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On the Wrong Side of the Law

Posted by Joseph Tully | Nov 17, 2018

Prosecutors Can Face Felony Charges Under New California Bill


When innocent men and women face the death penalty because a dishonest, sociopath of a prosecutor concealed exculpatory evidence, the villains seldom face any consequences. We have seen time and again where an innocent man was set free, but the people who ruined decades of his life still get to keep their jobs and, more dangerously, their power.

Sometimes prosecutors get some bad press, but never a prison sentence, even when their actions cost innocent people their lives. Now, California wants to change that with a new bill that makes prosecutor misconduct punishable by a maximum of three years in prison. That's probably not enough for some of the psychopaths in power I have encountered, but it's better than nothing. And that is where we have been until now in California: nothing.

Governor Jerry Brown just signed the bill that will hopefully bring a wind of change into our decadent justice system. From now on, a prosecutor that intentionally withholds exculpatory evidence can face felony charges.

Up until now, altering or hiding evidence from defense attorneys was a misdemeanor. But even as a misdemeanor, the previous laws were rarely enforced. I have seen too many prosecutors walk free after ruining too many lives to count.

In this country, and particularly in our state, people are sent to prison even when DNA evidence proves they had nothing to do with the crime, when they have bullet-proof alibis, or when they never met the victim. This happens on a daily basis. Prosecutors are focused on securing convictions. Most importantly, they know they are not going to get caught if they engaged in unethical or even unlawful behavior and, even if they do get caught, nothing bad will happen to them. Other prosecutors will support them, the press won't cover it, and life will go on as usual.

A powerful businessman was once asked, “What is power?” He replied, without a hint of hesitation, “Power is impunity.” In other words, power means not being punished no matter how many laws you break. Prosecutors are used to having this kind of power, and the new bill is an attempt to curtail it.

The track record of holding prosecutors accountable in California is a disgrace. A 2010 study from the Santa Clara School of Law found that in 10 years, courts routinely ignored their statutory obligation to report instances of prosecutorial misconduct, and the number of prosecutors ever disciplined by the California State Bar was next to zero.

Of course, the district attorney's association is fiercely opposed to the bill. Citizens are trained to believe that prosecutors get the bad guys and keep us safe. But here, they're opposed to getting the bad guy or gal if it's one of their own. The DA Association managed to get some amendments into the bill before it was approved, allegedly to minimize prosecution in cases of unintentional error.

Efforts to approve the bill were aided by the shocking testimony of Obie Anthony, who spent 17 years in prison for a crime he didn't commit. Anthony was one of the countless victims of our state's despicable snitch system. A pimp received a lenient sentence in exchange for accusing this innocent man. Anthony's attorneys were never informed about the deal.

When you compare those 17 years to a meager three years in prison for disgraceful conduct by a prosecutor, it doesn't sound like a fair deal. But Anthony was satisfied that the next man who walks in those iron shoes may get a chance to hold the victimizers accountable. “I'm glad the governor decided to put his foot down,” he commented. Like many people who went through that horrible experience, Anthony runs a nonprofit dedicated to exonerating innocent, and powerless, people like himself.

In my book, California: State of Collusion, I gave a detailed account of the Orange County snitch scandal. The misconduct of the law enforcement officers exposed in that case had a lot to do with the passing of the new bill. I have known about things like this ever since my years as a shocked public defender, fresh out of law school. But apparently, it took a massive scandal which led to the overturning of several murder sentences, for lawmakers to realize someone must put a stop to blatant prosecutorial misconduct.

In our corrupt system, it's hard to imagine that transparency will suddenly emerge, and wrongdoers will be prosecuted, as they should. But as a defense attorney, the bill is a step in the right direction, one that may deter some of the lower-hierarchy individuals who routinely violate constitutional rights. As for the really big fish, it will take more than a modest bill to catch them. California needs true justice reform, and while this bill is not it, we are at last shaking the tree.

About the Author

Joseph Tully

Founding Partner, Criminal Law Specialist Our founding attorney, Joseph Tully, is sought out for his expert legal advice throughout California. With over 20 years of experience as a criminal lawyer, in 1000+ felony and other cases, Tully served as felony trial counsel as a public defender before...