Friday, October 12, 2001
C.A. Orders In Camera Review of Documents in Baby Death Case
By KENNETH OFGANG, Staff Writer/Appellate Courts
A father who faces the possible loss of custody of his daughter because another young girl died in his care is entitled to an in camera review of police records and other evidence that may clear him, the Fourth District Court of Appeal ruled yesterday.
Orange Superior Court Judge Corey S. Cramin erred in quashing the father’s subpoena on the basis of privilege without first examining the materials, Justice William Rylaarsdam wrote for Div. Three.
The father, identified only as Michael P., has been embroiled in dependency proceedings since his girlfriend’s 21-month-old daughter died, the day after being taken to a hospital emergency room for treatment of traumatic injuries sustained at Michael P.’s home.
Michael P.’s daughter, 7-year-old Alexandria, told a social worker the little girl fell while they were playing a game on the couch and that Alexandria accidentally fell on top of her.
The Orange County Social Services Agency filed a dependency petition after Alexandria was taken into protective custody by the Westminster Police Department. The petition suggested that the girl was a victim of shaken-baby syndrome, although an assistant coroner made a preliminary finding that she had suffered multiple blunt force blows to the head.
Subpeonas Duces Tecum
Michael P.’s lawyer served subpoenas duces tecum on the Sheriff’s Department, the Coroner’s Office, and the police department, seeking all reports, photographs, notes, tapes, laboratory results, and other evidence in the possession of those agencies.
All three agencies moved to quash the subpoenas, citing the official information privilege of Evidence Code Sec. 1040, the California Public Records Act exemption for investigative records, the Penal Code discovery provisions, and the privacy rights of witnesses and others named or depicted in the materials.
Agency lawyers told the judge that Michael P. was a suspect and that the criminal investigation was ongoing with no charges filed, although Michael P.’s girlfriend had been “largely ruled out” and doctors did not believe that Alexandria had caused the baby’s death.
Cramin granted the motion with respect to everything except a tape of an interview of Alexandria by social workers.
But Rylaarsdam said the only potentially applicable privilege is the official information privilege, and that because the privilege is qualified, the judge must review the material in camera in order to determine whether it applies.
The Penal Code sections don’t apply, the justice explained, because the father hasn’t been charged with a crime. And the CPRA has no relevance, he said, because disclosure of the materials wasn’t requested under the act.
The only means by which a government agency may resist a subpoena on the basis of a need for secrecy, Rylaarsdam said, is to assert privilege under Sec. 1040(b)(2).
Because the privilege is conditioned upon a showing that secrecy is in the public interest, he said, its scope must be determined after a judge has inspected the materials, unless the balance of interests so clearly favors non-disclosure as to make in camera review unnecessary.
The justice distinguished an earlier case from the same division, County of Orange v. Superior Court (2000) 79 Cal.App.4th 759. The court there held that the Sheriff’s Department didn’t have to disclose materials in its investigative files to a woman and her husband, who sued for damages based on a claim the department defamed them by naming them as suspects in the death of the woman’s infant son.
The County of Orange court said it was clear that the four-year-old homicide investigation would be compromised, to the detriment of the public interest, if the files were opened to public scrutiny.
But dependency actions and tort suits aren’t comparable, Rylaarsdam concluded.
The justice reasoned:
“Here, the juvenile court undoubtedly concluded that if an in camera hearing was not required in County of Orange, then it was unwarranted where the ongoing investigation was only two months old. But the question of whether items from a police investigative file should be subject to discovery turns on more than the age of the investigation. Application of the conditional privilege requires a weighing of interests, and we believe a litigant’s interest in prosecuting a civil action for damages pales in comparison to a parent’s interest in having custody of his or her child. Because the latter interest would necessarily weigh more heavily than the former when balanced against the government’s interest in keeping an investigative file private, our decision in County of Orange does not dictate the result here.”
The case is Michael P. v. Superior Court, Orange County Sheriff’s Department RPI, G028277.
Copyright 2001, Metropolitan News Company