Seven years ago, then-California Gov. Arnold Schwarzenegger vetoed three bills that would have imposed some simple, inexpensive criminal justice reforms in California. The bills were the product of a statewide commission of current and former prosecutors, judges, defense attorneys, and law enforcement officials assembled to study how to prevent wrongful convictions. They would have required police interrogations to be recorded. Prosecutors would have been obligated to find corroborating evidence before calling as witnesses jailhouse informants who had been given time off their sentences in exchange for testimony. The bills also would have created a commission to study the reliability of eyewitness testimony.

The bills passed both houses of the California legislature. But Schwarzenegger vetoed them, after some aggressive lobbying by the California District Attorneys Association. According to the National Registry of Exonerations, since those vetoes in 2007, 39 people in California have been exonerated of felony charges for which they had been wrongly convicted.

California has since elected an allegedly more progressive governor in Jerry Brown. This year, the state legislature again passed a bill aimed at reining in wrongful convictions, this time by allowing judges to inform juries when prosecutors have been caught intentionally withholding exculpatory evidence, which is already a breach of ethics and arguably illegal. It was modest reform that even some state prosecutors supported. Yet Gov. Brown vetoed it. The watchdog site The Open File, picks apart Brown’s justification.

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Brown based his veto on two claims: first, that “Under current law, judges have an array of remedies at their disposal if a discovery violation comes to light at trial”, and, second, that the bill “would be a sharp departure from current practice that looks to the judiciary to decide how juries should be instructed.”
The first claim ignores the very problem that the bill was designed to remedy by suggesting that the present regime of prosecutorial accountability is perfectly sufficient, when the evidence, not only in California, but across the country continues to mount that too many prosecutors have for too long violated their constitutional and ethical duties as public officials.
The second claim is, if possible, even stranger.  In fact, one could be forgiven for thinking Brown’s office hadn’t read the bill.  To say that an amendment to the penal code which vests discretion in judges is a “sharp departure” from the practice of allowing “the judiciary to decide how juries should be instructed,” is, frankly, bizarre.  But not arbitrary.  It bespeaks a broader truth at work here: when unchecked authority detects even the hint that its prerogatives are being questioned, its reaction is frequently hysterical.  It goes “ballistic” as Assemblyman Ammiano suggested. And when impunity is threatened, reason goes out the window.  Minor reforms are seen as existential threats.
Which, of course, carries through into something broader still.  A national, racialized hysteria over crime that has for decades now fogged the public mind to the enormous human cost of over prosecution and over sentencing.
Jerry Brown had an opportunity to take one baby step toward slowing the rate of this damage.  Alas, the Democratic Governor of perhaps the most reliably Democratic state in the union couldn’t summon the courage.  His party’s capitulation to the law-and-order agenda is apparently too deeply woven into his political identity.  And so he has left it to others to start burning off some of that fog.

It isn’t as if prosecutor misconduct is nonexistent in California. A 2010 study by the Northern California Innocence Project found 707 instances of prosecutorial misconduct in California courts between 1997 and 2009. And those were merely cases where misconduct had been found by appellate courts. The study also found that over that same period, just 10 state prosecutors were disciplined by the California State Bar. A follow-up study the following year documented 102 cases of misconduct found by California judges in 2010 alone, including 31 in Los Angeles County. In a ruling last December, Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit — which includes California — decried an “epidemic” of Brady violations in America. (“Brady” is shorthand for the Supreme Court decision requiring prosecutors to turn over exculpatory evidence.)

And there are plenty of more specific examples:

  • In 2007, an assistant district attorney in Santa Clara County was found to have introduced a faked DNA report into evidence in a sex abuse trial. Subsequent investigations found that the office failed to turn thousands of hours of recorded interviews with alleged sex abuse victims over to defense attorneys. District Attorney Dolores Carr stood by the ADA. When he was suspended by the state bar, she tried to limit the bar’s power to discipline prosecutors (a power that, as noted, is already exercised rather meekly). When a state judge released a man convicted based on bad evidence, Carr vowed to “boycott” the judge. (The convict’s accuser later recanted.) This was all particularly problematic, given that California was home to dozens of false sex abuse convictions in the 1980s and 1990s. In March 2009, the San Jose Mercury News reported that the county crime lab also failed to report hundreds of instances in which its analysts had disagreements over fingerprint matches.
  • Also in 2007, a California Court of Appeals ruled that Tulare County deputy district attorney Phil Cline had improperly withheld an exculpatory evidence in the 1986 murder trial of Mark Soderston. The tape was so exculpatory, the court wrote, that “an innocent man might be convicted.” It was too late for Sodersten, who had already died in prison. Yet not only was Cline never disciplined by the state bar, he was elected district attorney in 1992. He continued to win reelection, even after the court opinion. Another prosecutor in the case went on to become a judge.
  • In 2011, the Ventura County Star reported that the county DA’s office had for years held competitions to see which prosecutor can try the most cases.
  • In 2012, the ACLU of Southern California filed a lawsuit alleging that Los Angeles County District Attorney Steve Cooley had adopted “a formal policy that requires prosecutors in his office to suppress all favorable evidence unless the prosecutor is personally convinced that the evidence is true, that prohibits disclosure of any favorable evidence that is relevant to an ongoing administrative or criminal investigation, and that mandates suppression of favorable evidence if a deputy district attorney speculates, pre-trial, that it is unlikely to affect the verdict. As a result, in all criminal prosecutions since at least 2010 . . . have been prohibited by Mr. Cooley from complying with their constitutional and statutory disclosure obligations.” The suit was related to allegations of guard-on-innate violence at the L.A. County jail. It alleged that the DA’s policy was allowing such incidents to be covered up.  Last month, a federal judge excoriated county jail officials for a “culture of corruption” while sentencing six former jail workers to prison. U.S. District Judge Percy Anderson excoriated the county’s “culture of corruption” that enabled law enforcement officials to “shield these dirty deputies from facing the consequence of their crimes.”
  • In 2008, an Orange County prosecutor twice asked crime lab analysts to “change” test results that exonerated a defendant in a carjacking. She later told the OC Weekly, “About every week, we ask the crime lab to reconsider findings. Sometimes, they make changes.” She then proceeded to try the defendant anyway. Threatened with a life sentence, he accepted a plea bargain on a lesser charge and a two year sentence. He was imprisoned for 16 months before further DNA tests provided a match to a guy already facing auto theft charges. (Adding insult to injury, the state of California then refused to compensate the man because, according to state officials, in accepting the plea bargain, he was partly responsible for his own wrongful conviction.)
  • Just last August, the OC Weekly also reported that a state court had found massive unethical conduct on the part of prosecutors (along with jail officials), including threatening and intimidating a defendant, hiding and destroying records and documents, and talking to the defendant without his attorney present.
  • In 2012, the California Supreme Court overturned a death sentence after dissevering that prosecutors failed to disclose key exculpatory evidence in the case. None of the prosecutors were disciplined.

These are merely cases and incidents that I recall from my own reading and reporting. It is by no means a comprehensive list. Whatever “current practice” Jerry Brown believes is in place to deter prosecutors form withholding unfavorable evidence, it doesn’t seem to be working.

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