CALIFORNIA PROSECUTORS WHO WITHHOLD OR TAMPER WITH EVICENCE NOW FACE FELOMY CHARGES

Is California's new law a model for curbing prosecutorial misconduct?

By Gretel Kauffman

The Christian Science Monitor
October 5, 2016

Prosecutors who intentionally withhold or tamper with evidence in California may now face prison time for their actions, thanks to a first-of-its-kind law signed by Gov. Jerry Brown last week. Such offenses, previously considered misdemeanors, are now punishable by felony charges and up to three years in prison.

The new law comes amid controversial allegations that prosecutors with the Orange County district attorney's office failed to turn over evidence in a high-profile murder case, a situation that helped to shape the debate on the state Senate floor.

But legal experts say that while the Orange County debacle served as a catalyst of sorts for the legislative process, the new law reflects a larger, growing movement to hold prosecutors and others working within the criminal justice system accountable for their actions. Supporters of the law applaud it as a significant step toward curbing prosecutorial misconduct and the wrongful convictions that sometimes result. But there's no telling how effective the measure will ultimately be – and those on the other side of the fence worry that it could have damaging side effects.

The National Registry of Exonerations, launched in 2012, has counted 1,894 Americans exonerated since 1989. Fifty-one percent of those wrongful convictions were due to official misconduct, occurring most commonly in homicide cases. A number of high-profile exoneration cases in recent years have drawn the public's attention to such misconduct, including instances of prosecutors withholding, or tampering with, exculpatory evidence.

"This isn't about bad men, though they were most assuredly bad men," John Thompson, who spent 14 of his 18 years in Louisiana State Penitentiary on death row before his exoneration in 2003, told The Huffington Post. "It’s about a system that is void of integrity. Mistakes can happen. But if you don’t do anything to stop them from happening again, you can’t keep calling them mistakes."

Supporters of the California law point to Mr. Thompson, whose death sentence was the result of prosecutors withholding evidence, as one example of why stricter consequences are necessary.

"Right now, there’s very little out there that can make prosecutors accountable," says Bennett Gershman, a professor at Pace University's Elisabeth Haub School of Law, in a phone interview with The Christian Science Monitor. "The disciplinary system's not very well suited to investigating prosecutors."

California's law, he says, "would make prosecutors ethically and legally accountable for their misconduct."

However, Professor Gershman adds, enforcing the law may prove challenging.

"You’re asking prosecutors to enforce a law against prosecutors, and that’s a little bit tricky," he explains. "You don't know whether prosecutors will have the stomach, the will, or the interest in investigating other prosecutors."

Gershman believes there's a good chance other states will follow California's lead. But other supporters say the pushback from prosecutors may prevent other states from passing similar measures.

One former prosecutor, Daniel R. Alonso, agrees that it's "obviously very important" to discourage prosecutors, or anyone else, from withholding or tampering with evidence. But Mr. Alonso, who served as the chief assistant district attorney in the Manhattan District Attorney’s Office, worries that the new law will create a culture of fear among prosecutors.

"Once you single out prosecutors in this way, you make an already difficult job much more difficult," he tells the Monitor in a phone interview. "You risk discouraging people from public service for fear of getting attacked, and for fear of baseless claims."

"Jails today are full of people who no doubt would like to make a claim under this law, whether they’re true or not," he continues. "A complaint can consume the life of a completely honest, well-meaning prosecutor."

To curb prosecutorial misconduct while reducing the chances of baseless claims, Alonso suggests creating a "strong law" that criminalizes tampering of evidence by any officer of the court.

Regardless of whether the California law proves effective, it is not an end-all solution to the problem, experts say.

"In the long term, there have to be other mechanisms," says Ellen Yaroshefsky, director of the Monroe H. Freedman Institute for the Study of Legal Ethics at Hofstra University.

Those mechanisms include reforms in hiring practices, training, supervision, and judicial action, she tells the Monitor in a phone interview.

But, she adds, "in the short term, at this time in history, it's a good step forward."

EDITOR’S NOTE: Such a law is long overdue. Prosecutors who deliberately withhold or tamper with evidence are no better than the criminals they are trying to imprison.