A Tale of Two Rules for California Prosecutors

In the first days of fall, the Golden State has set forth two new, important rules to punish prosecutors who unreasonably, recklessly, or intentionally withhold evidence from the accused. One is a criminal statute that goes into effect next year. The other is an ethics rule that goes into effect if and when the state’s supreme court approves it. Both aim to create real consequences for prosecutors who wreck lives by committing Brady violations.

First, on September 30, Governor Brown signed California Assembly Bill 1909 into law. The new law makes it a felony for prosecutors to not disclose evidence or information that’s material to the outcome of a case if they do it intentionally and in bad faith. It used to be a misdemeanor at most. The new law is effective January 1, 2017. Here is the actual text:

A prosecuting attorney who intentionally and in bad faith alters, modifies, or withholds any [evidence or information], knowing that it is relevant and material to the outcome of the case, with the specific intent that [it] be concealed or destroyed, or fraudulently represented as the original evidence … is guilty of a felony.

The crime is punishable by imprisonment for 16 months, two years, or three years.

Next, on October 1, the State Bar of California, which regulates the state’s lawyers, adopted proposed Rule of Professional Conduct 5-110 by an 11-1 vote. The new ethics rule would require prosecutors to disclose all evidence that they know, or reasonably should know, would be favorable to the accused. Here again is the actual text:

The prosecutor in a criminal case shall … make timely disclosure to the defense of all evidence or information known to the prosecutor that the prosecutor knows or reasonably should know tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense all unprivileged mitigating information known to the prosecutor that the prosecutor knows or reasonably should know mitigates the sentence, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.

The proposed rule now goes to the California Supreme Court for approval.

Some say it’s the best of times; some say it’s the worst of times.

Either way, let’s make it better.

Lies, Damned Lies, and Sex Crimes

If you thought the case from last week was bad, here’s another one that’s worse.

This time, the supposed victim hasn’t stepped forward to admit she lied, so the man she accused of child molestation sits in prison, as he has for seventeen years, and the system seems powerless to stop it.

What happened? The jury never saw medical records in which the girl’s mom told a hospital therapist that her troubled daughter was a “pathological liar and she lives her lies.” The jury never heard about this and other details at trial because the prosecutor didn’t turn over the records. He told the judge there wasn’t anything in there to worry about.

How did it happen? The man was divorced and estranged from the mom, but he’d been in the girl’s life for ten years before that. The girl first reported the abuse three years after the divorce but only after her mom found out that she was dating a 27-year-old heroin-dealing parolee, and they got into a big fight about it. The mom reported the parolee and got him locked up. The girl flew into a rage and attempted suicide several times. It was in that context that she accused him.

But the girl’s story changed throughout the case. Initially, she said that he had touched her inappropriately but denied oral sex or intercourse of any kind. Then she claimed that he had raped her. By the time of trial, her testimony was that her stepfather had routinely raped her for years. Then, after he was convicted, she submitted a victim-impact statement in which she claimed, for the first time, that he had even shared her sexually with others.

The judge was not impressed. She had presided over the trial, and she thought the girl was lying. She asked to see her medical records, but the prosecutor refused. She threatened to throw out his conviction unless she saw the records, and he gave in.

The judge took one look at the girl’s medical records and immediately ordered a new trial. Here’s her written order. You should read it for yourself.

But the prosecutor’s office appealed the judge’s order. They got the conviction reinstated and the case reassigned to another judge, who sentenced the man to seventy years.

The man remains in prison today, serving out a death sentence. His case has cut a tortured path through state and federal appeals.

Someone should intercede.

An Open Letter to the District Attorney of Orange County

Mr. Rackauckas: Just what is going on in your office, sir?

I’m not talking about the fight that broke out in a county courthouse three weeks ago between one of your investigators and a defense attorney. Never mind that if a defense attorney did this to a cop, he’d be arrested so fast his head would spin. (Full disclosure: I met this lawyer two weeks ago at a bar association event and had lunch with him on Monday. Although he’s told me his side of the story, he wasn’t trying to sell anything, and I wasn’t looking to buy, either.) But that’s not the issue here.

I’m not even talking about the jailhouse snitch scandal that led to the fight and that has roiled your office—and my county—for two years now since it’s come to light. Plenty of ink has already been spilled about it, including in a letter to the U.S. Attorney General last November by a coalition of legal authorities, who called on the Justice Department to investigate the scandal. But that’s not it, either.

No, I’m wondering about your office’s response to the scandal, and specifically, the way it has retaliated, systematically, against the trial judge who ordered the hearings that brought the misconduct to light.

I couldn’t believe it at first.

