Courtesy of Gregory P. Palmer, Esq. and James R. Touchstone, Esq.
On August 26, 2019 the California Supreme Court, unanimously, overturned the Second District Court of Appeal in the case of Association for Los Angeles Deputy Sheriffs (ALADS) v. Superior Court (2017) 13 Cal.App.5th 413. The Court of Appeal had held that the mere disclosure of a list of deputies’ names who had been identified by the Los Angeles Sheriff’s Department as either having “Brady” type material or potentially having “Brady” type material in the form of founded administrative investigations bearing on issues of integrity violated the confidentiality rules and the procedures set forth in Pitchess. The Supreme Court disagreed.
California law enforcement has been waiting for the Supreme Court to decide this case for more than two years. This all began with the Supreme Court’s decision in People v. Superior Court (Johnson) (2015) 61 Cal.4th 696. In Johnson, the Supreme Court dealt with a situation where a District Attorney’s office received a “Brady tip” from, in that case, the San Francisco Police Department pursuant to a protocol worked out between the SFPD and the SFDA concerning a particular officer who did or may have Brady material in his personnel file. The Supreme Court called the protocol a “laudable policy” and took the unusual step of attaching it to its written decision as an appendix.
The Supreme Court said that the “Brady tip” did not allow a prosecutor to go rummaging through an officer’s personnel file based on the investigative exemption to the Pitchess motion requirement in Penal Code section 832.7(b). Instead, the prosecutor, based on the Brady tip, can do one of two things: (1) file and serve its own Pitchess motion or (2) inform the defense of the Brady tip and let the defense decide if it wants to file and serve a Pitchess motion. The Court preferred choice number 2 because, the Court explained, the defense would be in a better position to make the determination that a Pitchess motion is necessary to preserve the defendant’s fair trial right. Good cause, materiality and proper notice still had to be provided, but a Pitchess motion was necessary to obtain information from the personnel file concerning the event which formed the basis of the Brady tip.
Following that decision, many law enforcement agencies, including the Los Angeles Sheriff’s Department, reviewed the administrative investigations involving its deputies which had a sustained finding of misconduct involving integrity. A list of approximately 300 deputies who had founded investigations fitting these categories was compiled. On the eve of the disclosure of that list to the Los Angeles District Attorney’s Office, the Association of Los Angeles Deputy Sheriffs (“ALADS”) went to court and sought a temporary restraining order preventing the disclosure. A Superior Court judge granted the temporary restraining order.
That decision was upheld by the Second District Court of Appeal in 2017 in a decision in which they discounted the description of the protocol as “laudable” in Johnson and found little significance to the fact that the protocol itself was attached as an appendix.
The Supreme Court granted review and overturned the case unanimously.
The Supreme Court Decision
The Supreme Court again, like it did in Johnson, explained the differences between Brady and Pitchess. The Court held that Pitchess statutes “must be viewed against the larger background of the prosecution’s duty under “Brady” so as not to infringe on the defendant’s right to a fair trial.” (People v. Mooc (2001) 26 Cal.4th at 1225.)
The Pitchess statutes make confidential certain records that relate to employee discipline (Penal Code section 832.7(a)(4) complaints, or investigations of complaints, Penal Code section 832.7(a)(5)) and “information obtained from” those types of records.
Inasmuch as SB 1421 was enacted during the pendency of the Supreme Court’s review of the case, the Court stated that it had to address the effect of the new law. It held that records which are disclosable to the public following the enactment of SB 1421, including the officer’s name and the investigative materials, are undoubtedly also disclosable to the prosecutor’s office. That conclusion is inescapable.
The Court acknowledged the many delay provisions built into SB 1421 preventing disclosure for certain periods of time, and also noted that there likely exists in an officer’s personnel file other records not qualifying as disclosable under SB 1421, to which the confidentiality right is still attached. Thus, it had to decide if the name of the deputy, which constituted “information obtained from” the confidential records, are nevertheless disclosable to the prosecution. The Court noted that “the department’s disclosure that there ‘may’ be Brady material in an officer’s personnel records is, in effect, a disclosure that the officer has been found to have committed misconduct.”
The Court then explained that just deeming information to be confidential does not end the inquiry. The Pitchess statutes clearly indicate the right of confidentiality is conditional. The Court noted that such confidential information can freely be shared with persons the court called “insiders” and as a for instance noted two persons sharing the task of custodian of the records may freely share such confidential information with each other and not violate the statute.
The Court noted that prosecutors in this context are not clearly set forth in the statutes as “outsiders” or “insiders.” However, the Court held that “because confidential records may contain “Brady” material, construing the Pitchess statutes to permit Brady alerts best harmonizes Brady and Pitchess.
