One law, two fates: The unequal prosecution of California prosecutors

Two high-profile prosecutors are both under scrutiny for a single email each sent to work colleagues in 2021. It is extremely rare to see prosecutors investigated, but it is even more troubling to see how differently these two prosecutors are being treated by the Office of the Attorney General. One prosecutor in Southern California faces six felony charges, possible criminal convictions and potential professional ruin. The other prosecutor, in Northern California, remains in her job as a top prosecutor, has not been charged criminally, and is being permitted by the State Bar to take remedial ethics classes essentially avoiding any significant consequences for her actions. This disparate treatment and lack of transparency is troubling. The office of the Attorney General has declined to comment.  

Los Angeles Deputy District Attorney Diana Teran has been in public service for over 30 years. On April 26, 2021, she sent an email to a fellow deputy district attorney. The email included a link to a folder containing publicly available court records about Los Angeles County deputy sheriffs. These court records document Superior Court records of deputies who were previously disciplined by the Civil Service Commission for misconduct and who were publicly appealing the rulings. In her email, Teran requested that her co-worker review the court records to determine whether they should be included in the Office's Brady database; a database that is maintained to help ensure Los Angeles County District Attorneys complied with their constitutional and ethical responsibilities to provide the defense with all exculpatory evidence as set forth in Brady v. Maryland (1963) 373 U.S. 83 and the state bar rules. Teran and her colleague were responsible for updating the database. For this act, Teran is charged under a computer hacking statute. She faces trial on six felony charges and possible disbarment.

In the other case, San Francisco District Attorney Brooke Jenkins remains the District Attorney for the County of San Francisco. In lieu of a State Bar prosecution, Jenkins has been permitted to participate in a diversion program with no criminal consequences. Jenkin's Oct. 9, 2021 email contained information that was not publicly available. Her email included a confidential rap sheet (criminal history) of a defendant in a prior case. At the time the e mail was sent, Jenkins and her colleague had given their notice to resign from the San Francisco DA's office and presumably did not have permission to use or share the rap sheet. The rap sheet belonged to the defendant in a high-profile case being publicized as part of the campaign to recall Jenkins's then-boss, Chesa Boudin. After leaving the DA office, Jenkins and her colleague worked on the campaign to recall Boudin, and this rap sheet was posted on the campaign's website.

In the Teran case, the Attorney General alleges that her 2021 email violates Penal Code section 502(c)(2), a computer hacking statute that prohibits the use of data from an employer's computer system without an employer's permission. The Attorney General argues Teran accessed the records in a computer system at her previous job while working for the Los Angeles County Sheriff, and that her email in 2021 (when she worked for the Los Angeles County District Attorney's Office) was the unauthorized use of the Sheriff's data. He fails to address the fact that at the time Teran sent the email, anyone could go to the courthouse and obtain copies of these court records.

A reading of the statute raises the question whether Jenkins's conduct violates this same statute. Jenkins accessed the defendant's rap sheet from her employer's computer system. She emailed the rap sheet without her employer's permission. And there was no job-related reason for sending the rap sheet.

When felony charges were filed against Teran, the Attorney General put out a press release saying "Nobody is above the law." But it appears that Brooke Jenkins was able to avoid prosecution. Teran's defense is that she shared public court records in the scope of her work as a prosecutor to comply with her office's Brady obligations. Jenkins has shown no work-related reason for sending out the rap sheet. Jenkins was not prosecuting a case against him, nor was he a witness in any case.

While the Attorney General has significant discretion as to whether and how to prosecute cases, his decisions in high-profile cases such as these should be transparent to the public and above politics. To date, that Office has declined to comment or address this disparate treatment.