District Attorney’s 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 shown 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 personal 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 a 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 the 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.