Metropolitan News-Enterprise


Tuesday, February 19, 2002


Page 3


City Attorney May View Sealed Affidavit Supporting Pitchess Motion—C.A.


By a MetNews Staff Writer


The attorney for a law enforcement agency is entitled to view a sealed affidavit submitted in support of a motion to discover an officer’s personnel files, the Court of Appeal for this district ruled Friday.

Div. Three granted a writ of mandate directing Los Angeles Superior Court Judge Steven Van Sicklen to allow lawyers for the city of Los Angeles to have a look at an affidavit submitted by the Alternate Public Defender’s Office on behalf of Clinton Davenport and to then reconsider its granting of Davenport’s Pitchess discovery motion.

Davenport is charged with possession of rock cocaine found in a search of his apartment. His motion requests that all records pertaining to any “acts of aggressive behavior, violence, excessive force, or attempted violence or excessive force, threatening and/or coercive behavior, DISHONESTY, false imprisonment or arrest, improper search and seizure, fabrication of charges and/or evidence, [and] improper tactics[,] abuse or mistreatment based upon any of the following: gender, race/ethnicity, nationality, or sexual orientation” against any of the seven officers who participated in the search and his arrest be produced.

Van Sicklen ruled last September that there was a proper basis for the motion and reviewed the files in camera, after rejecting the city attorney’s request to see the affidavit. The judge said allowing the request would jeopardize the defense and the right to a fair trial.

Following review, the judge ordered disclosure of certain documents in the files. The city filed a writ petition, charging that it had been denied “any meaningful adversarial challenge” to the motion, and the Court of Appeal panel subsequently issued a stay and an order to show cause.

Justice Walter Croskey, writing for the panel Friday, said the trial judge’s decision to find “good cause and materiality” based on an affidavit which counsel for the law enforcement agency wasn’t allowed to see was unprecedented.

Croskey distinguished City of Alhambra v. Superior Court (1988) 205 Cal.App.3d 1118, in which the court held that a trial judge had discretion to order measures to preserve the confidentiality of declarations filed in support of a discovery motion seeking access to investigative reports in a murder case.

City of Alhambra involved a general discovery motion, not a Pitchess motion, Croskey noted, saying the holding does not apply when the employing law enforcement agency isn’t the prosecuting agency.

The deputy city attorney assigned to the case, the justice noted, filed an affidavit asserting that he was representing the custodian of records of the Los Angeles Police Department and that he and his unit do not involve themselves in the substance of prosecutions, whether handled by the city attorney or the district attorney.

All decisions regarding whether and how to oppose Pitchess motions, he added, are made within the unit and not in consultation with prosecutors.

 Croskey commented:

Davenport filed under seal with this court a copy of his counsel’s affidavit submitted in support of his Pitchess motion. We have reviewed the affidavit and conclude that to allow the City Attorney to review it, under a protective order, will in no way compromise Davenport’s defense or right to a fair trial. Likewise, Davenport’s rights will not be jeopardized if, should the City Attorney wish to file a response or opposition regarding the contents of the affidavit, it does so under seal.”

Croskey added that “[t]hese procedures will protect the defendant’s right to confidentiality and at the same time allow the matter to be properly ‘tested by the stringent and wholesome requirements of adversary litigation,’” as required by City of Alhambra.

Attorneys on appeal were Deputy City Attorney Travis S. Austin for the city and Deputy Alternate Public Defenders Felicia Kahn Grant and Elizabeth Seykora for Davenport.

The case is City of Los Angeles v. Superior Court, 02 S.O.S. 871.


Copyright 2002, Metropolitan News Company