How the Placer County DSA Negotiated a Brady Protocol

Posted on Sunday, May 01, 2011 at 12:00PM
Posted by Christopher W. Miller

Andrew Scott (President) Nuno Tavares (Director)
Placer County Deputy
Sheriffs’ Association

Law enforcement labor associations statewide are watching as district attorneys implement new policies to execute their obligation under Brady v. Maryland (1963) 373 U.S. 83 to disclose to criminal defendants exculpatory, material evidence affecting the credibility of peace officer witnesses. These protocols often attempt to expand prosecution access to confidential peace officer personnel files and place officers on career-ending “Brady lists,” from which there is no appeal. Without a challenge from peace officer labor associations, Brady protocols can sweep away existing statutory procedures for protecting peace officer personnel records and put officers at greater risk of losing their jobs over Brady issues.

In Placer County, the Deputy Sheriffs’ Association (DSA) took the lead last fall in working with newly-elected District Attorney Scott Owens and Senior Deputy District Attorney Garen Horst to draft a Brady policy that would protect peace officer personnel records and limit the impact of Brady disclosures on officers’ careers. Through its counsel, Christopher W. Miller and David E. Mastagni, the DSA proposed substantial changes to the district attorney’s draft policy that are now part of the countywide Brady protocol.

Brady Protocol Negotiations Began with Objections to Proposed Policy

As many public safety labor leaders have had to learn in the last few years, Penal Code Section 832.7, Pitchess motions and the prosecution’s Brady obligations all affect how peace officer personnel records are disclosed in criminal proceedings. Penal Code section 832.7 deems peace officer records to be confidential and prohibits their disclosure, except through the Pitchess process. Under Brady, however, prosecutors are required to disclose to criminal defendants any information, including information derived from personnel records, which impeaches a peace officer witness’s credibility. California prosecutors, therefore, are establishing “Brady protocols” to expand their access to peace officer personnel information outside Section 832.7 and the Pitchess statutory scheme.

The Placer County DSA Board began with significant objections to the District Attorney’s draft policy. The original policy authorized prosecutors to receive material from confidential peace officer personnel files without a Pitchess motion by requiring local law enforcement agencies to disclose those records directly to the prosecution. The policy also called for placing officers on the district attorney’s “Brady list” without any appeal and did not give the officer or the employing agency any role in deciding whether an officer should be placed on a Brady list.

Once Owens reached out to the DSA and other Placer County law enforcement labor representatives, we decided the association’s interests were best served by trying to work with him to craft a better Brady policy.1 Our goal was to use the DSA’s cooperative relationship with Owens to mitigate the impact of Brady issues on peace officers throughout Placer County.

Proposed Changes Focused on Personnel Files and Brady List Appeals

One of the issues in dispute in the statewide Brady debate is whether prosecutors have authority under Penal Code section 832.7(a) to inspect peace officer personnel records for Brady material when the officer is a witness, not a subject, in a criminal investigation. The courts have held the statute allows for disclosure only where a peace officer is the subject of a criminal prosecution. (See, e.g., People v. Superior Court (Gremminger) (1997) 58 Cal.App.4th 397, 402.) The Placer County protocol appropriately limits the statute only to those situations where a peace officer is a suspect in a criminal investigation.

Owens’ favorable position on these issues helped us agree to language in the Placer County protocol requiring the district attorney’s office to file its own Pitchess motion to obtain in-camera review of peace officer files for Brady material. This procedure, which includes notification to the involved officer and agency, ensures disclosures from the records of a police officer or deputy sheriff will continue to be made only after judicial review.

Agreement on Brady List Procedures Included Limited Appeal Rights

The more difficult issue involved the procedures for placing officers’ names in the District Attorney’s Brady Database. We were able to get the District Attorney’s office to agree to allow the officer and a representative to provide a written response and to meet with the Brady Committee. Any decision by the Brady Committee to include an officer in the Database is appealable to the District Attorney.

We also agreed sustained complaints of misconduct involving credibility or bias would not be considered Brady material if already overturned by a reviewing body (e.g., an arbitrator or Civil Service Commission) or a court for insufficient evidence. Future sustained complaints require disclosure only of the officer’s name, not of the materials from the discipline proceeding. We added language allowing the employing agency, as well as the officer, to seek an officer’s removal from the Database by providing evidence to the District Attorney that a reviewing body has overturned a sustained complaint on appeal.

The District Attorney also agreed to review the Brady Database at least once a year and to entertain requests by an officer to be removed from the list based on new information. The protocol also adopted our language, making the lawful destruction of a peace officer’s records – pursuant to the five-year destruction rule – a basis for requesting the officer’s removal from the list.

The Placer County Brady protocol is not perfect. We know there may be situations where the DSA will have to litigate Brady issues to protect an officer’s confidentiality and due process rights. The negotiated protocol, however, stands as a model for Brady policies in other counties where cooperation between the district attorney’s office and the leading law enforcement labor organizations exists.

Christopher W. Miller is a former prosecutor and is managing partner of the Labor Department at Mastagni, Holstedt, Amick, Miller & Johnsen. 

Sergeant Andrew Scott is the President of the Placer County Deputy Sheriffs’ Association. He has been with the Placer County Sheriff’s Office for 24 years and serves as a station commander.

Nuno Tavares serves on the Board of Directors of the Placer County Deputy Sheriffs’ Association. He has worked in law enforcement for 15 years, first in Yolo County and now Placer. He works in the Placer County Cold Case Homicide Unit.

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