by: Michael Rains
The California Court of Appeal for the 2nd Appellate District, in a case titled Association for Los Angeles Deputy Sheriffs v. Superior Court, issued a published decision on July 11, 2017 that has the potential for changing Brady discovery protocols which have been adopted by many counties in the State. A summary of this case, how it relates to the California Supreme Court’s 2015 decision in the Johnson case, which also concerned Brady discovery, as well as its practical ramifications are described in greater detail below.
Before discussing this most recent ALADS case, let me revisit the decision in People v. Superior Court (Johnson) (2015) 61 Cal.4th 696. That case originated in San Francisco and the primary issue before the Court was whether the prosecution’s Brady obligations required a prosecutor to personally review the personnel file of a peace officer who was going to testify as a material witness in a criminal case, or whether a prosecutor’s access to an officer’s personnel file for purposes of Brady discovery was barred by the provisions of Penal Code § 832.7. Ultimately, the California Supreme Court said that Penal Code § 832.7 does not afford a prosecutor direct access to the personnel file of a peace officer for purposes of satisfying its Brady obligation.
However, the Supreme Court described as “laudable” a negotiated Brady discovery procedure between the San Francisco Police Officers Association and the San Francisco Police Department that permitted the Police Department to provide the DA with names of officers who had been determined by Department management to be on the DA’s “Brady list.” Under that procedure, if an officer on the Brady list was to be called as a material witness in a criminal case, the DA could satisfy its Brady obligation either by filing a “Pitchess/Brady Motion” under Evidence Code § 1043 et seq., which would trigger an in-camera review of the officer’s file by a judge, or simply alert the defense that the officer may have “Brady discovery” in his/her file and allow the defense to file such a motion.
In the Johnson case, the “laudable” process which resulted in the creation of a “Brady list” by the SFPD as well as its subsequent transmittal to the DA’s office was not challenged on appeal, and was similar to protocols for Brady discovery in many other counties.
As background to the most recent ALADS case, the Los Angeles County Sheriff had convened a Commander’s panel to review individual personnel files of approximately 9,000 sworn employees. Based upon the review, the panel had identified roughly 300 individuals who had “sustained” allegations in their personnel files which might constitute “Brady discovery.” The Sheriff proposed to send this “Brady list” of deputies, identified by name and serial number, to the local DA and to any other prosecutorial agencies that handle cases investigated by the LASD. No documents from any of the deputies’ personnel files would be provided to the prosecutors. If deputies on the list were to testify as a material witness in a criminal case, the DA could either file a “Pitchess/Brady Motion,” or alert the defense to do so.
In November 2016, ALADS filed an action challenging this procedure and asking that the court issue a temporary restraining order precluding the Sheriff’s Department from disclosing the Brady list or the identity of any individual deputy on the list to the DA or any other prosecutorial agency without first obtaining a court order after filing a Pitchess Motion. ALADS also sought to preclude the Sheriff’s Department from transferring deputies or restricting their duties if they were placed on the Brady list.
The Superior Court judge who was assigned to the case held that the Department’s submission of a “Brady list” of its deputies to the DA and other prosecutorial agencies violated the Penal Code sections protecting confidentiality of law enforcement personnel files (Penal Code §§ 832.7 and 832.8) and violated Pitchess procedures described in Evidence Code §§ 1043 and 1045. However, the Superior Court judge said that after a DA had filed a criminal complaint against a particular defendant and a deputy whose name appeared on the Department’s “Brady list” was listed as a potential witness in the case, the Sheriff’s office could provide the name of that deputy to the prosecutor so that an appropriate “Pitchess/Brady” motion could be filed either by the DA or by the defense (or both). In making this latter holding, the Superior Court judge concluded that when a deputy is going to testify as a witness in a criminal matter, Brady creates a federal constitutional disclosure obligation that trumps the state-created confidentiality restrictions of the Pitchess statutes. Still, the Superior Court judge denied ALADS request that the Sheriff’s Department be precluded from reassigning a deputy or removing him/her from collateral duties (so long as there was no reduction in salary or rank), if the reassignment/removal was a result of a deputy’s perceived inability to perform that particular assignment due to his/her presence on the Department’s “Brady list.”
