Mimesis Law
22 April 2021

Fixing Prosecutorial Misconduct: If Not Judges, Then Who?

Nov. 9, 2015 (Mimesis Law) — In response to the Orange County TRED scandal, California passed a new law that takes tough, effective action against will do almost nothing to curb prosecutorial misconduct.

The heart of the new law is Section 2, which states that

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.

The thing is, according to Canon 3.D(2) of California’s Code of Judicial Ethics, Sections 6087.7 and 6087.8 of the Business and Professions Code, and Rule 10.609 of the California Rules of Court, judges are already supposed to be doing this. The law might as well say “Judges should hold prosecutors accountable for misconduct, and this time we really mean it.”

The law goes on to say

If a court finds, pursuant to subdivision (a), that a violation occurred in bad faith, the court may disqualify an individual prosecuting attorney from a case.      

But the individual prosecutor can keep working on all his other cases, because what are the odds that he or she would commit misconduct more than once?

The effectiveness of the law depends on two things. First, the ability to detect misconduct in the first place. The Orange County scandal stands out because of the scale of the misconduct involved. This was tens of thousands of documents stretching back over decades. On the other of the end of the scale, misconduct can be as simple as claiming “the dash cam wasn’t working, so you’ll have to take the officer’s word for it that he stopped the car because a taillight was flickering, and not because it had Colorado plates.”

But even assuming that there’s smoking-gun evidence that the police or the prosecutors are cheating, judges are reluctant to drop the hammer on the offenders. After all, these fine men and women, probably with families and loved ones, don’t deserve to have their lives and careers ruined because they were a little…overenthusiastic, do they?

Of course, neither do the defendants, but you can’t make an omelet without breaking some eggs, can you? And if it’s the wrong egg, well, this is still the best system in the world and if you don’t like it you can move to Afghanistan. Move along, nothing to see here.

No less an august personage than Judge Alex Kozinski of the Ninth Circuit has declaimed:

There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.


Some prosecutors don’t care about Brady because courts don’t make them care.

Judge Kozinski is probably ten times smarter than I could ever hope to be, and he’s right about the second part. On the first part, though, he’s only half right. It isn’t only judges that can put a stop to it. After all, most prosecutors are elected, which means they have to re-elected.

Take Tony Rackauckas, the Orange County District Attorney. He was first elected in 1998 with 59% of the vote, reelected in 2002 with 62%, ran unopposed in 2006 and 2010, and won a fifth term in 2014 with 73% of the vote. Assuming he runs again in 2018, is he going to pay an electoral price for the massive corruption of his office? Because either he knew about it, in which case he’s been deliberately screwing defendants for 17 years; or he didn’t, in which case he’s so negligent that he shouldn’t be in charge of an Orange County lawn mower, let alone Orange County law enforcement. A) evil or B) stupid, take your pick. (Hint: it’s probably not B.)

Is this realistic? Will prosecutors who engage in misconduct, and tolerate or even encourage it from their subordinates, really just get voted out? Maybe not. No lawyer ever got himself elected DA with the slogan of “Vote for me! I will scrupulously respect the rights of the accused and punctiliously abide by the presumption of innocence!” But plenty have been elected with tough-on-crime demagoguery, to the point where a candidate for Michigan Attorney General was criticized for the heinous practice of plea-bargaining. You might as well criticize Michael Jordan for not making every shot he ever took.

Except, why isn’t it realistic? We can all vote, can’t we? Sure, it would be better if judges would actually do their jobs and hold prosecutors and police accountable for their misdeeds. But if they won’t, we have the power to replace them. If we won’t hold our elected officials to high standards, that’s not on just on them. It’s also on us.

2 Comments on this post.

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  • Eva
    10 November 2015 at 4:12 pm - Reply

    Okay maybe this is naive but what about a ballot box initiative which allows the voting public to study a potential electable candidate’s resume indicating what,how,why, and also outcome this candidate decided to use to address this issue of misconduct and any other important issues.

    If it’s a judge just list whatever scandal that happened regarding this kind of misconduct and how the judge decided to address it and was it effective.

    Use that for any kind of representative who is even remotely involved in misconduct so at the very least the voting public can see just how effective their representative are so at the very least the voting public has a bit of information on the candidate to make an informed decision.

    Maybe that would put pressure on these electable representatives to do something about misconduct and clean up this situation.

  • A Modest Proposal for Search Warrants: Goose, Meet Gander
    16 November 2015 at 8:25 am - Reply

    […] Last week, I wrote about prosecutors withholding evidence, and “the epidemic of Brady violations abroad in the land.” Judge Kozinski said that only judges can stop it. I opined that the People could hold their elected representatives to a higher standard. But, like Newton with his apple, or Darwin on the Beagle, Judge Murphy and DA Heggen have shifted the whole paradigm. Forget judges, forget voters. Here’s how we level the playing field: […]