Metropolitan News-Enterprise


Thursday, December 5, 2002


Page 3


Lawyers Joust Before High Court Over Scope of Pitchess Disclosure


By a MetNews Staff Writer


Police personnel records disclosed in response to a Pitchess motion and discovery order should be available for use in cases other than that in which the motion was made, a defense attorney told the California Supreme Court yesterday.

Allowing attorneys who obtain relevant information about a police officer who is a witness against a client to share that data with other attorneys in the same office, and to use it when the officer testifies in another case “promotes judicial economy and promotes the search for the truth,” San Diego Deputy Public Defender Russell Braner told the justices.

His view was attacked by an attorney for the San Diego Police Department, and by a county prosecutor. Defense attorneys “are trying to establish a database so that they no longer have to run Pitchess motions,” Deputy District Attorney Thomas Lovett charged.

Braner represents a defendant in a drug case, who sought discovery of information alleged to relate to the credibility of the arresting officer. The motion was brought under Evidence Code Sec. 1043, which codifies the procedure for obtaining discovery of police personnel records under 1974’s Pitchess v. Superior Court, 11 Cal.3d 531.

Sec. 1043 and related provisions state that if the moving party establishes good cause for discovery through affidavits, the trial judge must order that the requested documents be produced for examination. If the judge then finds the documents admissible or likely to lead to discovery of admissible evidence, they are turned over to defense counsel, subject to an appropriate protective order so as to balance the officer’s privacy and due process interests against the interests sought to be served by disclosure.

In the case argued yesterday, Alford v. Superior Court, the trial judge at first held that the names and addresses of citizens who had filed complaints against the officer should be disclosed. But the jurist later concluded that an effective protective order could not be made and denied the motion on reconsideration.

The Fourth District Court of Appeal, Div. One, granted a writ of mandate, directing the trial judge to reinstate the disclosure order and fashion an appropriate protective order.

The public defender petitioned the Supreme Court for review. The high court agreed, but limited its review to two issues—whether disclosure should be limited to the proceeding in which it is ordered, and whether the District Attorney’s Office was properly denied standing to argue.

Limiting use of disclosed information to a single proceeding, Braner argued, leads to “a Groundhog Day situation” in which lawyers are forced to waste resources by arguing the same issues over and over again. He cited the case of one officer who, he said, has been the subject of 17 different Pitchess motions seeking the same information.

Deputy City Attorney Paul Cooper, representing the Police Department, argued that limiting disclosure is necessary in order to preserve the statutory confidentiality of peace officer personnel records and the requirement that good cause be shown before a Pitchess motion may be granted.

The standing issue seemed to split the justices, with Chief Justice Ronald M. George and Justice Joyce L. Kennard expressing concern over the fact that there is no mention in the Pitchess statutes of participation by any party other than the litigant seeking disclosure and the agency having custody of the records.

Justice Marvin Baxter, on the other hand, appeared more sympathetic to Lovett’s argument that the prosecution’s due process rights under Proposition 115 and the statute generally requiring district attorneys to prosecute crimes within their counties are sufficient to confer standing to appear with regard to Pitchess motions.


Copyright 2002, Metropolitan News Company