More than once after the scandal broke, I had attended events at which some of your senior deputies expressed both regret and resistance over the news. By turns, what I heard from them was that, yes, some mistakes were made, and we understand your concern, but please don’t blow it out of proportion, give us the benefit of the doubt, and by the way, we’re already doing better and will continue to do better.

Then I learned that, in December, a supervising judge of the superior court had to take your office to task for repeatedly using a procedural tool to disqualify the trial judge from 94% of the murder cases that he’s been assigned to since he began scrutinizing your misconduct. That’s 46 out of 49 murder cases, sir. Your office never did that before, and this to a judge who’s among the more experienced, independent, and respected on the felony trial panel. (Full disclosure: I have a white-collar case pending before this judge.)

The supervising judge found that your office had violated the separation of powers under the state and federal constitutions, and he rightly called it an attempt to punish, silence, and intimidate the trial judge as well as send a signal to the rest of the bench. It’s a national story, and the Orange County Bar Association has taken a stand against it.

I’m wondering if you think this demonstrates good faith by an office whose mission is to “enhance public safety and welfare and create a sense of security in the community through the vigorous enforcement of [the] laws in a just, honest, efficient, and ethical manner.”

Sometimes, the right thing to do is take your lumps and stand down, but instead, your office has chosen to appeal the supervising judge’s order, taking the position that you did not direct your deputies to retaliate against the trial judge.

But either you directed them, sir, or you are not sufficiently in command of your office.

Which is it?

Something Wicked This Way Comes

I recently watched the documentary, Making A Murderer, and if you haven’t yet, you should. No, it’s not an indictment of all law enforcement. It’s an object lesson in why we should be deeply skeptical of power and the people who lord it over our lives. And how easy it can be for them to get you, too, especially once they’ve called you a murderer.

So go ahead and watch it if you haven’t already, and watch it again if you have. Then form your own opinion. Mine is that something stinks to high heaven, and there’s probable cause to believe that the real criminals are getting away with it. Here’s a little bit of the why.

It was 2005, and Steven Avery had filed a lawsuit.

His lawsuit had named the former county sheriff and district attorney as defendants, and those men had reason to be worried.

Some of their lead deputies had royally stepped in it by the way they had handled Avery’s 1985 rape case, which is why Avery had sued them in the first place.

The deputies had purposely withheld material evidence in the rape case when they knew or should’ve known that another suspect, Gregory Allen, was the real rapist. They suppressed that evidence even after new DNA testing pointed to an unknown third party. They hid that evidence even as they watched Avery desperately plead his case on appeal.

Then, in 2003, Avery was exonerated when advancements in DNA testing were able to conclusively identify Allen as the rapist. So Avery was cleared, and he filed a $36 million lawsuit for the eighteen years he spent in prison at the hands of their misconduct. That was $1 million for each year in prison plus $18 million in deterrent, punitive damages.

His lawsuit was getting traction in the second half of 2005, and the defendants had reason to be worried. Some of their deputies had already been deposed on September 22, October 11, October 13, and October 26, and those depositions had not gone well. The evidence was embarrassing to all involved, and it was leading upstream.

The sheriff’s and district attorney’s own depositions were scheduled for November 10 and November 15, respectively, and the county’s insurance company had taken the position that it would deny any coverage because the case involved intentional misconduct.

That meant the defendants faced the prospect of a massive personal judgment if they were found liable, along with other civil and criminal consequences.

Then, on November 3, a woman went missing.

And the rest you can judge for yourself.

May the chickens come home to roost.

A House of Cards

That’s how the U.S. Supreme Court described the evidence in a murder case that it reversed last week because the prosecution had wrongly concealed other important evidence from the defense and jury.

Factor in that other evidence, the Court held, and the house begins to crumble.

How so?

There was no physical evidence tying the defendant to the murder, only the words of two inmates who were serving time for their own, unrelated cases.

The first inmate, Scott, was the one who first contacted the authorities to implicate the defendant nearly two years after the murder. His story had problems to begin with, but he subsequently gave five more statements, and the story would change each time. By the time he testified as the star witness at trial, his account bore little resemblance to the original version. Notably, he testified that another guy, Hutchinson, had run into the street, flagged down the victim’s car, pulled the victim from his car, and participated in the murder.

What the jury never heard was that Scott had a personal beef with the defendant that Scott had told another inmate about. That statement wasn’t produced at or before trial. Nor did the jury hear from another inmate who said Scott tried to coach him to lie about the defendant. That statement wasn’t produced, either. Nor did the jury get to see Hutchinson’s medical records, which would’ve shown that the man had undergone major knee surgery nine days before the muder. The surgery was to repair a ruptured patellar tendon, which meant that, nine days later, he barely would’ve been able to bend his knee. The prosecution had these medical records before trial, but they didn’t turn them over.

