All posts by JohnnyCalifornia

The Undiscovered Discovery Problem: Proposition 9 And The Need For Ballot Prop Reform

(A great review of a not-so-great proposition. – promoted by Brian Leubitz)

In 2005, the non-partisan Public Policy Institute of California conducted a poll which found that three out of four California voters “favor a system of review and revision of initiatives to avoid legal issues and drafting errors” and 84% of voters think that the wording of ballot initiatives “is often too complex too understand what would happen if an initiative passed.”

There is no better illustration of the “legal issues and drafting errors” and language “too complex too understand what would happen if an initiative passed” than the recently passed Proposition 9, which adds provisions to the California Constitution which grant “due process rights” to crime victims.

Prop. 9 passed with 60% of the vote despite warnings from the L.A. County District Attorney, at least 30 newspaper editorial boards, and a bi-partisan coalition of public interest groups that much of Prop. 9 would result in costly litigation and ultimately would be struck down by the courts.

Of all the problematic Prop 9 provisions,  there’s one that strikes us as a perfect example of the problems addressed in the PPIC poll  One of the “crime victim’s due process rights” that Prop. 9 adds to the California Constitution is the right of a crime victim to:

[refuse a] discovery request by the defendant, the defendant’s attorney, or any other person acting on behalf of the defendant.

This is a major problem. Before we explain why, let’s go on a brief flyover of “due process rights” and “discovery.”

Due Process

In criminal justice, “due process rights” are the rights which guarantee that a criminal defendant gets a fair shot before and during trial. Due process rights are either specifically stated in the constitution or derived from the constitution. Due process rights specifically stated in the constitution include the right to be represented by an attorney and the right to have your trial heard by a jury. One of the due process rights derived from the constitution is the right to a fair “discovery” process.


Discovery is a procedure before trial in which the defense and prosecution exchange information that’s relevant to the case. The rules for “discovery” are set forth in the California Penal Code. One of the primary purposes of the discovery process, says the Penal Code, is to “promote the ascertainment of truth in trials” by making sure that both sides have access to the evidence which will be produced at trial – this includes the names and contact information for witnesses the prosecution plans to call at trial, documents, photographs, videotapes, medical test results, DNA evidence, fingerprints, and any other relevant materials that are either “in the possession of the prosecuting attorney” or in the possession of the police.

The process starts with both sides informally requesting information from each other If there’s trouble agreeing on what should be turned over, a judge rules on what should and shouldn’t be exchanged.

If the item is not in the possession of either the prosecutor or the defense attorney, then the item must be subpoenaed by the attorney who wants it. When a subpoena is issued, the requested item must show up in court on a certain day or whoever is responsible for the item could end up in jail until he or she turns over the item.

And as you’ve probably figured out,  both California and the U.S. Supreme Courts say that a due process violation occurs when the prosecutor withholds evidence that may prove a defendant’s innocence.

OK, let’s move on to how the victim’s ability to refuse a discovery request can be a serious problem in a criminal trial.

The Defense Attorney’s Problem

Let’s say you’re a defense lawyer, your client is accused of armed robbery of a liquor store. The victim is the owner of the liquor store who was working behind the counter at the time of the robbery. Your client says he didn’t do it, says he was never there. You learn of a security camera at the liquor store that caught the whole robbery on video. The liquor store owner has a DVD of the camera footage. You don’t know what’s on that camera footage, but it very well could help prove that your client did not commit the robbery.

Through the discovery process we described, you ask the Prosecutor for the DVD of the footage. The prosecutor asks the liquor store owner for the DVD, but the liquor store owner, as crime victim, invokes his “Prop 9 due process rights” and refuses to turn over the DVD. The prosecutor informs you of this.

As a diligent defense lawyer, you take the discovery process to the next level and serve a subpoena on the liquor store owner.  The subpoena demands that he turn over the DVD or risk jail. But the liquor store owner stands firm and tells you that a subpoena is still “discovery”, that he’s still invoking his Prop. 9 rights, and that he’s keeping the DVD.

You tell the judge to throw the liquor store owner in jail until he complies with the subpoena. The liquor store owner then turns to the prosecutor and asks her to keep him out of jail by advocating for his constitutional rights to refuse discovery.

And this is where Prop 9 creates all kinds of trouble for the prosecutor.

The Prosecutor’s Problem

Under Prop. 9, the California constitution now says

The prosecuting attorney upon request of the victim, may enforce the rights [of the victim]…in any trial or appellate court with jurisdiction over the case as a matter of right. The court shall act promptly on such a request.

