Ethics Heroes: The California State Legislature And Gov. Jerry Brown


Usually, when Ethics Alarms headlines California’s lawmakers, it is because they have done something irresponsible, like in this postthis 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

19 thoughts on “Ethics Heroes: The California State Legislature And Gov. Jerry Brown

  1. 2 score years ago, when I was prosecuting military cases and teaching both prosecutors and defense counsel, I always — always — turned over everything to the defense. Nothing could have convinced me it was the wrong thing to do, and it was consistent with Air Force common practice at the time. It was oft frustrating that one particular defense counsel did not bring exculpatory information to the prosecutor’s attention — whether he wanted to be able to grandstand in the trial or he actually believed that the prosecution would find a way to undermine the exculpatory information wasn’t clear; had he disclosed the information, trial could sometimes be avoided. Obviously, he was under no obligation to disclose, but frequently would have been (I believe but am prepared to consider other opinions) entirely consistent with his obligation to best represent his client.

  2. This is a good first step.There should be serious consequences for everyone who knowingly participates in these debacles. I am always appalled at these cases when they come to light, primarily of course because an innocent person has been punished, but also because the guilty one has gone unpunished. The prosecutor’s obligation is to see that justice is done, not that a conviction of the accused is obtained. I feel fortunate in that all the prosecutors I worked with on criminal cases were scrupulously compliant with Brady and the discovery rules in our state. It was my experience that full disclosure often led to a plea deal, and avoidance of a costly trial.

  3. Leaving it to the prosecutor doesn’t work, even with ethical prosecutors. I had a case once where the officer testified that he observed the defendant with a silver pistol, whereas, in his police report, he had written it was a black one. The prosecutor in the case told me afterwards–and I never had a problem with his ethics–that he would not have considered ii Brady material. (Virginia criminal discovery rules are horrible–you can’t even get the names of witnesses, much less their statements or police reports. An individual has more discovery rights in a $50 civil suit than he or she would have in a capital murder case.) The jury acquitted.

  4. It is a good first step.

    A Brady violation should also remove a prosecutor’s absolute immunity under 42 USC 1983.

    In my view, any ethical violation that a prosecutor engages in that breaches his duty to his office should immediately remove him from the absolute immunity prosecutors generally enjoy, and allow him or her to only have qualified immunity for protection.

    If the violation only breaches his duty to a defendant, then absolute immunity should still apply.

    A prosecutor using hearsay evidence: Absolute Immunity.
    A prosecutor ignoring Brady: Qualified Immunity
    A prosecutor bringing unfounded charges like Mike Nifong: Qualified Immunity
    A prosecutor making an improper argument in closing: Absolute Immunity.

    I couldn’t convince my fed jur professor of this, so maybe I’m wrong.

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