Mimesis Law
20 November 2019

California Throws Down on Dirty Prosecutors. Or Not

November 23, 2016 (Fault Lines) — November every four years brings us an election for top job in the country and representatives locally. It also brings us new laws. In California, the legalization of recreational marijuana had a supermoon effect on the rest of the laws passed, but one law stands out from others.

AB 1909 might be of particular interest as it criminalizes a common behavior among the state’s prosecutors: Withholding exculpatory evidence in criminal prosecutions.

Of course, prosecutors would dispute that it is common behavior and many defense attorneys would dispute any denial of this assertion by prosecutors. The fact is it does happen and when it does, it’s a horrible injustice.

It sounds like a great law: Stick it to the creep who uses his or her office and power by playing dirty, hiding information and evidence to put an innocent person in a tiny concrete box. See how they like being labeled a felon and sitting in a cage. The relevant part reads:

(c) A prosecuting attorney who intentionally and in bad faith alters, modifies, or withholds any physical matter, digital image, video recording, or relevant exculpatory material or information, knowing that it is relevant and material to the outcome of the case, with the specific intent that the physical matter, digital image, video recording, or relevant exculpatory material or information will be concealed or destroyed, or fraudulently represented as the original evidence upon a trial, proceeding, or inquiry, is guilty of a felony punishable by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years.

The problem is that prosecutors generally enjoy control of most of the information and evidence in a criminal case. When you have an indigent defendant relying on inexperienced or overwhelmed public defenders that have no resources to track down witnesses, pore over thousands of documents or even think to request certain forms of evidence, it could be years before anyone figures out that a prosecutor withheld evidence.

By then it is often too late.

So far, very few prosecutors have suffered any real consequences for misconduct. Take the case of former Texas prosecutor and Judge Ken Anderson as an example. In 2013, he finally served 10 days in jail for sitting on evidence that sent an innocent man to jail for 25 years. Michael Morton sat in a cage all those years while Ken Anderson thrived. In the end, Anderson gave up his law license, got ten days in jail and 500 hours of community service in what Mark Godsey, law professor and director of the Ohio Innocence Project, in a 2013 Huffington Post article described as:

What’s newsworthy and novel about today’s plea is that a prosecutor was actually punished in a meaningful way for his transgressions.

Apparently definitions of “meaningful” vary. Does ten days in jail sound meaningful to you? Morton so far has received around $2 million in compensation.  And he’s not the only one. In Texas and every other state prosecutorial misconduct cost lives, destroys families and blows a lot of taxpayer money. Yet thus far the people responsible have for the most part been free of any consequences.

In California a study conducted in 2012 found it has cost a total of $282 million in settlements and legal fees over 24 years. If you add in all the other states, the destruction of lives and the cost to the public are staggering. The unchecked power of just this one class of people is not just a monumental stain on our justice system, but flat-out disqualifies the use of the phrase, “justice at all.”

As with many laws, legislators leave the details to someone else, and AB 1909 is no exception. Who will prosecute the prosecutors? This job will fall to the next Attorney General or whoever is in charge 10 to 25 years after every case where prosecutorial and police misconduct is discovered by a bunch of students or interns working for an innocence project.  Or maybe a pair of determined appeals attorneys or some random Canadians.

Threatening punishment to a previously untouchable element of government makes for an interesting twist in the ongoing saga of deterrence theory . The punishment is set so low that it will likely be very few, if any who are caught that serve any time at all because they’ll be offered very sympathetic plea bargains as the Attorney General is a political position and so is a District Attorney. With no real enforcement mechanism, the People of California will have a long wait for this law to cut back on unlawful convictions. It’s something to keep an eye on.

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  • bacchys
    23 November 2016 at 9:51 am - Reply

    A minor quibble: Anderson did only five days in jail.

    In order for this law to have any effect there needs to be no statute of limitations and the penalties need to be truly draconian, because the likelihood of the crime being discovered is quite low.