This raises two big questions. First, is the liquor store owner the prosecutor’s client? Second, if the prosecutor advocates for the liquor store owner, is the prosecutor violating the law?

The first question can be disposed of quickly. The liquor store owner, or any other crime victim, is most assuredly not the prosecutor’s client. In a criminal case, a crime victim is a witness – an important witness who should be treated with respect – but still nothing more than a witness. It’s the prosecutor’s job to prosecute cases and pursue justice objectively and evenhandedly on behalf of all the people of the state. If the prosecutor represented the crime victim, she’d be required to “zealously advocate” for her client’s legal interests – which means she can’t be objective or evenhanded. This is a textbook definition of a conflict of interest.

You’ll notice that the Prop 9 attorney provision says that a prosecuting attorney “may” enforce the rights of the victim…this implies that the prosecutor can refuse to represent the client, but that’s an issue for an appellate court to decide. For now, let’s take the Prop. 9 amendment at face value and say the prosecutor does argue for the victim to keep the DVD. This presents a new problem: Violating attorney ethics laws.

Under the California Professional Rules of Professional Conduct an attorney:

shall not suppress any evidence that the [attorney] or the [attorney’s] client has a legal obligation to reveal or to produce.

This one is a real head-scratcher. The prosecutor knows that the California Penal Code, as interpreted by the California Supreme Court, obligates the liquor store owner to comply with the subpoena and turn over the security camera footage. There’s also U.S. Supreme Court rulings that say the same thing. If the prosecutor argues that the liquor store owner be allowed to keep the DVD, she’s arguing for her client to suppress evidence that he has a legal obligation to produce.

On the other hand, in this post-Prop 9 world, the prosecutor must now look out for the victim’s due process rights. Plus the Prop. 9 amendments arguably trump the discovery rules in the penal code and any California Supreme Court decisions on the matter. And since she’s in state court on a state issue, the prosecutor is bound by California law and the California constitution, not necessarily federal law handed down by the U.S. Supreme Court.

If the prosecutor is halfway awake, she’ll also think about what happened to the prosecutor in the “Duke Lacrosse Team Case.” He didn’t turn over DNA evidence which proved the players’ innocence. He not only lost his case, he lost his job, he lost his license to practice law, and he may very well lose a $180 million civil suit against him. Prop 9 or not, suppressing evidence is serious business.

The Problem For All of Us

The discovery refusal provision of Prop. 9 will likely be overturned by the Courts or interpreted so that it meets the due process standard, but as voters were warned, it will be expensive, time consuming, and could have been easily avoided if the ballot initiative process permitted some objective analysis of the law.  Oh well.  As long as everyone felt good about it coming out of the voting booth, that’s the important thing, right?

Stay tuned…

Proposition 8 Aftermath – Here’s How The No-On-8 Campaign Lost the Election

As far as we can tell, it’s not so much that the “Yes-On-8” campaign won, but the “No-On-8” campaign lost. They lost because they confused swing voters with their inconsistent message, spent all their money on TV ads rather than street-level organizing (“ground game”) and instead of trying to win an election they went into “activist” mode and declared war on religion.

The Message Problem

President-Elect Obama’s campaign message was simple, memorable, and completely effective, because it was completely true: “John McCain voted with George W. Bush over 90% of the time.  John McCain is four more years of George W. Bush.”

The No-On-8 campaign had three messages: 1) Prop 8 strips people of civil rights that were already granted to them, 2) Gays and lesbians deserve equal rights, 3) Same Sex marriage will not be taught in schools.

Message #2 is far too divisive and played into the Yes-On-8s assertion that same-sex marriage was part of a “vast gay conspiracy.”  Message #3 was a defensive move on an issue that turned out to be a red herring (turns out only 23% of voters were worried about the effect same sex marriage would have on education).

This means that the winning message, not only by elimination but because it was the best message, is #1 – the civil rights argument.   It should have been the only message, especially since it requires a bit more explaining than most broad, talking-point-ready campaign themes.

To effectively push the civil rights argument, the opposition campaign needed to explain to voters that there’s a difference between approving of gay marriage and stripping someone of their civil rights that have already been upheld by the state.  No-On-8 made this argument well at first.  The first TV ads, funded by the official No-On-8 campaign employed this strategy.

The problem was that those ads were running against ads put by a group called “Equality California”, which had the same top-level leadership as “No-On-8” but employed different strategists (which still makes no sense to us, can someone explain the thinking behind this?).  Equality California also had a different message. Their ads did away with the civil rights argument in favor of a “gay and lesbian rights” argument.  This confused matters.  

