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California makes it a felony for prosecutors to withhold or alter exculpatory evidence

More than two years into a dispute over alleged misconduct by Orange County, California, prosecutors trying a multiple-murder case, the state of California has made it a felony crime to withhold exculpatory evidence.





According to the Los Angeles Times, the new state law makes it a felony, rather than a misdemeanor, for prosecutors to alter or intentionally withhold evidence that could be used to exonerate defendants. Violators of the law could be sentenced to up to three years in prison.

The sponsor of the law, Assemblywoman Patty Lopez of Los Angeles County, told the Times she was not directly inspired by allegations that prosecutors in Orange County planted jailhouse informants near high-profile defendants and withheld that information from defense lawyers. But the situation did help inform the debate, the article said, and it inspired supporters like the California Attorneys for Criminal Justice, an advocacy and lobbying group for the defense bar.

“The prosecution in [Orange County] seemed to be acting with impunity,” CACJ President Matthew Guerrero told the Times. “So we wanted to send a strong signal that the criminal justice system needs to do the right thing in the right way.”

The Orange County allegations center around the trial of Scott Dekraai, who murdered his ex-wife and seven other people at her workplace in 2011 because he was angry about a custody dispute. Dekraai’s public defender, Scott Sanders, found evidence that jailers in the county had moved a secret informant to a cell next to Dekraai and tasked the informant with getting Dekraai to incriminate himself. This would violate Dekraai’s Sixth Amendment rights under Massiah v. United States, a 1964 U.S. Supreme Court decision.

Sanders alleged that prosecutors knew about this practice but failed to hand over information about it to the defense. In addition to violating the new state law, this practice would violate the defendant’s rights under the U.S. Supreme Court’s Brady v. Maryland decision. And, Sanders said, there was evidence that this practice had been going on with other defendants for many years, potentially tainting hundreds of convictions.

As a result of the allegations Sanders raised, a trial judge removed the entire district attorney’s office from the Dekraai case in March of 2015. The California attorney general’s office has appealed the removal decision; that matter is currently in briefing. In another capital case where Sanders alleged misconduct, trial went ahead despite the allegations, and the defendant has been sentenced to death, the Orange County Register recently reported.

Multiple defendants in Orange County have since gotten new trials, hearings or sentences, as the ABA Journal reported in May. Some of the new sentences have been very favorable to the defense, despite the seriousness of the crimes involved. One defense attorney told the ABA Journal he believes the prosecution would rather accept a light sentence than have a hearing in which the defense could raise prosecutorial misconduct allegations.

A spokeswoman for the office of Orange County district attorney Tony Rackauckas told the Los Angeles Times that the office supported the bill raising the penalties for withholding evidence. However, she said, the law should cover conduct by defense attorneys as well. She also noted that the judge who removed the office from the Dekraai case found no intentional wrongdoing by prosecutors.

Although the Orange County allegations have attracted national attention, they have resulted in very few consequences for the accused prosecutors and sheriff’s deputies. One prosecutor voluntarily resigned and moved to Nebraska; several sheriff’s deputies have taken the Fifth Amendment when called as witnesses. Rackauckas convened a panel of people not employed by his office to investigate, and his office told the ABA Journal that it’s implementing reforms suggested by that panel.

A group of law professors, including University of California at Irvine Law School dean Erwin Chemerinsky, has called on the U.S. Department of Justice to investigate the situation. (Chemerinsky, a regular contributor to the ABA Journal, has since agreed to represent the Superior Court of Orange County in the appeal and therefore stopped commenting publicly.) Local media has reported that the DOJ is “keeping an eye” on it. Spokespeople for the DA’s office told the ABA Journal they’d welcome such an investigation.