Metropolitan News-Enterprise


Thursday, June 6, 2002


Page 1


Lawyers Battle at High Court Over Balance Between Brady, Pitchess


By ROBERT GREENE, Staff Writer


The thorny legal debate over access to police discipline records took center stage yesterday before the state Supreme Court, as justices and lawyers worked to hammer out a test that satisfies criminal defendants’ constitutional right to files that could help exonerate them, and officers’ interest in maintaining their privacy.

Proposals that would fine-tune a prosecutor’s duty to turn over so-called Brady material were floated both by counsel and several justices, as they discussed the case of a Los Angeles defendant who won a court order to open police personnel files older than the statutory five-year limit. Justice Joyce Kennard suggested that defendants be required to make a “plausible showing” that there is exculpatory evidence in a police file older than five years.

But while there was general agreement on principles, there remained a lack of accord on crucial details.

Los Angeles Deputy City Attorney Julie S. Raffish said she was counting on the justices to bring some clarity to a dispute that has grown more intense in the wake of the Rampart police scandal and continuing—and sometimes contradictory—court rulings and police policies on turning over personnel data.

“I hope we get a decision that helps a lot of us figure out what to do,” Raffish said.

Child Molestation

The case before the court arose from the prosecution for child molestation of Los Angeles resident Jeremy Brandon, who sought to open an LAPD officer’s file to discover details of alleged misconduct that occurred 10 years earlier.

The California Evidence Code, codifying principles established in the 1974 state Supreme Court case of Pitchess v. Superior Court, sets forth an in-chambers process for judges to review police personnel files for relevance but places items older than five years off-limits.

The city brought the officer’s file to Los Angeles Superior Court Judge James B. Pierce and duly pointed out a 1996 report that the officer failed to report the beating of a prisoner by another officer and later denied it when questioned by investigators.

But Pierce also saw a 1990 report that a decade earlier the officer sprayed someone in the face with mace without justification. Even though that report was more than five years old, Pierce said, disclosure to the defendant was required under the 1962 U.S. Supreme Court case of Brady v. Maryland, which requires prosecutors to notify the defense of information that could materially affect the case.

This district’s Court of Appeal upheld Pierce’s ruling in a November 2000 opinion by Justice Walter Croskey of Div. Three, who said that as applied to the facts of Brandon’s case the five-year rule failed to “serve the purpose of excluding irrelevant evidence.”

The ruling was hailed by defense lawyers but attacked by cities, police departments and prosecutors, who said breaching the per se five-year barrier of relevance would impose an enormous burden of production on officers and their lawyers while unduly intruding into officer’s lives.

The arguments yesterday come against a backdrop of increasing scrutiny of Brady and Pitchess procedures. Last month, the Los Angeles District Attorney’s Office adopted new “protocols” that allow prosecutors to decide when to seek Brady material in police files. In many cases under the new rules, prosecutors believing such materials exist will inform defense counsel to get the matter themselves using the Pitchess procedure.

The Police Protective League—the union of rank-and-file Los Angeles police officer-s-has threatened to sue District Attorney Steve Cooley over the new program  because it contemplates a database of officer misconduct allegations.

Prosecution’s Burden

The Public Defender’s Office, meanwhile, has blasted the new system for improperly placing the prosecution’s affirmative burden to turn over Brady evidence on the defense.

In a May 21 memo to deputies, the public defender’s appellate division said Cooley’s protocol relies too heavily on standards developed for post-conviction proceedings, in which the record was fully developed at trial and a judge can readily determine whether information that was withheld was so material as to have promised a different outcome at trial had it come out before.

Before the verdict, the public defender memo said, the standard must be simpler: prosecutors must disclose the material if it would help the defense or hurt the prosecution.

The memo also focused on what the Public Defender’s Office calls a special standard for police officer witnesses. Public Defender Michael Judge emphasized that point after the court argument yesterday.

“There is no time limit on misconduct information for all the other witnesses in the case,” Judge told the MetNews. “The Brandon case sought to create a level playing field and have police officers’ testimony evaluated in the light of the same evidence that would be available for all other witnesses.”

In court, Raffish argued against a special Brady procedure-at least in Brandon’s case-that would impose a greater duty to open police files than provided for under the Pitchess scheme.

“To go beyond just constitutionally unnecessary,” Raffish said.

Kennard suggested a test under which the defense would have to make a “plausible showing” that there is particular information in the file older than five years, and that it meets the Brady standard of being material and bends in favor of the defense.

California Senior Assistant Attorney General Gary W. Schons, arguing as amicus for the city, said he liked the idea, but called for a test that would require that the court then release such information—not to the defense, but to prosecutors.

“Only the prosecution knows the full extent to the evidence in the case” and can make the necessary determination as to whether the data is “material” under Brady—strong enough to play a major role in the outcome of the case, he said.

Brandon’s trial counsel, Downey lawyer Richard Leonard, was present in court yesterday but left the argument to appellate Deputy Public Defender Mark Harvis.

Harvis launched his argument by citing a draft Los Angeles County Bar Association study that says the legal system has failed to meet its Brady and Pitchess mandates because it has mistakenly merged the two sets of procedures.

He called the court’s attention to the 1987 U.S. Supreme Court case of Pennsylvania v. Ritchie, which he said set forth a defense “entitlement” to Brady material. Such an entitlement disallows any kind of test that requires defendants to first make a particularized showing of what would be found in the police file, he said.

“It’s a Catch-22,” Harvis said. “To meet the test the defense would have to already know what is in the file, so they wouldn’t need to get it. It puts the defendant in the position of being prescient.”

Harvis suggested a procedure similar to that employed in federal cases in California, in which the defense sends a request to the U.S. attorney, who then sends a letter to the FBI. The FBI turns over the files to the prosecutor, which culls them, decides what is relevant and turns the appropriate material over to the defense.

But he said policies in Los Angeles so far fail to replicate the federal procedure.

“I believe in the process,” Harvis said, “but if they’re not going to do it, and so far they  haven’t, then the court has to do it.”

District Attorney’s Office Special Counsel Lael Rubin, who took a lead role in hammering out Cooley’s new Brady policy, attended the argument and said she liked what she heard—from Harvis.

“I think that Mr. Harvis was really suggesting that the court adopt what we already have adopted, and I applaud them for that,” Rubin said.

Harvis did not see it the same way.

“I think it is significant that in this whole action District Attorneys’ Offices were not heard from,” Harvis said. “Police departments filed amicuses, but no D.A.s did. I wish this D.A.’s office had an active Brady policy, but I’m not enamored of their new policy that they are getting sued on.”

Leonard lauded Harvis for his argument. But he said he did not agree with a standard that left the prosecutor with the final decision on whether to turn over the material to the defense.

He noted that his client remains in jail, awaiting the outcome of the legal proceedings.

The case is City of Los Angeles v. Superior Court, Brandon RPI, S093628.


Copyright 2002, Metropolitan News Company