The other inmate, Brown, backed up Scott’s story at trial. Although he’d previously given an inconsistent statement to police, he said he decided to testify against the defendant because his sister knew the victim’s sister. He claimed his decision had nothing to do with helping himself. The prosecutor vouched for that in opening statements and closing arguments, saying there was no deal on the table and that Brown hadn’t asked for anything.

What the jury didn’t hear was that, in fact, Brown had twice sought a deal to reduce his sentence in exchange for testifying against the defendant, and the police had told him they would “talk to the D.A. if he told the truth.” The prosecution had those police notes in their possession, but they didn’t turn them over.

On appeal, the state courts ruled that, even if the defendant’s constitutional rights were violated, the errors were harmless.

But the Supreme Court was having none of that, and it summarily reversed the conviction.

New California Criminal Laws in 2016

Happy New Year! And with it, here are five important criminal laws that went into effect.

Courts must report prosecutors for bad-faith Brady violations. This is Assembly Bill 1328. It amends the Penal Code to provide that a court must report a prosecutor to the State Bar who it finds, by clear and convincing evidence, has deliberately withheld exculpatory evidence in bad faith, and the violation either contributed to your conviction or seriously hindered your ability to defend yourself. The court may also disqualify the prosecutor from the case, and if it does, the defense may move to disqualify the prosecutor’s entire office if there is enough evidence that other employees shared in the bad faith as part of a pattern and practice. See Pen. Code § 1424.5; Bus. & Prof. Code § 6068.7(a)(5).

The police must get a new type of warrant to search your electronic data. This is Senate Bill 178. It amends the Penal Code to require a special court order before a government agent or entity can search your data in electronic devices or the cloud, including your emails, text messages, and location data. There is an exception if the government believes in good faith that it needs the data to address a life-threatening emergency, but even then, the government must apply for a warrant within three days. Other rules require it to seal, retain, or destroy your data depending on what it finds and to notify you of what it’s doing. If the government doesn’t follow these rules, you can move to exclude the evidence it obtained as a result. See Pen. Code §§ 1546, 1546.1, 1546.2 & 1546.4.

The public has a right to record the police. This is Senate Bill 411. It amends the Penal Code to confirm that you can’t be stopped for or charged with resisting or obstructing a police officer (or public official) if the officer or official is in a public place or if you have a right to be there. See Pen. Code §§ 69(b) & 148(g).

Grand juries will no longer investigate or indict cases involving police shootings or the use of deadly force. This is Senate Bill 227. It amends the Penal Code to bar grand juries from indicting or inquiring into cases involving a police officer’s use of force that led to the death of someone he or she had detained or arrested. See Pen. Code §§ 917(b) & 919(c).

The state will collect and maintain more comprehensive data on police stops and profiling. This is Assembly Bill 953. It amends the Government Code to require that state and local law-enforcement agencies collect data on every police stop and report their data annually. The data must include the time, date, and location of the stop as well as the reason for it, what happened next, and the end result. The law also expands the definition of police profiling beyond race to include gender, religion, national origin, and sexual orientation. The largest agencies have until April 2019 to issue their first report while the smallest agencies have until April 2023, and those in the middle have until 2020 or 2022 depending on their size. See Gov’t Code § 12525.5; Pen. Code §§ 13012(a)(5) & 13519.4.

But You Promised!

File this one under, #CallYourLawyerFirst.

Two weeks ago, a federal court of appeals reversed a man’s conviction for mortgage fraud and ordered the case dismissed because the government had broken its promise not to prosecute him in exchange for his cooperation.

The case presents a strange but interesting set of facts.

From 2006 to 2007, the man worked for a real-estate firm that came to be investigated for mortgage fraud. In November 2007, he and his girlfriend, who also worked at the firm, actually contacted the FBI on their own to provide information about the company.

Four months later, the couple was formally interviewed by the government, and at the end of the interview, the man expressed concern about their own legal exposure, but the prosecutor assured them that they wouldn’t be prosecuted as long as they cooperated.

Fast-forward to February 2011: The government had indicted the owners of the real-estate firm and was preparing for trial. The prosecutor called the man to go over his testimony, and they were joined on the call by another prosecutor and an FBI agent. The call lasted an hour, and the agent prepared a report on it. Then the trial got postponed for unrelated reasons, and ultimately, the man wasn’t called on to testify in it.

