Thursday, September 27, 2001
Page 9
Perspectives (Column)
Public Defender’s Office Opens Fire on City Attorney’s Office
By ROGER M. GRACE
It’s a rare occurrence for the Public Defender’s Office to urge prosecutions. But, as I discussed yesterday, that’s what it did a year ago when it concluded that custodians of record for the Los Angeles Police Department had been serving notices on deputy PDs of protective orders, issued after in camera inspections of police personnel files, which falsely stated the terms of those orders. There were 30 such instances, it determined—and one instance where there was service of a notice of a protective order which had never been made.
The District Attorney’s Office investigated, but on Aug. 13, James L. Cosper, acting head duty of the Bureau of Fraud and Corruption Prosecutions’ Justice Integrity Division, sent a letter to Mark G. Harvis, advisor to the Public Integrity Assurance Section of the Public Defender’s Office, announcing that prosecutions would not be instituted.
He attached a letter to an investigator in his office from Kim Westhoff, supervisor of the Police Discovery Section of the Los Angeles City Attorney’s Office, advising that the forms which the Public Defender’s Office had criticized were no longer in use. Cosper said his office was satisfied that the problem had been abated.
In his Sept. 12 reply to Cosper, Harvis charged:
“The Los Angeles City Attorney has yet to learn that evidence of official misconduct must be dealt with honestly and promptly and not merely minimized and ultimately ignored. The letter from Deputy City Attorney Kim Rodgers Westhoff which you attached to your letter is a most disappointing example of how the Los Angeles City Attorney has continually avoided dealing directly with serious LAPD misconduct. Ms. Westhoff’s letter is an appallingly disingenuous and ultimately misguided attempt to minimize LAPD’s misconduct here through the use of nothing more than smoke and mirrors.”
The notices of the protective orders appeared on “compliance forms” provided by the LAPD in connection with Pitchess motions. For each complaint in an officer’s file which the court ordered to be disclosed, a form was provided to the deputy PD containing the name, address, and phone number of the complainant, the discipline imposed, and a witness list. Each form also included one of two boilerplate notices of a protective order having been issued. One of those notices advised that the order was made pursuant to both subd. (d) and (e) of Evidence Code §1045. As the Public Defender’s Office interprets those provisions, when a Pitchess motion results in the receipt of information, subd. (d) precludes use of that information in other cases—creating a burden on the office to re-obtain that same information and reinterview complainants and witnesses in subsequent cases. Subd. (e), as the office interprets it, does permit reuse of the information. So, where the judges actually made orders only under subd. (e), but the notices proclaimed that the orders were also under subd. (d), it meant that the Office of Public Defender had been caused, by the misinformation, to use the fruits of a Pitchess motion less broadly than it otherwise would.
The alternate form—a longer one—did not mention the statutory provision upon which the order was founded, but spelled out prohibitions on use of the information outside the immediate case (and pointed to the prospect of criminal penalties for breaching the prohibitions). The public defense lawyers apparently infer that where there are such prohibitions, the order was made pursuant to subd. (d).
Westhoff, in her letter of Aug. 1 to Lt. Alan Jarvis, an investigator in the DA’s Office, questioned the statutory interpretation by the Public Defender’s Office. She wrote:
“It is this office’s position, recently supported by the publication of Alford v. Superior Court (May 22, 2001)…, that a protective order issued pursuant to Evidence Code section 1045(e) limits the use of information disclosed pursuant to a Pitchess Motion to the criminal proceeding in which the Pitchess Motion had been brought.”
Subd. (e) says that a judge must order “that the records disclosed or discovered may not be used for any purpose other than a court proceeding pursuant to applicable law.” Westhoff quoted the Alford court as saying that “it would be illogical to interpret, as defendants would have us do, the phrase ‘other than a court proceeding pursuant to applicable law’ to mean that once information is released to one defendant, the information is free to be shared with any defendant and for use in any other court proceeding.”
Westhoff also said in her letter:
“Even before publication of Alford, when a protective order was requested, that order was requested pursuant to Evidence Code section 1045(e). Those protective orders which were issued were issued pursuant to this same section. Obviously interpretation of that section is a dispute between our office and that of the Public Defender….”
That did not set well with Harvis. In his letter to Cosper, he protested that Westhoff’s contention that the dispute was one over statutory interpretation was “plainly false and a pathetic effort at stonewalling.”
He insisted:
“The issue has never been one of simple legal disagreement. The issue has always been that employees of the Los Angeles Police Department gave defense attorneys documents that plainly and repeatedly claimed a variety of protective orders had been issued by a judge when in fact the judge had issued no such orders.”
Harvis proceeded to ridicule a statement by Los Angeles Police Chief Bernard Parks in a March 29, 2001 letter to Public Defender Michael Judge. It was the contention of Judge’s office that in the case of People v. Griffin, BA 201544, the compliance sheet proclaimed that a protective order had been issued limiting the information to use in the instant case—yet, no protective order, at all, was made in that case. Parks wrote:
“Please be advised that in Griffin, we believe that a protective order was issued by the Court, but a review of the transcript per the court reporter and the court file did not indicate any specific reference to the Court’s action in that regard. It would have been a rare instance for the LAPD Discovery Unit representative to have acted without the Court’s approval.”
