California bill would make prosecutorial misconduct a felony

August 16, 2016

Prosecutors will face felony charges for withholding or falsifying evidence if a bill that is currently making its way through the California Legislature becomes law. The bill calls for punishments of up to three years in prison for prosecutorial misconduct. [OC Register]

Current California law states it is a misdemeanor for anyone, with the exception of law enforcement officers, to withhold or falsify evidence. Law enforcement officers can be charged with felonies for doing so.

In February, Assemblywoman Patty Lopez (D-San Fernando) introduced AB 1909, which calls for prosecutors to also face the possibility of felony charges for misuse of evidence. The bill would increase punishments for prosecutorial misconduct to between 16 months and three years. Additionally, it would allow judges to fine prosecutors and report them to the state for various types of misconduct.

The Assembly voted 60-18 in favor of the bill in June. AB 1909 is currently making its way through Senate committees.

Lopez’s bill has come under consideration as Orange County prosecutors have been embroiled in a jailhouse snitch scandal. Orange County prosecutors have faced allegations that they routinely misused jailhouse informants as part of secretive program and that they withheld information from judges and defense attorneys. In turn, the Orange County’s DA’s Office was booted from the prosecutorial role in a mass shooting case, and murder convictions were overturned.

Additionally, legal experts say there is a statewide problem of prosecutorial misconduct.

A 2010 study conducted by the Santa Clara University School of Law concluded courts fail to report prosecutorial misconduct, prosecutors deny it occurs and the California State Bar almost never disciplines prosecutors for their misconduct. The study stated that the State Bar punished just six out of 600 prosecutors who were accused of misconduct in California between 1997 and 2009.

Orange County District Attorney Tony Rackauckas supports the prosecutorial misconduct bill and says it should apply to all attorneys as well. A 500-member union representing Orange County lawyers, including deputy DAs, public defenders and county counsel, opposes the bill.

Deputy District Attorney Mena Guirguis, the president of the union, said the bill is redundant as there are already safeguards in place. Guirguis also said the bill would clog the justice system and lead to accusations against prosecutors and subsequent investigations, even if they do not have merit.

Some public defenders, however, are speaking out against the union, saying they support the bill and have been working tirelessly to hold the district attorney’s office accountable.