New
York's Chief Judge, Sol Wachtler in 1985 said district attorneys now have so
much influence on grand juries that "by and large" they could get
them to "indict a ham sandwich."
In Los Angeles, in an attempt to
bypass judicial oversight, the L.A.D.A. indicted famed civil rights attorney, SeanErenstoft of Los Angeles after Erenstoft sued a prosecution witness in a civil
matter to obtain the discovery that District Attorney, Wendy Segall was hiding
from his client. The evidence ultimately
obtained using civil discovery procedures lead to the dismantling of the
L.A.D.A.'s case against Erenstoft's client.
After nine months in jail, his client went free. But Segall struck back and sought Erenstoft's
indictment for "dissuading a witness." The witness?
Segall's so-called victim who was guilty of a domestic violence exchange
with Erenstoft's client. Of course, the
D.A. didn't bother to prosecute the battery that Erenstoft otherwise
articulated in his civil complaint that survived a demurrer shortly after its
filing. Later, Judge Stephen A. Marcus
dismissed the case against Erenstoft citing that "Erenstoft was doing his
job until [the L.A.D.A.] took issue."
By then, the damage was done and the California State Bar disbarred
Erenstoft and invited him to take the Bar exam (again) before they would
consider his re-application for admission.
It appears that the D.A.'s retaliatory conduct to side-line the civil
rights patriot worked for the time being.
Judge Marcus concluded the Superior Court hearing by stating that he was
dismissing the case so that Erenstoft can get back to career. During his forced sabbatical, Erenstoft has
been counseling litigation practitioners throughout the United States. His once scarlet letter now serves as a
badge-of-honor insofar as Erenstoft's aggressive litigation strategies have
lead to a renewed examination of the Brady
[evidence] obligations that prosecutors owe to the defense.
Even today, the Los Angeles District Attorney's
Office is under attack for having systematically failed to comply with their statutory
and constitutional obligation to produce information to defense counsel. This is a fact. The result is that well-intended defense
counsel are unable to represent our clients effectively. As officers of the court, we have a duty to
maintain the integrity of the criminal courts and ending the practices and
procedures that corrupt the truth-seeking goal of our courts. There is a substantial public interest in the
enforcement of the constitutional duties to disclose information by prosecutors
because disclosure of information is critical to the administration of
justice. Public officials such as
prosecutors take the same oath as I did when I became an attorney. . . to
uphold the Constitution and the law.
As a primer to all citizens, prosecutors
have a duty to disclose "exculpatory evidence" to the defense. In lay terms, this means evidence that may
help the defendant or hurt the prosecution.
Broadly speaking, this a basic due process right that has been codified
in California's own Penal Code (§1054.1(e)).
The topic has been fleshed out in
case law and decided by the United States Supreme Court in the cornerstone case
of Brady v. Maryland, 373 U.S. 83
(1963) and its progeny. In essence,
California's Penal Code mandates that prosecutors "shall disclose" to
the defense "any exculpatory evidence." the California Supreme Court has further held
that §1054.1(e) imposes a duty on the prosecution to disclose, pre-trial, all
exculpatory evidence, without
qualification. (See, Barnett v. Superior
Court, 50 Cal.4th 890, 901 (2010).
Notably, throughout this country, exculpatory evidence is widely termed
"Brady evidence" or "Brady material" after the U.S. Supreme
Court recognized that a prosecutor violates due process by proceeding to trial
without having disclosed exculpatory evidence to the defendant.
Despite the unequivocal mandate and
clear duty imposed by Brady and its
progeny, the Los Angeles District Attorney's Office has adopted formal policies
that: (1) prohibit the disclosure of
exculpatory evidence unless a reviewing deputy deems it true by "clear and
convincing evidence," (2) mandate suppression of exculpatory evidence if a
deputy finds it relevant to a pending
administrative or criminal
investigation, and (3) mandate suppression of exculpatory evidence if a deputy
unilaterally determines, pre-trial, this it is not likely to affect a
verdict. Nowhere in Brady or the law is
there any allowance for the subjective determination by clearly biased
prosecutorial officers.
