Criminal Justice

California Bill Would Make It a Felony for Prosecutors to Withhold Evidence

Spurred by a series of botched murder cases and little accountability, a California lawmaker wants to rein in prosecutorial misconduct.

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Joshua Sudock/ZUMA Press/Newscom

Responding to several highly publicized district attorney scandals that have tainted numerous murder cases, a California state legislator has introduced bill that would make it a felony crime for prosecutors to intentionally withhold or falsify evidence.

Democratic California Assemblywoman Patty Lopez introduced the bill, which would raise prosecutorial misconduct from a misdemeanor to a felony imprisonable by up to 16 months to three years. The bill moved through committee to the full state senate last week.

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.

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.

Lopez 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," Lopez 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.

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.

Last month, the 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 hearing Monday to decide whether the OCDA should be removed another murder trial for allegedly using a doctored California Highway Patrol report to bolster its case.

(Also on Monday, 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 week 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, the chief judge of the Ninth Circuit Court of Appeals. "There is an epidemic of Brady violations abroad in the land," 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."

Or 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 week 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.

Guirguis said Lopez'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 Lopez 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."

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  1. Hahhaha…. Accountable prosecutors? Who’s going to prosecute them?

    1. How about we tie weights around their waists and if the float their innocent? The old ways are some times the best.

      1. If they float, they must be witches, and therefore should be burned at the stake. If they sink and drown, we’ll know they were innocent and therefore passed on to their eternal reward.

        1. If they float, they could also be ducks, dammit!!! Where I come from, you can shoot and eat ducks, though…

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  2. Yay, for California.

    It’s not as expansive as my plan that prosecutors that get busted for withholding exculpatory evidence have to serve the the same sentence as the people they falsely imprisoned.

    1. Absolutely. The state withholding evidence in a trial (especially criminal) is one of the worst offenses that can occur in a society that endeavors to have a impartial justice system. Definitely the time served should equal the amount of time that the prosecutor asked for the defendant to serve.

      1. The DA should be similarly tried, for lack of oversight.

    2. Yeah, but what DA is going to indict himself or the subordinates for whose conduct he is responsible?

      1. I dunno, seems like a great opportunity for DA’s to wash their hands of any scandals within their office by offering up some sacrificial lambs.

        1. The more lambs the better. The trail leads to the rams.

  3. “I consider prosecutorial misconduct to be a very serious offense,” Lopez continued. “The decisions that are made by our criminal justice system can change people’s lives and the lives of those around them forever.”

    “Why, just consider, for example, the repercussions of the Clinton email situation!”

  4. a California lawmaker wants to rein in prosecutorial misconduct

    Two years ago, Lopez defeated the incumbent by just a handful of votes and this election will see a re-match. The old incumbent is favored to win back his seat and is supported by the party. Lopez needs an issue to attract attention and galvanize some support.

    I’m not saying I’m cynical and think this “big idea” is a load of campaign shit that doesn’t have a snowball’s chance in hell of going anywhere, but this “big idea” is a load of campaign shit that doesn’t have a snowball’s chance in hell of going anywhere. Do you really want these monsters getting away with murdering your children? Who cares if some stone-cold killer wasn’t treated exactly the way his slimy-ass weasel lawyer thinks he should have been – we all know the guy’s guilty because why else would the cops have arrested him if he wasn’t guilty so I don’t see why we need a trial at all, just shoot the guy right there on the spot and be done with it.

    1. I has a sad because I think you are accurately depicting the election.

  5. Guirguis said Lopez’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.

    There it is. Guirguis unwittingly speaks for the entire justice system here. The system values finality over justice.

    1. ‘It would be too costly and burdensome to have ourselves held accountable to the law.’

    2. Who cares if you spend a decade in prison? It’s not me.

      1. or my kid/relative

  6. By the way, the only time you can expect to hold a prosecutor accountable is when she targets politicians.

    But on Monday night, Kathleen G. Kane, the state’s top prosecutor, became a convicted criminal.

    A jury found Ms. Kane, 50, guilty of nine criminal charges, including perjury and criminal conspiracy, convicting her of leaking grand jury information, and then lying about it, in an effort to discredit a political rival.

    Ms. Kane was caught up in a web of scandal and counterscandal, threaded with lewd emails, political rivalries and alleged leaks. It has cost other state officials, including two State Supreme Court justices, their jobs and Ms. Kane her law license, although she has remained on the job as attorney general.

  7. No reasonable prosecutor would indict.

    1. This is why there needs to be the option for private action on laws like this and public corruption.

      Let the public indict and prosecute the officials.

    2. Unless he wants to abandon his political career.

      1. Or become a criminal defense lawyer.

  8. …there are already safeguards in place to deal with the things the bill is trying to address.

    Which are exactly as effective as this legislation would be.

    There’s no evidence there’s an explosion of intentional violations.

    At least mens rea is getting applied to someone.

    1. We’ve been holding steady at a pretty rate of intentional violations, so, no explosion, right?

  9. “would make it a felony crime for prosecutors to intentionally withhold or falsify evidence”
    Seriously? It’s not a crime to falsify evidence right now? Wow.

    1. This law is not so much to make falsifying evidence a felony but to get around the absolute immunity that prosecutors enjoy.

  10. “Guirguis said Lopez’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.”

    This seems like a criticism that could be equally leveled against any new criminal law. Something tells me that prosecutors don’t make that argument against laws aimed at other people.

    This law is ultimately doomed anyway. It would require a DA to indict one of his own subordinates. From the article, it appears that this conduct is already a misdemeanor. How many prosecutors have been charged under the current law. I’m guessing none.

