Sean Erenstoft Lobbies for Jury Instruction Alerting About “Brady” Violations by Errant Prosecutors

May, 2013

Since the revelations of L.A.D.A., Steve Cooley’s Special Directives admonishing his deputy prosecutors to withhold Brady evidence in violation of the Due Process Clause of the Fourteenth Amendment, Los Angeles civil rights advocate Sean Erenstoft has been pressing to chip away at the centuries old practice of providing absolute immunity to errant prosecutors.

Sean Erenstoft shared his own harrowing experience with Assemblymember, Tom Ammiano and outlined the retaliation he suffered after he pushed back against systematic evidence tampering by Los Angeles prosecutors. Bolstered by similar pleas and examples from organizations such as California Attorneys for Criminal Justice, the American Civil Liberties Union, and the California Public Defenders Association, Mr. Ammiano shepherded through AB 885 which would purportedly allow a court to inform a jury when a prosecutor breaks the law and intentionally conceals evidence that may prove the innocence of a defendant. Specifically, the bill authorizes a jury instruction for an intentional “Brady” violation.

The bill gives a judge discretion to inform the jury that a prosecutor did not turn over favorable evidence to the defense in violation of constitutional mandates. Jurors would be free to consider the advisement and use the information to challenge the credibility of the prosecutor’s case as they determine whether “reasonable doubt” exists.

Sean Erenstoft claims that “although covering only the narrow exception in which the Brady violation is actually discovered before (or during) trial, the bill does provide a small inroad to an otherwise time-honored tradition of protecting prosecutors from intentional malfeasance.” The bill serves as a deterrent to prosecutors who have recently been waiting until the last minute to tender evidence to the defense (if at all). This places the defense bar as a distinct advantage and undermines the prosecutor’s generic obligation to ensure integrity and fairness while, on the other hand, be forceful advocates. “This bill seeks to even the playing field and ensure fair play when it comes to criminal discovery obligations.”

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