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Prosecutorial Misconduct is Now a Felony in California

Misbehaving prosecutors in California can now face up to three years in prison for withholding evidence. Hey, it's a start.

PAT BENIC/UPI/NewscomPAT BENIC/UPI/NewscomAlong with signing a major asset forfeiture reform bill last week, California Gov. Jerry Brown signed a bill into law making it a felony for prosecutors to intentionally withhold evidence.

Under the new law, prosecutors who alter or intentionally withhold evidence from defense counsels can face up to three years in prison. Previously, prosecutorial misconduct in California was only a misdemeanor. Courts were statutorily required to report misconduct to the state bar association, but advocates of the bill say the laws were rarely enforced.

"When a prosecutor intentionally withholds exculpatory evidence, an unknowing and innocent defendant can be convicted, sentenced, and incarcerated for a long time," California Attorneys for Criminal Justice, a group of criminal defense lawyers that supported the bill, told The Los Angeles Times. "These bad-acting prosecutors rarely, if ever, face any actually consequences for their actions."

A 2010 study by the Veritas Initiative from the Santa Clara School of Law reviewing 10 years of prosecutorial misconduct in California found that "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 California District Attorneys Association orginally opposed the bill, calling it "an outrageous attempt to criminalize prosecutors for conduct that falls well short of criminal," but later rescinded its opposition after amendments were added to narrow potential prosecutions to exclude unintentional errors.

As The Los Angeles Times reported, the bill also had some other notable support:

Among the bill's advocates was Obie Anthony, 42, who served 17 years behind bars after being convicted in 1995 of a murder outside a South Los Angeles brothel. He was exonerated in 2011 after it was revealed that a key prosecution witness, a pimp, had received leniency in exchange for his testimony—a deal prosecutors had not disclosed.

"I'm glad the governor decided to put his foot down," said Anthony who told his story to California lawmakers as they weighed whether to support the bill.

"I went to talk to them about how those bad-acting prosecutors took 17 years of my life," said Anthony, who now lives in Missouri and runs a nonprofit organization, Exonerated Nation, for the wrongfully convicted.

As I reported back in August as the bill was winding its way through the state senate, the legislation was introduced amid a wave of embarrassing scandals that led in one instance to the entire Orange County District Attorney's Office being removed from a high-profile murder case:

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.)

Interestingly, the Orange County District Attorney supported the bill, although he said it should apply equally to defense attorneys as well.

Correction: An earlier version of this article incorrectly stated that the California District Attorneys Association opposed the bill. The organization dropped its opposition to the bill after amendments were added addressing its concerns, and it was neutral on the final version of the legislation.

Photo Credit: PAT BENIC/UPI/Newscom

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  • Ceci n'est pas un woodchipper||

    Fuckin' A, Moonbeam, nicely done! It sure would be nice if California became a less authoritarian nightmare in my lifetime, because if it weren't for insane gun laws I'd love to live in SoCal.

  • SIV||

  • ||

    You know what else was used in every single mass shooting ever?

    Shoes.

    Ban shoes.

  • Citizen X||

    You know what else was used in every single mass shooting ever?

    I was gonna say "your mom," but she's already banned in 44 states and Guam.

  • Get To Da Chippah||

    Shall. Not. Be. Infringed.

  • Florida Hipster||

    My cousin worked at a law firm that represented a client that fired dozens of rounds from an AR-15 in defense. Still didn't hit the guy who broke in and tried to shoot him, so what I'm saying is, do more research before suggesting a policy.

  • Ted S.||

    Your cousin represented a cop?

  • Florida Hipster||

    He worked for a divorce firm. The guy thinks his wife hired someone to kill him, but there was no proof.

  • SIV||

    A cosmotarian call for commonsense criminalization

  • The Grinch||

    Not sure what Robert Levy's bonafides are but he can suck my dick. What the fuck is a libertarian organization doing advocating this shit?

  • Scarecrow & WoodChipper Repair||

    Wasn't this the guy behind Heller? It's disgusting.

  • Tionico||

    but do the catowauling clowns have any significant data making a connexion between those standard capacity mag used in mass shootings to the numbers of victims? In other words, COULD the perp(s) have killed and wounded just as many with10 round mags? Correlation is NOT causation.

    So standard cap mags were used in 34 shootings 84 and 16. Out of how many shootings? Lets see the WHOLE STORY, including HOW the standard cap mags increased the kill.

