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It wouldn’t have been hard.  He’s up by more than twenty points in the polls.  He’s about to enter what will be his forth and presumably last term as Governor.  The Assembly had passed the bill by nineteen votes, the Senate by seven.  And yet still, Jerry Brown failed yesterday to take what even a California prosecutor in Riverside County called a “straightforward and measured,” step to reign in prosecutors’ intentional violations of their constitutional duties.   

As we wrote yesterday, Assembly Bill 885 was a modest reform.  It gave judges the discretion—not the duty—to disclose to a jury if the government had knowingly withheld exculpatory evidence from the defense, allowing them to weigh that misconduct in deciding reasonable doubt.

The bill’s sponsor, Assemblyman Tom Ammiano, expressed his anger at the Governor’s veto in an opinion piece for this morning’s San Francisco Examiner, writing:

California has seen, in the words of a high-ranking appellate court judge, ‘an epidemic’ of prosecutor misconduct where district attorneys withhold evidence from defense counsel that would be relevant to the innocence of the accused…I wanted to find a way to stop this from happening… But prosecutors—the same people who have no qualms about putting people away for stealing a few DVDs—went ballistic at the thought that they might face that modest consequence for intentionally—I repeat, intentionally—concealing evidence.  And that’s who the governor listened to…Based on what he has and has not signed this year, this is a governor who seems to care more about the right of a dog to visit a restaurant than the right of an innocent defendant to a fair trial.

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.

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