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As the issue of prosecutorial misconduct has begun to rise into public consciousness, and demands for accountability have grown louder, The Open File has been tracking a few states (see, Pending Legislation) where legislatures have begun to address the lack of consequences for prosecutors who violate defendants’ constitutional rights.  One of them is California, where last month the legislature passed Assembly Bill 885.

The bill discourages intentional Brady violations by giving judges the power to inform a jury if a prosecutor has knowingly withheld evidence favorable to the defendant.

In any criminal trial or proceeding in which the court determines that the prosecuting attorney has intentionally or knowingly failed to disclose specified materials and information required under current law…and Brady v. Maryland, the court may instruct the jury that the intentional or knowing failure to disclose the materials and information occurred and that the jury shall consider the intentional or knowing failure to disclose in determining whether reasonable doubt of the defendant’ s guilt exists.

It’s worth noting what a modest reform of the rules governing prosecutorial conduct this really is.  For one thing, it covers only intentional failures to disclose, adding no sanction or discouragement for the far more common negligence in discovery that leads to countless denials of constitutional rights.  Moreover, it leaves it within the judge’s discretion as to whether or not to even mention the intentional violation (“the court may instruct”).

So the bill takes the most pernicious behavior of deliberate withholding and opens the door to possible inclusion of that behavior in a jury’s weighing of reasonable doubt.  It’s also worth noting that while advocates like California Attorneys For Criminal Justice president Scott Sugarman have described this as “a meaningful sanction” it remains safely and squarely within the framework of “punishing” prosecutorial misconduct by offering a (small) procedural advantage to defendants at trial.  There is not a word in the bill about a prosecutor’s intentional law-breaking having any consequence to him or her beyond making a conviction in that particular case moderately more difficult to achieve.

Nonetheless, the California District Attorneys Association has strongly opposed the bill.  Santa Clara County District Attorney Jeff Rosen told the Legislature the bill was “entirely one-sided” and went “too far.” (We can only assume that Mr. Rosen’s internal office controls are sufficient when one of his deputies, Ted Kajani, was recently removed from a murder case for failing to disclose 10,000 pages of evidence, while embroiled in an affair with a witness for the prosecution.  But let us not quibble.)

In a sign of changing times, however, other prosecutors have endorsed the legislation, and seem very much aware of the need for reform.  Just last week, Burke Strunsky, Senior Deputy District Attorney in Riverside County, wrote for HuffPo about the “cognitive bias” that leads prosecutors to ignore evidence that doesn’t fit their theory of a case, and called the bill “actually quite straightforward and measured.”

The real question now is whether Governor Jerry Brown will sign the legislation.  He is nominally engaged in a reelection campaign, though anyone hanging on the outcome of that race should get out of the house more often.  Will Brown, in election mode, act reflexively and defensively from the old law-and-order playbook that his party has given itself over to for most of the last thirty years, or will he hear what his legislature is telling him (by a wide margin)?  That it’s okay to start telling the truth about the pathologies of prosecution in America.

We’ll know the answer by tomorrow.


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