California has enact­ed a new law giv­ing judges greater author­i­ty to remove indi­vid­ual pros­e­cu­tors — and in some instances entire pros­e­cu­to­r­i­al offices — from cas­es if they will­ful­ly with­hold evi­dence from the defense. Passage of the law was prompt­ed by dis­clo­sure of sys­temic mis­use of jail­house infor­mants by Orange County pros­e­cuters, which led Superior Court Judge Thomas Goethals (pic­tured) to bar the entire Orange County District Attorney’s Office from par­tic­i­pa­tion in a death penal­ty case ear­li­er this year. That mis­con­duct includ­ed secret­ly using jail­house infor­mants to elic­it con­fes­sions from sus­pects after they had invoked their right to coun­sel — a prac­tice that has been declared uncon­sti­tu­tion­al — lying to the courts about the use of infor­mants, and with­hold­ing poten­tial­ly excul­pa­to­ry evi­dence. In addi­tion to pro­vid­ing judges expand­ed author­i­ty to remove offend­ing pros­e­cu­tors from cas­es, the new law requires judges to report such pros­e­cu­tors to the state bar, which may take dis­ci­pli­nary action. While deny­ing that there had been any ​“intern­tion­al bad faith with­hold­ing of evi­dence” by pros­e­cu­tors in his office, Orange County District Attorney Tony Rackaukus praised the statute, call­ing it ​“a good law.” Jeff Thoma, the pres­i­dent of California Attorneys for Criminal Justice, said, ​“The pub­lic deserves to have con­fi­dence that pros­e­cu­tors are com­mit­ted to play­ing by the rules instead of try­ing to win at all costs. I applaud the pas­sage of AB1328 and it being signed into law. I believe this has the pos­i­tive effect of insur­ing greater due process by reduc­ing (dis­cov­ery) vio­la­tions and hold­ing those account­able that do so in bad faith.”

(T. Saavedra, ​“After Orange County D.A. kicked off case from jail­house infor­mants, pros­e­cu­tors face stricter stan­dards,” The Orange County Register, October 7, 2015.) See Recent Legislation and Prosecutorial Misconduct.

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