Usually, when Ethics Alarms headlines California’s lawmakers, it is because they have done something irresponsible, like in this post, this one, and my personal favorite, this one, in which Governor Jerry Brown signed a minimum wage law that he admitted might not make economic sense, because it was consistent with partisan fantasies.
But a blind pig might find a truffle, every dog has its day, and even a stopped clock is right occasionally. California just passed a desperately needed law that no other state has had the courage to pass. Its purpose: take serious measures to stop prosecutorial misconduct that sends innocent people to jail, a problem that is rampant everywhere in the U.S., but particularly bad in the Golden State.
Brown just signed into law a new statute making it a felony for prosecutors to alter or intentionally withhold evidence that could be used to exonerate defendants. Violators could be sentenced to up to three years in prison. That’s not nearly enough punishment when the crime often robs innocent citizens of decades of their lives, but it sends an important, and one hopes an effective, warning…with teeth.
The catalyst for the law appears to be sensational allegations that prosecutors in Orange County planted jailhouse informants near high-profile defendants and withheld that information from defense lawyers. Evidence appeared suggesting that prosecutors had been doing this for many years, potentially making hundreds of convictions invalid by violating those defendants’ rights under the U.S. Supreme Court’s Brady v. Maryland decision. The scandal inspired groups like the California Attorneys for Criminal Justice, an advocacy and lobbying group for the defense bar, to make a concerted push for the new legislation.
Criminal penalties for these betrayals of justice by the same state lawyers charged with achieving it are long overdue, as in centuries. The National Registry of Exonerations has counted 1,894 convicted Americans proven innocent since 1989. Fifty-one percent of those wrongful convictions resulted from prosecutor misconduct, usually in homicide cases.
Predictably, some prosecutors and former prosecutors are criticizing the law. One of the latter, Daniel R. Alonso, told the Christian Science Monitor that he thinks that the new law could create “a culture of fear” among prosecutors, saying,
“Once you single out prosecutors in this way, you make an already difficult job much more difficult. You risk discouraging people from public service for fear of getting attacked, and for fear of baseless claims. Jails today are full of people who no doubt would like to make a claim under this law, whether they’re true or not,” he continues. A complaint can consume the life of a completely honest, well-meaning prosecutor.”
This is a worst case scenario, slippery slope rebuttal, and a poor one. There is an easy way to avoid Alonso’s scenario: turn entire case files over to the defense, as some ethics distract attorneys do now. One can’t be accused of not turning over exculpatory material when all evidence and information relating to the case have been revealed. This avoids the problem exemplified by CNN’s ex-DA reality star Kelly Siegler, who came under fire for allegedly withholding Brady material in cases she had prosecuted. Her defense is that she decided that the material wasn’t exculpatory, as if a prosecutor’s judgment on that issue isn’t likely to be affected by bias. Why not let the defense attorney make that determination? What is there to be afraid of then?
California’s law is an excellent start. The next step is to only hire ethical prosecutors.
Pointer and Facts: ABA Journal
Source: Christian Science Monitor