The tension between a prosecutor’s duties to disclose exculpatory evidence (so-called Brady material) to a criminal defendant and the police department’s obligations, as a member of the prosecutorial team, to maintain the confidentiality of material in peace officer personnel records absent a Pitchess motion, is again at the forefront of current litigation. A California Court of Appeal recently confronted the question of whether a police agency may disclose to the prosecution the names and serial numbers of peace officers who have been administratively found to have engaged in misconduct that might be used to impeach an officer’s testimony in a criminal case so that the prosecution may then file a Pitchess motion to learn the details of the misconduct. The Court of Appeal held that disclosing such information violates the legislatively proscribed confidentiality of peace officer personnel files (Association of Los Angeles Sheriff’s Deputies v. Superior Court [Los Angeles Sheriff’s Department], Court of Appeal for the Second Appellate District, July 11, 2017). We likely have not heard the last on this subject.
The case delves into a matter commented on, but not decided, in People v. Superior Court (Johnson) ( 61 Cal. 4th 696 [“Johnson”]). There, the California Supreme Court reaffirmed that “the prosecution does not have unfettered access to confidential personnel records of peace officers who are potential witnesses in criminal cases. Rather, it must follow the same procedures that apply to criminal defendants, i.e., make a Pitchess motion, in order to seek information in those records.” The California Supreme Court recognized that the Legislature wished to protect officers’ privacy interests to the fullest extent possible and that this “requires the prosecution, as well as the defendant, to comply with the Pitchess procedures if it wishes to obtain information from confidential personnel records.” It held, therefore, that the prosecution may not have unfettered access to personnel files. It also held that since a defendant has the same access as the prosecution to personnel files through a Pitchess motion, the prosecution’s obligation to disclose under Brady extended only to notifying the defendant of what it knew. The officer’s personnel file may contain exculpatory evidence; the defense could decide whether to avail itself of the material through a Pitchess motion.
In Johnson, the California Supreme Court appeared to comment with approval that the San Francisco Police Department “has laudably established procedures to streamline the Pitchess/Brady process” by notifying the prosecution, which in turn notified the defendant, that the officers’ personnel records might contain Brady material. But the Court had no occasion to decide whether that notification by the Department to the prosecution was itself a violation of Penal Code Section 832.7’s confidentiality provisions or an end-run around the Pitchess procedure.
However, that question recently came up in the California Court of Appeal for the Second District’s decision in Association for Los Angeles Deputy Sheriffs v. Superior Court (Los Angeles County Sheriff’s Department) (“ALADS”), published on July 11, 2017. In ALADS, the Los Angeles Sheriff’s Department (LASD) identified approximately 300 individual deputies who had administratively founded allegations of misconduct involving moral turpitude, including dishonesty and false statements, and other conduct that might be used to impeach the deputy’s testimony in a criminal prosecution. In order to comply with what it contended were its obligations under the Brady and Johnson decisions (see supra.), the LASD proposed to send a Brady list of these deputies, identified by name and serial number, to the various prosecutorial agencies handling cases investigated by the Department.
LASD’s internal Brady list proposed to identify the deputy as having at least one founded violation of Brady misconduct in her or her personnel file. If the deputy were to become a witness on a filed case, the prosecutor could then file a Pitchess motion to discover the underlying conduct or, in accordance with the Johnson decision, provide the information disclosed by LASD to the defense so that it could make its own Pitchess motion. LASD then sent letters to each of the affected deputies notifying them of the proposed policy, and that his or her name would be disclosed to the district attorney, and that if any believed his or her name was improperly included to notify the Department.
ALADS filed a petition for writ of mandate, and preliminary and permanent injunctions to compel LASD and the County to comply with the provisions of Penal Code § 832.5 as to confidentiality of peace officer personnel records by not disclosing the Brady list or the identity of any individual deputy on the list to the district attorney without a court order obtained pursuant to a Pitchess motion.
