MOORLACH UPDATE — AB 1909 — August 25, 2016

The Senate is processing more than 75 bills each day. We’re making good progress. There was one bill, Assembly Bill 1909, where I decided to be the only vote in opposition. Sometimes you say to yourself, "Why should I join the crowd for a ‘feel good’ bill?" In fact, I even spoke against it on the Senate Floor.

What makes it more remarkable, is that with the events that occurred in my Supervisorial District while I served in that capacity, I had every right to pile on (see MOORLACH UPDATE — AB 1328 — October 7, 2015 october 7, 2015 john moorlach). TheLos Alamitos Patch covers it in the first piece below.

The Eureka, a publication by the Hoover Institution, of Stanford University, has asked me to submit an editorial piece. The second piece below, in Real Clear Markets, provides a teaser. I would like to thank the Hoover Institution for their assistance to my office. Since assuming this position, I have driven to Palo Alto every year now (twice) to meet with members of their brain trust. It has been incredibly beneficial.

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Under Fire: Will Los Alamitos, Orange County Prosecutors be Held Liable?

California Gov. Jerry Brown is considering whether or not to sign law that can prosecute prosecutors for withholding evidence, Los Alamitos

By Ashley Ludwig (Patch Staff)

LOS ALAMITOS, CA—After a string of new felony vetoes, Governor Jerry Brown today faces another. AB 1909 will cross his desk today, and the Gov. will decide whether or not to allow criminal charges to be filed against prosecutors if evidence is purposefully withheld during a trial.

Under current law, prosecutors guilty of such misconduct can be punished by a judge and then reported to the State Bar of California, which can lead to an attorney losing a license to practice law. A judge can remove a prosecutor, or the entire office, off a case.

That was the punishment Orange County Superior Court Judge Thomas Goethals doled out when he found misconduct in the case against Scott Dekraai, the worst mass killer in the county’s history.

That ruling—which removed the entire Orange County District Attorney’s Office from prosecuting Dekraai in the penalty phase of his trial—is under appeal.

The president of the union representing Orange County prosecutors, public defenders and county counsel said today he hopes Gov. Jerry Brown declines to sign a bill opening up prosecutors to criminal charges for withholding evidence in a trial.

"Obviously, as DAs we hope he doesn’t" sign AB 1909, said Mena Guirguis, a deputy district attorney who is the interim president of the Orange County Attorneys Association. The organization as a whole voted earlier this month to oppose the legislation, but have not met to issue a statement on its recent passage, Guirguis said.

"So far, he’s had this mantra to not sign any new felonies," Guirguis said. "He’s vetoed virtually every single new felony that has come across his desk with the statement that we already have enough laws on the books and things can be punished in other ways."

"It’ll be really disappointing if this is the one he decides to sign," Guirguis said.

Orange County defense attorney Jacqueline Goodman, secretary of the California Attorneys for Criminal Justice organization, which sponsored the legislation, said the bill should not be controversial.

"Gov. Brown has rightly recognized the profound harm that has resulted from mass incarceration over the last several years, " Goodman said.

"But unlike with other felonies, if signed into law, AB 1909 would hold prosecutors accountable for intentionally withholding evidence of innocence in criminal trials, resulting in fewer wrongful convictions and less severe prison sentences.

"Unless the problem of prosecutorial misconduct is even more widespread than we realize, this new felony should have the effect of reducing the prison population — indeed by culling the innocent from that population."

Goodman added, "This should not be controversial — decent, conscientious prosecutors should be first in line to condemn the actions of the few who, by their abuse of the public trust, prevent justice, often where lives hang in the balance."

Sen. John Moorlach, R-Costa Mesa, said he voted against the bill because he thought it was overkill to make such prosecutorial misdeeds a felony.

"I just thought a felony was too severe," Moorlach said.

"Even though I can get pretty frustrated with my DA (Tony Rackauckas) I still voted against the bill," Moorlach told City News Service.

Moorlach said it was a tough vote because it can be easily politicized. Moorlach was unmoved by allegations in the so-called "snitch scandal" involving the use of jailhouse informants in Orange County.

"This is one of those bills where you don’t vote no," Moorlach said.

"But even if you look at all the recent activities in Orange County, which have been certainly newsworthy, none of them would have fallen with the scope of this bill’s reach. You wouldn’t have had any felonies or even misdemeanors. It was sort of like, ‘Let’s react to something.’ "

Guirguis said the union’s board voted 8-3 Aug. 9 to oppose the legislation. A couple of public defenders on the board voted in support of the legislation and a few defense attorneys opposed it, Guirguis said.

Guirguis said the bill would "slow down cases," because it would spur more claims of misconduct, prompting prosecutors to invoke their right against self-incrimination and to hire a lawyer to defend them.

