MOORLACH UPDATE — AB 1328 — October 7, 2015

Four years ago, this month, the largest mass killing in Orange County history occurred in my Second Supervisorial District, in the city of Seal Beach. It is such a significant tragedy, it even has its own Wikipedia page, see

At the time, the entire community reacted with an outpouring for the families of the victims (see MOORLACH UPDATE — Seal Beach Response — October 16, 2011 october 16, 2011 john moorlach).

As a County Supervisor, I was very frustrated that the murderer’s trial had been derailed and extended. When asked about the circumstances, while driving to Sacramento on March 24th to start my new career, I was rather candid with the reporter (see MOORLACH UPDATE — Day Two — March 26, 2015 march 26, 2015 john moorlach).

The Dekraai case has also had frustrating reverberations within the County’s accountability structure. For more on this, see MOORLACH UPDATE — Civilian Oversight — June 15, 2015 june 15, 2015 john moorlach, MOORLACH UPDATE — SB 593 — June 10, 2015 june 10, 2015 john moorlach, and MOORLACH UPDATE — Puzzling — August 6, 2014 august 6, 2014 john moorlach.

When AB 1328 came to the Senate Floor on September 10th, based on my very personal first-hand experiences, voting for Assemblywoman Weber’s bill was not a difficult decision. The withholding of evidence needed to be addressed and stronger ramifications for doing so needed to be added to the state’s Penal Code. Consequently, I took an independent path and supported this bill. It’s covered in a front-page story by the OC Register below.

Also based on my first-hand experience, I know that the Orange County District Attorney’s office enjoys a large team of excellent prosecutors. This bill should help improve the public’s trust in their public safety organizations.


Judges gain more power to remove attorneys who withhold evidence.
Prosecutors who intentionally withhold evidence from defense attorneys or the court could face tougher punishment and greater scrutiny under a new state law prompted by the misuse of jailhouse informants by Orange County prosecutors.

The legislation, signed by Gov. Jerry Brown, strengthens the ability of judges to remove individual prosecutors and, if warranted, their offices, from cases if prosecutors are found willfully withholding evidence.

The new law also requires judges to report offending prosecutors to the state bar, which licenses attorneys.

The bill was not widely supported by Orange County legislators, though District Attorney Tony Rackauckas said Tuesday he supported it.

The legislation was sponsored by Assemblywoman Shirley Weber, D-San Diego, a professor at San Diego State University whose late husband was a judge.

She said the legislation is important because it forces judges to hold prosecutors accountable.

“I’ve always had as a priority this whole issue of social justice,” Weber said. “When it doesn’t work, it has the tendency to do a lot of harm.”

Weber also said inspiration from the law tracked to events in Orange County.

In March, a Superior Count judge barred the District Attorney’s Office – all 250 lawyers – from the highest-profile mass murder case in county history.

Judge Thomas Goethals made the rare move of kicking the Orange County District Attorney’s Office off the case, saying prosecutors couldn’t ensure a fair trial in the penalty phase of the trial of confessed mass murderer Scott Dekraai.

Goethals sited misleading or false testimony from sheriff’s deputies about jailhouse informants and the unintentional failure of prosecutors to turn over evidence.

The Dekraai case was handed to the state Attorney General’s Office, which is appealing on the grounds that the judge overstepped.

An Orange County public defender, representing Dekraai and double-murder defendant Daniel Wozniak, has accused police and prosecutors of illegally using jailhouse informants over the past 30 years to coax confessions from defendants and withholding evidence about those informants.

Rackauckas has admitted in past interviews that his prosecutors made some mistakes in handing over evidence and using informants, but none intentionally.

Prosecutors have labeled the accusations as unfounded and reckless.

Rackauckas said Tuesday he supports the new, stricter sanctions and thinks they should even be stronger for prosecutors who willfully withhold evidence from defense teams.

“I think it’s a good law. And any prosecutor who acts in the manner proscribed by the law, intentionally, that’s reprehensible conduct,” Rackauckas said.

“There has not been any intentional bad faith withholding of evidence in the D.A.’s office. If that were to happen and I found out about it, that person would be terminated.”

The California District Attorneys Association opposed the bill partly out of concern that prosecutors who mistakenly failed to turn over evidence would be punished along with the prosecutors who do so by intent.

“Let’s make sure the conduct that is proscribed is actually misconduct,” said Sean Hoffman, director of legislation for the prosecutors’ association.

“We look at prosecutorial error and prosecutorial misconduct as two different things.”

The bill was sponsored by California Attorneys for Criminal Justice, a 2,000-member group dedicated to preserving defendants’ rights.

“The public deserves to have confidence that prosecutors are committed to playing by the rules instead of trying to win at all costs,” said Jeff Thoma, association president.

“I applaud the passage of AB 1328 and it being signed into law. I believe this has the positive effect of insuring greater due process by reducing (discovery) violations and holding those accountable that do so in bad faith.”

Among Orange County representatives in Sacramento, only Assemblyman Tom Daly, D-Anaheim, and Sens. John ‍Moorlach, R-Irvine, and Tony Mendoza, D-Artesia, voted in favor of the law.

Assembly members Young Kim, R-Fullerton, Don Wagner, R-Tustin, Travis Allen, R-Huntington Beach, Bill Brough, R-Dana Point, and Matt Harper, R-Costa Mesa, voted against the law.

Sens. Janet Nguyen, R-Santa Ana, Ling Ling Chang, R-Chino Hills, and Pat Bates, R-San Juan Capistrano, also voted against it.

Sen. Bob Huff, R-Brea, did not cast a vote.




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