Department’s
Apparent Attempt to Alert District Attorney of Purported Brady
Disclosure Obligation Concerning One of Its Own Officers Falls Short
By
Michael A. Morguess
Lackie & Dammeier LLP
A
common tactic used by departments to terminate officers is to claim that
the officer’s usefulness is severely impacted by a prior disciplinary
action involving the officer’s credibility. We are all familiar with
this story. At the disciplinary hearing, the chief claims that because
of the district attorney’s disclosure obligations under Brady v.
Maryland, 373 U.S. 83 (1963), the officer can no longer be effective
in using his peace officer powers or to testify in court on a case. The
hearing officer or other decision maker buys it, never really
understanding Brady’s reach, and the officer is history.
Although
we cannot say for sure, it appears that the City of Ontario, after
losing in the trial and appellate courts, may have resorted to this same
tactic (for the second time) and just won’t let up on one of its
detectives.
In a
case we reported in previous issues, Detective David Mullican was
terminated following charges related to a personal case log notebook,
that he used to help him keep track of cases. After his sergeant
conducted a covert search of Mullican’s desk, the sergeant ordered
Mullican to respond in writing to written questions formulated by the
sergeant. The city charged Mullican with responding falsely to questions
concerning the whereabouts of the personal case log notebook. After a Skelly
hearing, and an administrative hearing, the discipline was sustained.
Mullican
filed a Petition for Writ of Administrative Mandate (CCP § 1094.5), as
to the weight of the evidence supporting the findings, and he
simultaneously challenged the search of the desk, seeking suppression
from the administrative hearing of the documents recovered as a result
of the search, and his written responses to the written questions by his
sergeant, challenging such as an interrogation in violation of a number
of provisions of the Public Safety Officers Procedural Bill of Rights
Act (Govt. Code § 3300 et seq.).
The
trial court granted the petition, finding that the search violated
Mullican’s rights under Govt. Code § 3309, and that the document
should have been suppressed from the hearing. The trial court further
held that once the sergeant conducted a search of the desk, his written
questions to Mullican, requiring written responses, were investigatory
interrogations within the meaning of Govt. Code § 3303, and that the
failure of the city to afford Mullican various rights under Section 3303
required Mullican’s statements to be suppressed from the
administrative hearing. Finally, the trial court held that after
applying the suppression remedy pursuant to the Bill of Rights Act, no
evidence remained upon which the city could impose discipline against
Mullican, and ordered the administrative decision vacated and Mullican
effectively reinstated.
The
city appealed. In an unpublished opinion, the Fourth District Court of
Appeal affirmed the judgment. In the decision, the Appellate Court
recited the allegations and evidence upon which the city moved forward
with the discipline, but agreed with the trial court that after
suppressing the evidence that no evidence supported any discipline.
Although
the city complied with the writ by setting aside its administrative
decision and reinstating Mullican, someone or something mysteriously
made one last effort to ruin Mullican’s career.
The San
Bernardino County District Attorney’s Office does not on its own
review unpublished decisions of the courts of appeal. Unpublished
opinions are not citable as case law. When the Appellate Court wants an
opinion to have a broad effect on those beyond the case, it publishes
the opinion, and it becomes citable precedent. Here, although the
District Attorney’s Office does not review unpublished decisions,
someone alerted the District Attorney’s Officer to the unpublished
Mullican opinion. Shortly thereafter, Mullican received a letter from
the District Attorney’s Brady Review Committee, informing him that he
has been preliminarily deemed subject to the District Attorney’s Brady
(Brady v. Maryland, 373 U.S. 83 (1963)) disclosure obligations,
and that he had a right to initially file a written response to
challenge that determination.
Lackie
& Dammeier, LLP, prepared a comprehensive written response to the
District Attorney’s preliminary determination.
In Brady, the United States Supreme Court held that “the
suppression by the prosecution of evidence favorable to an accused upon
request violated due process where the evidence is material either to
guilt or punishment, irrespective of the good faith or bad faith of the
prosecution. 373 U.S. at 87. Since then, the court has held that the
duty to disclose such evidence is applicable even though there has been
no request by the accused (United States v. Agurs, 427 U.S. 97,
107). The duty to disclose
also encompasses impeachment evidence as well as exculpatory evidence (United
States v. Bagley, 473 U.S. 667, 676).
Such evidence is material, and thus must be disclosed, “if
there is a reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been
different” (United States v. Bagley, 473 U.S. at 682).
The
prosecution’s duty, however, is not infinite.
Brady “does not require disclosure of information that
is of mere speculative value” (People v. Gutierrez (2004) 112
Cal. App. 4th 1463, 1472). “’The prosecution has no
general duty to seek out, obtain, and disclose all evidence that might
be beneficial to the defense.’[Citation]” Id. Brady
“did not create a general constitutional right to discovery in a
criminal case (People v. Jordan (2003) 108 Cal. App. 4th
349, 361).
Our
firm pointed out that nothing in the opinion constitutes a finding of
dishonesty. While the opinion recites the underlying allegations and
evidence that led to the opinion, the court did not make findings on
that evidence. The opinion
dealt only with suppression of evidence of dishonesty. Further, the
court never had cause to reach the issue of whether the “evidence,”
had it “remained,” was true, and that Officer Mullican was
dishonest. The court was called on only to determine whether the
evidence should be suppressed, not whether the evidence was credible and
conclusive. In light of such, the opinion would not provide anything
more than “mere speculative value” to help one arrive at the
conclusion that in absence of its disclosure “there is a reasonable
probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.”
It therefore was also not “material” within the meaning of Brady.
The
Office of the District Attorney agreed. In its response, the District
Attorney wrote “[t]he committee finds that no Brady disclosure
obligation exists. . . [T]he committee finds merit in your argument that
the comments made by the court reference your client’s credibility are
speculative in nature.”
Hopefully,
this will end the apparent efforts to somehow do Mullican in. If not,
PORAC’s Legal Defense Fund and Lackie & Dammeier will be there
again to jealously guard his rights.
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