PORAC LDF AND PORAC JOIN
SUPREME COURT APPEAL TO PROTECT
PEACE OFFICER PERSONNEL RECORDS
By Christopher W. Miller,
Esq.
The PORAC Legal Defense
Fund and PORAC have joined as amicus curiae in an appeal to the
California Supreme Court from a lower court decision disclosing a
10-year-old finding of dishonesty against a peace officer to a criminal
defendant in a Pitchess proceeding. The case, City of Los
Angeles v. Superior Court (Jeremy Brandon) (2000) 84 Cal.App.4th
767, was appealed by the City of Los Angeles after the Second District
Court of Appeal upheld a trial judge’s decision to go beyond the
five-year limitation on disclosure imposed by Evidence Code section
1045(b)(1). The PORAC LDF and PORAC joined the appeal as a "friend
of the court" because the case raises the critical issue of whether
federal due process standards require California’s law enforcement
agencies and prosecutors to disclose peace officer personnel records to
criminal defendants regardless of the Pitchess requirements.
The Brandon
Court Rejected the Five-Year Rule
Evidence Code section
1045(b)(1) prohibits a court reviewing a Pitchess motion from
ordering disclosure of any complaint against a peace officer that is
more than five years old. The Legislature intended the rule to protect
the officer’s privacy interest and exclude misconduct allegations so
old that they are per se irrelevant to the pending case.
However, the Brandon
court elected to balance the five-year rule and the officer’s privacy
interest against the "fundamental right" of a criminal
defendant to a fair trial. One of the officers who arrested Jeremy
Brandon in 2000 for sex offenses had a notation in his personnel file
suggesting he had been dishonest in 1996 and six years earlier, in 1990,
by failing to report two uses of force. The court decided the criminal
defendant’s "due process right to a fair trial" trumped the
police officer’s interest in the confidentiality of his personnel
records. The court therefore disclosed to the defense the 10-year-old
complaint against the officer for dishonesty.
Decision May Require
Disclosure of Personnel Records as "Brady" Evidence
The Brandon court
stated prosecutors have an obligation under Brady v. Maryland
(1963) 373 U.S. 83, to disclose to the defendant any material evidence
– meaning evidence which could affect the outcome of the case –
favorable to the defendant, including discipline sustained against the
arresting officers. The rule against release of any personnel records
more than five years old, the court said, improperly relieves
prosecutors and law enforcement agencies of that constitutional
obligation.
The Brandon
decision, as it now stands, means a trial court must disclose to the
defendant any complaints – however remote in time – against a peace
officer if the court determines those complaints are relevant to the
issues in the case. Courts reviewing a Pitchess motion are still
to consider whether the officer’s interest in the confidentiality of
his personnel records outweighs the defendant’s right to present
exculpatory evidence. The court stated, however, that "the
defendant’s fundamental right to a fair trial ordinarily outweighs
the police officer’s interest in the confidentiality of his or her
personnel records, so that such material ordinarily must be
disclosed."
Amicus
Brief Challenges Appellate Court’s Interpretation of Brady and Pitchess
The brief I filed on
behalf of PORAC LDF and PORAC attacked the appellate court’s ruling
primarily with the argument that prosecutors in California have no right
to access peace officer personnel records. The Second District opinion
ignores entirely both the statutory command of the Pitchess
scheme and the principle that the prosecutor’s Brady obligation
extends only to records to which the prosecutor has access. California
courts to date consistently have held that the Brady obligation
does not include records to which the prosecutor has no reasonable
access, e.g., peace officer personnel records. (See People v.
Superior Court (Gremminger) (1997) 58 Cal.App.4th 397,
402.) Under Gremminger, a prosecuting agency itself must follow
the Pitchess procedure to obtain Brady material from peace
officer personnel records where the officer is not the subject of an
investigation.
Recent decisions by other
appellate courts share this view. The Forth District Court of Appeal
rejected a defendant’s attempt to obtain information from a peace
officer’s personnel file without following Evidence Code sections 1043
et seq. (Garden Grove Police Dept. v. Superior Court
(2001) 2001 WL 549503.) "We cannot allow [defendant] to make an end
run on the Pitchess process by requesting the officers’
personnel records under the guise of Penal Code section 1054.1 and Brady
discovery motion." (Id.) The court in California Highway
Patrol v. Superior Court (2000) 84 Cal.App.4th 1010,
likewise rejected a defendant’s claim he was entitled to impeachment
evidence involving two CHP officers without making the good cause
showing required by Evidence Code section 1043.
The PORAC Brady
legislation plays an important role in this analysis. The PORAC-sponsored
amendment to Penal Code section 832.7, subdivision (a), prohibits law
enforcement agencies from disclosing peace officer personnel records to
prosecutors except in response to a Pitchess motion. Thus, both
the courts and the Legislature have made the Pitchess procedure
the exclusive means by which prosecutors and defendants alike may
obtain information contained in confidential peace officer personnel
files.
The Pitchess
procedure is the only means by which a prosecutor may fulfill his or her
Brady obligation when that obligation requires access to peace
officer records. Prosecutors do not have an affirmative duty, however,
to search those records or to disclose their contents to the defense. As
the California District Attorneys Association (CDAA) recognized in
commenting on the PORAC legislation, "to require the prosecution to
review the personnel records of every officer who is deemed a material
witness would create a staggering burden and an undue intrusion into an
officer’s privacy." (Assem. Com. On Public Safety, Bill Analysis
of Assem. Bill No 2559 (April 25, 2000) p. 5.) The Pitchess
procedure exists to balance officers’ privacy rights against the
interests of defendants.
While the state Supreme
Court is unlikely to invalidate an entire statutory scheme, the Brandon
case does not have the potential to devastate the Pitchess
process by forcing prosecutors and law enforcement agencies to turn
peace officer personnel records over to defendants and defense attorneys
to fulfill a misguided Brady obligation. For the Brandon
court to hold "the per se rule of Evidence Code section
1045, subdivision (b)(1)…cannot be applied per se" because
the prosecutor has an obligation to disclose peace officer personnel
records under Brady is to pretend there is no Pitchess
procedure at all. As the court noted in California Highway Patrol v.
Superior Court, "[t]o grant discovery of peace officer
personnel records…without requiring defendant to comply with the good
cause requirement of Evidence Code section 1043 would have the effect of
destroying the statutory scheme." (Id. at p. 1024.) The
PORAC LDF amicus brief argues the Pitchess scheme –
including the five year rule – should be upheld as an appropriate
mechanism for balancing officers’ right to privacy in personnel
records against the right of a criminal defendant to a fair trial.
Christopher W. Miller
is a former deputy district attorney who now provides representation to
PORAC LDF clients throughout northern California as an attorney with
Mastagni, Holstedt, Chiurazzi & Amick.
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