DISTRICT ATTORNEYS’
BRADY POLICIES DO NOT TRAMPLE OFFICERS’ RIGHTS
As many of you are aware,
the District Attorney’s offices in Los Angeles, Santa Barbara and
Ventura counties, among others, have implemented formal policies to
fulfill their perceived obligation under Brady v. Maryland (1963)
373 U.S. 83. Brady requires the prosecution to disclose evidence
favorable to the defense, which is either exculpatory or impeaching and
is material to the issue of guilt or punishment. The PORAC Legal Defense
Fund is very concerned about these "Brady policies" and
the profound effects they may have on the rights of law enforcement
officers throughout California.
As a result, PORAC LDF
has taken a very proactive stance on this issue to ensure that no harm
comes to its members. LDF has authorized the Law Office of Silver,
Hadden & Silver to file a lawsuit on behalf of law enforcement
associations in Santa Barbara County to challenge that District Attorney’s
Brady policy. It has also showed support as a plaintiff, along
with the Los Angeles Police Protective League and approximately 23 local
law enforcement associations, when Silver, Hadden & Silver brought a
similar lawsuit against former Los Angeles County District Attorney Gil
Garcetti to challenge his Brady policy. That litigation resulted
in the rescission of Garcetti’s policy by his successor, Steve Cooley.
When Cooley recently attempted to implement his own Brady policy,
a number of LDF member associations expressed their concerns. PORAC LDF
once again stepped to the plate and authorized Silver, Hadden &
Silver to communicate with Cooley in an attempt to formulate a more
palatable compromise. It is hoped that by pursuing a united approach on
behalf of all Los Angeles County peace officers, Cooley will be
responsive to their concerns and will create a policy that becomes a
model for other counties.
With the above background
in mind, the purpose of this article is to highlight some of the
concerns that have plagued the various Brady Policies throughout
the state.
Pitchess Material
Penal Code Section 832.8 defines personnel records as any file
maintained under that individual's name by his or her employing agency,
containing records relating to: (a) personal data, including marital
status, family members, educational and employment history, home
addresses, or similar information; (b) medical history; (c) election of
employee benefits; (d) employee advancement, appraisal, or discipline;
(e) complaints, or investigations of complaints, concerning an event or
transaction in which he or she participated, or which he or she
perceived, and pertaining to the manner in which he or she performed his
or her duties; and (f) any other information the disclosure of which
would constitute an unwarranted invasion of personal privacy.
Confidential peace officer personnel information may only be disclosed
to the prosecution or the defense by complying with the Pitchess
procedures set forth in Evidence Code Sections 1043 through 1047. These
sections mandate an in-camera review by the court and the release of
documents only if relevant and material in a particular case.
Penal Code Section 832.7
designates the law enforcement agency as the custodian of confidential
peace officer personnel files, subject to certain narrow exceptions. The
California Court of Appeal in People v. Northup (2002) 98
Cal.App.4th 549, which may be granted review by the California Supreme
Court, recently confirmed this office’s long-standing position that
the prosecution does not have any obligation under Brady to
actively search the personnel files maintained by a local law
enforcement agency since those files are maintained by the law
enforcement agency in its administrative capacity, and not in any
capacity as part of the prosecution team. (After this article was
written, People v. Northup was ordered decertified for
publication by the California Supreme Court. This action will make People
v. Northup unavailable as precedent so it may no longer be relied
upon as part of our authority to change the District Attorneys’ Brady
policies. Without Northup, we may have a more difficult time with
our positions. However, it is still possible to argue these issues based
on the same theories raised in People v. Northup).
Brady Material:
In general, Brady material consists of exculpatory or impeaching
information that is material to the guilt or punishment of the
defendant. Brady material does not include preliminary,
challenged, or speculative information, material that is repetitive of
evidence already available to the defense, or information which the
defendant "knew or should have known, of the essential facts
permitting him to take advantage of any exculpatory evidence" by
filing a motion pursuant to California Penal Code Section 1054.1. [See, U.S.
v. Diaz (1990) 922 F.2d 998] Brady material is only
considered worthy of disclosure "if there is a reasonable
probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different." People v.
Northup.
Brady
Policies: This office has long
espoused that the District Attorney’s obligation to fully comply with Brady
must be balanced against the statutory and constitutional rights of
law enforcement officers. Therefore, we maintain that a proper balance
requires consideration of the following issues:
Because the Pitchess
process grants the defense access to confidential peace officer
personnel information, there is no additional obligation for the
prosecution to independently seek out or disclose any such information.
A good Brady policy should, therefore, acknowledge that the
prosecution has no duty to examine peace officer personnel files.
