Bill Text: CA SB710 | 2021-2022 | Regular Session | Amended

California Senate Bill 710 (Prior Session Legislation)

NOTE: There are more recent revisions of this legislation. Read Latest Draft

Bill Title: District attorneys: conflicts of interest.

Spectrum: Partisan Bill (Democrat 3-0)

Status: (Engrossed - Dead) 2021-08-26 - August 26 hearing: Held in committee and under submission. [SB710 Detail]

Download: California-2021-SB710-Amended.html

Amended IN Senate March 25, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Senate Bill

No. 710

Introduced by Senator Bradford
(Principal coauthor: Assembly Member Friedman)

February 19, 2021

~~An act to amend Section 1424 of the Penal Code, relating to criminal procedure.~~ An act to add Sections 1425 and 1425.5 to the Penal Code, relating to criminal procedure.

LEGISLATIVE COUNSEL'S DIGEST

SB 710, as amended, Bradford. ~~Criminal procedure.~~ District attorneys: conflicts of interest.

Existing law authorizes a party to file a motion to disqualify a district attorney, city attorney, or city prosecutor from performing an authorized duty. Existing law requires notice of the motion to be served on the district attorney and the Attorney General at least 10 court days before the motion is heard. Under existing law, the motion may not be granted unless the evidence shows that a conflict of interest exists that would render it unlikely that the defendant would receive a fair trial.
This bill would require a district attorney or the Attorney General to recuse themselves from a decision relating to investigating, charging, or prosecuting a peace officer for alleged criminal conduct while on duty if the district attorney or Attorney General has a conflict of interest, as specified. The bill would state that a conflict of interest exists when a district attorney or the Attorney General who is investigating, charging, or prosecuting a peace officer for alleged criminal conduct while on duty received a monetary benefit from a member organization or association solely representing law enforcement in specified circumstances.
Existing law authorizes a party to file a motion to disqualify a district attorney, city attorney, or city prosecutor from performing an authorized duty. Existing law requires notice of the motion to be served on the district attorney, city attorney, or city prosecutor and other specified parties at least 10 court days before the motion is heard.
~~This bill would instead require notice of the motion to be served at least 5 days before the motion is heard.~~

Vote: MAJORITY Appropriation: NO Fiscal Committee: NOYES Local Program: NO

The people of the State of California do enact as follows:

SECTION 1.
The Legislature finds and declares all of the following:
(a) The people of California vest peace officers with extraordinary authority, including the power to detain, search, arrest, and use force, including deadly force. The public’s faith in the legitimacy of law enforcement, and in the justice system more broadly, depends on officers being held accountable when they abuse that authority.
(b) Prosecutors play a fundamental role in pursuing accountability for all who have broken the law, including peace officers. In wielding this authority, they exercise broad discretion in deciding whom to prosecute, what to charge, whether to offer a plea bargain, or whether to dismiss a case altogether. The integrity of this decisionmaking process depends on its independence from financial influence, both real and perceived.
(c) Prosecutors and police have a unique relationship. Prosecutors rely on police as their primary witnesses and they work hand-in-hand on a daily basis, often developing close relationships. As a result, there is a widespread perception that prosecutors are subject to undue influence when investigating peace officers accused of crimes alleged to have occurred on duty.
(d) When prosecutors accept financial support from associations solely representing peace officers, the public’s confidence that they will objectively review allegations of criminal conduct by the officers represented by that association is further undermined.
(e) Law enforcement associations regularly provide representation to their members during the course of criminal investigations by the district attorney, when peace officers are alleged to have committed criminal conduct while on duty.
(f) Receiving monetary benefits including campaign contributions from entities that finance opposing counsel is in direct contradiction to rule 1-7 of the State Bar Rules of Professional Conduct, which generally prohibit a lawyer from representing a client when the lawyer has “a legal, business, financial, professional, or personal relationship with or responsibility to a party or witness in the same matter,” as well as standard 3-1.7 of the American Bar Association Criminal Justice Standards for the Prosecution Function, which establish that “a prosecutor who has a significant personal, political, financial, professional, business, property, or other relationship with another lawyer should not participate in the prosecution of a person who is represented by the other lawyer,” except as specified.
(g) The California Court of Appeals found in People v. Vasquez (2004), 122 Cal.App.4th 1027, that a conflict, for purposes of Section 1424, exists “whenever the circumstances of a case evidence a reasonable possibility that the DA’s office may not exercise its discretionary function in an evenhanded manner. Thus, there is no need to determine whether a conflict is “actual” or only gives an ‘appearance’ of conflict.”
(h) Procedures exist to ensure that a prosecutor will be disqualified if there is a conflict of interest that would deny the defendant a right to a fair trial. There are currently no means for addressing actual or perceived conflicts of interests that might prevent a prosecutor from fairly investigating and prosecuting a peace officer who allegedly committed a crime while on duty, thereby denying the public and victims of police violence equal justice.
(i) The courts have recognized that attorneys and judges may be subject to laws and ethical rules that limit their speech in order to protect the integrity of the judicial process.
(j) The United States Supreme Court has recognized that financial contributions to political campaigns present unique concerns to the fair administration of justice and that the state has an interest in ensuring fair and equal justice by guarding against actual or perceived conflicts of interest in the judicial system. (Williams-Yulee v. Florida Bar (2015), 575 U.S. 433, and Caperton v. A.T. Massey Coal Co., Inc. (2009), 556 U.S. 868.)
(k) It is the intent of the Legislature to eliminate the conflict of interest between prosecutors and peace officers, whether real or perceived, to protect the integrity of the prosecutorial function, support the fair administration of justice, ensure equal justice for victims of police crimes, and build public trust in law enforcement.

