Porac Ldf and Porac Join Supreme Court Appeal to Protect Peace Officer Personnel Records

Posted by Christopher W. Miller, Esq.

The PORAC Legal Defense Fund and PORAC have joined as amicus curiae in an appeal to the California Supreme Court from a lower court decision disclosing a 10-year-old finding of dishonesty against a peace officer to a criminal defendant in a Pitchess proceeding.

The case, the City of Los Angeles v. Superior Court (Jeremy Brandon) (2000) 84 Cal.App.4th 767, was appealed by the City of Los Angeles after the Second District Court of Appeal upheld a trial judge’s decision to go beyond the five-year limitation on disclosure imposed by Evidence Code section 1045(b)(1).

The PORAC LDF and PORAC joined the appeal as a “friend of the court” because the case raises the critical issue of whether federal due process standards require California’s law enforcement agencies and prosecutors to disclose peace officer personnel records to criminal defendants regardless of the Pitchess requirements.

The Brandon Court Rejected The Five-Year Rule

Evidence Code section 1045(b)(1) prohibits a court reviewing a Pitchess motion from ordering disclosure of any complaint against a peace officer that is more than five years old. The Legislature intended the rule to protect the officer’s privacy interest and exclude misconduct allegations so old that they are per se irrelevant to the pending case.

However, the Brandon court elected to balance the five-year rule and the officer’s privacy interest against the “fundamental right” of a criminal defendant to a fair trial. One of the officers who arrested Jeremy Brandon in 2000 for sex offenses had a notation in his personnel file suggesting he had been dishonest in 1996 and six years earlier, in 1990, by failing to report two uses of force.

The court decided the criminal defendant’s “due process right to a fair trial” trumped the police officer’s interest in the confidentiality of his personnel records. The court, therefore, disclosed to the defense the 10—year—old complaint against the officer for dishonesty.

Decision May Require Disclosure Of Personnel Records As “Brady” Evidence

The Brandon court stated prosecutors have an obligation under Brady v. Maryland (1963) 373 U.S. 83, to disclose to the defendant any material evidence – meaning evidence which could affect the outcome of the case – favorable to the defendant, including discipline sustained against the arresting officers. The rule against the release of any personnel records more than five years old, the court said, improperly relieves prosecutors and law enforcement agencies of that constitutional obligation.

The Brandon decision, as it now stands, means a trial court must disclose to the defendant any complaints – however remote in time – against a peace officer if the court determines those complaints are relevant to the issues in the case. Courts reviewing a Pitchess motion are still to consider whether the officer’s interest in the confidentiality of his personnel records outweighs the defendant’s right to present exculpatory evidence. The court stated, however, that “the defendant’s fundamental right to a fair trial ordinarily outweighs the police officer’s interest in the confidentiality of his or her personnel records, so that such material ordinarily must be disclosed.”

Amicus Brief Challenges Appellate Court’s Interpretation Of Brady And Pitchess

The brief I filed on behalf of PORAC LDF and PORAC attacked the appellate court’s ruling primarily with the argument that prosecutors in California have no right to access peace officer personnel records. The Second District opinion ignores entirely both the statutory command of the Pitchess scheme and the principle that the prosecutor’s Brady obligation extends only to records to which the prosecutor has access.

California courts to date consistently have held that the Brady obligation does not include records to which the prosecutor has no reasonable access, e.g., peace officer personnel records. (See People v. Superior Court (Gremminger) (1997) 58 Cal.App.4th 397, 402.) Under Gremminger, a prosecuting agency itself must follow the Pitchess procedure to obtain Brady material from peace officer personnel records where the officer is not the subject of an investigation.

Recent decisions by other appellate courts share this view. The Fourth District Court of Appeal rejected a defendant’s attempt to obtain information from a peace officer’s personnel file without following Evidence Code sections 1043 et seq. (Garden Grove Police Dept. v. Superior Court (2001) 2001 WL 549503.) “We cannot allow [defendant] to make an end-run on the Pitchess process by requesting the officers’ personnel records under the guise of Penal Code section 1054.1 and Brady discovery motion.” (Id.) T

he court in California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, likewise rejected a defendant’s claim he was entitled to impeachment evidence involving two CHP officers without making the good cause showing required by Evidence Code section 1043.

The PORAC Brady legislation plays an important role in this analysis. The PORAC-sponsored amendment to Penal Code section 832.7, subdivision (a), prohibits law enforcement agencies from disclosing peace officer personnel records to prosecutors except in response to a Pitchess motion. Thus, both the courts and the Legislature have made the Pitchess procedure the exclusive means by which prosecutors and defendants alike may obtain information contained in confidential peace officer personnel files.

The Pitchess procedure is the only means by which a prosecutor may fulfill his or her Brady obligation when that obligation requires access to peace officer records. Prosecutors do not have an affirmative duty, however, to search those records or to disclose their contents to the defense.

As the California District Attorneys Association (CDAA) recognized in commenting on the PORAC legislation, “to require the prosecution to review the personnel records of every officer who is deemed a material witness would create a staggering burden and an undue intrusion into an officer’s privacy.” (Assem. Com. On Public Safety, Bill Analysis of Assem. Bill No 2559 (April 25, 2000) p. 5.) The Pitchess procedure exists to balance officers’ privacy rights against the interests of the defendants.

While the state Supreme Court is unlikely to invalidate an entire statutory scheme, the Brandon case does not have the potential to devastate the Pitchess process by forcing prosecutors and law enforcement agencies to turn peace officer personnel records over to defendants and defense attorneys to fulfill a misguided Brady obligation. For the Brandon court to hold “the per se rule of Evidence Code section 1045, subdivision (b)(1)…cannot be applied per se” because the prosecutor has an obligation to disclose peace officer personnel records under Brady is to pretend there is no Pitchess procedure at all.

As the court noted in California Highway Patrol v. Superior Court, “[t]o grant discovery of peace officer personnel records…without requiring the defendant to comply with the good cause requirement of Evidence Code section 1043 would have the effect of destroying the statutory scheme.” (Id. at p. 1024.) The PORAC LDF amicus brief argues the Pitchess scheme – including the five-year rule – should be upheld as an appropriate mechanism for balancing officers’ right to privacy in personnel records against the right of a criminal defendant to a fair trial.

Christopher W. Miller is a former deputy district attorney who now provides representation to PORAC LDF clients throughout northern California as an attorney with Mastagni, Holstedt, Chiurazzi & Amick.