Superior Court Judge Stephen Marcus Rejects D.A. Retaliation

New York’s Chief Judge, Sol Wachtler in 1985 said district attorneys now have so much influence on grand juries that “by and large” they could get them to “indict a ham sandwich.”

In Los Angeles, prosecutors took on civil rights attorney, Sean Erenstoft after he sued a prosecution witness in a civil matter to obtain the discovery that a deputy prosecutor was hiding from his client. The alibi evidence was ultimately obtained using civil discovery procedures and lead to the dismantling of the L.A.D.A.’s case against Erenstoft’s client.  In the end, the deputy dismissed over a dozen unfounded felony charges that had been heaped on Erenstoft’s client.

Following his use of a civil suit to obtain the sequestered evidence, Erenstoft was accused of using the litigation to “dissuade the witness.”  Later, Judge Stephen A. Marcus dismissed the D.A.’s case against Erenstoft citing that “Erenstoft was doing his job until you people [the L.A.D.A.] took issue.”  Judge Marcus concluded the Superior Court hearing by stating that he was dismissing the case so that Erenstoft can get back to his career.

A year prior, Erenstoft was hailed a “whistleblower” for his exposing a secret “Special Directive” penned by the Los Angeles’ elected top-prosecutor counseling his deputies on how to avoid providing valuable Brady evidence [potentially exculpatory evidence] to defense attorneys.  The A.C.L.U. would later sue the Los Angeles District Attorney in connection with the special directives and drum the prosecutor out of office.

Even today, the Los Angeles District Attorney’s Office is under attack for having failed to comply with their statutory and constitutional obligation to produce information to defense counsel.

As a primer to all citizens, prosecutors have a duty to disclose “exculpatory evidence” to the defense. In lay terms, this means evidence that may help the defendant or hurt the prosecution. Broadly speaking, this a basic due process right that has been codified in California’s own Penal Code (§1054.1(e)). The topic has been fleshed out in case law and decided by the United States Supreme Court in the cornerstone case of Brady v. Maryland, 373 U.S. 83 (1963) and its progeny.

In essence, California’s Penal Code mandates that prosecutors “shall disclose” to the defense “any exculpatory evidence.” The California Supreme Court has further held that §1054.1(e) imposes a duty on the prosecution to disclose, pre-trial, all exculpatory evidence, without qualification. (See, Barnett v. Superior Court, 50 Cal.4th 890, 901 (2010). Notably, throughout this country, exculpatory evidence is widely termed “Brady evidence” or “Brady material” after the U.S. Supreme Court recognized that a prosecutor violates due process by proceeding to trial without having disclosed exculpatory evidence to the defendant.

Despite the unequivocal mandate and clear duty imposed by Brady and its progeny, the Los Angeles District Attorney’s Office has adopted formal policies that: (1) prohibit the disclosure of exculpatory evidence unless a reviewing deputy deems it true by “clear and convincing evidence,” (2) mandate suppression of exculpatory evidence if a deputy finds it relevant to a pending administrative or criminal investigation, and (3) mandate suppression of exculpatory evidence if a deputy unilaterally determines, pre-trial, this it is not likely to affect a verdict. Nowhere in Brady or the law is there any allowance for the subjective determination by clearly biased prosecutorial officers.

Fortunately, the Los Angeles District Attorney is now answering for its systematic failure to provide exculpatory evidence in the case entitled: Douglas v. Cooley. More on this as the case progresses.

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