Metropolitan News-Enterprise


Wednesday, June 20, 2007


Page 1


C.A.: Prosecutor May Not Challenge Discovery Motion for Jury Data




Prosecutors may not participate in litigation over whether a jury commissioner should be required to produce data to a defendant questioning the composition of the jury pool, the Fourth District Court of Appeal ruled yesterday.

Div. One granted a writ of mandate, overturning San Diego Superior Court Judge Peter C. Deddeh’s ruling that the district attorney is entitled to be represented at a hearing on Bryan D. Smith’s motion to require the jury commissioner to provide discovery on the county’s jury selection system.

Smith is charged with special circumstances murder, and his counsel moved for discovery of juror information, claiming that the information was necessary in order to determine whether grounds exist for a challenge to the composition of the jury venire as underrepresenting cognizable groups within the population.

Prosecution’s Standing

Filed along with the motion was a memorandum challenging the right of the prosecution to participate in proceedings regarding that motion or other third party discovery efforts.

Deddeh ruled that the district attorney has standing to oppose the motion, and added that prosecutors would be entitled to obtain copies of any material produced by the jury commissioner in response to a discovery order.

Smith’s mandate petition was initially denied summarily by the Court of Appeal, but in February of this year, the state Supreme Court sent the case back to Div. One with instructions to hear the merits.

Justice Alex MacDonald, writing yesterday for the panel, concluded that the trial judge was in error as to the prosecutors’ standing.

He cited People v. Alford (2003) 29 Cal.4th 1033, in which the court held that prosecutors had no standing to oppose a Pitchess motion for discovery of police personnel records and no right to receive copies of any records produced in connection with such discovery, other than to the extent that the reciprocal discovery statutes applied.

“Although this case does not involve Pitchess discovery proceedings, we conclude the fundamental reasoning underlying Alford applies in this case to exclude the People from participating in proceedings on Smith’s efforts to obtain third party discovery from the Jury Commissioner,” the justice wrote.

Opposition Not Authorized

Alford, MacDonald elaborated, was based on the premise that the prosecution is not a party to third party discovery proceedings, which the justice said is just as applicable to Smith’s motion as it is to Pitchess motions.

The justice noted that prosecutors are not authorized to oppose other types of third party discovery, such as by subpoena duces tecum.

By statute, he explained, if the defense seeks to discover documentary evidence in the possession of a third party, it subpoenas the materials, which must then be delivered to the court, which can order an in camera hearing before determining whether they should be turned over to the defense. The prosecution cannot participate in the hearing and is only entitled to examine the documents if the defense intends to introduce them at trial.

“As in Alford, here the People do not cite, nor have we found, any statutory or constitutional authority supporting their purported right to participate in Smith’s third party discovery efforts,” the jurist wrote.

The prosecution’s purported interest in protecting the integrity of the jury system, he declared, will be adequately protected by allowing it to oppose any motion subsequently brought by the defendant challenging the composition of the jury pool, and to gain discovery of any documentary evidence the defense intends to offer in support of that motion.

The court declined to rule on whether prosecutors would have the right to see any material produced by the jury commissioner in response to a discovery order, saying the trial judge’s comments on the issue did not constitute a ruling. But MacDonald suggested that the Alford reasoning was adverse to the prosecution’s position on that matter as well.

The case is Smith v. Superior Court (People), D049852.


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