Porac Ldf Joins in Challenge to the Los Angeles County District Attorney’s Ill-Advised Special Directive 00-01

Posted by Devonne Midson Elizabeth Silver

On October 10, 2000, Gil Garcetti, then district attorney for the County of Los Angeles, issued Special Directive 00—01. The special directive established the official policy regarding the prosecution’s obligations under the Supreme Court’s decision in Brady v. Maryland (1963) 373 U.S. 83, 83 S.Ct. 1194.

That decision and several cases which followed held that prosecutors have an affirmative duty to provide a criminal defendant with exculpatory material uncovered by the prosecution. Brady and its progeny have been interpreted to include the obligation to disclose any information which may be used to impeach a material government witness.

The special directive directed the Special Investigations Division (SID) of the District Attorney’s office to compile any and all allegations of misconduct lodged against any and all peace officers employed in the county and to input the information into a centralized computerized database to create a permanent electronic archive of this confidential information. Once established, this database would have required prosecutors to conduct a search regarding any officer who may testify against the accused in a criminal proceeding.

Whenever a deputy district attorney had a “reasonable belief” that the peace officer had committed misconduct or learned of any allegations that a peace officer had committed misconduct, the special directive would have given prosecutors the option of disclosing this information to the court or disclosing it directly to a criminal defendant. According to the special directive, individuals outside the District Attorney’s office could obtain access to the database by submitting a request to SID for consideration.

Thus, SID could, in its discretion, provide access to any individual when it deems it necessary and appropriate to do so. On October 25, 2000, Garcetti sent a form letter to police chiefs throughout the county informing them of the policies and procedures set forth in the special directive and requesting that their agencies provide his office with any and all allegations of misconduct lodged against its peace officer employees to add to the proposed database.

Although the stated purpose of the special directive was “to ensure uniformity and consistency in meeting [the district attorney’s] discovery obligations under Brady v. Maryland (1963) 373 U.S. 83 and related case law and statutes… .,” it is undeniable that the district attorney’s action would have created a “centralized clearinghouse” which would contain information gleaned from the confidential personnel records of peace officers throughout the county.

The database authorized the office of the District Attorney to permanently archive allegations of misconduct lodged against peace officers without limitation or exception. This included allegations which have been deemed “unfounded” and of which the officer has been completely exonerated. The special directive gave prosecutors the option of (1) bringing the information to the court’s attention, or (2) unilaterally disclosing the information to the defense prior to a determination by the trial court that the information is relevant to or admissible in the pending criminal action, thus completely eviscerating the protections of an in camera review as provided for in Pitchess v. Superior Court of Los Angeles County (1974) 11 Cal.3d 531, 113 Cal. Rptr. 897, Penal Code Section 832.7 and Evidence Code Sections 1043 and 1046.

On November 16, 2000, the PORAC Legal Defense Fund on behalf of its members, as well as 20 local police associations which are also members of PORAC LDF, joined the Los Angeles Police Protective League and the Los Angeles County Professional Peace Officers’ Association as plaintiffs in Los Angeles Police Protective League, et al. v. Gil Garcetti et al., Los Angeles Superior Court No. BC240300, which was filed to challenge the policies and procedures set forth in the special directive. All plaintiffs were represented by Devonne Midson and Elizabeth Silver Tourgeman, of Silver, Hadden & Silver.

Plaintiffs filed a Verified Complaint about Injunction, Preliminary Injunction, and Petition for Writ of Mandate. In their verified complaint, plaintiffs stated causes of action under Title 42 of the United States Code Section 1983 (“Section 1983″) and Article I, Section 1 of the California Constitution for an invasion of privacy. Plaintiffs also petitioned the court for a writ of mandate pursuant to California Penal Code Section 832.7 and California Evidence Code Section 1043, et. seq.

During the pendency of this litigation, newly-elected District Attorney Steve Cooley succumbed to the pressure of the police associations and, on February 2, 2001, officially rescinded Special Directive 00—01. Cooley has formed a task force to study Brady issues and develop a new policy. We hope that any new directive will protect and assert the right to a fair trial but not trample upon peace officers’ First Amendment rights to privacy.

Nevertheless, PORAC LDF and the league will continue to monitor the situation and will not dismiss the case unless and until we are given an affirmative assurance or stipulation by Cooley and the District Attorney’s office that it will refrain from enacting a similar policy in the future or until a policy is enacted which preserves the balance between peace officers’ First Amendment rights to privacy and the rights of defendants to a fair trial.