In what may be the first law of its kind to directly address what Federal Appellate Judge Alex Kozinski has called the “epidemic” of prosecutorial misconduct in the United States, the California Legislature last week passed a bill requiring a trial judge to report a prosecutor to the state bar if the judge makes a finding that the prosecutor has engaged in deliberate withholding of exculpatory evidence.

The bill also authorizes judges to remove an individual prosecutor from a case in which the judge finds he or she has cheated during discovery, and to remove an entire district attorneys’ office in cases where misconduct is found to be systematic.

The law, Assembly Bill 1328, was introduced by Assemblywoman Shirley Weber (D-San Diego), and sponsored by California Attorneys for Criminal Defense (CACJ), and came in response to what the New York Times editorial board recently called “the blatant and systematic misconduct in the Orange County district attorney’s office.” It was opposed by the California District Attorneys’ Association.

The fact that a bill directly addressing the misconduct of prosecutors during discovery has passed a state legislature and been signed into law over the objections of a prosecutors’ association is a remarkable development, which, given California’s size and national influence, has the potential to be a milestone in the long effort ahead to create prosecutorial accountability nationwide.

Questions remain, however, as to how the language of this particular law will be put into action by judges, and thus what its ultimate effect on prosecutorial conduct will be.

Advocates of prosecutorial reform have expressed cautious optimism about the new law.  Judge Kozinski told The Huffington Post “the bill seems like a step in the right direction,” but noted that it gives “a great deal of discretion to trial judges, so its effectiveness will depend on the degree to which those judges are willing to exercise that authority.”

In a statement, the ACLU of Northern California applauded the legislature’s action and called the law “an important first step.”

Prosecutors who deliberately withhold key evidence from defense attorneys should be held accountable and judges now have the authority to do just that. This law is by no means a complete fix to the problem of prosecutorial misconduct and error, however it is a step in the right direction.

As both these comments suggest, the proof of the law’s efficacy will come in its implementation by trail judges, and in trying to decipher how this might play out it is important to pay close attention to the text of the law itself.

A New Reporting Standard

A close reading of the law suggests its ultimate impact could end up being more expressive than practical.

The first section of the law reads (with emphasis added):

Upon receiving information that a prosecuting attorney may have deliberately and intentionally withheld relevant or material exculpatory evidence or information in violation of law, a court may make a finding, supported by clear and convincing evidence, that a violation occurred. If the court finds such a violation, the court shall inform the State Bar of California of that violation if the prosecuting attorney acted in bad faith and the impact of the withholding contributed to a guilty verdict, guilty or nolo contendere plea, or, if identified before conclusion of trial, seriously limited the ability of a defendant to present a defense.

As the emphasis makes clear, the standard built into this reporting requirement is remarkably high. Not only must the judge find that the prosecutor has “deliberately and intentionally” withheld exculpatory evidence, that evidence must meet the materiality requirement familiar from Brady analysis, and the deliberate and intentional nature of the withholding must be supported by “clear and convincing evidence.”

But this is not all. In a further requirement, even after making such a finding, the judge will only report the violation “if the prosecuting attorney acted in bad faith.”

On its face, it is not clear what this last criteria could mean. Can a prosecutor who, by clear and convincing evidence, intentionally and deliberately withheld material evidence, not have acted in bad faith? This third, seemingly duplicative requirement suggests a bar set at such a level that few acts of prosecutorial conduct would qualify.

The risk here is that in setting up a reporting requirement that encourages judges to more closely police prosecutors, the law has introduced a standard that may make such reports rare indeed.

A piece of legislative history helps explain why this may be the case. When asked about the standard which the law enacts, one of CACJ’s legislative advisors, Dennis Garcia of the Hernandez Strategy Group, told the Open File:

We wanted to set a lower standard but the reality was that in order to get the law passed, we needed to set the bar high. In addition, the California District Attorney’s Association sought that high standard as well. In order to reduce their opposition, we conceded that standard.

It is important, in light of this, to recognize that while the mere fact of this law’s enactment is a victory for the overall cause of prosecutorial accountability, and a strong and highly useful expression of the importance of the issue, the standard that must be met for it to have real-world effect is remarkably strict.

In this regard, it is worth remembering that, as members of the state bar themselves, judges are already obliged to report what they suspect to be ethical violations on the part of any lawyer who appears before them, however rarely this may occur in practice. Thus, to the extent that the new law sets up a stricter standard to be met before judges report a prosecutor, including a materiality requirement not present in the code of ethics, this first part of the law may serve a more expressive than practical purpose.

Indeed, the text of the law itself acknowledges these existing obligations when it concludes by stating:

This section does not limit the authority or discretion of, or any requirement placed upon, the court or other individuals to make reports to the State Bar of California regarding the same conduct, or otherwise limit other available legal authority, requirements, remedies, or actions.

The more muscular features of the law come into effect if and when a trial judge does use his or her discretion to find that a violation has occurred under the new standard. Once that threshold has been met, the law has two further provisions which authorize judges to act forcefully in response to prosecutorial misconduct.

First, the court may remove the prosecutor from the case when a violation has been found; and second, and most responsively to the situation in Orange County, if a prosecutor is removed, the defendant may make a motion to have the entire district attorney’s office removed “if there is sufficient evidence” that the withholding of evidence “is part of a pattern and practice of violations.”

Given that this latter step is exactly what Judge Thomas Goethals did in the case of the Orange County DAs office, and that his decision to do so is currently being appealed by Attorney General Kamela Harris as judicial overreach, the new law is a clear and important message from the legislature and the governor that such drastic measures are indeed justified in circumstances of thoroughgoing corruption.

These latter two provisions are the strongest aspect of the new measure, and the express grant of these authorities to judges over prosecutors is a major achievement. Yet because these authorities come into effect only if the high standard of the first provision is met, it remains on open question how often they will be exercised in practice. All of which underlines the importance of seeing this law as the beginning and no in any way the conclusion of efforts to reform the prosecutorial function.

In this regard it is helpful to put the present law in context with a related effort from law year’s legislative session in California. Last September, a different bill that addressed itself to the same problem, and which passed the legislature, was vetoed by Governor Brown. If signed into law, it would have provided a far more direct check on prosecutors’ failure to disclose exculpatory evidence.

Assembly Bill 885 would have established that a “court may instruct the jury that the intentional or knowing failure to disclose the materials and information occurred and that the jury shall consider the intentional or knowing failure to disclose in determining whether reasonable doubt of the defendant’ s guilt exists.”

This would have implemented a different league of accountability altogether, with direct consequences for the outcome of cases, rather than possible, collateral consequences post facto.

As efforts to increase prosecutorial accountability continue, and as advocates push for laws that will bring real as well as symbolic change, it is worth keeping in mind the rule this earlier bill set forth as a possible model.

In the meantime, there is nothing to say that the new law has to be chiefly expressive. As Judge Kozinski noted, the law vests a great deal of discretion in the hands of trial judges, and we certainly hope it will have the effect of encouraging them to police prosecutors more effectively than they historically have.

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