The Court stated that Brady imposes on prosecutors “a duty to learn of any favorable evidence known to the others acting on the government’s behalf in [a] case, including the police.” (Kyles v Whitley, 514 U.S. at p. 437.) Prosecutors are deemed constructively aware of Brady material known to anyone on the prosecution team and must share that information with the defense. (See In re Brown (1998) 17 Cal.4th 873, 879.) In this context, construing the Pitchess statutes to cut off the flow of information from law enforcement personnel to prosecutors would be an anathema to Brady compliance.
And although the showing required for a Pitchess motion to trigger in camera review “is not high” (Johnson, at p. 720), 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.
The Court also observed that a barrier to alerting prosecutors of potential Brady material would also put deputies in a precarious position. The Fourteenth Amendment underlying Brady imposes obligations on states and their agents – not just, derivatively, on prosecutors. Law enforcement personnel are required to share Brady material with the prosecution. (See, e.g., Carrillo v. County of Los Angeles (9th Cir. 2015) 798 F.3d 1210, 1219-1223 & fn. 12.) The harder it is for prosecutors to access that material, the greater the need for deputies to volunteer it.
The Association’s contrary view that “Brady relates only to the prosecutor” and that “Brady . . . does not impose obligations on law enforcement” is distressing and wrong. The prosecution may bear ultimate responsibility for ensuring that necessary disclosures are made to the defense (see In re Brown, supra, 17 Cal.4th at p. 881), but that does not mean law enforcement personnel have no role to play. This is not to imply that Brady alerts are a constitutionally required means of ensuring Brady compliance; only that disclosure of Brady material is required, and that Brady alerts help to ensure satisfaction of that requirement.
But when a department seeks to transmit a Brady alert to prosecutors, allowing the department to do so mitigates the risk of a constitutional violation. With Brady in mind (see Mooc, supra, 26 Cal.4th at p. 1225), the term “confidential” (§832.7(a)) must be understood to permit such alerts.”
The Supreme Court reiterated its holding in Johnson and said, “[w]e viewed Brady alerts as so ‘laudable’ that we attached to our opinion the SFPD order establishing department procedures for Brady disclosure of materials in employee personnel files.”
The Court continued “[t]o now hold that Johnson’s interpretation of “confidential” forbids Brady alerts would be to read our opinion as announcing an interpretation that both: (i) depends on the legality of Brady alerts; and yet (ii) implies that such alerts are unlawful. Precedent cannot compel a result if it points toward a self-defeating conclusion.”
Although the statutes may shield the fact than officer has been disciplined from disclosure to the public at large, the mere fact of discipline, disclosed merely to prosecutors, raises less significant privacy concerns than the underlying records at issue in Johnson. The department may share this limited information, for the limited purpose of ensuring Brady compliance, with the limited class of persons (i.e., prosecutors with a particularized need to know.
HOW THIS AFFECTS YOUR AGENCY.
We think this decision will finally put to bed the debate about the role of law enforcement agencies in the Brady rule. It seems inescapable that there is a duty upon law enforcement agencies to at least review the personnel records of its officers to determine if there is potential Brady material in those records. The categories of documents reviewed by LASD in the ALADS case provides a good list of founded misconduct violations to include in the review.
Assuming an agency identifies an officer with such a founded misconduct history, the agency would be well-advised, at this point, to alert the local prosecutor’s office of that bare fact.
Once placed on notice, the prosecutor has two ways to satisfy its burden under Brady of one of those officers is a witness in a prosecution: (1) File and serve its own Pitchess motion or (2) transfer the information provided concerning the witness officer to the defense. The Johnson court held the mere transfer of the Brady alert to the defense satisfies the prosecutor’s Brady obligation. It is then up to the defense to file and serve a Pitchess motion.
Thus, we believe there will be an increase in this activity following ALADS. Frankly, most prosecutors will choose option number 2 and merely advise the defense of the information.
What will follow is a concomitant increase in Pitchess motions by the defense in which they will merely state, “The DA told me that the arresting agency says there’s maybe Brady material, so Judge please look at the records and let us know.” Johnson made it clear the mere Brady tip alone is insufficient to grant a Pitchess motion; independent good cause must also be established. The Second District Court of Appeal in Serrano held the Brady tip alone is sufficient. (See Serrano v. Superior Court (2017) 16 Cal.App.5th 759.) That will be the fight in the future.
As always, if you wish to discuss this matter in greater detail, please feel free to contact Gregory P. Palmer or James R. Touchstone at (714) 446–1400 or via email at firstname.lastname@example.org or email@example.com, respectively.
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