August 22, 2016

Following his own experience pushing back against prosecutorial evidence tampering in a case he handled against the Los Angeles District Attorney, Sean Erenstoft has been lobbying assembly-persons and other law makers to chip-away at the judge-made protections that errant prosecutors rely upon to avoid liability for malpractice. Most notably, there has been an ever-increasing incidence of Brady violations by prosecutors who are obliged to share evidence in criminal matters — but don’t. In some cases, the sequestration is intended to thwart defense efforts at developing the counter-point to naked prosecutorial allegations. In other cases, the prosecutor simply wants to quash the defendant’s alibi.

Sean Erenstoft has provided California lawmakers with a host of information bolstering his point that prosecutorial immunity should be very limited; and new laws are needed to protect the public’s due process rights. “Presently, complaints to the State Bar of California about prosecutorial malfeasance are mostly ignored; and in some cases, the issuance of a complaint about a prosecutor redound in retaliation against the complaining attorney.” Indeed, Erenstoft’s own complaints against Orange and Los Angeles prosecutors throughout his career went ignored by authorities who tend to have a prosecutorial predisposition. Judge and supervising prosecutors tend to side with the D.A. when evaluating the prosecutor’s motives and dilatory conduct in crucial evidentiary exchanges.

Erenstoft has been pushing for a new law that will make it a felony for a prosecutor to deliberately and intentionally withhold evidence. Currently under consideration is Assembly Bill 1328 which is expected to pass congressional approval and be sent to Governor Jerry Brown in the fall. The precise language of the Legislative Counsel’s Digest reads as follows:

Existing law requires the prosecuting attorney to disclose to the defendant or his or her attorney certain materials and information, including statements of all defendants and any exculpatory evidence, as specified. Existing law authorizes a court to grant a motion to disqualify a district attorney from performing an authorized duty, subject to specified procedural requirements.

This bill would authorize a court, upon receiving information that the prosecuting attorney has deliberately and intentionally withheld relevant or material exculpatory evidence or information in violation of law, to make a finding, supported by clear and convincing evidence, that a violation occurred. If the court makes such a finding, the bill would require the court to inform the State Bar of California of that violation if the prosecuting attorney acted in bad faith and the impact of the withholding contributed to a guilty verdict, guilty or nolo contendere plea, or, if identified before conclusion of trial, seriously limited the ability of a defendant to present a defense. The bill would authorize a court to disqualify an individual prosecuting attorney from a case if the court finds that a violation occurred in bad faith. The bill would also authorize, upon a determination by a court to disqualify an individual prosecuting attorney from a case, the defendant or his or her counsel to file and serve a notice of a motion to disqualify the prosecuting attorney’s office if there is sufficient evidence that other employees of the prosecuting attorney’s office knowingly and in bad faith participated in or sanctioned the intentional withholding of the relevant or material exculpatory evidence or information and that withholding is part of a pattern and practice of violations. The bill would specify that its provisions do not limit the authority or discretion of, or any requirement placed upon, the court or other individuals to make reports to the State Bar of California regarding the same conduct, or otherwise limit other available legal authority, requirements, remedies, or actions.

Sean Erenstoft is a civil rights advocate who promotes criminal law reforms intended to ensure due process for the accused.

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