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The State of California has taken some bold moves recently to address prosecutorial misconduct.  The legislature passed and Governor Brown signed a bill, effective January 1, 2017, making it a felony for prosecutors to withhold evidence.  The California State Bar Association Board of Trustees recommended that the California Supreme Court adopt a new version of California Rule of Professional Conduct Rule 5-110, requiring that prosecutors disclose exculpatory evidence, regardless of its materiality.

St. Francis School of Law Dean Carole J. Buckner, a former federal prosecutor, along with many other attorneys throughout the State, has helped bring this issue to light through her role on the California State Bar’s Committee on Professional Responsibility and Conduct (COPRAC) where she organized and moderated two statewide Ethics Symposium Panels on the issue.  One panel, Prosecutorial Misconduct:  Epidemic or Aberration?, presented with criminal defense attorney Mark Gerragos and George Cardona from the United States Attorneys’ Office for the Central District of California, focused on several high profile cases of prosecutorial misconduct.

Dean Buckner also moderated a panel with former prosecutor James Fox, incoming California State Bar President, Maurice Possley, Pulitzer prize winning co-author of a pivotal Northern California Innocence Project Report, and California State Bar prosecutor Cyd Batchelor, discussing training of prosecutors to avoid misconduct, addressing the scope of the problem, and the recommendation of the Innocence Project that California adopt the new ethics rule.

Most recently, Dean Buckner spoke at the California State Bar’s 2015 Ethics Symposium Déjà Vu All Over Again: Brainstorming the New California Rules Project, regarding the adoption of a California counterpart to Rule 3.8 of the ABA Model Rules of Professional Conduct, potentially implementing a heightened level of disclosure of exculpatory material by prosecutors.

The new statute and the proposed new Rule of Professional Conduct are of great significance.  Like many states, California has several innocence projects in operation.  The focus of such projects is to obtain post-conviction relief based on wrongful conviction.  A wrongful conviction can occur in our system of justice for many reasons, including but not limited to prosecutorial misconduct.  St. Francis Professor Karen Travis, a former criminal defense lawyer who teaches criminal law in the Juris Doctor program, recently attended the California State Bar Annual Meeting program on Making a Murderer and Beyond:  Post-Conviction Relief in Today’s Judicial System.  In addition to withholding exculpatory evidence, wrongful conviction can occur due to mistaken identification, faulty science, and unreliable informants.

Recently the Netflix series Making a Murderer raised awareness of prosecutorial misconduct as well as another basis for wrongful convictions:  false and involuntary confessions.  St. Francis students studying criminal law and criminal procedure followed the popular series closely, with related class discussions, and a special session run by former prosecutor, Professor Ray Chao.   Post-conviction relief was recently granted to Brendan Dassey, when a court held that his confession was involuntary, given his age and IQ, and because the questioning took place without a parent present.

St. Francis School of Law faculty members include prosecutors as well as criminal defense attorneys who are on the cutting edge of the law.  This brings the law alive in the School of Law’s online classrooms.   For more information, visit us at www.stfrancislaw.com.