But six months later, the other shoe dropped; in August, the man received a target letter from the government telling him that he was next. He hired a lawyer at that point, but negotiations failed, and he was indicted, too. All the while, the government never mentioned the immunity deal to his lawyer, but neither did the defendant, apparently, and it’s not clear why. Perhaps he simply didn’t understand the situation, or perhaps he was trying to protect his girlfriend, who testified in the main case later that year and was never prosecuted.

Now fast-forward to March 2013 and the defendant’s own trial. His girlfriend took the stand as a witness, and she testified to the prosecutor’s promise to them. That surprised the man’s defense lawyer, who promptly filed a motion to dismiss the indictment (after picking up his jaw from the floor, probably), and the court suspended the trial to hear the motion.

At the hearing, the government acknowledged the immunity deal but argued that the defendant had breached it by not continuing to cooperate. Both prosecutors testified that they issued the August target letter because they had called the defendant again in July 2011, but unlike in February 2011, he was suddenly uncooperative.

There was one problem, though: the August letter didn’t refer to any July call. Nor did it refer to any other failure to cooperate or otherwise explain why the government now considered the defendant a target. The defendant denied that a July call even took place.

The prosecutors’ story was suspect for other reasons as well. They testified they made the July call from a conference room in the U.S. Attorney’s office, but they couldn’t produce any notes, logs, or records of the call. They testified they called the defendant at the same phone number they had from his prior interviews, but they couldn’t point to any logs or records on that end, either. They testified that an FBI agent was present for the call, but they couldn’t recall which one it was, except for one who testified that he couldn’t remember such a call.

Despite all that, the trial court denied the defendant’s motion to dismiss and let the trial resume, whereupon he was convicted.

But the court of appeal reversed the case because the government hadn’t proven any breach of the immunity deal, given that the prosecutors’ testimony was directly contradicted by the phone records, and there was a total absence of other notes, logs, or records to support their version of the facts. The court offered to send the case back for an evidentiary hearing to help sort things out, but the government liked that idea even less, so the court dismissed the case.

Get it in writing, then, or better yet, call your lawyer first.

The Unlawful Prosecution of U.S. Senator Ted Stevens

That’s the subtitle of a new book, Not Guilty, by Rob Cary, one of the lead defense lawyers in the case.

You may remember the garbage prosecution of Ted Stevens from 2008. The case received no shortage of press as it wound its way from indictment to trial to dismissal and, then, to criminal proceedings against the prosecutors who brought it.

You may not know the half of it, however, and if this can happen to him—a decorated veteran who flew 228 combat missions in World War II, a former prosecutor who served forty years in the Senate—then imagine what can happen to you.

After all, a jury voted to convict Stevens on all counts based on little more than the lying testimony of a former friend—a prominent businessman named Bill Allen—who made a dirty deal with the government to deliver the only prize bigger than himself.

How did it happen?

Allen had already been caught bribing state legislators, and he was also under investigation for sexually abusing underage girls, but all of that went away after he testified against Senator Stevens. He served less than two years of a three-year sentence on the bribery charges—when it should have been nine to eleven years and could have been twenty—and he’s never had to answer for the underage girls. He also received immunity for his adult children, more than one of whom was in hot water with him, as well as immunity for his company, which he got to sell for $350 million. The company that bought his company even negotiated a special provision in the contract: it withheld the last $70 million of the purchase price until Allen had completed his “cooperation” with the government.

Also, the jury never received evidence that Allen was lying, even though it existed in spades, because the prosecutors didn’t turn it over. Nor did the jury know that prosecutors purposely suppressed a pile of other evidence in violation of the law. Or that prosecutors selectively redacted a report that they did produce to black out the exculpatory stuff. Or that they purposely ordered 500 gigabytes of discovery produced in the most disorganized way. Or that agents simply wouldn’t write reports or record facts when it suited them.

Here’s how the special, independent prosecutor’s report summed it up in the first sentence:

“The investigation and prosecution of U.S. Senator Ted Stevens were permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated Senator Stevens’s defense and his testimony, and seriously damaged the testimony and credibility of the government’s key witness.”

In the end, Ted Stevens was cleared but only after a guilty verdict and only because of a small battalion of lawyers, investigators, and staff from a world-class law firm working around the clock to mount a multi-million-dollar defense. Oh, and a surprise whistleblower complaint by an FBI agent who’d seen enough. The government tried to suppress that, too. Here’s what Mr. Cary, the book’s author, had to say about it all:

“The fact remains … that if this can happen to a U.S. Senator in our Nation’s Capital then it can happen to any citizen anywhere in the United States. The fact that we caught them was certainly a product of experience, skill, and aggressive defense work—but it also required luck. And that’s the most frightening thing. If you need luck to ensure justice, then we don’t have much of a system at all.”

