Superior Court Judge Stephen Marcus Rejects D.A. Retaliation

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, Los Angeles prosecutors took on civil rights attorney, Sean Erenstoft after he 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 and the dismissal of a dozen knowingly false felony charges Segall heaped on Erenstoft’s client.

But Segall retaliated for bringing the civil suit against her victim/witness and accused Erenstoft of “dissuading a witness” by doing so. 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 articulated in the arrest report that Erenstoft otherwise articulated in the civil complaint that survived a demurrer shortly after its filing. Later, Judge Stephen A. Marcus dismissed the D.A.’s case against Erenstoft citing that “Erenstoft was doing his job until [the L.A.D.A.] took issue.”

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 his career. Since that case, Erenstoft has been counseling litigation practitioners throughout the United States. After whistleblowing on the D.A.’s systematic hiding of evidence from defense counsel by exposing secret “Special Directives” penned by the D.A., Erenstoft re-ignited the debate about the D.A.’s duty to provide Brady evidence [potentially exculpatory evidence] that prosecutors owe to the defense.

Even today, the Los Angeles District Attorney’s Office is under attack for having 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 their clients effectively. As officers of the court, attorneys have a duty to maintain the integrity of the criminal courts and to end 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.

Fortunately, the Los Angeles District Attorney is now answering for its systematic failure to provide exculpatory evidence in the case entitled: Douglas v. Cooley. More on this as the case progresses.

Sean Erenstoft can be reached at (310) 613-8887.

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