Thursday, October 15, 2015
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A.G. Harris Rejects CHP’s Objections to ‘External Brady Policy’
By KENNETH OFGANG, Staff Writer
The California Highway Patrol, like other agencies, may provide prosecutors with lists of officers as to whom it has made findings of misconduct, thus facilitating compliance with Brady v. Maryland, Attorney General Kamala Harris has opined.
In an opinion requested by Ventura County District Attorney Gregory Totten, and prepared by Deputy Attorney General Susan Duncan Lee, the attorney general said Tuesday the CHP may comply with the “External Brady Policy” proposed by Totten and the California District Attorneys Association. The policy, Harris concluded—contrary to the view of the CHP—would not violate the confidentiality statute governing such files.
Under the proposed policy, the CHP would provide the district attorney a “Brady list” containing the names of officers who have sustained findings of misconduct against them that reflect moral turpitude, untruthfulness, or bias, during the previous five years. The agency said the proposed policy would violate Penal Code §832.7, which requires a court order for disclosure of personnel files.
Supreme Court Opinion
When he requested the opinion in 2012, Totten also asked whether prosecutors could directly examine the personnel files of officer/witnesses to determine whether they contained Brady material. The Supreme Court recently answered that question in the negative in People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, holding that prosecutors, as well as defendants, must seek such records by motion under Evidence Code §1043 and Pitchess v. Superior Court (1974) 11 Cal.3d 531.
Noting that the Johnson court lauded the San Francisco Police Department for establishing a policy similar to that proposed by the CDAA, although it did not supply legal reasoning, Harris wrote:
“We believe the Supreme Court’s approval of the policy was logically necessary to its decision, and we therefore regard the Johnson decision as good authority for the proposition that such a policy is legally valid. We now explicitly find that Penal Code section 832.7(a) does not preclude CHP from providing Brady list information to a district attorney for purposes of facilitating Brady compliance.”
Prosecution ‘Team’
Acknowledging the contentiousness surrounding the issue, the attorney general said the CHP is wrong in contending that it is not, with respect to the collection of personnel information, part of the prosecution “team” and thus not subject to Brady obligations.
“The CHP is, first and foremost, a law enforcement agency, and its officers routinely act in an investigative or law enforcement capacity in connection with criminal prosecutions,” the attorney general said. “At issue here are not CHP’s records regarding its general operations, but its records regarding those peace officers whose routine activities result in criminal prosecutions. We conclude that, when its officers act on the government’s behalf or assist the government’s case, both the officers and CHP itself are part of the prosecution team.”
Screening Function
Harris also rejected the agency’s concern that it is not qualified to determine what information is, or is not, relevant for Brady purposes. She noted that the policy only calls for the agency to screen files, and disclose specific information, without requiring a legal determination as to whether any specific information constitutes exculpatory material that must be disclosed under Brady.
Nor, the attorney general insisted, would the policy conflict with the Public Safety Officers Procedural Bill of Rights Act.
“While POBRA does contain some privacy protections”—banning, for example, disclosure of officers’ personal financial information, home addresses, and photographs—“it expressly contemplates that an officer’s name may be placed on a Brady list or otherwise disclosed pursuant to Brady,” Harris said. “We conclude that, so long as CHP complies with POBRA’s procedural requirements, a policy that asks the CHP to perform an initial file review and disclose Brady list information does not violate POBRA.”
The opinion is No. 12-401.
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