  11. Nevertheless, Deputy District Attorney Mena Guirguis, president of the Orange County Attorney’s Association, told the Orange County Register last week 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.”

    You know that old saying, if you’ve done nothing wrong, you have nothing to…, oh wait, that’s for the peons

  12. +1 payback, motherfucker.

    1. And since you’re from California, Hells Angels Forever, you asswipe.

  13. How in the fuck is withholding evidence not already a felony? Fucking christ the justice system is garbage.

    1. Except for that Preet fellow and that wonderful Judge Katherine Forest. Ya’ll are doin’ the lord’s work.

      1. Fuck Preet. With a baseball bat wrapped in barbed wire soaked in satan peppers.

  14. If they would obey the law in the first place and not make things up there would be no delays in the first place. We don’t make oversight laws to please those we want to oversee.

  15. I thought prosecutors had to divulge Brady material. So really, all making it a felony does is to say, “and this time we really mean it.”

    Jesus this legal system is such a fucking farce.

  16. Prosecutors, and other state actors have been shielded from accountability (mainly by law made from the bench) for too long. It is time that they are held accountable for their actions when they harm others. This law should be expanded to others within the government who hold the fate of citizens in their hands: Regulators, LE, and judges too.

  17. How about a nice, big, fat MANDATORY MINIMUM sentence for prosecutorial misconduct?

    1. And lets not forget 3 strikes your out.

  18. An additional suggestion: currently prosecutors are immune from civil lawsuits for damages caused by the prosecutors’ misconduct. This needs to be changed! Pass a law that prosecutors who commit misconduct should be PERSONALLY liable–have to pay from their own, personal savings–to the tune of one dollar for each SECOND the victim spends in prison. (That comes to $86,400.00 per day.)

  19. Seems to happen quite a lot. Prosecutors will bury any evidence that clearly points to anyone other than their chosen suspect, even if they know exactly whom the other evidence clearly shows really committed the crime.

    Remember the Scott Petersen case? The prosecution had no evidence at all that absolutely proved he killed his wife. When he said he went fishing on Christmas eve, they couldn’t find any witnesses to him being at the marina.

    But when the bodies washed up near the marina, suddenly they had lots of people saying he was there. When the testimony would hinder the State’s case they suppressed it.

    Their dogs never ‘hit’ on Scott’s truck, which the prosecution insisted he’d used to transport his dead wife. She never ever was in that truck because it was his work truck. Using it to travel for non-work related trips would have complicated tax filing.

    What most likely happened was it was a hit gone wrong. A female attorney who lived quite close to the Petersens had been getting death threats. She was about the same height and weight as Laci Petersen. She had long, dark hair like Laci. She’d very recently given birth, Laci was close to term. Some people in the neighborhood had earlier reported a brown van that didn’t belong in the area, cruising around.

    The big capper on this was that both families owned dogs of the same breed *and the dogs had the same name*. Both women regularly walked their dogs on the same streets.

    1. So what happens when a hit crew gets an order to snag a very pregnant woman fitting that description, walking a certain breed of dog, and the dog’s name, just to make sure they get the right person – except their target is no longer pregnant but the people who want her dead don’t know that?

      The wrong woman dies, the prosecution knows all this, but since it’s nearly always the spouse who is the killer, and Scott Petersen was a low-down liar and adulterer (and because they had no idea who the hitmen who botched it were) they decided to cover their asses by putting Scott in prison for life.

      In that case the judge was in on the fix too. Any time one of the jurors seemed to be wavering towards thinking Scott might not be guilty, the judge had that person taken off the jury.

      Oh, but it gets even worse. Scott’s legal team was put under a gag order so they could not talk to the media, while the prosecution and bloviators like Gloria Allred were given free reign to talk trash to the media.

      All because the State wanted to neatly tie up the sensationalized case of a pregnant woman vanishing while walking her dog on Christmas Eve, then turning up murdered.

  20. “Guirguis said Lopez’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.”
    How exactly would making it a felony cause more delay? There has to be an investigation either way so what’s the difference? Does the bill do something else as well?

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  22. Molly . I can see what your saying… Samuel `s c0mment is unimaginable… last monday I got a great new Infiniti after bringing in $6142 this past month and-also, $10k lass month . without a question it is the most comfortable work I’ve had . I began this 5 months ago and straight away began to make over $81 p/h

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  24. Because the majority are flaming liberals, that is the exact reason for this new law.

  25. About time someone at least got the ball rolling!

    I have been saying forever that until laws that are already the books are applied to officers of the court, innocent people will continue to be put to death and far more innocent people will be incarcerated.

    Our government operates on checks and balances. When officers of the court are held to a different, lower standard, then the system is broke.

    The death penalty is as valid as any other punishment that fits the crime. On the other hand, no punishment is valid or effective if it convicts the innocent and lets the guilty go free.

    In a prosecution with a potential death sentence, anyone who lies or gerrymanders the process should be prosecuted for murder or attempted murder; Voluntary, Involuntary, Constructive or Criminally negligent Manslaughter; and I would add a new versions which would be called something to the equivalent of Attempted Manslaughter as well.

    Until the day that we actually BEGIN genuinely prosecuting officers of the court, witnesses, juries and anyone who lies or gerrymanders the process, the lack of checks and balances will continue and innocent people will continue to be incarcerated and even put to death.

    The day that we charge and prosecute judges and prosecutors for murder/attempted murder and manslaughter/attempted manslaughter, and sentence them accordingly, is the day we can start putting convicted killers to death immediately after a valid, genuine, speedy trial.

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