As Harvis sized up that statement:
“So, here’s the LAPD’s stratagem. The LAPD claims a protective order was issued. But there’s no evidence an order issued. In fact, the evidence is to the contrary; in fact the judge did not issue a protective order. Therefore, concludes the LAPD, an order issued. Why? Because they assert they are honest and wouldn’t do dishonest things and we should trust them.”
Westhoff, in her Aug. 1 letter to the investigator, made a point that a compliance sheet is not, in itself, a protective order and is “merely a mechanism by which LAPD discloses that information which has been ordered disclosed by a judge subsequent to an in camera inspection.” Harvis thundered that her claim was “outrageous” and “a fantastic distortion of the truth.” He quoted the language of the longer version of the notice which recited specific limitations on the use of the information. The deputy public defender asserted:
“Ms. Westhoff’s conclusion that this does not constitute a clear representation that the judge issued a binding and restrictive protective order is obviously untenable.”
The notice in the compliance sheets did, as Harvis says, constitute a “clear representation” that a restrictive protection order had been issued. But Westhoff did not state to the contrary. What she said was that a compliance sheet does not itself constitute a protective order. She made that point after alluding to Harvis’ letter of Nov. 8, 2000, to the District Attorney’s Office. In his letter, Harvis maintained that there were cases in which “custodians of records presented false protective orders.” Notwithstanding that it was clear, from a reading of the letter in its entirety, that Harvis was referring not to counterfeit protective orders, but to compliance sheets falsely representing what the court had ordered, Westhoff apparently saw the need to note with precision what was in issue. This was anything but “a fantastic distortion of the truth” on her part.
The real issue is whether the stock language in the compliance sheets as to the breadth of the protective orders constituted a fantastic distortion of the truth. The Office of Public Defender obviously believes that it was. Westhoff would put it more mildly; she said in her letter that the language “was not clear and could have been misused or misinterpreted.”
The “short version” notices of the protective orders said that orders had been entered under subd. (d). They hadn’t been. There was a misstatement. To the Public Defender’s Office, which viewed an order pursuant to subd. (d) as being far more restrictive than an order under subd. (e), that misstatement made a considerable difference.
On the other hand, was the Public Defender’s Office reasonable in adhering to what it was led to believe was contained in orders without seeing those orders? Judge and Harvis both acknowledge their office was too trusting.
Whether the Public Defender’s Office was prejudiced by the representations in the long and short versions of the notice can only be gaged after the Supreme Court rules on whether subd. (e) permits the use of information derived from a Pitchess order in cases other than the one in which the motion was made, as Judge contends, or proscribes it, as the Fourth District’s Div. One opined. In resolving the issue, the Supreme Court will not be able to rely on the plain-meaning rule, given the Legislature’s patent failure in enacting subd. (e) in 1981 to state its intent with clarity.
It’s understandable that the Office of Public Defender was irked. But what Westhoff says she doesn’t understand is why that office won’t let go of the issue. “The problem has been dealt with,” she says.
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Says Her Office Immediately Cautioned LAPD Against Continued Use of the Forms, Questions Why PD’s Office Continues to Make Matter an Issue.
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“When the city attorney first saw these compliance sheets last fall, …the Police Department was immediately told, ‘Don’t use these things,’ ” the deputy city attorney recounts.
Westhoff points to a portion of the chief’s Oct. 31, 2000 letter to the public defender. That letter referred to the short-version notice in the compliance sheets which cited both subds. (d) and (e). Parks told Judge:
“We realize that the language referring to both subsections of [Evidence] Code Section 1045 may have been confusing. We also received this feedback from Mr. Harvis, and intend to revise the form in this regard.”
The chief, in pledging last fall to revise the form, was “obviously being reactive to a problem,” Westhoff comments.
“The compliance sheet that has been in use since last fall does not make reference to a protective order,” she notes.
The question remains: who came up with the wording of the notices of protective order in the compliance sheets?
“I have no clue who created it,” Westhoff says. “I asked around. No one was able to tell me.”
So it is that some person—maybe a deputy city attorney, maybe a police officer attending night law school, maybe a former chief of police—conjured up one of the two forms that spawned the controversy, and the same or another person developed the other. The identity and objective of the person or persons will probably never surface.
The urging by the Public Defender’s Office that lay custodians of records who dutifully provided a form they did not devise and probably did not understand be prosecuted was doubtlessly the product of anger, not detached legal analysis. Judge urged prosecution under Penal Code §166(a)(7), which renders “[t]he publication of a false or grossly inaccurate report of the proceedings of any court” a misdemeanor. Yet, if one of Judge’s clients were charged under that section, it cannot be doubted that the obvious constitutional infirmities in it would be argued forcefully.
As I see it, the Office of Public Defender acted appropriately in making an issue of the inaccurate notices of protective orders in the compliance sheets; the Office of City Attorney was on the ball in advising the LAPD to alter those sheets; the Office of District Attorney was correct in abstaining from instituting prosecutions.
Copyright 2001, Metropolitan News Company