Metropolitan News-Enterprise


Friday, October 5, 2001


Page 1


Lawyers Dispute Scope of Production for Pitchess Motions In Arguments Before Supreme Court in Orange County


By ROBERT GREENE, Staff Writer


State Supreme Court justices appeared reluctant yesterday to accord every criminal defendant access to the same type of police personnel records that an outraged appeals panel ordered into court last year.

Hearing arguments in Santa Ana, the city whose practices in handling requests for police files gave rise to a blistering Fourth District Court of Appeal opinion in July 2000, the justices grilled lawyers for the city, the police department and a defendant on just what is required when officials are served with a so-called Pitchess motion.

Justice Joyce Kennard appeared particularly impatient with the suggestion that trial courts have the power to demand production of an officer’s entire file from the time he or she began a law enforcement career.

Arguing for the city, Assistant City Attorney Denah Yoshiyama cautioned that trial courts  are not prepared to handle the burden of record searches suggested by the Fourth District in the case of People v. Mooc.

“There will be a backlog of requests,” Yoshiyama told the justices at the Old Orange County Courthouse. “What you will have is courts that cannot keep up with all the Pitchess motions.”

Attorney Jeffrey Wilens responded that courts and police departments could streamline their procedures to come up with a way to make sure that neutral judges, and not police departments, decide what in the file is relevant.

The case arose from a Pitchess motion filed by defendant Bau A. Mooc, who was accused of assaulting a Santa Ana police officer while in the city jail on an immigration hold. But the matter is being closely watched by cities around the state because of the impact the high court’s decision could have on their record-keeping practices.

Officer organizations have asserted that unless the court rolls back the Fourth District ruling, officers’ medical records, credit records and other data not directly relevant to a case could become public.

In Mooc’s case, the defendant contended that it was the officer, Frank Garcia, who started the fight, and he filed a motion under Pitchess v. Superior Court, the 1974 case that attempts to balance the right of officers to keep their personnel records private with the rights of defendants seeking to prove a pattern of misconduct.

Under the Pitchess case and statutes that codify it, trial judges can order that officials produce personnel records in camera. The judge will then review the files and determine whether there is anything relevant to the case that must be disclosed to the moving party’s attorneys.

In practice, city and police custodians of records gather the files they determine to be potentially relevant and, under oath, are questioned in chambers by the judge.

Mooc’s judge, Orange Superior Court Judge Frank F. Fasel, heard the motion and agreed to review what the assistant city attorney said was Garcia’s personnel file. On appeal, Mooc asked the appeals court to look at the file to determine whether Fasel had abused his discretion.

The Fourth District panel complained that it was met with “a mountain of bureaucratic disobedience,” getting papers censored by the city and the police department instead of the full file.

Much of the argument yesterday focused on whether the Court of Appeal had authority to demand that the officer’s massive file be brought to it. Deputy Attorney General Marilyn George argued that it did not.

“The Court of Appeal should have properly designated a referee or remanded to the trial court so a record would have been created,” George said.

When records come to the trial court in camera and the custodian of records is sworn, George said, it should be sufficient on review to have a sealed reporter’s transcript of the examination maintained as part of the record.

Chief Justice Ronald George appeared interested in the answer, saying courts would likely be more interested in citizen complaints than superfluous records like an officer’s dental charts.

But Wilens said such a solution missed the crux of the problem, since it still allows the police or the city, rather than the judge, to make the initial determination of what to bring to court. For example, he said, there might be data in medical records about an officer’s anger management problem.

It should be the court, he argued, and not the police department  that decides whether such records are potentially relevant to the case.

The arguments came on the morning of the court’s first-ever session in Orange County, held to honor the 100th anniversary of both the Old Courthouse and the Orange County Bar Association.

The court has also had special sessions in Ventura, Riverside and San Diego. By statute, the court convenes four times a year in San Francisco, four times in Los Angeles and twice in Sacramento.

In the afternoon, the court heard arguments in the case of Ortega v. Kmart, dealing with the store’s liability for the injuries of a customer who slipped in a puddle of milk in a store aisle. The court also heard an appeal in a death penalty case.


Copyright 2001, Metropolitan News Company