    And no, proponents of that pesky Second DO NOT favour universal background checks.. precisely because the only way they will work is by creating a de facto gun registration, which we WILL NOT tolerate. Look at NY and CT. New MSR purchase gun bans and registration for all now in possession... compliance less than 5%. WHY? Those in possession are not on a registry and won't be.

    And that Second DOES in fact bar ALL infringements on our right to arms. No fees, permits, registrations, preconditions, limitations, waits, Mother May I Cards, checks... walk in to gun store, "I want that one", plop down cash, pick up gun, walk back out. Clerk never even knows my name. That's how I used to buy firearms and how we must be able to again. Lawmakers have no business even making ANY laws about guns.....

  • sarcasmic||

    Previously, prosecutorial misconduct in California was only a misdemeanor. Courts were statutorily required to report misconduct to the state bar association, but advocates of the bill say the laws were rarely enforced.

    I'm sure this new law will be enforced just as vigorously.

  • Scarecrow & WoodChipper Repair||

    Missing was any indication of who would file the charges. I'm sure that was just an accidental accident.

  • sarcasmic||

    Who will file the charges? The same persons who file charges when police officers commit criminal acts: no one.

  • Jake Stone||

    Or better yet, maybe they can get other District Attorneys to "investigate" the allegations in a secretive manner and determine if their coworkers committed any wrongdoing. You know, just like pigs!

  • Citizen X||

    The Southern District of New York has a subpoena en route to Sacramento as we speak.

  • ||

    If this conduct was rarely ever prosecuted when it was a misdemeanor why would it be vigorously prosecuted now? I am guessing by upping the stakes it will be pursued even less, but then I am a cynic who always expects government misconduct to get worse after government tries to fix it.

  • Longtobefree||

    "Interestingly, the Orange County District Attorney supported the bill, although he said it should apply equally to defense attorneys as well."
    Really?! Proprietorial misconduct by a DEFENSE attorney? Newspeak at its best.

  • Longtobefree||

    Stupid spell check - prosecutorial, not Proprietorial

  • Get To Da Chippah||

    Yeah, I'm having a hard time remembering an example of a defense attorney secretly holding onto evidence that would prove their client's innocence.

  • Florida Hipster||

    Did you not see "Cape Fear"?
    (Dinero not Peck)

  • Cynical Asshole||

    It should be obvious to anyone with a half a brain that he meant that defense attorneys should be charged with a felony if they withhold evidence of their client's guilt. You know how journalists like to take things politicians say literally and spin it to mean something completely different from what they clearly meant? I guess that game's not just for journalists.

  • Tionico||

    but noone accused is required to put forth evidence of their guilt. One can ONLY be convicted when the gummint PROVES based on stuff they have that the crime was committed, and the other details. Accused can say/do nothing, and if the DA can't find enough to convince the jury to convict, he loses. THAT is one of our particular liberties for which that war was fought all those years ago. AND, don't forget, the accused, directly or through counsel, has the right to examine witnesses and evidence against him, AND to know any that exonerates him.

  • Get To Da Chippah||

    State prosecutor groups, naturally, opposed the bill.


    The California District Attorneys Association called it "an outrageous attempt to criminalize prosecutors for conduct that falls well short of criminal."

    Intentionally framing someone for a crime isn't criminal?

  • Longtobefree||

    Nope - just extreme carelessness.

  • ||

    Yeah, that one made me laugh. Intentionally violating a person's 5th amendment rights; theft, murder or kidnapping are not crimes if you have a judges approval.

  • Cyto||

    This is stunning. So "we the people" are moving to reverse the invented immunities imposed by the Supreme Court. Nice.

    Oh..... wait a moment....

    It is a crime that has to be prosecuted in order for the deterrent to be effective..... prosecuted by - wait for it - other prosecutors.

    Ouch! That's really likely to happen. / sarc. I suppose we'll see the Democrat state attorney going after the suburban Republican DA who has political ambitions.

    Meh... it was fun to think about while it lasted, but the fantasy of "responsible government" might be nothing more than that. Just a fantasy.

  • sarcasmic||

    I suppose we'll see the Democrat state attorney going after the suburban Republican DA who has political ambitions.

    I'm sure that this will only be enforced when it is politically advantageous.

  • Florida Hipster||

    I've gone full anarchist. There is no way for a government to watch itself. No system that gives any amount of power that won't be corrupted.

  • Hugh Akston||

    Tossing more people in jail for nonviolent crimes is not a good solution. If a prosecutor is found to have withheld evidence, they should be terminated, barred from rehire, lose their government benefits, and disbarred.

