Prosecutors to face punishment for withholding evidence

Prosecutors who withhold evidence that might have helped a criminal defendant will soon face the prospect of punishment by the State Bar of California, under rules already in place in every other state.

The state Supreme Court voted unanimously Monday to approve most of the disciplinary standards that the bar had proposed for prosecutors, who are rarely punished for breaking the rules in California.

According to the Northern California Innocence Project at Santa Clara Law School, courts found prosecutorial misconduct in 707 cases in California between 1997 and 2009, but only seven prosecutors in those cases were disciplined by the bar.

A new state law, effective this year, makes it a felony, punishable by up to three years in prison, for a prosecutor to intentionally withhold evidence that would have made a difference in a case. The bar’s new ethics rules are broader, requiring disclosure of evidence that a prosecutor knew, or should have known, might help the defense. Lawyers who violate the rules can be reprimanded, suspended or, in the most serious cases, disbarred.

The standards are based on American Bar Association guidelines that have been endorsed as binding rules in all other states. Some of the changes take effect immediately, including a requirement that prosecutors who have convicted a defendant, and later learn of evidence casting doubt on the conviction, disclose that evidence to a court immediately and also notify the defendant, unless a court authorizes delay.

The central provision of the new rules, however, will be postponed while the bar’s governing Board of Trustees considers changes suggested by the court. The provision defines the types of evidence that prosecutors would have to disclose if they learned about it before or during the trial.

The state Supreme Court asked the bar to consider requiring disclosure only for information that “casts significant doubt” on prosecution testimony or evidence.

But a prominent supporter of the new rules said the justices did not object to the idea of disciplining prosecutors who fail to turn over evidence that might help a defendant avoid a conviction or reduce a sentence.

“I was very relieved to see that the court maintained what I thought were the most crucial parts of the revision,” said Laurie Levenson, a Loyola Law School professor and former federal prosecutor.

The California District Attorneys Association, which had argued that the bar’s proposed ethical standards were too broad, praised the decision by the state’s high court.

“The ethical rule (the justices) suggest is logical and requires prosecutors to follow existing law,” Mark Zahner, the association’s chief executive officer, said Tuesday. “Prosecutors would expect nothing more or less.”