New Law Would Make it a Felony for Prosecutors to Withhold Evidence

Prosecutors who intentionally withhold or falsify evidence would be guilty of a felony under a bill currently making its way through the California Legislature.

AB 10909 was introduced by Assemblywoman Patty Lopez (D-San Fernando) in February and is now headed to the state Senate, having been approved in committee Thursday. It would raise the crime of prosecutorial misconduct from a mere misdemeanor to a felonious offense, carrying with it a sentence of 16 months to 3 years.

Lopez’s bill was introduced in response to several high-profile district attorney controversies—most notably the jailhouse informant scandal out of Orange County. Prosecutors and police there have been accused of operating a secret program in which they illegally used jailhouse snitches and regularly withheld pertinent information from judges and defense attorneys. As a result of the scandal, the Orange County District Attorney’s Office was removed from the trial of Scott Dekraai, who murdered eight people at a salon in Seal Beach in 2011. In nearly a dozen other criminal cases, convictions have been overturned or the charges dropped altogether.

Proponents of the legislation say the issue goes far beyond Orange County. A 2010 study by Santa Clara University School of Law called the problem of prosecutorial misconduct “critical.” According to the analysis, courts simply fail to report such misconduct most of the time and the California State Bar almost never disciplines it. Similarly, in 2014, U.S. 9th Circuit Court of Appeals Judge Alex Kozinsky said such prosecutorial violations had become an “epidemic.”

Orange County District Attorney Tony Rackauckas is backing Lopez’s legislation. But, among prosecution groups, he’s in the minority. The 500-member union representing Orange County lawyers has opposed the bill, calling it redundant and costly. Some of its rank and file have parted ways and say they support the bill, however.

Read more about AB 10909 here.

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