SEC. 2.

Section 1425 is added to the Penal Code, to read:

1425.
(a) For purposes of this chapter, a conflict of interest exists when both of the following occur:
(1) A district attorney or the Attorney General investigating, charging, or prosecuting a peace officer for alleged criminal conduct while on duty received a monetary benefit from any of the following:
(A) A member organization or association solely representing law enforcement that is involved in the investigation.
(B) A member organization or association solely representing law enforcement that employed the officer who allegedly committed the crime at the time the alleged crime was committed.
(C) A member organization or association solely representing law enforcement of which the officer is a member or was a member at the time of the alleged crime.
(2) The member organization or association solely representing law enforcement makes representation in criminal investigations available to its employees or members under criminal investigation for alleged criminal conduct that occurred while on duty.
(b) As used in this section, the following definitions apply:
(1) A “member organization or association” means a formal, legal organization representing individuals and includes unions.
(2) A “monetary benefit” means any financial benefit and includes a direct financial campaign contribution.
(3) “Peace officer” has the same meaning as in Section 830.

SEC. 3.

Section 1425.5 is added to the Penal Code, to read:

1425.5.
(a) A district attorney or the Attorney General shall recuse themselves from a decision related to investigating, charging, or prosecuting a peace officer for alleged criminal conduct while on duty if the district attorney or the Attorney General has a conflict of interest.
(b) Except as otherwise provided in subdivision (c), in the event that a district attorney recuses themselves pursuant to this chapter, the Attorney General shall assume responsibility for investigating, charging, or prosecuting the peace officer.
(c) If the Attorney General investigating, charging, or prosecuting the peace officer has a conflict of interest, the Attorney General shall recuse themselves and appoint a special prosecutor to investigate, charge, or prosecute the peace officer.

SECTION 1.Section 1424 of the Penal Code is amended to read:
1424.
(a)(1)Notice of a motion to disqualify a district attorney from performing an authorized duty shall be served on the district attorney and the Attorney General at least five court days before the motion is heard. The notice of motion shall contain a statement of the facts setting forth the grounds for the claimed disqualification and the legal authorities relied upon by the moving party and shall be supported by affidavits of witnesses who are competent to testify to the facts set forth in the affidavit. The district attorney or the Attorney General, or both, may file affidavits in opposition to the motion and may appear at the hearing on the motion and may file with the court hearing the motion a written opinion on the disqualification issue. The judge shall review the affidavits and determine whether or not an evidentiary hearing is necessary. The motion may not be granted unless the evidence shows that a conflict of interest exists that would render it unlikely that the defendant would receive a fair trial. An order recusing the district attorney from any proceeding may be reviewed by extraordinary writ or may be appealed by the district attorney or the Attorney General. The order recusing the district attorney shall be stayed pending any review authorized by this section. If the motion is brought at or before the preliminary hearing, it may not be renewed in the trial court on the basis of facts that were raised or could have been raised at the time of the original motion.
(2)An appeal from an order of recusal or from a case involving a charge punishable as a felony shall be made pursuant to Chapter 1 (commencing with Section 1235) of Title 9, regardless of the court in which the order is made. An appeal from an order of recusal in a misdemeanor case shall be made pursuant to Chapter 2 (commencing with Section 1466) of Title 11, regardless of the court in which the order is made.
(b)(1)Notice of a motion to disqualify a city attorney or city prosecutor from performing an authorized duty involving a criminal matter shall be served on the city attorney or city prosecutor and the district attorney at least five court days before the motion is heard. The notice of motion shall set forth a statement of the facts relevant to the claimed disqualification and the legal authorities relied on by the moving party. The district attorney may appear at the hearing on the motion and may file with the court hearing the motion a written opinion on the disqualification issue. The motion may not be granted unless the evidence shows that a conflict of interest exists that would render it unlikely that the defendant would receive a fair trial.
(2)An order recusing the city attorney or city prosecutor from a proceeding may be appealed by the city attorney or city prosecutor or the district attorney. The order recusing the city attorney or city prosecutor shall be stayed pending an appeal authorized by this section. An appeal from an order of disqualification in a misdemeanor case shall be made pursuant to Chapter 2 (commencing with Section 1466) of Title 11.
~~(c)Motions to disqualify the city attorney or city prosecutor and the district attorney shall be separately made.~~