In 2015, Orange County Superior Court Judge Thomas Goethals removed the Orange County District Attorney’s Office from the trial of Scott Dekraai, who was accused and since convicted of the worst mass murder in Orange County. Judge Goethals booted the District Attorney’s Office from the case after an investigation initiated by the defendant’s lawyer revealed that law enforcement investigating the case withheld material evidence from the court. Law enforcement officers are agents for the District Attorney and as such, the judge found that the District Attorney’s Office was responsible for the illegal withholding of evidence in the trial. Although Judge Goethals found that the district attorneys on the case had committed serious misconduct, but concluded that their actions were not intentional.

Some legal observers would beg to differ with the judge’s ruling. Many defense attorneys have long suspected, or even known, that the District Attorney’s Office regularly withholds exculpatory evidence at trial. Sometimes a trial seems more like a competition, with the District Attorney out to win at all costs, than the right guaranteed by our Constitution for a fair and impartial presentation of facts to be heard and decided by a trial of peers. This is not only a violation of the defendant’s due process rights but it perverts the criminal justice system. The withholding or distortion of evidence denies a defendant a fair trial and, worse—it can (and has) result in the conviction of an innocent person.

Jumpstarted by the events in Judge Goethals courtroom, Assembly Bill 1909, was signed into law by Governor Brown last month. This law, which will be added by a subdivision to Penal Code section 141, punishes prosecutors who are found to abuse their power by “intentionally and in bad faith” tampering or withholding evidence in a criminal trial. The new law requires that the prosecutor knew the evidence was “relevant and material to the outcome of the case” and acted with “specific intent.” In the Orange County case, Judge Goethals found that the district attorneys did not act intentionally. So even though this new law was prompted by the actions in that trial, the district attorneys involved would not be prosecuted under this new law.

While it is likely that many prosecutors will escape conviction under this law because it will be difficult to prove the specific intent requirement, it puts district attorney offices across the state on notice that they will be held accountable for the withholding or distortion of exculpatory evidence. A conviction under this new law is a felony carrying a sentence of imprisonment for up to three years. This is likely to give any district attorney prosecuting a trial who is considering pulling out of a bag of dirty tricks to think again. The new law is likely to have a deterrent effect and ultimately restore some of the justice lost in this “win at any cost” system that our so-called justice system has become.

If you have been accused of a crime, you are entitled to a fair hearing. William Weinberg is an experienced criminal defense attorney who can answer your questions about your criminal defense matter. Feel free to contact him to set up a confidential consultation at or at 949-474-8008.