Open Letter to the California State Bar and All Civil Rights Watchdogs

December 22, 2008

I have been confidentially provided a “Special Directive” penned, signed and distributed by our elected Los Angeles District Attorney, Steve Cooley intending to expand his deputy prosecutors’ ability to sequester evidence from criminal defendants and their attorneys in violation of Brady v. Maryland, 373 U.S. 83 (1963).  Troublesome is the fact that the directive was secretly crafted to avoid the fallout from the federal consent decree that issued on the heels of the Rampart scandal.

By way of background:  Brady is the landmark United States Supreme Court case that established that prosecutors must turn over all evidence that might exonerate a person accused of a crime.  Brady provided no methodology in which prosecutors could subjectively pick-and-choose which evidence to tender and which evidence they will sequester.  Special Directive 02-08 represents a dangerous shift in criminal jurisprudence.

The Special Directive can be viewed at: Special Directive 02-08.

A copy of this previously unpublished document was confidentially leaked to me from one of the D.A.’s own deputy prosecutors as I battle to obtain evidence being sequestered by one of his fellow deputy district attorneys.

The evidence I require pertains to my client’s alibi in a run-of-the-mill cyber-stalking case entitled California v. Christopher Stewart (L.A.S.C. Case No.: BA 347834). Of notable concern is the fact that the deputy prosecutor handling the matter appears to be operating pursuant to the directive and has denied me and my client access to both the victim-witness and the evidence of my client’s alibi.  The limited verbal and written exchanges with the deputy appears to suggest that she is operating outside the mandates of her Brady obligations and California’s Penal Code (setting forth her discovery obligations).

A simple reading of the Special Directive injects a new and dangerous shift away from due process and provides an allowance for deputy prosecutors to make subjective determinations about whether evidence qualifies as Brady evidence. The directive authorizes deputy prosecutors to inject their own subjective determinations about whether evidence is material.

Under the current scheme, Brady evidence will not be tendered unless a deputy prosecutor subjectively determines that the exculpatory evidence is material by a newly injected scheme requiring that the deputy also believe the evidence by an arbitrarily established “clear and convincing” standard.

Brady exists in our national lexicon of jurisprudence.  The Brady obligation to disclose evidence is crucial to determinations about guilt and punishment.  This newly minted filter on evidence disclosure has never been the Brady standard as delimited and defined by the Supreme Court and the progeny of cases which followed.   The obligation to provide potentially exculpatory evidence exists even if a defense counsel never formally requests the evidence because defense counsel and judges may never even know whether the evidence exists.  Indeed, prosecutors and the investigators and police officers who cordon off crimes scenes are uniquely in a position to obtain evidence and sequester it.

This leads me to complain about the firewall I am enduring in the Stewart matter involving salacious email my client allegedly sent to his on-again-off-again girlfriend who resides here in Los Angeles. The problem I’m having is that my client was provably in Costa Rica at the times alleged in the D.A.’s criminal complaint. The I.P. data attached to the subject email (that I am now seeking) will serve to exonerate my client.  But the D.A. has refused to comply with my informal (and formally written) requests for the data proving my client’s alibi.  In addition, she has also callously ignored the judge’s admonition to provide me copies of the material.  She has blocked my attempts to subpoena the information despite having been provided prima facie evidence of my client’s domicile during the relevant time period alleged in the complaint. In essence, the prosecutor has jailed my client (who remains presumed innocent) despite knowledge that the multiple-felony complaint cannot be maintained through trial without minimally authenticating the email she relied upon in crafting her multiple-strike felony complaint.

The Brady case stands for the proposition that a prosecutor’s hiding of evidence undermines the guarantees of fairness enshrined in the Due Process Clause of the Fifth Amendment. Undermining Brady obfuscates the administration of justice. That is what is occurring pursuant to the directives I call your attention to at this time.  Los Angeles deputy prosecutors have been emboldened with a form of discretion which has never existed before in the law. This Special Directive allows prosecutors to subjectively determine (and then sequester) evidence that may undermine the prosecutors’ cases. This is insidious!

The disclosure of evidence is crucial to the fair administration of justice. Doing so allows a defense attorney to properly assess an approach to the questions of innocence, culpability and guilt so as to enable the defendant’s counselor to adjust his/her approach accordingly. Our Constitution contemplates that prosecutors play a unique role in doling out justice. Prosecutors are representatives of a sovereignty (i.e, the State of California) whose interest is not to “win” but to see that justice is done.

Prosecutors are uniquely insulated. Our laws and traditions have provided great latitude for prosecutors — including allowing them absolute immunity against blow-back for their sometimes maligned conduct. However, prosecutors are not supposed to bluff in order to achieve convictions which is what occurs when a prosecutor files a complaint knowing that she will never be able to prove the underpinnings of her case. This is what is occurring in the case I am now handling (and, I fear, throughout Los Angeles County). The effects may be obvious (as they are to me in the Stewart case); or they may be subtle because most counselors (and judges) may never know if evidence in possession of a prosecutor is being sequestered.

Where our laws do speak about the minimum standards our prosecutors must follow, they do so in modest tones. For example, the Model Rules of Professional Conduct (3.4, 3.8. and 4.1) requires fairness between the parties and truthfulness when making statements. Rule 3.8 largely relates to evidentiary disclosure although no mention is made of the Brady obligation itself. (Brady obligations seem to be reserved for the comments following the Rule).

At issue today is whether our government is willing to challenge this prosecutor’s willingness to adjust the definition of how justice will be dispensed in our Los Angeles courtrooms.

This open letter is intended for any civil rights minded individual, lawmaker, or policy-based organization. The time is now to reconsider the lax oversight we provide prosecutors who are imbued with ever-more discretion given our overburdened criminal justice system thereby requiring efficient methods to grind through the crowded dockets we are suffering. In doing so, however, we must not forget that human lives (and freedoms) are at stake.

I’m urging immediate action be taken by individuals concerned with lawful administration of our justice system. I’m calling on you to question the Special Directive and challenge the underpinnings of the patent frustration of justice and the systematic sequestration of evidence as evidenced by the directive.

Sean Erenstoft is an ex-prosecutor with the Orange and Los Angeles County District Attorneys’ offices and now practices law as a solo-practitioner handling criminal defense matters and civil rights claims. He can be contacted through his website:

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