CACJ Sponsored Bill to create a felony for Brady violations being considered by the Governor

Under Fire: Will Los Alamitos, Orange County Prosecutors be Held Liable?

By August 25, 2016 9:26 am ET

LOS ALAMITOS, CA—After a string of new felony vetoes, Governor Jerry Brown today faces another. AB 1909 will cross his desk today, and the Gov. will decide whether or not to allow criminal charges to be filed against prosecutors if evidence is purposefully withheld during a trial.

Under current law, prosecutors guilty of such misconduct can be punished by a judge and then reported to the State Bar of California, which can lead to an attorney losing a license to practice law. A judge can remove a prosecutor, or the entire office, off a case.

California Gov. Jerry Brown is considering whether or not to sign law that can prosecute prosecutors for withholding evidence, Los Alamitos

California Gov. Jerry Brown is considering whether or not to sign law that can prosecute prosecutors for withholding evidence, Los Alamitos

That was the punishment Orange County Superior Court Judge Thomas Goethals doled out when he found misconduct in the case against Scott Dekraai, the worst mass killer in the county’s history.

That ruling—which removed the entire Orange County District Attorney’s Office from prosecuting Dekraai in the penalty phase of his trial—is under appeal.

The president of the union representing Orange County prosecutors, public defenders and county counsel said today he hopes Gov. Jerry Brown declines to sign a bill opening up prosecutors to criminal charges for withholding evidence in a trial.

“Obviously, as DAs we hope he doesn’t” sign AB 1909, said Mena Guirguis, a deputy district attorney who is the interim president of the Orange County Attorneys Association. The organization as a whole voted earlier this month to oppose the legislation, but have not met to issue a statement on its recent passage, Guirguis said.

“So far, he’s had this mantra to not sign any new felonies,” Guirguis said. “He’s vetoed virtually every single new felony that has come across his desk with the statement that we already have enough laws on the books and things can be punished in other ways.”

“It’ll be really disappointing if this is the one he decides to sign,” Guirguis said.

Orange County defense attorney Jacqueline Goodman, secretary of the California Attorneys for Criminal Justice organization, which sponsored the legislation, said the bill should not be controversial.

“Gov. Brown has rightly recognized the profound harm that has resulted from mass incarceration over the last several years, ” Goodman said.

“But unlike with other felonies, if signed into law, AB 1909 would hold prosecutors accountable for intentionally withholding evidence of innocence in criminal trials, resulting in fewer wrongful convictions and less severe prison sentences.

“Unless the problem of prosecutorial misconduct is even more widespread than we realize, this new felony should have the effect of reducing the prison population — indeed by culling the innocent from that population.”

Goodman added, “This should not be controversial — decent, conscientious prosecutors should be first in line to condemn the actions of the few who, by their abuse of the public trust, prevent justice, often where lives hang in the balance.”

Sen. John Moorlach, R-Costa Mesa, said he voted against the bill because he thought it was overkill to make such prosecutorial misdeeds a felony.

“I just thought a felony was too severe,” Moorlach said.

“Even though I can get pretty frustrated with my DA (Tony Rackauckas) I still voted against the bill,” Moorlach told City News Service.

Moorlach said it was a tough vote because it can be easily politicized. Moorlach was unmoved by allegations in the so-called “snitch scandal” involving the use of jailhouse informants in Orange County.

“This is one of those bills where you don’t vote no,” Moorlach said.

“But even if you look at all the recent activities in Orange County, which have been certainly newsworthy, none of them would have fallen with the scope of this bill’s reach. You wouldn’t have had any felonies or even misdemeanors. It was sort of like, ‘Let’s react to something.’ ”

Guirguis said the union’s board voted 8-3 Aug. 9 to oppose the legislation. A couple of public defenders on the board voted in support of the legislation and a few defense attorneys opposed it, Guirguis said.

Guirguis said the bill would “slow down cases,” because it would spur more claims of misconduct, prompting prosecutors to invoke their right against self-incrimination and to hire a lawyer to defend them.

The withholding of exculpatory evidence—known in the courts as a Brady violation—is “very rare,” Guirguis said.

Goodman pointed out that existing law already provides felony punishment for peace officers who conceal material evidence.

Rackauckas “supports the measure, and it should apply to all attorneys who intentionally withhold material evidence,” his chief of staff, Susan Kang Schroeder, said.

UC Irvine Law School Dean Erwin Chemerinsky favors the legislation.

“I think it is important there’s additional enforcement for a basic constitutional duty of police and prosecutors to turn over exculpatory evidence,” Chemerinsky said.

Shutterstock Photo, City News Service Contributed to this Report

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