In the state of California, it is now a felony for all prosecutors to withhold exculpatory evidence. The decision comes more than two years into a dispute involving prosecutors in Orange County who allegedly engaged in misconduct while trying a case that involved multiple murders.  As a result, any prosecutor found violating this law risks being sentenced to up to three years in prison.

Assemblywoman Patty Lopez, who sponsored the law, says that she was not directly inspired by allegations that Orange County prosecutors had directly planted jailhouse informants close to high-profile defendants and ended up withholding crucial information from defense attorneys. However, those situations did end up helping the overall debate regarding the law according to the Assemblywoman.

 The initial allegations centered around the trial of Scott Dekraai, who murdered his ex-wife in 2011, as well as seven other individuals at their job because he was angry over a custody dispute. Dekraai’s public defender discovered evidence that county jailers planted an informant next to his client’s cell and instructed him to obtain information that would incriminate Dekraai – a violation of Dekraai’s Sixth Amendment rights under Massiah v. United States (1946 Supreme Court decision). The lawyer further alleged that prosecutors were aware of this, yet handed over no information to the defense. As a result, in March 2015, a trial judge ruled that the entire district attorney’s office would be removed from Dekraai’s case.  The California Attorney General’s Office has since appealed the decision. Despite the allegations, Dekraai’s trial went forward and he was sentenced to death.

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 There are multiple defendants in Orange County who have since received new trials, most of them with more favorable outcomes in favor of the defense, even though the crimes themselves were extremely serious. In fact, one defense attorney was quoted as saying to the American Bar Association that he felt the prosecution would rather accept a lighter sentence than hold a hearing where the defense would be able to raise any allegations of prosecutorial misconduct. 

 While the initial allegations have attracted national attention, they have not resulted in serious consequences for those involved. For example, one prosecutor resigned and relocated to Nebraska and several sheriffs’ deputies have invoked their Fifth Amendment right to not testify.

Texas does not currently have a criminal penalty for prosecutors withholding exculpatory evidence, and I would not expect one anytime soon.  However, changes to discovery laws for defendants in Texas seemed to signal that winds of change were beginning to blow [add this as hyperlink to “changes to discovery laws” http://blog.chron.com/texaspolitics/2013/05/michael-morton-act-signed-into-law/].  Additionally, the State Bar of Texas Disciplinary Board issued an ethics opinion last year that basically said prosecutors who fail to disclose information that could negate the guilt of the accused could face losing their license [hyperlink “fail to disclose information”- http://www.txboda.org/sites/default/files/Schultz55649%20Opinion.pdf].  We will see whether the Texas legislator takes this a step further to criminalize this type of conduct, but I am not holding my breath.

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