Unethical Prosecutors Now Face Felony Charges and Prison Time (AB 1909), by Bill Haney – Ventura County Criminal Defense Attorney:

A recent scandal involving Orange County prosecutors stirred California law makers to action over the subject of prosecutorial misconduct.  AB 1909 authored by Assemblywoman Patty Lopez authorizes FELONY punishment and up to three years of prison time for prosecutors who intentionally withhold relevant exculpatory information from a criminal defendant.   Evidence is “exculpatory” if it tends to excuse, justify or absolve the defendant from fault in some way. (law.cornell.edu)   AB 1909 amends Penal Code Section 141.   California’s tough stance against misconduct comes on the heals of federal Ninth Circuit judges publicly expressing dismay over a wave of unethical action by prosecutors. (2015 LA Times Article)

Penal Code Section 141(c) shall now read:

“A prosecuting attorney who intentionally and in bad faith alters, modifies or withholds any physical matter, digital image, video recording, or relevant exculpatory material or information, knowing that it is relevant and material to the outcome of the case, with the specific intent that the physical matter, digital image, video recording, or relevant exculpatory information will be concealed or destroyed, or fraudulently represented as the original evidence upon a trial, proceeding or inquiry, is guilty of a felony punishable by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years.”

Assemblywoman Patty Lopez
Assemblywoman Patty Lopez

Assemblywoman Lopez’s legislation is now celebrated by criminal justice reform groups around the country.   On the other hand, the California District Attorney’s Association originally called the bill an outrageous attempt to punish prosecutors for conduct that falls well short of criminal.  Sensing overwhelming public support for the legislation, the State’s elected prosecutors ultimately withdrew their opposition and took a “neutral” stance.    Perhaps some prosecutors can’t imagine the  horror experienced by a person who sits in a cage for years for a crime that he or she did not commit.

I am a former supervising prosecutor in the Ventura County District Attorney’s Office.  I can assure you that most prosecutors are well meaning public servants.   An honest prosecutor is an instrument of justice and a force of good in society.  Unfortunately, a prosecutor with low ethical standards can be a force of total oppression.   Like any occupation, a few bad apples can ruin the reputation of an honorable profession.  AB 1909 will hopefully dissuade any person holding the tile of “prosecutor” from striking foul blows against criminal defendants.