Erenstoft Makes FOI Request for Cooley’s Errant Brady Protocols

January 31, 2009  (Edited again in 2016)

Just a month ago, I was confidentially handed the L.A.D.A.’s unpublished Brady Protocols penned by our then-elected top prosecutor, Steve Cooley. The missive was intended to give the L.A.P.D. and the District Attorney’s office an added boost in making sure that the embarrassment of the Rampart Scandal of the last decade were avoided; and the subsequent corrective actions enforced against the L.A.P.D. were undermined.

Both departments were complicit in the sequestration of evidence efforts to ensure higher conviction rates. The police had been planting evidence and lying under oath in concert with enabling prosecutors. However, while the feds only came after the L.A.P.D., the prosecutor’s who aided-and-abetted the Rampart operators remained mostly immune from oversight. Accordingly, Steve Cooley crafted a Brady Protocol that allowed prosecutors to avoid damaging their cases with disclosures about witness-officer wrong-doing.

During my inquiry about what I believed to be systematic sequestration of evidence by the L.A.D.A., I was quietly handed a copy of Cooley’s Special Directive advising deputy prosecutors on how to hide evidence. My source was one of his own. A deputy prosecutor that apparently recognized the convoluted document for what it was — an unconstitutional effort to tamper and hide evidence that rightfully should be shared with defense attorneys pursuant to the California Penal Code and the cornerstone case of Brady v. Maryland.

Having sworn to not reveal my source, I immediately crafted my first Freedom of Information Act (FOIA) inquiry to obtain a copy of any and all Brady protocols crafted by the L.A.D.A. Indeed, rather than formally respond to my request, Cooley’s office simply posted his Special Directive 02-08 online.  [He would later publish an equally troublesome Special Directive 10-06]. I have already queried with the California State Bar and the Attorney General’s office seeking their assistance; and Cooley knows it.  As a courtesy, and to attempt to seemingly pressure the D.A. from above, I cc’d the L.A.D.A. with my inquiry.  (Little did I know at the time that I would suffer considerable blow-back for my doing so).

My efforts to alert civil rights organizations about the due process abuses caught the attention of the A.C.L.U. who eventually filed suit against Cooley. Other organizations followed their lead and began processing habeas corpus and other litigation on behalf of individual defendants intended to correct the malfeasance by the D.A.’s office.

Mounting recognition of my several blogs on the topic resulted in intensified pressure on the L.A.D.A. to answer for their policy of hiding evidence. I had forwarded the Special Directives to the presiding judge of the Los Angeles County criminal courts and to a handful of civil rights and criminal defense oriented organizations.  I also crafted formalized written discovery demands to be used by private defense counsel where none had been required in the past.  Shortly to follow, a myriad of media outlets were now bustling for background and editorials about the entire effort.

Ultimately, Cooley left office for private practice and when Jackie Lacey took over, she immediately instituted new Brady Protocols intended to ensure the public that the L.A.D.A. was under orders to ensure due process once again.

Counselors are advised to remain vigilant for prosecutors who remain solely in possession of exculpatory evidence collected from the cordoned off crime scenes which may remain sequestered despite Lacey’s clarifying directive (Special Directive 13-01). How would anyone know if violations are still occurring given that sequestered evidence is rarely discovered by judges and unknowing attorneys who process the bits of data selectively provided to them by prosecutors charged with processing discovery?

Sean Erenstoft is a civil rights advocate from Los Angeles, California. He maintains a blog at www.superiorcourtblog.com.

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