Tuesday, August 27, 2019
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California Supreme Court:
Sheriff May Share ‘Brady List’ Information With Prosecutors
Identity of Law Enforcement Officer Who Has Committed Misconduct May Be Provided Only if the Person Is a Prospective Witness in a Pending Case; Chief Justice Writes for Unanimous Court
By a MetNews Staff Writer
The California Supreme Court yesterday largely vindicated the position of then-Los Angeles County Sheriff Jim McDonnell that identities of deputies who have committed acts that could be used for impeachment of their testimony should be shared with prosecutors.
A decision for a unanimous court was authored by Chief Justice Tani Cantil-Sakauye. It reverses a decision by Div. Eight of this district’s Court of Appeal which, in an opinion by Los Angeles Superior Court Judge Douglas W. Sortino, sitting on assignment, affirmed, in general, a preliminary injunction obtained by the Association of Los Angeles Deputy Sheriffs (“ALADS”) against release of the list.
Los Angeles Superior Court Judge James Chalfant in 2017 barred disclosure of the identity of a deputy on the list unless the deputy was a potential witness in a pending prosecution; Div. Eight, in a 2-1 decision that same year, excised that exception. Justice Elizabeth Grimes wrote a concurring and dissenting opinion.
The Supreme Court, agreeing with Grimes, yesterday held that the prosecution and law enforcement are players on the same team and may share information without violating confidentiality rules. It limited disclosure of names on the list to those of potential witnesses.
Brady, Pitchess
Cantil-Sakauye’s opinion deals with the interplay between the U.S. Supreme Court’s 1963 decision in Brady v. Maryland, which holds that the prosecution must turn over exculpatory evidence to the defense, and the state high court’s 1974 opinion in Pitchess v. Superior Court, now codified, permitting limited access to law enforcement officers’ personnel files.
The Los Angeles County Sheriff’s Department in 2014, under interim Sheriff John Scott, compiled a “Brady list” containing the identities of about 300 deputies (out of roughly 7,800 in the department) whose misconduct could lead to impeachment if they testified, or exculpation. Under Brady, information would have to be provided to the defense that a deputy involved in the case was on the list, which would signal the need for a Pitchess motion, entailing, if good cause is shown, an in camera review of the personnel file.
When McDonnell, elected in 2014, decided to share the list with the Office of District Attorney, ALADS took legal action—as well as throwing its weight behind the 2018 campaign of an election challenger to McDonnell. The incumbent lost the race to Alex Villanueva.
ALADS has taken the position that confidentiality provisions of the Pitchess statutes prelude disclosures of such matter to prosecutors, and that any disclosure requires the granting of a Pitchess motion.
Frames Issue
In granting review of the Court of Appeal’s decision, the Supreme Court phrased the issue as being:
“When a law enforcement agency creates an internal Brady list…, and a peace officer on that list is a potential witness in a pending criminal prosecution, may the agency disclose to the prosecution (a) the name and identifying number of the officer and (b) that the officer may have relevant exonerating or impeaching material in his or her confidential personnel file, or can such disclosure be made only by court order on a properly filed Pitchess motion?
Cantil-Sakauye yesterday answered:
“We conclude that the Pitchess statutes permit such disclosure.”
Chief Justice Explains
She explained:
“Because confidential records may contain Brady material, construing the Pitchess statutes to permit Brady alerts best ‘harmonize[s]’ Brady and Pitchess….[C]onstruing the Pitchess statutes to cut off the flow of information from law enforcement personnel to prosecutors would be anathema to Brady compliance.
“Indeed, to interpret ‘confidential’ as forbidding the sharing of information with prosecutors would do more than forbid the formal Brady-list-and-alert practice at issue here. Even without formal procedures, conscientious prosecutors have conferred with law enforcement agencies to identify confidential files that may contain impeachment material….If ‘confidential’ prevents formal procedures for sharing information with prosecutors, it prevents informal tips as well.”
She went on to say:
“[A]lthough the showing required for a Pitchess motion to trigger in camera review ‘is not high’…, neither is it imaginary. Without Brady alerts, prosecutors may be unaware that a Pitchess motion should be filed—and such a motion, if filed, may not succeed. Thus, interpreting the Pitchess statutes to prohibit Brady alerts would pose a substantial threat to Brady compliance.”
Legislative Change
The chief justice noted that under Senate Bill No. 1421, effective Jan. 1 of this year, some material in law enforcement officers’ personnel files that had been confidential no longer is.
Disclosure is now required of “”any record relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency of dishonesty by a peace officer or custodial officer directly relating to the reporting, investigation, or prosecution of a crime, or directly relating to the reporting of, or investigation of misconduct by, another peace officer or custodial officer, including, but not limited to, any sustained finding of perjury, false statements, filing false reports, destruction, falsifying, or concealing of evidence.”
Cantil-Sakauye remarked that “it is enough to say that even if Senate Bill 1421 does not increase the amount of information that a defendant can compel an agency to disclose” through a Pitchess motion, “the bill, by making certain records nonconfidential, reduces the amount of information that agencies are forbidden from disclosing voluntarily.”
The case is Association for Los Angeles Deputy Sheriffs v. Superior Court, 2019 S.O.S. 2186.
Lacey Comments
Los Angeles County District Attorney Jackie Lacey commented yesterday:
“I’m pleased that this conflict has been resolved. We will evaluate information as we receive it and provide it to defense counsel in court in accordance with our policy and the law.
“The credibility of our witnesses is of the utmost importance to the integrity of our criminal prosecutions. As such, our policy was expanded in March 2018 to require deputy district attorneys to disclose Brady information regardless of whether the information was deemed material to the case or whether the witness was called to testify.”
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ALADS Releases Statement on Decision
ALADS’ legal teams have been fighting against the use of a Brady List since 2016. Despite today’s California Supreme Court decision, which allows for limited disclosure of information on a Brady List, ALADS still stands on the fact the Brady List is a direct product of a flawed disciplinary process. This flawed disciplinary process, which may be filled with bias, grudges, faulty analysis and outright misrepresentation, has plagued the Sheriff’s Department for decades.
The briefing before the California Supreme Court was both thorough and extensive. ALADS forcefully argued that a Brady alert from the Department to the prosecution was not permitted absent compliance with the Pitchess statutes, which, since 1978, have required a judicial officer to view personnel records in camera under certain criteria before disclosing them in connection with a criminal prosecution. We are disappointed that the Court today, despite the Pitchess statutes, permitted even the limited disclosure of a Brady alert from the Department to the prosecution for a deputy who is a potential witness in a pending criminal prosecution.
Nevertheless, we emphasize that the Court’s decision that Brady alerts are permissible is limited to pending criminal prosecutions and does not allow the Department’s wholesale release to the prosecution of its Brady List, as it originally set out to do. In addition, the Court did not require Brady alerts, but merely concluded they are permissible in the context of a pending criminal prosecution.
ALADS’ primary interest has always been and will continue to be the protection of privacy for ALADS members and their families and the preservation of due process rights for all involved.
ALADS will abide by the Court’s decision and all applicable statutes, even as we recognize that some LASD administrators—current and prior—do not.
As our next step, ALADS representatives have already sent a meet-and-confer request to develop a policy for handling these cases within the perimeters laid out by today’s decision. ALADS also will sit down with departmental staff and develop an administrative process to enforce the Court’s ruling.
ALADS attorneys will continue to review the full extent of the Court’s 37-page opinion as it applies to individual cases.
Copyright 2019, Metropolitan News Company