Could Harsher Penalties Deter Prosecutors from Tampering with Exculpatory Evidence?
Richard Byrne III*
Any practicing attorney, law student, or layperson knows that tampering with evidence is one of the worst misdeeds an attorney can commit. Not only does the tampering of evidence often result in otherwise incorrect rulings, it completely undermines the judicial system’s primary function of dispensing justice. This rings especially true in criminal cases where the ultimate result of evidence tampering may cost defendants precious years of their lives, if not life itself. Despite such injustice, overzealous prosecutors seeking an easy trial or a high conviction rate might feel inclined to conceal, tamper with, or even destroy evidence that could quite possibly exonerate a defendant.
Of course, there are numerous measures in place that forbid, deter, and punish such unethical behavior. Rule 3.4 of the Model Rules of Professional Conduct prohibits any lawyer from “unlawfully alter[ing], destroy[ing] or conceal[ing] a document or other material having potential evidentiary value.” Model Rules of Prof’l Conduct r. 3.4 (Am. Bar Ass’n 2016). In regards to cases where the defendant has already been convicted, Rule 3.8 provides that a prosecutor who knows of “new, credible and material evidence creating a likelihood that a convicted defendant did not commit an offense of which the defendant was convicted” must “promptly disclose that evidence to an appropriate court authority” and to the defendant if the conviction was obtained in the prosecutor’s jurisdiction. Model Rules of Prof’l Conduct r. 3.8 (Am. Bar Ass’n 2016). Additionally, the rule also requires a prosecutor to attempt to remedy a wrongful conviction when he “knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit.” Id. Rule 10 of the Model Rules for Lawyer Disciplinary Enforcement lists that the sanctions for misconduct include disbarment, suspension, probation, written reprimands, admonition, and restitution to the wronged party. Model Rules for Lawyer Disciplinary Enf’t r. 10 (Am. Bar Ass’n 2016).
However, despite the fact that professional sanctions, such as disbarment, are designed to have a substantial deterrent effect on prosecutorial misconduct, the truth is that they are very seldom utilized. In 2008, a study by California’s Commission on the Fair Administration of Justice analyzed 2,131 California cases where criminal defendants raised claims of prosecutorial misconduct, of which prosecutorial misconduct was found in only 444 cases. Cal. Comm. on the Fair Admin. of Justice, Final Report 71 (Gerald Uelmen ed., 2008), http://www.ccfaj.org/documents/CCFAJFinalReport.pdf. The study’s analysis of fifty-four cases that resulted in reversal of the conviction and were required by California law to be referred to the state bar association for disciplinary investigation did not reveal a single instance where any such referral was made. Id. Similarly, a study by the Northern California Innocence Project revealed that, between the years of 1997 and 2009, out of 707 California appellate and federal court cases where prosecutorial misconduct was found, only six prosecutors were disciplined by the state bar. Jack Leonard, Report Finds Many Prosecutors in California Have Committed Misconduct, L.A. Times (Oct. 5, 2010), http://articles.latimes.com/2010/oct/05/local/la-me-prosecutorial-misconduct-20101005. In other words, disciplinary committees appear to be complacent with practices such as evidence tampering, and many appellate courts are reluctant to find reversible error where such injustice occurs.
In addition to professional sanctions, prosecutors who wantonly tamper with evidence may find themselves on the other side of the courtroom as they may be subject to criminal charges. Naturally, the possible sentences vary by state and often by degree of misconduct. One state in particular, California, has recently determined that its previous law against withholding and tampering with evidence did not do enough to deter prosecutors from such illegal and unethical actions. On September 30, 2016, California Governor Jerry Brown signed a bill to amend the existing law so that the intentional altering or withholding of relevant exculpatory material or information by a prosecutor is now a felony punishable by imprisonment for up to three years. Christopher Goffard, Prosecutors who Withhold or Tamper with Evidence Now Face Felony Charges, L.A. Times (Oct. 3, 2016, 7:00 PM), http://www.latimes.com/local/lanow/la-me-prosecutor-misconduct-20161003-snap-story.html. This bill has been rather appropriately passed amidst a scandal dating back to March 2015, in which Orange County Superior Court Judge Thomas Goethals removed District Attorney Tony Rackauckas’ office from the high-profile case against mass murderer Scott Dekraai. Id. Although the judge found that prosecutors had violated Dekraai’s rights by repeatedly failing to turn over evidence, he did not find the misconduct to be willful. Id. Assistant Public Defender Scott Sanders, who serves as Dekraai’s attorney, claims that Orange County jailers have been running an illegal jailhouse-informant program, which prosecutors have made active efforts to conceal. Id. As the scandal continues on appeal, numerous criminal cases have come under scrutiny. Id.
Assemblywoman Patty Lopez, who introduced the bill, has claimed that the legislation was not directly inspired by the Orange County scandal, but rather by the many injustices that occur throughout the nation as a result of prosecutorial misconduct. Id. “I hear so many stories about innocent people across California, and across the country, who have been wrongly convicted,” Lopez said. Id. “I just hope that when people think the rules don’t apply to them, they will think twice before they abuse their power.” Id.
The bill was passed in the state Senate by a vote of 36 to 1 in favor of the legislation. Id. California’s newly-amended law finds its place among many other state laws, as well as the U.S. Code, which have made evidence tampering a felony with serious repercussions. See, e.g., 18 U.S.C. § 1519 (2012); Conn. Gen. Stat. § 53a-155 (2014); N.Y. Penal Law § 215.40 (McKinney 2014). The one person to oppose the bill, Senator John Moorlach—whose district spans a considerable portion of Orange County—has called felony penalties against prosecutors “just a tad too severe.” Christopher Goffard, supra. Some states, such as Maryland, appear to share the beliefs of Senator Moorlach as they continue to keep the crime classified as a misdemeanor, which could potentially lessen the deterring effect of criminalizing this form of misconduct. See Md. Code Ann., Crim. Law § 9-307 (West 2016).
Only time will tell whether classifying the tampering and withholding of evidence as a felony will help California deter its prosecutors from engaging in the prohibited misconduct. As the above studies have shown, misconduct by prosecutors in California has rarely been reported to the state bar for disciplinary proceedings. It is quite possible that the criminal nature of the misconduct will continue to go overlooked as well, allowing many unethical prosecutors to avoid ever having to face criminal charges. One can only hope that the law-abiding prosecutors of California, as well as every state, will make honest efforts to bring their dishonest peers to justice so that future acts against criminal defendants and the judicial system as a whole may be deterred.
*Richard Byrne III is a second-year law student at the University of Baltimore School of Law, where he serves as a staff editor for Law Review, and secretary of the Criminal Law Association. In the summer of 2016, Richard interned for the Honorable Douglas R. M. Nazarian in the Maryland Court of Special Appeals. For the summer of 2017, Richard will intern with the Organized Crime Unit of Maryland’s Office of the Attorney General