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‘Constitutional Crisis’ Still Exists Despite California Supreme Court Ruling on Opening Access to Law Enforcement Brady Lists

The latest attempt by the California courts to “harmonize” the state’s brutally secretive police protection statutes with the U.S. Supreme Court’s ruling in Brady v. Maryland, the 1963 case holding that prosecutors must turn over favorable evidence to the defense in order to satisfy the Due Process Clause of the Constitution, is still no better even after the California Supreme Court’s recent ruling that law enforcement agencies “may” turn over their list of problem officers to prosecutors.

In Association for LA Deputy Sheriffs v. Superior Court, the Court held on August 26, 2019, that a law enforcement agency “does not violate [the Pitchess statutes protecting police officer personnel files] by sharing with prosecutors the fact that an officer, who is a potential witness in a pending criminal prosecution, may have relevant exonerating or impeaching material in that officer’s confidential personnel file.” While the media declared this a major victory for criminal defendants, the ruling is actually anything but that.

Experts who have followed the fallout from the ruling have said that California’s laws on police privacy protection remain in conflict with the Constitution’s due process requirements and undermine the rights guaranteed to defendants by the Constitution. The purpose of Brady, they point out, is that prosecutors cannot be trusted with turning over the information they have in fear that it might damage their case. And they say that the Court’s recent ruling doesn’t do anything to cure that problem with the Brady lists.

Other courts have been more firm on the issue. In a 2013 decision in the U.S. Court of Appeals for the Ninth Circuit, which hears cases in California regarding constitutional issues, the court overturned an Arizona murder conviction in part because prosecutors failed to turn over personnel records showing that an officer who was a witness in the case had been suspended for lying. The court held that “the personnel file fit within the broad sweep of [Brady]” and could have been used to impeach (discredit) the officer during trial. And in Harris County, Texas, a judge ordered Harris County DA Kim Ogg to pay a monetary sanction in August 2019 for withholding an officer’s disciplinary record from a defendant.

But California is different. The question in that state is not whether the prosecution would withhold police records but whether they have access to them in the first place. California has Pitchess Statutes, which were created in 1978 to seal off police personnel files from everyone, including the prosecutor, about anything in an officer’s past that may come back to haunt him or her if placed on the stand as a witness in a criminal trial. Many departments around the country have what’s called “Brady lists” identifying officers who have had credibility problems in the past so that prosecutors know to avoid using them as witnesses. Those lists are available to the defense, as well under Brady’s disclosure rule.

In February 2019, the ACLU chapters in California said that a new law, Senate Bill 1421, which opened police files limited to certain major infractions, such as lying on the job and sexual assault, “are still far more limited than what Brady requires.” And an LA Times story found that the Pitchess laws, which still exist after the recent California Supreme Court ruling, still hinder defense lawyers so much that most don’t even bother trying to get the files. “The hell with Pitchess,” Jacque Wilson, a public defender in San Francisco, said. “Pitchess violates every concept of due process,” he said.

The Court’s ruling leaves what the ACLU calls a “constitutional crisis” in the state, because it didn’t make disclosure of Brady lists mandatory, and the Court didn’t even require them to be turned over to the defense (though that is implicitly the rule since Brady requires the prosecutor to turn over favorable evidence).

Kyle Barry, senior legal counsel for The Justice Collaborative, said that any further expansion of Brady into the Pitchess statutes will meet “fierce opposition”: “Unions continue to insist on special protections for their members that both flout the Constitution and treat them differently from others in the criminal legal system.”

“We’ve always had this double standard and it just seems unfair,” Wilson, the public defender, said. “Everything in our client’s history including the kitchen sink comes out, but when it comes to the police officers, everything is so secretive.” 


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