Ethics panel pushes a disclosure rule for prosecutors
By Laura Ernde
Staff Writer
A State Bar panel last month recommended that California amend its ethics rules to specifically address prosecutorial misconduct.
The bar’s Rules Revision Commission voted Oct. 23 to forward
the proposed amendment to the Board of Trustees as soon as this month – ahead of the
larger rule revision project the commission is undertaking. The California
Supreme Court will have the final say.
The key provision of the proposed amendment is derived from the ABA Model Rules. It would require:
“Timely disclosure to the defense of all evidence or information known to the
prosecutor that tends to negate the guilt of the accused or mitigates the
offense, and, in connection with sentencing, disclose to the defense all
unprivileged mitigating information known to the prosecutor, except when the
prosecutor is relieved of this responsibility by a protective order of the
tribunal.”
“This sets a very simple standard that every prosecutor can
follow,” Santa Clara University School of Law Professor Gerald Uelman told the
commission.
The California District Attorneys Association backed
alternate language requiring prosecutors to comply with “all statutory and
constitutional obligations, as interpreted by relevant case law.”
“We want to align our ethical obligations with our statutory
obligations,” said Yuba County District Attorney Patrick McGrath, the president
of the DAs association. He argued the case law distinction is important to
protect prosecutors who believe they are doing the right thing from being
subjected to undeserved discipline.
Defense lawyers argued that the broader rule ultimately
adopted by the commission follows broader constitutional standards widely
understood by prosecutors across the country.
Ninth U.S. Circuit Court of Appeals Judge Alex Kozinski has complained
of an “epidemic” of prosecutorial misconduct.
Earlier this year, an Orange
County Superior Court judge disqualified the Orange County District Attorney’s
Office from a high-profile murder case due to allegations prosecutors withheld
evidence.The incident
led to (AB
1328) recently signed by Gov. Jerry Brown, requiring judges to report
offending prosecutors to the State Bar.
Although the current Rules of Professional Conduct are not versions of the ABA Model Rules, a longstanding California rule, Rule 5-220, provides that all lawyers have an obligation not to suppress evidence that the lawyer or the lawyer's client has a legal obligation to reveal or produce, said Randall
Difuntorum, the bar’s director of professional competence. In addition,
attorneys are required to report to the State Bar when a judgment is reversed
due to misconduct.
High-profile cases where prosecutorial misconduct has
resulted in State Bar discipline include Del Norte County District Attorney Jon Alexander and Santa Clara County Deputy District Attorney Benjamin
Field.
The rules commission,
chaired by 2nd District Court of Appeal Justice Lee Edmon, was charged by the
Supreme Court with preparing a new set of rules for approval by the Board of
Trustees and submission to the Supreme Court by March 31, 2017.