Discriminatory Prosecution Defense In a Criminal Case

California Supreme Court in Murgia v. Municipal Court (1975) held that a discriminatory prosecution claim was a valid defense to a criminal prosecution. Murgia involved several United Farm Workers (UFW) members who were being prosecuted for some minor criminal offenses. They sought discovery in support of their claim that their prosecution was part of a prosecutorial pattern of discriminatory prosecution of UFW members. They supported their discovery request with affidavits which demonstrated, among other things, that individuals who had violently assaulted UFW members in the presence of law enforcement officers had not been arrested or prosecuted, but the victims of those assaults had been arrested and abused by law enforcement officers. (Murgia v. Municipal Court, supra, 15 Cal. 3d at pp. 291-292.) The trial court found that the defendants had established a prima facie case of discriminatory prosecution, but it refused to order discovery in support of this claim because it erroneously concluded that discriminatory prosecution was not a viable defense to a crime. (Murgia, at p. 293.) The issue before the California Supreme Court was whether a discriminatory prosecution claim was a valid defense to a criminal prosecution. the court held that it was, and it concluded that the trial court had erred in denying the defendants' discovery request. The court based its analysis on "the established principle that in a criminal prosecution an accused is generally entitled to discover all relevant and material information in the possession of the prosecution that will assist him in the preparation and presentation of his defense." (Murgia v. Municipal Court, supra, 15 Cal. 3d at p. 293.) at that time, "criminal discovery in California was strictly a judicial creation." (Griffin v. Municipal Court (1977) A criminal defendant could justify discovery by making a showing based on " 'general allegations which establish some cause for discovery other than "a mere desire for the benefit of all information which has been obtained by the People in their investigation of the crime." . . .' " (Griffin, at p. 306, citation omitted.) Such a discovery motion was required to " 'describe the requested information with at least some degree of specificity and must be sustained by plausible justification.' . . ." (Griffin, at p. 306, 571 P.2d 997, citation omitted and italics added.) This "plausible justification" standard held sway in California until 1990. Penal Code section 1054, subdivision (e) took effect in 1990. This statute prohibits any discovery in a criminal case which is not expressly mandated by statute or required by the United States Constitution. ( Pen. Code, 1054, subd. (e); see also Pen. Code, 1054.5, subd. (a).) There are no California statutes which expressly require the prosecution to disclose to the defense information which may support a discriminatory prosecution claim. (See Pen. Code, 1054.1 required disclosures to the defense.) Consequently, discovery of information pertinent to a discriminatory prosecution claim is no longer authorized in California unless such disclosure is required by the United States Constitution. The scope of the United States Constitution's disclosure requirements was specifically addressed by the United States Supreme Court in United States v. Armstrong, supra, 517 U.S. 456. The precise issue was what showing a criminal defendant must make to warrant discovery in support of a discriminatory prosecution claim based on the United States Constitution's guarantee of equal protection. (Armstrong, at pp. 458, 461, 464 116 S. Ct. at pp. 1484-1485, 1486.) The defendants in Armstrong were being federally prosecuted for distribution of crack cocaine. (Armstrong, at p. 458 116 S. Ct. at p. 1483.) Their discovery motion in support of their discriminatory prosecution claim alleged that they had been "selected for federal prosecution because they are black." (Armstrong, at p. 459 116 S. Ct. at p. 1483.) They initially offered but a single affidavit in support of their motion. This affidavit, by a paralegal employed by the federal public defender's office, alleged that every one of the 24 crack cocaine distribution prosecutions handled by that federal public defender's office since 1991 had involved a Black defendant. The affidavit was accompanied by a "study" of those 24 defendants and the status of their cases. ( Armstrong, at p. 459 116 S. Ct. at pp. 1483-1484.) The United States Supreme Court accepted the rule that the courts of appeals were applying which " 'requires some evidence tending to show the existence of the essential elements of the defense,' discriminatory effect and discriminatory intent. . . ." (United States v. Armstrong, supra, 517 U.S. at p. 468 116 S. Ct. at p. 1488, citation omitted.) The court considered the question of "what evidence constitutes 'some evidence tending to show the existence' of the discriminatory effect element." (United States v. Armstrong, supra, 517 U.S. at p. 469 116 S. Ct. at p. 1488.) The court rejected the court of appeals' conclusion that "a defendant may establish a colorable basis for discriminatory effect without evidence that the Government has failed to prosecute others who are similarly situated to the defendant." (Armstrong, at p. 469 116 S. Ct. at p. 1488.) Instead, it held that a defendant must "produce some evidence that similarly situated defendants of other races could have been prosecuted, but were not . . . ." ( Armstrong, at p. 469 116 S. Ct. at p. 1488.) The court declined to consider "the question of whether a defendant must satisfy the similarly situated requirement in a case 'involving direct admissions by prosecutors of discriminatory purpose.' " (Armstrong, at p. 469, fn. 3 116 S. Ct. at p. 1488.) In sum, although the burden on a California criminal defendant prior to 1990 did not require that he or she produce "some evidence" in support of his or her discriminatory prosecution claim in order to justify discovery in support of that claim, the enactment of Penal Code section 1054, subdivision (e) in 1990 subjected California criminal defendants to the burden necessary to justify disclosure under the United States Constitution.