Tuesday, May 14, 2002
Cooley Launches New Division, Database to Boost Brady Compliance
By KIMBERLY EDDS, Staff Writer
The District Attorney’s Office will create a new division and a computer database to ensure compliance with its obligation to turn over exculpatory material to defense attorneys under Brady v. Maryland, District Attorney Steve Cooley said yesterday.
The Brady Compliance Division, headed by veteran Head Deputy District Attorney Stephen R. Kay, will create and maintain a “Brady Alert System,” a computer database that will allow prosecutors to determine whether Brady information on a particular witness exists within the office. The system, which will not create secondary personnel files on police officers, is expected to be up and running in the next few months, Kay said.
The new division and the database were announced yesterday as part of Cooley’s long-anticipated written guidelines for prosecutors to follow in determining what information about police officers must be handed over to defense attorneys.
“We feel this is a major step forward that will help prosecutors and law enforcement grapple with these complex and challenging issues,” Cooley said in a statement.
Since the U.S. Supreme Court decision was handed down in Brady, prosecutors are required to disclose any evidence that is favorable to a defendant. Included in that requirement is information that tends to exculpate or can be used to impeach a prosecution witness or is relevant to either guilt or punishment.
Possible impeachment evidence can include false reports by a prosecution witness, evidence contradicting a prosecution witness’ statements or reports or a finding of misconduct by a Board of Rights that reflects on the witness’ truthfulness or bias, according to a special directive issued by Cooley.
Cooley issued two special directives yesterday laying out how his office will deal with possible Brady material which his own office knows about and information which is contained within the files of law enforcement agencies.
Kay’s unit will not be allowed to view an officer’s personnel file unless that officer has been charged with a crime or if a motion for disclosure of confidential personnel information—commonly known as a Pitchess motion—is granted and the judge has not put a protective order on the material, he said.
Cooley’s policy sets up a mechanism where prosecutors can ask a law enforcement agency to identify possible Brady material in its files, but it is up to the individual prosecutor to determine from looking at the police report or other written police records whether anything useful to the defense could be found in police files.
Kay said the policy is the best officers could have hoped for because it strikes a balance between a prosecutor’s constitutional obligation to turn over evidence and protecting the police officer’s privacy rights.
“You don’t want to be turning over information to the defense that is not Brady material that could injure an officer in his job,” Kay said. “We’re not going to turn over things that are wild speculation or a complaint that hasn’t been investigated.”
Deputy Public Defender Mark Harvis sharply criticized the policy, arguing that prosecutors are extremely limited on where they can look for anything that could help the defense. At the same time they are forced to rely on the police report which doesn’t always include the Brady-relevant information, he said.
“Police officers don’t write police reports to include all of the bad stuff that would hurt their case,” Harvis said. “They just don’t put in the exculpatory stuff.”
Harvis said that while on the outside the policy looks like it will do some good, in reality it just sets up a maze of bureaucracy that will make obtaining Brady material even harder than it was before.
“It’s a bureaucracy not designed to easily distribute Brady material,” Harvis said. “It’s designed to make it more difficult.”
Harvis said that while he did not doubt Cooley’s sincerity in drafting the policy, the necessity of getting it past his deputies and the powerful police unions, including the Los Angeles Police Protective League, which represents the LAPD rank-and-file, may have watered it down.
“It’s not really a Brady policy,” he said. “It’s a politically acceptable version.”
Harvis also chastised the District Attorney’s Office for not consulting the public defender or the alternate public defender in drafting the policy.
He noted that just one defense attorney, Gigi Gordon, was involved in Cooley’s Brady Working Group, which recommended the policy, and she quit several months ago.
Gordon yesterday applauded Cooley for taking “a step in the right direction,” but pointed out that the policy does not solve a lot of the problems she said have recurred in handling Pitchess motions. Gordon said she sent a letter to Cooley yesterday congratulating him on his efforts and promising to send “substantive comments on the subjects” that she disagrees with.
One of the major problems with the policy is that defense attorneys will not have access to unsubstantiated complaints against officers or complaints that have not yet reached an administrative conclusion within the department, Gordon said. As a result, police officers could be testifying for years while the Police Department attempts to determine whether or not misconduct occurred, she said.
Police unions, including the Police Protective League, have historically opposed efforts to release information about officers, but Gordon warned the union to be cautious in bringing legal action against the policy, which could result in an even more stringent policy.
“I pray they are foolish enough to do so,” Gordon said. “I hope they sue.”
Deputy District Attorney Lael Rubin, who worked with Cooley on the policy, agreed, noting that it would be in everyone’s best interest to try to make the policy work.
“If they stonewall, some court sometime may do something more drastic,” Rubin said.
Police Protective League officials did not return calls for comment.
Copyright 2002, Metropolitan News Company