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AB 359: A Quietly Lurking Threat to Prosecutors Throughout California
By Michele Hanisee
Some threats to public safety are obvious, such as Prop. 47 and Prop. 57. They were high-profile initiatives that received plenty of public attention and debate.
Other efforts to change the criminal justice system appear to be well meaning, but contain consequences that reveal both a misunderstanding of how the system operates and are ill considered in their scope. Take, for example, Assembly Bill 359.
AB 359 would require prosecutors to disclose information about in-custody informants that would be devastating to investigations and potentially deadly to the informants themselves. However, while the bill would hamstring prosecutors statewide, it has received virtually no public attention since Assemblyman Reggie Jones-Sawyer introduced it earlier this year.
Under AB 359, prosecutors would have to reveal information about other cases in which the informant is providing testimony, cases in which the informant was a victim, and the informant’s criminal, substance abuse and mental health histories, among other things.
So, what’s wrong with providing information that could shed light on an informant’s credibility? Plenty, actually.
If the informant had helped identify a murderer in a case that went cold, prosecutors would have to disclose that fact. This would forever compromise the cold-case investigation and pose an enormous safety risk to the informant.
But the problems don’t stop there. AB 359 would also require disclosing whether the informant is a suspect in any other cases – even if the person is accused of a crime without any legitimate reason. Further, how would a prosecutor know if the informant was a suspect without a law enforcement agency informing the prosecutor of that fact? In the real world, detectives and officers are not constantly phoning prosecutors to discuss the status of their investigation on any open case. And, of course, if the informant is a suspect but no charges have been filed, the informant has thereby been alerted and the investigation compromised.
Furthermore, the bill would require information about the informant to be presented to the defense at least 30 days before the preliminary hearing. This is mathematically impossible because preliminary hearings in California are by law set within 10 days of a defendant’s arraignment and not-guilty plea.
Lastly, revealing information about an informant’s substance abuse or mental health histories would pose privacy issues, and likely run afoul of medical privacy rights. It is unclear, as well, how prosecutors would be able to determine whether the informant had any such problems in his or her past unless the informant voluntarily disclosed those facts.
Finally, AB 359 as written would force prosecutors to forever follow informants to determine if they are ever again arrested and if they provide information in a later case. This would impose colossal financial and logistical burdens on the offices of district attorneys statewide.
The ADDA is by no means questioning Assemblyman Jones-Sawyer’s motivations. There have been well-documented problems with the use of jailhouse informants in certain cases, and we can only assume he sincerely wants to address those issues.
But that doesn’t change the fact that his bill is both misguided and fatally flawed.
Given the bill’s relative anonymity, it is critical that we do everything we can to shed light on its devastating effects. You can start by writing to Assemblyman Jones-Sawyer using this link.
We also can encourage everyone we know to do the same. Defeating – or at a minimum modifying – this bill will require a consummate grass-roots effort.
The ADDA will play a leading role in this endeavor.
Michele Hanisee is President of the Association of Los Angeles Deputy District Attorneys, the collective bargaining agent representing nearly 1,000 Deputy District Attorneys who work for the County of Los Angeles. To contact a Board member, click here.