Prosecutor misses the forest for the trees

In his six-column letter to the editor published in the Journal on Aug. 2, Los Angeles Deputy District Attorney Marc Debbaudt claims that my column of July 25, "A Clearer Prosecutor Rule Would Benefit All," contains distortions. Although he ultimately did not dispute the only point of my column -- that the language of proposed Rule of Professional Conduct 5-110(d) would be clearer if the qualifier "significant" was deleted from discussion comment [3] -- he felt the need to express his personal animosity towards the criminal defense bar. To be clear, every word in my column was accurate and Mr. Debbaudt failed to explain how a single phrase was a "distortion." Instead, his letter used the tactic of quoting selected sentences or words from my column, then drifting into rants about different topics.

For example, after quoting my statement that "the public is well aware of the reality of wrongful convictions," he agreed with the point but lamented that the only reason "the public is well aware of the reality of wrongful convictions [is] because there is a concerted effort underway to undermine the criminal justice system, and the media happily gives those behind this anarchy a forum because they like extremism." I work within the criminal justice system, litigating cases, negotiating with prosecutors, and drafting legislation and bar proposals in an effort to improve the laws governing our justice system, including legislation that has been supported by the Los Angeles County District Attorney's Office. I am happy to let the public, and the legal profession as a whole, determine whether the reality of wrongful convictions is something we should aspire to correct or whether we should blithely condemn the messengers as anarchists and extremists.

Similarly, Mr. Debbaudt quotes my statement that, "It would strain credulity to deny that the documented cases are more than a small fraction of those where individuals have been wrongfully convicted of crimes they never committed," but then proceeds to re-cast the statement to a claim that "the misconduct we know about is but a 'small fraction.'" My column did not discuss, allege, or describe "misconduct." As he quoted, I identified the need to try to reduce the number of wrongful convictions as a reason to support an unambiguous Rule 5-110(d). I don't know if the reason Mr. Debbaudt feels defensive about the topic of prosecution misconduct is that the California Supreme Court has reversed two death sentences because of misconduct committed by members of his office (People v. Hill, 17 Cal. 4th 800; In re Sakarias, 35 Cal. 4th 140), but my column never mentioned the word "misconduct."

Further expressing his displeasure with the basic rationale for Rule 5-110(d) -- one which is shared by the California Supreme Court, as evidenced by its support for the rule, and by every other state in the nation, as demonstrated by the fact that California is the only state presently without such a rule, which is based on ABA Model Rule 3.8, adopted by every other state and territory in the United States -- that the timely disclosure of all exculpatory evidence is a step that can be taken towards reducing the number of wrongful convictions, one which takes on added importance because of my observation that "there are no attorneys or resources to investigate wrongful conviction claims in virtually any case where an indigent person was convicted of a crime that did not result in the death penalty or a life sentence," Mr. Debbaudt complains that I am arguing for taxpayer funds to be spent "forever because somebody, likely a criminal, did not like the end result." No, my column never asked for any taxpayer funds to be spent for any purpose. Rather, it simply explained why the proposed disciplinary rule needs to be as clear as possible in order to have the desired effect.

Finally, Mr. Debbaudt considers it "insulting" that a modest step towards reducing wrongful convictions "would be to impress upon prosecutors their existing duty to disclose exculpatory information." His explanation: The "rare" prosecutors who violate their disclosure duties do so knowing that they are violating their duties, and codifying a disciplinary rule won't have any effect because criminals still break the law even though we have a Penal Code. Does that mean that we should just bury our heads in the sand and accept business as usual? That we should not allow for professional discipline when a prosecutor knowingly fails to disclose exculpatory information, in violation of the law? Isn't the absence of rules the essence of anarchy?

The fact of the matter is that the Los Angeles District Attorney's Office opposed Rule 5-110(d), writing the Rules Revision Commission on Oct. 14, 2015, that it would require prosecutors to disclose exculpatory information when they have no such obligation unless the exculpatory information is material. They were wrong and their letter was contrary to existing California law, as held by the California Supreme Court in Barnett v. Superior Court, 50 Cal. 4th 890, 901. Rule 5-110(d) is not only a modest step towards increasing public confidence in the justice system and reducing the risks of wrongful convictions, but is necessary to educate prosecutors and deter them from violating their ethical duties. Yes, the overwhelming majority of prosecutors honor these duties, but for those who don't, professional discipline must be available. After all, over 99.99 percent of Californians do not commit murder but we still make it a crime to commit murder in order to punish the few who do. And professional discipline can have its desired effect only when the rule is clear and unambiguous, avoiding wiggle words like "significant."