The Argument Against Prosecutorial Immunity

I am a whistleblower having revealed in 2009 secret “directives” penned by our elected Los Angeles District Attorney, Steve Cooley to his deputies. The directives concerned the methodology in which Los Angeles prosecutors were ordered to hide exculpatory evidence from defendants and their counsel. Initially, I disclosed the directives (three in total) to California’s Attorney General, the California State Bar Association, other senior-level Los Angeles District Attorneys, and superior court judges. Later in 2010, that list included. . . the press. A significant lawsuit would later be waged against the Los Angeles District Attorney by other civil rights attorneys including the A.C.L.U.

This article concerns a most-disturbing trend by prosecutors to suppress information they are uniquely in possession of that could be used to prove a defendant’s innocence. Cloaked in absolute immunity, prosecutors deliberately hide potentially exculpatory evidence. Such behavior is the most pervasive type of prosecutorial misconduct, involves conduct that is unlikely to be discovered and punished, and actually results in the conviction and incarceration of innocent persons. Troublesome is the fact that the very persons charged with ensuring prosecutorial accountability are themselves. . . prosecutors with a conviction bias. Indeed, judges and defense attorney are seldom if ever involved in the determination of whether evidence gathered by public-funded investigators are to be revealed to a defendant charged with a crime. I am hereby proposing a more aggressive method of law enforcement. . . against those in possession of non-public information derived from public-funded investigations.

Any “informed” discussion in this area of concern requires the reader to review the two significant cases which define both prosecutorial immunity and the Constitutional obligation of prosecutors to reveal information to the defense that may undermine allegations of guilt beyond a reasonable doubt. The two cases are:

Imbler v. Pachtman, 424 U.S. 409 (1976) []; and
Brady v. Maryland, 373 U.S. 83 (1963) [].

Simply summarized, in Imbler, the court tailored a plan for prosecutorial immunity as a matter of public policy given a prosecutors dual role as public advocate, investigator, and legal administrator. It was widely understood (and remains the case) that a prosecutor duty is to “seek justice” and not simply convictions. However, competitive human nature has chipped away at that time-honored tradition and has resulted in morally corruptible litigants who dare not undermine their win/loss record by revealing seemingly insubstantial discovery material to the “enemy.”

The Brady case referenced above requires a prosecutor to provide a defendant with exculpatory evidence which might assist the defendant in obtaining an acquittal. Brady acknowledges the ease in which prosecutors evade their Constitutional duty to reveal data and avoid compliance or minimal oversight. Clearly, the argument against disclosure is whether the information is subjectively deemed by the prosecutor to be “material to preparing the defense.” Idiotic is that this leaves the revelation of evidence up to an invested prosecutor to determine whether her case is fallable. Most certainly, the determination of whether evidence contradicts guilt sets forth a most unharmonious role for a prosecutor; an advocate who already made an initial determination of guilt sufficient to justify her criminal filing.

The most basic understanding of human cognitive psychology (as applied to a prosecutor) recognizes the so-called “conviction mentality” in which mental biases undermine objective reasoning, even unintentionally. Whether a prosecutor can remain objective and comply with her Brady obligations is the point I’m raising here. Not to get to mired in cognitive psychology studies here, but consider your basic understanding of terms like “cognitive dissonance” and “tunnel vision” as applied to a prosecutor who is charged with being a “zealous advocate” seeking remuneration and institutional accolades for being “tough on crime.” And what if the prosecutor has a pre-existing bias against the defense attorney himself or just bias against any individual charged with the sort of crime involved? The former example led retaliation against me personally as I sought evidence in a criminal case that I was certain was being suppressed from my review in defense of my client.

Notably, most prosecutors escape culpability because the records in cases in which the prosecution has hidden evidence reveal that a conviction, however minor, was ultimately obtained by way of plea-bargain. . . thereby white-washing the prosecutor’s behavior. Also, under Brady, it is the defendant who is obliged to prove on appeal that a prosecution’s suppression of exculpatory evidence was harmful to his case — that is IF he even discovers the evidence. Does it strike you as odd that no other aspect of constitutional criminal procedure requires the defense to prove a negative but, instead, that the prosecutor prove that the “error” was “harmless beyond a reasonable doubt?”

What’s the remedy? Courts addressing criminal matters must insist that prosecutors scour their files for evidence that may be deemed objectively exculpatory — including the background data the state collects concerning witnesses the prosecution may offer at time of trial. The jeopardy of potential criminal contempt proceedings must be expressly placed on the table for offending prosecutors who would otherwise sit on evidence and allow innocent men and women go to prison. Violations revealed to the California State Bar should be investigated and punished with disbarment insofar as hiding evidence obstructs the administration of justice — and in these particular cases, involves wrongful incarceration.

The Los Angeles District Attorney established a Public Integrity Division intended to prosecute public corruption. But the investigators and prosecutors of that division share offices, resources and are under the same “Directives” Steven Cooley secretly placed into practice years ago directing L.A.D.A. prosecutors to hide evidence. It is farcical to expect that the D.A.’s offices will prosecute Brady violations against its own — for following directives concocted by its leader. Instead, claimed violations should be directed to the California Attorney General’s Offices and the State Bar. However, in my experience with both agencies, very little or nothing has been done to quell this common form of prosecutorial misconduct. Instead, this whistleblower defense attorney suffered retaliation for the revelation and his client was left to fend for himself.

For more information concerning the litigation the A.C.L.U. is pursuing against the L.A.D.A. following my revelation of the D.A.’s directives in late 2009, see: Jeffrey Douglas v. Steve Cooley and the Los Angeles District Attorney’s Office, et al.; Los Angeles Superior Court; Case No.: BS138170.

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