSD memos and then recited remarks the sheriff made to local news stations denying the existence of the informant program.

“The deputies in the jail are not conducting investigations … we don’t have our folks working (with) informants,” Judge Goethals said, quoting Sheriff Sandra Hutchens repeatedly after each memo that clearly offered evidence to refute her claim.

“The train has left the station on this, folks,” Judge Goethals said in February. “The debate is over.”

And yet, as egregious as the misconduct in this case – and as strong as the evidence – the AG’s office cannot go after the Orange County prosecutors because they, the AG’s office, have taken over the case and are prosecuting the penalty phase.

The reality is there is no accountability for prosecutors.  The AG’s office now has a conflict of interest that will prevent them, at least in the near term, from prosecuting Orange County prosecutors.

If we cannot rely on the AG’s office, the only remedy left is to get rid of prosecutorial immunity and allow prosecutors to face individual liability for their misconduct that ends up putting innocent people behind bars.

But that is a high burden because, in 1976, the US Supreme Court held in Imbler v. Pachtman that “prosecutors cannot face civil lawsuits for prosecutorial abuses, no matter how severe.”

In 1985, New Orleans District Attorney Harry Connick, Sr., charged John Thompson with armed robbery and murder. He was convicted of both, but after nearly two decades in prison it was shown that he was wrongfully convicted, and he sued Connick and the DA’s office  In March 2011, the US Supreme Court ruled 5-4 in Connick v. Thompson that a district attorney’s office was not liable for its prosecutor’s failure to turn over evidence, and overturned a $14 million judgment against the New Orleans DA.

Progress has been made in the fight against prosecutorial misconduct – but until there are ways to hold prosecutors accountable, those remedies will rarely be exercised and inconsistently enforced.

—David M. Greenwald reporting

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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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