More Than A Rogue

Last month, the California Court of Appeal published a decision about a 2013 case in which the prosecutor fabricated evidence in order to force the defendant to plead guilty.

The defendant had been charged with lewd conduct with a child under the age of 14 after his girlfriend’s daughter alleged several instances of molestation. The defendant pleaded not guilty and was appointed a lawyer to defend him.

During plea negotiations, the prosecutor offered eight years in prison, but the defendant wouldn’t take it, so the prosecutor told the defense lawyer that he was thinking of refiling the charges to allege sexual penetration, which carried a possible life sentence. He also told the lawyer that, if he filed these new charges, there wouldn’t be any more plea offers.

The prosecutor said these things even though he didn’t have any evidence of penetration, and he knew it.

But he had another idea.

Seven days before trial, he sent the defense lawyer a transcript of the audio recording from the defendant’s police interrogation—a transcript that contained two extra, special lines:

• [Detective]:    You’re so guilty you child molester.
• [Defendant]:  I know. I’m just glad she’s not pregnant like her mother.

Naturally, when the lawyer saw the transcript, he told his client it contained an admission of penetration that could support the more serious charges against him. The defendant denied making the statement, but his lawyer continued to advise him to plead guilty.

In the days that followed, however, the lawyer discovered that the extra lines were not in the transcript that his own office prepared from the audio, which was in another language. The lawyer’s copy of the audio ended abruptly, so he wondered whether the government possessed a longer, different recording.

On the day of trial, the parties appeared in court, and the prosecutor said nothing about his fabrication. The trial was continued one week.

Two days later, the defense lawyer emailed the prosecutor to request “the exact CD” reviewed by the government’s transcriber. The prosecutor did not respond.

Later that day, the two spoke in person, and the prosecutor admitted to purposely falsifying the transcript.

The defense filed a motion to dismiss based on outrageous misconduct, and at the hearing, the prosecutor claimed that he’d added the extra lines as a joke. He also admitted, however, that he didn’t have a joking relationship with the defense lawyer and had not made such jokes in the past.

The court didn’t buy it, finding that the prosecutor failed to prove his lie was a joke and that, even if it was, his conduct in the middle of plea negotiations, on the eve of trial, was egregious and outrageous.

Although the government appealed the ruling, the court of appeal agreed that the prosecutor had “deliberately altered an interrogation transcript to include a false confession, one which could be used to justify charges carrying a life sentence, and he produced it to defense counsel during a period of time when [he] knew defense counsel was trying to persuade defendant to settle the case.”

Today, the prosecutor is facing a two-year suspension of his law license. Reportedly, state prosecutors won’t seek criminal charges against him because of a lack of evidence.

But his conduct was more than just roguish. It was criminal.