The Court of Appeal Decision
The Court of Appeal, relying heavily upon an earlier California Supreme Court decision titled Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272, held that Penal Code § 832.7 protects the identity of police officers when the disclosure of their identity would connect the officers to administrative disciplinary proceedings or complaints of misconduct. The Court found that placing an officer on a “Brady list” has the effect of connecting that officer to sustained administrative disciplinary proceedings or sustained complaints of misconduct which the DA is not entitled to know about unless it is the result of the filing of a Pitchess motion. In other words, while the law enforcement employer may inspect the files of its employees and compile a “Brady list” internally, it may not communicate that list to the DA or any prosecutorial agency, nor can it even communicate the name of a deputy on the Brady list who has received a subpoena to testify in a criminal case, unless a Pitchess motion is filed, heard, and a judge orders the disclosure. The ruling that the Department could not even supply the name of a deputy on the “Brady list” to the DA once the deputy received a subpoena to testify unless ordered to do so by a judge at a Pitchess Motion was contrary to the ruling by the Superior Court judge.
The Court of Appeal also emphasized that the issue it was called upon to decide had not been considered by the Supreme Court in Johnson:
“Whatever the reason, Johnson simply does not address the central issue of our case: the statutory legality of a law enforcement agency disclosing to an outside prosecutorial agency, absent a filed, heard, and court-granted Pitchess Motion, the fact that a peace officer has founded allegations of misconduct in his or her personnel file and, to the extent such disclosure is illegal under state law, whether it is nevertheless constitutionally compelled by Brady and constitutional due process.”
The Court of Appeal stated that the fact that the Supreme Court had described the process in place in San Francisco for the streamlining of Pitchess and Brady discovery to be “laudable” did not amount to “formal legal approval” of that procedure.
The Court of Appeal also held that a formal opinion issued by the California Attorney General which found that a procedure used by the CHP similar to that agreed upon between the SFPOA, SFPD and San Francisco District Attorney’s office was lawful and appropriate was “advisory only, and not binding on the courts.” In conclusion, the Court of Appeal stated that “…neither Johnson, nor the (Attorney General) Opinion, therefore, persuades us that our earlier analysis and conclusion prohibiting disclosure of deputy identities from the Brady list, absent a properly filed and granted Pitchess Motion and corresponding court order, are incorrect.”
Finally, the Court of Appeal upheld the right of the Sheriff’s Department to transfer or restrict the duties of deputies whose names were placed on the “Brady list,” provided they were not reduced in rank or suffered a reduction in salary.
Dissenting/Concurring Opinion
Justice Grimes filed a concurring and dissenting opinion expressing concern about “…the unworkability of requiring a prosecutor to make a Pitchess Motion merely to find out whether or not a deputy in a pending prosecution has potential Brady material in his personnel file.” She pointed out that the “real effect” of the majority’s holding would be to either (1) prevent entirely any disclosure of the identity of a Brady list officer by the Department to the prosecutor, or (2) to require the prosecutor to make Pitchess Motion for every officer involved in a pending criminal case or (3) to require the prosecutor to risk the consequences of a possible failure to disclose exculpatory Brady material in an officer’s file to the defendant. She emphasized that law enforcement agencies throughout the state have been identifying officers with Brady material in their personnel files to prosecutors for many years and that this decision ran contrary to that established and widespread practice which the Supreme Court in Johnson had found “laudable.”
Practical Consequences of This Decision
There is no question that this decision condemns, legally speaking, the practice of a law enforcement agency transmitting names of officers who appear on a “Brady list” to the prosecution pursuant to either a negotiated agreement or longstanding practice. The decision also clearly indicates that an agency should not even communicate to the District Attorney prosecuting a criminal case that a particular sworn employee is on the Department’s “Brady list” unless and until a Pitchess Motion occurs and the judge issues an order disclosing the name of that officer and any relevant documents to the prosecution.
It may well be that the LA County Sheriff’s Department, probably with the enthusiastic endorsement of the California District Attorneys Association, will ask the California Supreme Court to review this decision and reconcile it with that Court’s decision in Johnson. Until that occurs, it appears to us that there will necessarily be a flurry of Pitchess Motions filed by frustrated prosecutors and unhappy judges hearing countless Pitchess proceedings, and perhaps numerous demands by law enforcement employee associations throughout the state that the local prosecutor destroy or immediately return to the agency the “Brady list” which may have been transmitted to the prosecutor in the first place out of the agency’s belief that such a procedure was lawful, and even “laudable.”
Mike Rains is a principal and founding member of Rains Lucia Stern St. Phalle & Silver, PC. He heads the firm’s Criminal Defense and Legal Defense of Peace Officers Practice Groups. Mike is one of California’s top trial attorneys. He has over 30 years of experience representing peace officers and other high-profile clients in civil and criminal litigation.
