Federal Judges Address “Epidemic” of Prosecutorial Misconduct

Deputy Attorney General, Kevin R. Vienna stood before the three judges on the U.S. 9th Circuit Court of Appeals to urge them to uphold murder convictions against Johnny Baca for two 1995 killings in Riverside County. Other courts had already determined that deputy prosecutors had presented false evidence in Baca’s trial but upheld the verdicts anyway.  Judge Alex Kozinski asked Vienna if his boss, Atty. Gen. Kamala D. Harris, wanted to defend a conviction “obtained by lying prosecutors.”

By law, federal judges are supposed to defer to the decisions of state court judges. Prosecutors “got caught this time but they are going to keep doing it because they have state judges who are willing to look the other way,” Kozinski said.  This is the epidemic that has the defense bar so concerned.

Los Angeles lawyer, Sean Erenstoft has been a vocal critic of the blanket immunity generously afforded to prosecutors — even after they have been busted for hiding or presenting false evidence. (See, Sean Erenstoft Speaks Out About Blanket Prosecutorial Immunity). Sean Erenstoft served as a whistleblower in 2010 after he obtained a set of secret “Special Directives” penned by then District Attorney, Steven Cooley advising his deputies county-wide on how to avoid tendering potentially exculpatory evidence to defense counsel.  At the time, Sean Erenstoft utilized civil discovery techniques to obtain the evidence the D.A was hiding from the defense but was castigated by the D.A.’s office for the end-run effort.  (See, L.A.D.A. Files S.L.A.P.P. Suits Against Aggressive Attorneys).

Sean Erenstoft’s own commentaries on the subject focus on the burden that defense counsel bear in attempting to overcome prosecutorial misconduct involving the failure to reveal exculpatory evidence. (See, Vindictive D.A. Hides Brady Evidence).   Sean Erenstoft notes, “of course, the initial challenge is discovering that such evidence exists because prosecutors and their investigators hold all the keys and typically are the only parties with access to such evidence.” Investigators have the power to cordon off locations and otherwise sequester evidence and defense counsel are only provided summarized reports about the evidence, if at all. Of concern is that prosecutorially-biased individuals are making the initial determinations about the relevance of specific evidence and excluding evidence that does not fit the D.A. narratives.

In a 2010 report by the Veritas Initiative, “Preventable Error,” funded by the Northern California Innocence Project, it documented more than 800 instances of prosecutorial misconduct, including 107 where the prosecutors were found to have committed misconduct more than once – two were cited for misconduct four times, two were cited five times and one prosecutor was cited for misconduct six times.

The Veritas report hammers the California State Bar, writing, “By casting a blind eye to prosecutors who place their thumbs on the scale of justice, judges, prosecutors and the California State Bar are failing to live up to their responsibilities, fostering misconduct and opening the door to the inevitable – the conviction of the innocent and the release of the guilty.”

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