(A Former Prosecutor and Whistleblower Meets “Official” Retaliation)
In California today, our grand jury only hears those cases presented by a prosecutor; and only the prosecution’s side of the case. He or she is responsible for selecting the witnesses who will articulate the story-line the prosecutor wishes to present without regard to counter-availing evidence. As a public official and lawyer, the prosecutor commands considerable respect by the lay persons who make up the grand jury. With this power comes the inherent danger that the prosecutor may prejudice and even manipulate the grand jurors who may not appreciate the subtle insinuations embedded into the one-sided presentation leading to a practically-ensured indictment.
Quite often, prosecutors look to the grand jury to do the bidding that a simply crafted criminal complaint otherwise cannot accomplish because the process of bringing suit via complaint necessarily requires judicial oversight. In a very real sense, the grand jury has become the “tool” for prosecutors who do not wish to protect the interests of the accused. An indictment by its very nature side-steps judicial oversight and avoids having a judge determine whether a complaint is based on probable-cause. No longer do grand jurors serve as the protectors of the accused but merely a sounding-board for prosecutors with their own agenda.
There is nowhere in which this danger is more apparent than where the accused has threatened to expose public corruption emanating from the D.A.’s office. Such was the case when a Los Angeles prosecutor took aim at one of its own ex-prosecutors, Sean Erenstoft who faced off with a current deputy district attorney who he caught hiding evidence from his client in a criminal matter in which the errant D.A. had sought to incarcerate his client for 56 years-to-life. When Sean Erenstoft presented a secretive “Special Directive” penned by the then-elected District Attorney, Steven Cooley, explaining to deputies the process in which to hide exculpatory (Brady) evidence, the D.A.’s office convened a grand jury to silence the attorney.
Since prosecutors play such a significant role in the indictment procedure; and the incidence of prosecutorial instigated prejudice and abuse is a normal function of the process, the judiciary is prompted to take a more significant role to ensure that the grand jury functions as it was intended — to protect the accused.
Heroic judges are now taking issue and calling out prosecutorial misconduct and refusing to allow judicial processes to be used in furtherance of reckless D.A. ventures. In the matter involving whistleblower, Sean Erenstoft, Judge Stephen Marcus reprimanded the D.A.’s office and stated that “Mr. Sean Erenstoft was doing his job until you people [the L.A.D.A.] took issue” and proceeded to dismiss the suit brought by the L.A.D.A.
Brave judges like Stephen Marcus may well serve to prevent turning the indictment process into a trial on the merits by exercising supervisory control over the mis-use of the courts’ resources.
Sean Erenstoft can be reached at (310) 613-8887.