There were now two messages out there:  One that said that No-On-8 is not about same-sex marriage but about civil rights, the other said that No-On-8 is about same-sex marriage in that gays and lesbians deserved equality in marriage.   This was the beginning of the end.

The wheels really fell off when the Yes-On-8ers started their “same sex marriage taught in schools” campaign; this lead to the No-On-8 campaign running counter-ads and counter-PR on the education issue.  But the Equality California group was still talking about “gay and lesbian equal rights for marriage” and running those ads.

Now there were three messages: 1)” No-On-8 is not about gay marriage, it’s about protecting a minority groups’ civil rights.”  2) “No-on-8 is about gay marriage, because it’s about equality for same-sex couples.”  3) “Don’t worry, we won’t teach your kids about same-sex marriage in schools.”

This problem was compounded by Barack Obama’s gift to the Yes-On-8 campaign:  His repeated statements that he believes that “marriage is between a man and a woman.”  With his opposition to same-sex marriage bans excised from his statements, the message to voters, especially to African-Americans got even more muddled (as we discussed in a recent post about a Yes-On-8  Obama mailer targeted to African-Americans).

Why weren’t the No-On-8 campaign and Equality California working together to send out a unified message?  Somebody needed to bring these groups together and get them in line with one consistent theme. When the Yes-On-8 started their “education argument”, both coalitions should have worked together to put an internal poll in the field and figure out whether the argument was getting any traction.  Perhaps they would have found out much sooner than the Friday before the election that nobody really cared.

So where was the leadership?  Or as we like to ask around here lately, where was the California Democratic Party?

The CalDem Problem

As with Prop. 5, the California Democratic Party did not have their act together on Prop. 8. But with Prop. 8 their inconsistencies were a bit more understandable. The CalDems endorsed a “No” vote, and some surrogates like Mayor Villaraigosa, Mayor Newsom (who probably hurt more than helped), and Sen. Di-Fi spoke out against Prop. 8.  The problem was that all three said that Prop. 8 was about gay marriage and about civil rights.

Then there was the problem of bad timing.  The CalDems had much bigger fish to fry this election than Prop. 8.  The CalDems main priority was registering African-American and Latino voters and making sure they showed up to vote for President-Elect Obama.

It doesn’t take a sociologist to know that the African-American and Latino communities are pre-disposed to vote “Yes” on Prop. 8 (which, indeed, they did – 70% of African-American voters and 53% of Latinos voted “Yes”).   Perhaps the CalDems, understandably,  didn’t want to risk alienating  African-American and Latino voters by aggressively pushing the No-On-8 message.

Unfortunately for both No-On-8 Campaign and Equality California, they were left to their own devices without much support from the state party infrastructure.

Working With Rather Than Against Religion

From the beginning, those on the fringes of the No-on-8 campaign wanted to use the issue as an attack on religions that preached a “Yes-On-8” message.   We can’t tell you how many times we personally saw and how many other tales we heard about people standing outside of churches with No-On-8 signs. If you live in one of the state’s bigger cities, you probably saw this yourself.

Who at the No-On-8 campaign let people get away with this?  This is an election, not a political protest.  This sort of nonsense makes “soft yes” voters dig their heels in harder and completely turned off swing voters. Then there was the problem with the  No-On-8s campaigns war against the Mormons in the final weeks of the campaign.

These are only two examples of No-On-8s perceived “war against religion” in the final weeks of the campaign.  This whole strategy was mind-blowing to us.  Why wasn’t the first strategy of the opposition campaign to work with religious leaders at the community, local and national level who were already No-On-8.  This should have been a centerpiece of the campaign rather than the afterthought that it felt like.

Why not mobilize sympathetic church members to work within their own communities to work the civil rights issue and help get out the vote?  Harassing parishioners leaving Mass or smearing the entire LDS church makes it impossible for No-On-8 church members to work with the campaign, and in fact it may be enough to change some “No” votes to “Yes.”

The”Soft Yes” Problem and Lack of Ground Troops

The failure of the No-On-8 campaign to work with religious groups speaks to a larger problem, their complete lack of “ground game” (geez, we’re sick of that term! Hopefully that’s the last time we’ll use it for awhile!!).  The No-On-8 campaign failed to identify pockets of “Soft Yes” voters. San Bernardino and Riverside Counties, as well as many counties in the San Joaquin Valley and Central California all overwhelmingly both for Obama and for Prop. 8.  If there was a real ground effort in place and truly organized at the community level, Obama voters who were “Soft Yes” on 8 could have been identified and reached.

Anyway, it’s all over now.   The lawsuits have already started flying, which I’m sure we’ll talk about at some point.  Otherwise, the No-On-8ers can try to get it right in a couple of years.