July 11, 2012
Three years ago, I urged that action be taken to address the Special Directives issued by the Los Angeles District Attorney instructing his deputies on how to hide evidence in criminal matters in violation of the Sixth Amendment and the Due Process Clause of the Constitution.
This week, the A.C.L.U. filed a civil lawsuit seeking a permanent injunction against the application of the special directives designed to frustrate a prosecutors’ obligation to share evidence in criminal matters. A copy the litigation can be viewed at: Writ of Mandate and Complaint.
While I have been a supporter of Steve Cooley in the past — especially in connection with his dedication to overcoming the civil rights abuses which constituted the Rampart scandal during the past decade, I took issue with his policy to allow prosecutors to inject their subjective determination on whether exculpatory evidence will be shared with defense counsel. At the time, I was at engaged in litigation and sought to obtain alibi evidence for my client which I knew existed — but my efforts to obtain the evidence were being obstructed by a deputy prosecutor. My search for answers was cut short when a prosecutor I had previously worked with confidentially handed me a copy of Special Directive 02-08. While I ultimately prevailed and obtained the alibi evidence utilizing civil procedures, the special directive remained company policy.
The advice I received from that brave deputy who provided me the special directive was to take the document to the California Bar Association and the California Attorney General. . . but not to hold my breath. My letters to both organizations concerning my struggle to obtain the alibi evidence included copies of the special directive.
My efforts to lobby lawmakers and civil rights organizations were initially met with a knowing yawn; and then the A.C.L.U. accepted the document and promised to give it the attention it deserves. Today, the Los Angeles District Attorney was sued for its policy of systematic evidence sequestration by prosecutors. Whereas Brady evidence is the common sense obligation by prosecutors to give potentially exculpatory evidence to defendants (and their counselors) even without the necessity of a formal request, the special directives allow prosecutors to subjectively determine which evidence to share and which evidence may be sequestered. The directives injected a subjective methodology by which prosecutors can arbitrarily decide which evidence to give to defendants.
Today, the pressure is on our elected leader to explain his written policy of systematic evidence sequestration. I remain concerned that potentially thousands of criminal defendants (and convicts) have suffered from the application of the Special Directive. Many were either convicted or took plea-bargains despite being denied evidence that may have been utilized to prove-up an alibi or diminish the quality of the evidence being offered by our prosecutors.
Will this lawsuit represent a tipping point in American jurisprudence? Will there be a outpouring of litigation against the L.A.D.A. and the courts seeking new trials in cases in which exculpatory evidence was sequestered? A prosecutors job is to seek justice. Can justice be done when deputies and the officers who cordon off crime scenes gather and then sequester evidence? And how we ever be able to know precisely whether a deputy’s Brady obligations have been fulfilled?
Sean Erenstoft is a civil rights advocate and was the first to blow the whistle on the Los Angeles District Attorney’s Special Directive 02-08 in 2008.