There has been a fair amount of news lately about the problem of prosecutorial misconduct. It was addressed in this blog as part of the discussion around the Baca v. Adams case in the federal courts. I wanted to take a moment to highlight and discuss two recent bits of news, one of which looks like a very positive step forward, and one of which is a bit of a step back. This will be a two-part blog, part two to follow Monday.
FACING UP TO PROSECUTORIAL MISCONDUCT: LESSON NOT LEARNED?
Bad news first, I’m afraid; that way, we can start off next week on a positive note. Recently, a judge ruled that the prosecutorial and law enforcement misconduct in a notorious Orange County murder case is so pervasive as to merit “recusal” of the district attorney’s office— meaning the District Attorney’s office can no longer participate in prosecuting the case. Instead, the state-wide Office of the Attorney General will have to send deputies to handle proceedings. News coverage around the issue has been somewhat muted, but it is an important development. In his written ruling, Judge Thomas Goethals determined that:
After a period of what can at best be described as benign neglect concerning the actions of his law enforcement partners, the District Attorney cannot or will not in this case comply with the discovery orders of this
court and the related constitutional and statutory mandates that guarantee this defendant’s right to due
process and a fair trial.
(Added emphasis is mine.) You can, and should, read the entire order here. (258553089-Supplemental-ruling-in-People-of-the-State-of-California-v-Scott-Dekraai) It provides a careful discussion of the reasons why Judge Goethals felt duty-bound to take this step and remove the whole prosecution team from the case.
After the court made this order, the victim’s families had publicly expressed their desire to see the order followed, and not appealed. The appeal will delay the process further, and this process has already been extended by the discovery of the law enforcement misconduct in the case. Instead, news emerged today that the Attorney General has decided to appeal the ruling. The prospects for winning this appeal do not, at least initially, seem very strong; it is difficult to overturn a judge’s decision that turns so heavily on the specific facts of the case. It could certainly be a long process, it will at least take months, possibly even a year or more.
From my perspective, the worst part about this is not that it ignores the wishes of the victim’s families– prosecuting agencies have to make these decisions independent of the victims’ families’ concerns, which sometimes are in conflict– but that it seems to provide further evidence that they Attorney General has every intention of continuing its old practice of doubling down on prosecutorial misconduct, defending mistakes to the hilt and refusing to hold prosecutors accountable. The situation is incredibly reminiscent of Baca v. Adams; there, it took a very public, viral-video shaming for the Attorney General’s office to finally say, ‘You know what? Everyone else is right, we shouldn’t be trying to defend this crap. Let’s just move along.’ Here, the defendant hasn’t even been let off of any punishment. A conviction is not being overturned, a penalty is not being reversed, an old wound is not being suddenly re-opened for victims’ families; it’s just that the Attorney General’s office will now have to do the prosecuting instead of the District Attorney.
So why continue to fight in defense of the widespread problems in the Orange County prosecution team? Learn a lesson, Attorney General– when prosecutorial misconduct is uncovered, face up to it.