Erenstoft Reports: Los Angeles Juries Demand "CSI" Quality Evidence By District Attorney
Jurors in Los Angeles are demanding better evidence from the Los Angeles District Attorney's Office. The DA has been troubled by comments from jurors who demand better evidence in the cases the LADA bring to them for consideration. With the advent of TV shows such as L.A.Law in the 90's came the verbal theatrics that the likes of Johnnie Cochran ran with. Now, shows such as CSI (and its off-shoots) have raised the bar.
Recently, the LADA has been asking jurors whether they think that "CSI" quality evidence is necessary to prove a case beyond a reasonable doubt. In many cases, the answer is
"yes" and the DA is left to explain that such evidence is just not economical to produce. . . and yet, they demand that jurors find defendants guilty on scant evidence.
One such example occurred in a case I was handling in which Deputy District Attorney, Wendy Segall sought a conviction against my client who was alleged to have emailed his ex-girlfriend threatening emails. No evidence existed that the emails originated from my client despite the false headers on the emails suggesting that, indeed, they were written by him.
I had produced examples of emails that I had received from my own email address that were advertisements (not written by me). Indeed, most individuals with email accounts have had the occasion of having received email purportedly sent to us by. . . us. This is called "email ghosting" and is intended by marketers to cause us to open seemingly innocuous email . This concept was lost on Ms. Segall who proceeded to rely upon the hearsay documents onsisting merely of printouts of the suspicious email. To make matters worse, Ms. Segall charged my client with 15 strike offenses relating to Penal Code 422 (making a terrorist threat). To repeat, Ms. Segall charged my client with 15 serious felony charges for what consisted of 15 so-called threatening emails. My client was exposed to 56 years in jail for email. (I'll save for
later my complaints about the decision to charge the crime excessively to effectively deny my client bail).
I served Wendy Segall with written discovery requests in an attempt to glean the IP address and the names of servers and other indicia of authentication of the suspect emails and was outright stone-walled. Indeed, she refused to even inquire about the possibility that the suspect emails were ghost emails. Come to find out, she hadn't even tasked an investigator to make an inquiry about the emails but, instead, tasked the investigator to investigate me!
What does this experience mean to the defense bar? It means we need to engage the DA with discovery inquiries and be prepared to present evidence about the lack of evidence such a deputy, relies upon in the effort to convict our clients. Defense counsel should ask the DA
investigators questions such as: Why didn't your investigation include an inquiry about email ghosting? When Mr. Erenstoft inquired about the likelihood that the email was a "ghost," why didn't you inquire, follow-up, or take any efforts to investigate? Did you actually see the defendant write the email? Can you tell me just how many servers the email visited before landing in the victim's "inbox?" You have no certainty that the defendant wrote the suspect email, do you?
The Los Angeles District Attorney is bringing more and more "electronic" cases and relying on weaker and weaker evidence to convict defendants. It is up to the defense bar to demand,
through discovery and from poignant questioning, what efforts are being taken to shore-up the evidence that is offered as proof. When it comes to electronic crimes such as email threats, fraud and identity theft, call upon the DA to show their work. . . and when the work is scant; they've cut corners; or simply ignored your discovery inquiries, make sure the jury knows that more reliable (and better) evidence exists but the investigator simply didn't take the time or care enough to make sure the evidence was solid. . . beyond a reasonable doubt. When more criminal defense attorneys stand up to the DA and demand to be heard at trial, only then can we expect that judges will begin to push the DA to produce better evidence. Until then, juries will demand better evidence when presented with the fact that better evidence exists but was ignored by investigators.
Recently, the LADA has been asking jurors whether they think that "CSI" quality evidence is necessary to prove a case beyond a reasonable doubt. In many cases, the answer is
"yes" and the DA is left to explain that such evidence is just not economical to produce. . . and yet, they demand that jurors find defendants guilty on scant evidence.
One such example occurred in a case I was handling in which Deputy District Attorney, Wendy Segall sought a conviction against my client who was alleged to have emailed his ex-girlfriend threatening emails. No evidence existed that the emails originated from my client despite the false headers on the emails suggesting that, indeed, they were written by him.
I had produced examples of emails that I had received from my own email address that were advertisements (not written by me). Indeed, most individuals with email accounts have had the occasion of having received email purportedly sent to us by. . . us. This is called "email ghosting" and is intended by marketers to cause us to open seemingly innocuous email . This concept was lost on Ms. Segall who proceeded to rely upon the hearsay documents onsisting merely of printouts of the suspicious email. To make matters worse, Ms. Segall charged my client with 15 strike offenses relating to Penal Code 422 (making a terrorist threat). To repeat, Ms. Segall charged my client with 15 serious felony charges for what consisted of 15 so-called threatening emails. My client was exposed to 56 years in jail for email. (I'll save for
later my complaints about the decision to charge the crime excessively to effectively deny my client bail).
I served Wendy Segall with written discovery requests in an attempt to glean the IP address and the names of servers and other indicia of authentication of the suspect emails and was outright stone-walled. Indeed, she refused to even inquire about the possibility that the suspect emails were ghost emails. Come to find out, she hadn't even tasked an investigator to make an inquiry about the emails but, instead, tasked the investigator to investigate me!
What does this experience mean to the defense bar? It means we need to engage the DA with discovery inquiries and be prepared to present evidence about the lack of evidence such a deputy, relies upon in the effort to convict our clients. Defense counsel should ask the DA
investigators questions such as: Why didn't your investigation include an inquiry about email ghosting? When Mr. Erenstoft inquired about the likelihood that the email was a "ghost," why didn't you inquire, follow-up, or take any efforts to investigate? Did you actually see the defendant write the email? Can you tell me just how many servers the email visited before landing in the victim's "inbox?" You have no certainty that the defendant wrote the suspect email, do you?
The Los Angeles District Attorney is bringing more and more "electronic" cases and relying on weaker and weaker evidence to convict defendants. It is up to the defense bar to demand,
through discovery and from poignant questioning, what efforts are being taken to shore-up the evidence that is offered as proof. When it comes to electronic crimes such as email threats, fraud and identity theft, call upon the DA to show their work. . . and when the work is scant; they've cut corners; or simply ignored your discovery inquiries, make sure the jury knows that more reliable (and better) evidence exists but the investigator simply didn't take the time or care enough to make sure the evidence was solid. . . beyond a reasonable doubt. When more criminal defense attorneys stand up to the DA and demand to be heard at trial, only then can we expect that judges will begin to push the DA to produce better evidence. Until then, juries will demand better evidence when presented with the fact that better evidence exists but was ignored by investigators.