The withholding of exculpatory evidence—known in the courts as a Brady violation—is "very rare," Guirguis said.

Goodman pointed out that existing law already provides felony punishment for peace officers who conceal material evidence.

Rackauckas "supports the measure, and it should apply to all attorneys who intentionally withhold material evidence," his chief of staff, Susan Kang Schroeder, said.

UC Irvine Law School Dean Erwin Chemerinsky favors the legislation.

"I think it is important there’s additional enforcement for a basic constitutional duty of police and prosecutors to turn over exculpatory evidence," Chemerinsky said.

City News Service Contributed to this Report

Can California Voters Make Responsible Policy?

By Carson Bruno

This November, Californians – in addition to electing or re-electing local, states, and federal office-holders – will be deciding the fate of at least seventeen statewide ballot measures (and countless local/regional ones). These measures address some major policy issues, such as the fate of California’s death penalty, adult recreational marijuana use, and pharmaceutical price controls. With so many complex and consequential issues on the ballot, the question lingering overhead is whether Californians are prepared to make such important decisions.

Next week, the Hoover Institution will release its July-August 2016 issue of Eureka. This issue explores responsibility at the polls: 1) are Propositions 51 and 53 fiscally responsible, 2) is Proposition 55 responsible budgeting, 3) is Proposition 57 a responsible step toward criminal justice reform, and 4) are Californians capable of being responsible policymakers in the polling booth?

Proposition 51 & 53: Fiscal Responsibility?: In the June 2016 primary, Californians approved 81% of the local tax and bond measures that appeared on the ballot. And this is even more impressive given that many of these measures had 55% or 2/3rd majority requirements to pass. It would appear that a) Californians are unaware of the fiscal implications of continued increasing of taxation and incurring more long-term debt or b) if they are aware, are unfazed by the long-term fiscal consequences of their actions. Proposition 51 and 53, as argued by State Senator John Moorlach in this issue of Eureka, present an opportunity for Californians to reassert fiscal restraint.

Proposition 55: Responsible Budgeting?: In the November 2012 general election, Californians approved Proposition 30, which temporarily increased personal income taxes on those making more than $250,000 and the state general sales tax. With those taxes set to expire, Proposition 55 would extend the personal income tax increases – in a sense, making a temporary tax not so temporary. While there are many arguments against (and for) Proposition 55, one hits at the core of Sacramento’s budgeting process. Given that the state’s general fund is already extremely reliant on personal income tax revenue and that these revenues are extremely sensitive to economic ups-and-downs – thanks to the income tax’s reliance on wealthy Californians – Proposition 55 doubles-down on California’s boom-and-bust budgeting.

Proposition 57: Responsible Criminal Justice Reform?: A sweeping parole reform, championed by Governor Brown, Proposition 57 would empower the California Department of Corrections and Rehabilitation to grant non-violent felons early parole after serving the base sentencing term of one of their offenses. There are two serious issues with the way Proposition 57 is worded, however. There doesn’t appear to be any type of oversight over the Department of Corrections and Rehabilitation’s decisions, rendering them both judge and jury. And non-violent isn’t defined in the measure, leaving it up to the Department’s discretion. While criminal justice needs re-evaluated to ensure our systems are effective and efficient in both deterring crime and also rehabilitating convicted offenders, this reform may yield more problems than it solves.

Can California Voters Make Responsible Policy?: The measures Californians are being asked to decide are complicated and serious policy questions – issues experts take lifetimes to understand. The consequences, both intended and unintended, can be huge. Couple this with the increasing volume of the measures, ballots are becoming quite overwhelming. Then you also add in the fact that voter turnout is declining and electorates are largely uninformed on non-presidential candidates and issues. All of this wouldn’t be an issue for California’s initiative system if reforming or repealing a policy passed via the ballot was easy. But the system was specifically designed to be inflexible. This raises an important question, should Californians continue to be vested with such enormous public policy decisions? Eliminating the initiative probably isn’t the best route – there are important issues that could only be passed by circumventing the Legislature. Also unwise would be allowing the Legislative to easily tamper with passed measures. An option worth exploring, though, is the re-establishment of the indirect initiative, which would alleviate some of the system’s inflexibility, while also keeping with direct democracy’s intent.

At the end of the day, though, California needs to figure out a way to ensure Californians are confident and capable of knowledgeably weighing judgement on ballot propositions.

For a more in-depth look at these topics, keep your eye out for the July-August 2016 issue of Eureka at hoover.org/publication/eureka to be released on Tuesday, August 30.

Hoover Institution research fellow Carson Bruno studies California’s political and policy landscape. Follow him on Twitter @CarsonJFBruno.

This e-mail has been sent by California State Senator John M. W. Moorlach, 37th District.

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