New California Law Could Send Misbehaving Prosecutors to Prison

Prosecutors Who Falsify or Withhold Evidence Now Face Felony Risk

Last year Governor Jerry Brown (D) signed into law a measure making it a felony for a prosecutor in California knowingly to falsify or withhold evidence. Other state laws already made falsifying or withholding evidence a misdemeanor for members of the general public, and a felony for state law enforcement officers; misbehaving prosecutors can also face sanctions from judges and be reported to the California bar, possibly leading to disbarment. But the new law is the first of its type in the state or the nation to target apply prosecutors specifically.

As enacted, the measure (AB 1909) amends a section of the state penal code to allow a prosecutor to prison for up to three years for “intentionally and in bad faith” altering, modifying or withholding any information known to be material to the outcome of a criminal case. So now a state prosecutor in California can face prison for intentionally and in bad faith falsifying or hiding evidence known to be material and relevant to a case the prosecutor is working on.

Origins of Bill AB 1909

The Supreme Court’s landmark 1963 case of Brady v. Maryland established that prosecutors violate defendants’ Constitutional equal protection guarantee if they fail to turn over to all potentially exonerating evidence.

The California bill gained traction from a scandal in Orange County, the state’s third biggest in terms of population, in which a whistleblowing public defender accused the county police and the district attorney’s office of violating defendants’ rights. In some cases, the accuser said, the D.A.’s office manufactured bogus evidence with the help of jailhouse informants, and in other instances illegally concealed evidence from informants that could have helped defendants.

Because of prosecutorial misconduct, local judges ended up overturning a number of convictions, including several for murder or attempted murder. The misconduct by the district attorney’s office was so substantial in prosecuting the defendant charged in the county’s largest mass murder that the presiding judge ordered the entire prosecutorial team removed from the case (a state appeals court panel recently upheld the order against a challenge brought by the state attorney general).

The bill was opposed by the union which represents prosecutors, public defenders and county counsel in Orange County, while an organization for criminal defense lawyers strongly backed it. The county’s district attorney said he supported the bill, but wanted it amended so it would apply to all attorneys in criminal cases, not just to prosecutors.

Backers of the measure argued prosecutorial misconduct was far from rare in the state, and pointed to a study done by the Northern California Innocence Project which found there had been over 700 instances of prosecutorial misconduct during the 13-year period between 1997 and 2009, but prosecutors wound up facing disciplinary measures in just six of those cases.

Opponents had hoped Governor Brown, who has vetoed a number of bills creating new felonies might refuse to sign AB 1909, but the measure, in its final form, had handily cleared each chamber of the legislature: the state Senate approved it by a hefty 60-18 margin, and the Assembly cleared it 36-1. That made it very unlikely the legislature would sustain a veto by the governor.

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