No Brady policy
should allow the Office of the District Attorney to warehouse Pitchess
material from one case to be used in a subsequent case. Pitchess
necessarily requires an independent review in every case. Pitchess
material that may have been relevant and discoverable in one case, may
not be in a subsequent case. Thus, a separate Pitchess motion is
necessary regardless of whether the information was maintained by the
Office of the District Attorney. Fletcher v. Superior Court of
Alameda County (July 19, 2002) 2002 Cal.App.LEXIS 4417, 16-17;
Evidence Code Section 1043.
Moreover, the District
Attorneys’ offices’ best interests are not served by warehousing Pitchess
materials or other Brady information. Because the prosecution
is obligated to turn over information that is under its control, the
prosecution increases it Brady obligations each time it increases
the scope of materials in its possession.
An additional problem
with the warehousing of confidential information is that Penal Code
Section 832.7 delegates the law enforcement agency to act as a sole
custodian of peace officer confidential personnel information. Because
public safety officers are granted a variety of protections associated
with their personnel files under the Public Safety Officers’
Procedural Bill of Rights Act (California Government Code Section 3300,
et seq.), peace officers may be denied those protections (i.e., right to
inspect the file, right to be notified of negative entries placed
therein, etc.) if the District Attorney’s Office retains duplicate
portions of their file.
It is imperative that
each deputy District Attorney be advised to seek and obtain a protective
order for all Pitchess information pursuant to Evidence Code
Section 1045(e). That duty should be set forth, in writing, in the Brady
policy.
A policy must have clear
guidelines as to what constitutes "Brady material" to
help assist the prosecution in determining whether there is, in fact,
"Brady material" that may need to be disclosed. After
the initial determination is made by the prosecution, the policy should
require the prosecution to request an in-camera review of that evidence
to allow the judge to determine whether or not the information is
material and, therefore, discoverable by the defense. U.S. v. Jones
(9th Cir. 1979) 612 F.2d 453; U.S. v. Griggs (11th Cir. 1983) 713
F.2d 672. The benefit of an in-camera review is that it satisfies the
prosecution’s Brady obligation while allowing the trial judge
to "weigh the government’s need for confidentiality against the
defendant’s need to use the material in order to obtain a fair trial.
[citations]" U.S. v. Dupuy, supra, 760 F.2d 1492 at 1501.
A well-reasoned policy
would obligate the prosecution to notify any officer (or deputy) who is
subject to having potential Brady material disclosed, without
providing similar notice to the police chief or sheriff. Such
notification could result in a personnel complaint against an officer,
reassignment of the officer to non-field duties, or other punitive
action based on the District Attorney’s opinion that the officer may
have Brady material in a particular case. Furthermore, the
involved officer should have a mechanism to appeal the District Attorney’s
determination that Brady material exists prior to its disclosure.
With respect to the
prosecution’s duty to disclose Pitchess and/or Brady
materials after a criminal conviction, the policy should avoid blanket
notification and/or disclosure to defense counsel in regard to past
cases in which an officer was a material witness. Specific consideration
of the unique issues of each case is warranted.
With these considerations
in mind, PORAC LDF hopes to ensure that all Brady policies will
maintain the proper balance between the prosecution’s duty under Brady
and the rights of peace officers. Having a clear and well-reasoned Brady
policy may provide officers with the best hope that their rights are
being protected.
On a related note, on
August 26, 2002, the California Supreme Court issued its decision in City
of Los Angeles v. Superior Court of Los Angeles County (Brandon)
(2002) DJ DAR 9743 upholding the constitutionality of the five-year
limitation set forth in Evidence Code Section 1045(b)(1). That section
does not permit disclosure of "complaints concerning [peace
officer] conduct occurring more than five years before the event or
transaction which is the subject of the litigation." The court
reasoned that the Pitchess procedures contemplate routine
destruction of citizen complaints after five years, as permitted by
Penal Code Section 832.5(b). Accordingly, "unless the law
enforcement agency is aware of a complaint’s exculpatory value with
respect to a specific criminal matter, destruction in accordance with
routine practice does not constitute bad faith" and is, therefore,
lawful. However, if old complaints are retained by the law enforcement
agency, the five-year limitation in Evidence Code Section 1045(b)(1) is
not an absolute bar to disclosure pursuant to Brady. Thus, it is
in the best interest of both officers and law enforcement agencies to
have a mechanism for routine destruction of citizen complaints that are
older than five years.
We will continue to
provide further updates as matters develop. The authors thank PORAC LDF
for its continued support on behalf of all law enforcement officers.
About The Author: This
article was written by Elizabeth Silver Tourgeman, esq., with
contributions from Sarah J. Martoccia, esq. and Robert M. Wexler, esq.
The authors are with Santa Monica based Silver, Hadden & Silver.
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