More Than A Rogue

Last month, the California Court of Appeal published a decision about a 2013 case in which the prosecutor fabricated evidence in order to force the defendant to plead guilty.

The defendant had been charged with lewd conduct with a child under the age of 14 after his girlfriend’s daughter alleged several instances of molestation. The defendant pleaded not guilty and was appointed a lawyer to defend him.

During plea negotiations, the prosecutor offered eight years in prison, but the defendant wouldn’t take it, so the prosecutor told the defense lawyer that he was thinking of refiling the charges to allege sexual penetration, which carried a possible life sentence. He also told the lawyer that, if he filed these new charges, there wouldn’t be any more plea offers.

The prosecutor said these things even though he didn’t have any evidence of penetration, and he knew it.

But he had another idea.

Seven days before trial, he sent the defense lawyer a transcript of the audio recording from the defendant’s police interrogation—a transcript that contained two extra, special lines:

  • [Detective]:    You’re so guilty you child molester.
  • [Defendant]:  I know. I’m just glad she’s not pregnant like her mother.

Naturally, when the lawyer saw the transcript, he told his client it contained an admission of penetration that could support the more serious charges against him. The defendant denied making the statement, but his lawyer continued to advise him to plead guilty.

In the days that followed, however, the lawyer discovered that the extra lines were not in the transcript that his own office prepared from the audio, which was in another language. The lawyer’s copy of the audio ended abruptly, so he wondered whether the government possessed a longer, different recording.

On the day of trial, the parties appeared in court, and the prosecutor said nothing about his fabrication. The trial was continued one week.

Two days later, the defense lawyer emailed the prosecutor to request “the exact CD” reviewed by the government’s transcriber. The prosecutor did not respond.

Later that day, the two spoke in person, and the prosecutor admitted to purposely falsifying the transcript.

The defense filed a motion to dismiss based on outrageous misconduct, and at the hearing, the prosecutor claimed that he’d added the extra lines as a joke. He also admitted, however, that he didn’t have a joking relationship with the defense lawyer and had not made such jokes in the past.

The court didn’t buy it, finding that the prosecutor failed to prove his lie was a joke and that, even if it was, his conduct in the middle of plea negotiations, on the eve of trial, was egregious and outrageous.

Although the government appealed the ruling, the court of appeal agreed that the prosecutor had “deliberately altered an interrogation transcript to include a false confession, one which could be used to justify charges carrying a life sentence, and he produced it to defense counsel during a period of time when [he] knew defense counsel was trying to persuade defendant to settle the case.”

Today, the prosecutor is facing a two-year suspension of his law license. Reportedly, state prosecutors won’t seek criminal charges against him because of a lack of evidence.

But his conduct was more than just roguish. It was criminal.

An Epidemic of Government Misconduct Abroad in the Land?

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

So begins a dissenting opinion of five judges on the federal court of appeals that covers California, eight other states, and a couple territories to boot. It’s worth a read.

What is Brady? It’s shorthand for Brady v. Maryland, the seminal 1963 Supreme Court case that enshrined a constitutional principle that, in a criminal case, the government must disclose all evidence that is favorable to the defense, whether it is favorable as to guilt or innocence or the appropriate punishment. The rule is vital because due process demands it by any definition, and because a criminal case is not a fair fight to begin with. It’s important because most people can’t even afford a defense attorney, let alone an investigator to assist in their defense. And it’s important because, even when people can afford the best defense, some facts and information are in the possession of the government alone.

Brady is so important—so fundamental to a free, civilized society—that the idea of the government’s doing otherwise when it has all of its breathtaking resources, armies of investigators, and paramount access to information strikes one as un-American at a minimum and barbaric at most. It makes David versus Goliath look like “any given Sunday.” And the results can be disastrous.

Nor is it much better if the government gets to decide on its own whether the evidence is favorable enough to turn over.

One solution may be to mandate an “open-file” discovery policy of the kind already followed in some prosecuting offices. That means the defense gets access to the whole investigative file: everything the prosecutor has, with limited exception. Or the solution may be to more readily reverse convictions in which favorable evidence was not disclosed. Or it may be to punish prosecutors who violate Brady in a way that has teeth, administratively for negligent violations and civilly or criminally for reckless or knowing violations. Or it may be some combination of these and other things. But it should not be a prosecutor’s prerogative to decide what is favorable defense evidence and whether the jury gets to see it.

However we best enforce Brady, we need judges to find Brady violations in the first place. Oftentimes, instead, we give government actors the benefit of the doubt in ways we rarely do the accused.  And that’s part of the point of this opinion.

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