Civil rights advocate Sean Erenstoft applauds this recent example of judicial willingness to call out “epidemic” of prosecutorial misconduct. Erenstoft himself became a target after he called attention to civil rights abuses in Los Angeles which were later addressed when the A.C.L.U. filed suit over secret special directives that issued advising deputy prosecutors on how to sequester Brady evidence from defense counselors.
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, Erenstoft Speaks Out About Blanket Prosecutorial Immunity). Erenstoft served as a whistleblower in 2008 after he obtained a set of secret “Special Directives” advising Los Angeles deputy prosecutors on how to avoid tendering potentially exculpatory evidence to defense counsel. At the time, Erenstoft utilized civil discovery techniques to obtain evidence the D.A was hiding and was later sued for the end-run effort. (See, L.A.D.A. Files S.L.A.P.P. Suits Against Aggressive Attorneys).
Erenstoft’s own commentaries on the subject focus on the burden that defense counsel suffer in attempting to overcome prosecutorial misconduct involving the failure to reveal exculpatory evidence. (See, Vindictive D.A. Hides Brady Evidence). 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 was critical of 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.”