  • Lee Genes||

    What's nonviolent about imprisoning people unjustly?

  • Citizen X||

    Knowingly putting a person in prison for a crime they didn't commit doesn't involve violence?

  • Florida Hipster||

    This brings up an interesting question. Is hiring an assassin a violent crime or just a contract?

  • Cynical Asshole||

    Is hiring an assassin a violent crime or just a contract?

    In libertopia, that's just a contract. Something something... Somalia... mumble mumble ROADZ /sarc

  • Hugh Akston||

    The entire state apparatus is an unbroken chain of violence. But you can't throw the whole thing in jail.

    If brutal savage neanderthal revenge is your goal, then you howl about jailing everyone who dares to step out of line while masturbating with a handful of your own feces.

    If your goal is to disincentivize misconduct by ambitious prosecutors, then you irretrievably destroy their careers when they withhold evidence.

  • Florida Hipster||

    A 2010 study by the Veritas Initiative from the Santa Clara School of Law reviewing 10 years of prosecutorial misconduct in California found that "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."

    Don't worry Hugh, nobody's going to jail for withholding evidence.

  • Citizen X||

    All this is true, but you have to start somewhere. And prosecutors, while not the cutting edge of state violence themselves, are at least the hand that holds the blade.

  • The Grinch||

    I'd agree your solution would be the best course of action but it is and has been an available solution and it's not being utilized. I doubt this new law will be used very much either because it's essentially self policing

  • Jordan||

    Witholding evidence results in violence being initiated against people who don't deserve it, possibly including death. Prosecutors should rot in prison for the same amount of time their victims would have.

  • Fist of Etiquette||

    It's authorized violence all the way down.

  • Scarecrow & WoodChipper Repair||

    No, they should receive the maximum punishment possible for whatever crime they were trying to forge or frame.

  • Tionico||

    using the threat of death or serious injury at the hands of the state to imprison someone is not a violent crime? If I go downtown, point my handgun at some person, demand they get in my car and go with me, bring them someplace else and close them in so they cannot escape, I have committed the crime of kidnapping, a capital offense.

    Yet these m onkeysuited state agents, able to recruit other state monkeysuited actuaries to "do the dirty work", do it all the time. Like the gentleman who spent 17 years behind bars because solid exonerating evidence was withheld at his trial. Same result, same means. Only I'm not state sancioned in my kidnap example above, but the DA who sells the poor sap down the river and counts on the local marshall to use HIS gun and a specially painted car has done precisely the same thing

  • Tionico||

    The only way this law will be effective is if such cases are brought before a grand jury of local citizens who are NOT involved at any level in law enforcement, and further that the wrongly convicted and/or his defense counsel have the power to bring the charges and evidence before that grand jury which MUST be convened when such a case is brought. Put it into the hands of THE PEOPLE, not in traditional "justice" system goons.

  • The Fusionist||

    To repeat an idea I floated in a earlier thread, grand juries should be able to bring public officials to trial on charges of official misconduct - and the approval of the DA should *not* be necessary for such a prosecution. The court could appoint a special prosecutor.

  • Scarecrow & WoodChipper Repair||

    ALL juries should consider the entire case, and rebound charges against the prosecutors in egregious cases. In particular, they should be able to levy the maximum punishment for the charged crime, regardless of how much punishment the prosecutor was asking.

  • Tionico||

    Perhaps the defense attorney whose client was wronged would be the ideal and preferred prosecutor? Turn the tables on the Big Boys Working Inside.

  • IceTrey||

    Yes an innocent person can go to jail for a long time but maybe even worse a killer or rapist is still at large.

  • Tionico||

    not so. SUch a perp will come to justice eventually...... but the innocent imprisoned? That is an unacceptible travesty. Consider what YOU would think were YOU the one unjustly jailed for decades.

  • ||

    Both happen every day here in Corrupticut.

  • AD-RtR/OS!||

    Of course, "Prosecutorial Discretion" will protect the Old Boy's Network, and most of will die before we see the first DA go to prison.

  • Alan@.4||

    I'm curious about one thing here. Re a prosecutorial "intentionally" withholding evidence, how could the withholding of evidence be other than "intentional", as prosecutors are trained professionals, aren't they? By the way, the possible 3 year sentence, when will the first one be imposed, I wonder, and how come such delicacy of sentencing?

  • ||

    Wriggle room...none will get close to jail....

  • ||

    Prosecutors are instruments of deceit here in Corrupticut. I'd be grateful to have a few fired,but jailing would be even better.

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