Metropolitan News-Enterprise


Tuesday, August 27, 2002


Page 1


Supreme Court Permits Narrow Breach of Five-Year Pitchess Limit


By ROBERT GREENE, Staff Writer


The state Supreme Court yesterday declined to strike down California’s five-year limit on criminal defendants’ access to police personnel records, but also ruled that older records still can be brought to court if a judge can be shown the materials would make a difference in the trial’s outcome.

Observers from all sides saw something to cheer in the high court’s latest  decision on the interplay between the U.S. Supreme Court’s 1963 opinion in Brady v. Maryland, requiring disclosure of evidence material to the defense, and California’s Pitchess procedures that protect law enforcement privacy.

Los Angeles Chief Deputy City Attorney Terree Bowers hailed the ruling as affirming “our ability to protect the confidentiality of police records.”

Deputy Public Defender Mark Harvis, who argued the case before the court when it convened in Los Angeles in June, said the ruling was not perfect but said he was pleased the court rejected the city’s original position—that the Pitchess rules, with their five-year limit, were the only way defendants could put anything in a police personnel file before the court.

“We’ve been asking the courts to do this for a long time,” Harvis said. “Some courts were allowing in material outside of Pitchess and some weren’t. There were no decisions allowing the court to do it. Now there is.”

Procedure Set

Statutes added to the state Penal Code and Evidence Code following the state Supreme Court’s 1974 ruling in Pitchess v. Superior Court establish a procedure for defendants who want to check the records of officers who are to be witnesses against them, and to use those records to impeach the officers’ credibility.

The statutes also bar disclosure of officer personnel records that are more than five years old.

But in 1996, in the case of Jeremy Brandon, Los Angeles Superior Court Judge James B. Pierce ordered disclosure of a 1990 complaint, asserting that failure to do so would deprive Brandon of a fair trial under Brady.

This district’s Court of Appeal affirmed, and defense lawyers began hoping for an end to the five-year limitó-while police officer advocates began backing Pitchess as the only possible procedure for complying with Brady in California.

In the end, the court opted for the position articulated by California Senior Assistant Attorney General Gary W. Schons, who argued as amicus for the city.

Records Review

Under that test, a defendant can ask a judge to review personnel records outside of the Pitchess procedure, and without regard to the five-year rule, but only if the defense meets the higher threshold set by Brady, by showing that the information is so material it could mean things come out differently at trial.

“It reaffirms the vitality of Pitchess,” Schons said yesterday. “It settles one of the large constitutional claims that was looming against it.”

But several questions remain open, including whether defendants will be compelled to reveal their full trial strategy in order to meet the Brady test, and whether they can submit their motions to the court partially, or fully, under seal.

Justice Joyce Kennard wrote the majority opinion. Justice Janice Rogers Brown wrote a separate concurrence, and Justice Carlos Moreno dissented.

The case is City of Los Angeles v. Superior Court (Brandon), 02 S.O.S.  4500.


Copyright 2002, Metropolitan News Company