Cdcr’s Brady Pilot Program and the Impact of Alads

RICHARD PAUL FISHER
Managing Partner, Writs and Appellate Law Division
Goyette & Associates, Inc.

The constitutional duty of prosecutors to reveal exculpatory material to criminal defense attorneys under Brady v. Maryland is a duty that is largely unrelated to peace officers’ interests in their confidential personnel files. As such, the California Department of Corrections and Rehabilitation’s recently abandoned Brady Pilot Program (Brady Program) was always suspect and, therefore, strenuously opposed by the California Correctional Supervisors Organization (CCSO) during the meet-and-confer process. CDCR’s Brady Program sought to make the job of district attorneys more efficient by giving them a “sneak preview,” as it were, into CCSO members’ disciplinary personnel records and potential Brady information contained therein. CCSO rightly viewed the program with suspicion — as should be viewed any effort to expand the reach of government into the confidential personnel files of peace officers statewide. Notwithstanding the concerns raised by CCSO, the six-month CDCR Brady Program was implemented.

The CDCR Brady Program

The stated rationale for the CDCR Brady Program was that CDCR was accommodating a request from the California District Attorneys’ Association (CDAA) that would allow prosecuting attorneys to more efficiently obtain “Brady information” that might be located in CDCR’s Case Management System (CMS) involving CCSO members identified as either witnesses or victims of crimes committed at CDCR institutions. CDAA’s request, in turn, arose from legal developments such as the California Supreme Court decision in People v. Superior Court (Johnson) (2015) 61 Cal.4th 696 and an analysis of Johnson by the Attorney General’s Office in AGO Opinion 12-401 (AGO 12-401). In AGO 12-401, the Attorney General opined that a similar program to the proposed CDCR Brady Program was legally sound, at least in part. AGO 12-401 states that although Penal Code Section 832.7 does not authorize a district attorney to directly review the personnel files of peace officers, it does allow the CHP to release the names of officers against whom findings of dishonesty, moral turpitude or bias have been sustained, i.e., Brady information. The CDCR Brady Program sought information of the type and by a method that presumably comports with AGO 12-401. The devil is in the details, however, and it remained to be seen how, exactly, the CDCR Brady Program would be implemented so as not to run afoul of the concerns raised in AGO 12-401. As proposed, if CDCR identified members as having Brady information in the CMS (the electronic system CDCR uses to maintain all disciplinary case information) and shared that information with the requesting district attorney, it would still be incumbent upon the district attorney to seek the details of the Brady information by filing a Pitchess motion.

Related to the last point mentioned, it could be said that although the CDCR Brady Program might not outright violate Penal Code Section 832.7, it radically streamlines the process of filing a Pitchess motion and obtaining an order permitting the disclosure of Brady information. By having the existence of Brady information strongly suggested by the checking of a “P” (for potential Brady material in the officer’s personnel file) on the CDCR Brady Check Request form, deputy district attorneys would be able to satisfy the good cause threshold requirement of a Pitchess motion in virtually every case.

Association for Los Angeles Deputy Sheriffs Decision

A recent decision out of the Second Appellate District, Association for Los Angeles Deputy Sheriffs (ALADS) (2017) 13 Cal.App.5th 413, has brought some clarity to the issue. Suffice it to say, CCSO’s concerns have been judicially vindicated and legitimized. In short, the court stated that the information protected by the confidentiality and disclosure procedures of the Pitchess statutes is broad. As such, the identity of a peace officer that is derived from his or her personnel file, to the extent that it connects that officer to administrative disciplinary proceedings or complaints of misconduct also contained within the protected personnel file, may not be disclosed absent compliance with the Pitchess procedures. This rule applies even if the information connected to the identified officer is only generic in nature.

We believed from the beginning that the CDCR Brady Program ran afoul of the requirements of the Pitchess process. The recent decision in ALADS, therefore, came as a welcomed clarification of the issue. As a result of the decision, at least in part, CDCR recently notified CCSO that it was not going to continue with its Brady Program, of which the pilot phase had already concluded. It is our hope that CDCR and all law enforcement agencies statewide will cease and desist implementing the type of Brady Program CDCR just concluded and that they can find ways to better address their perceived operational needs in a manner that does not violate peace officers’ constitutional rights.

About the Author

Richard Paul Fisher is the managing partner of Goyette & Associates’ Writs and Appellate Law Division. He specializes in the defense of peace officers at the administrative hearing level and in the appeal of erroneous decisions rendered against his clients in both civil and criminal proceedings.