After a hearing on ALADS’ request for a preliminary injunction, the Trial Court recognized that LASD has a statutory obligation to protect the confidentiality of peace officers pursuant to Penal Code §§ 832.7 and 832.8, and that such records could not be disclosed to any third party, including prosecutors, absent compliance with the Pitchess procedure. Further, even the identity of a peace officer is confidential and cannot be disclosed when connected or linked to employee discipline or investigation of complaints (Copley Press, Inc. v. Superior Court  39 Cal. 4th 1272). On the other hand, the Trial Court reasoned, pursuant to federal constitutional obligations under Brady, the prosecution has an affirmative obligation to turn over exculpatory evidence whether or not there is a motion by the defense — and that affirmative obligation extends to others acting on the prosecution’s team, including law enforcement (Kyles v. Whitley  514 U.S. 419). The Trial Court issued an injunction enjoining LASD from generally circulating the Brady list to prosecutorial agencies. The Court found it ran afoul of Pitchess and the confidentiality statutes and was not generally required by Brady because the disclosures were not necessarily tied to particular deputies involved as potential witnesses in an actual case being prosecuted. However, the Trial Court denied ALADS’ request for injunction on a key point: It concluded that the LASD is constitutionally required under Brady to disclose deputies from its internal Brady list to the district attorney when the deputies are involved as witnesses in an actual criminal prosecution; and when such disclosure is made, the prosecution can file its own Pitchess motion to obtain the personnel file investigation and make its disclosures to the defense, or it can simply notify the defense of the disclosure from LASD so that the defense could, a la Johnson, file its own Pitchess motion. In other words, the Trial Court held, “when a deputy on the list is a potential witness in a pending prosecution, Brady creates a federal constitutional disclosure obligation that overrides” the Pitchess statutes. Until a deputy is involved as a witness in a particular filed prosecution, however, Brady is not triggered, and LASD cannot violate its confidentiality obligations by disclosing names absent a Pitchess motion.
ALADS appealed the ruling on the preliminary injunction. Its primary objection to the Trial Court’s order was that the injunction did not prohibit LASD from disclosing Brady deputies so long as they are potential witnesses in a pending criminal case; it was an end-run around Pitchess. In essence, LASD argued and the Trial Court found, the Pitchess statutes are unconstitutional when a deputy is a witness in a pending case. The Court of Appeal reversed the denial of that part of the requested injunction.
The Court of Appeal observed that the California Supreme Court had already twice expressly found that the statutory Pitchess procedures do not violate Brady or constitutional due process, “but rather, supplement both,” noting the Pitchess process “operates in parallel with Brady and does not prohibit the disclosure of Brady information.” Rather, weighted against the confidentiality of personnel files, the Pitchess process allows for discovery “based on the premise that evidence contained in a law enforcement officer’s personnel file may be relevant to an accused’s criminal defense and that to withhold such relevant evidence from the defendant would violate the accused’s due process right to a fair trial” (People v. Mooc  26 Cal. 4th 1216). The Court observed that since Pitchess provides a mechanism to allow disclosure and discovery, the Supreme Court has not found any conflict between Brady and Pitchess. Indeed, the Court noted, because the standard for establishing good cause for in camera review under Pitchess is both “broader and lower” than what constitutes Brady material, any defendant who can meet the good cause requirement for Pitchess discovery will necessarily obtain any Brady material in an officer’s file. Moreover, the Court noted, the prosecution has no obligation to search law enforcement personnel files and that absent its own Pitchess motion, the “prosecution has no right of access to and thus no constructive possession of personnel files or their content.” Further, the Court noted, even if the Trial Court’s injunction were otherwise permissible, it was overbroad: Not all potential LASD witnesses may be “significant enough that impeachment information in their personnel files will be material,” as required before Brady disclosure. The Court of Appeal ordered the Trial Court to strike from its injunction any language that permits LASD to disclose the identity of any deputy on the LASD’s Brady list to anyone outside of LASD, even if the deputy is a witness in a pending criminal prosecution, absent a Pitchess motion and order.
One appellate justice issued a lengthy dissent to that part of the Court’s decision: She held that Pitchess does not prevent LASD from disclosing the names of deputies who are witnesses in active prosecutions and that LASD should be permitted to implement its determination of how to best fulfill its own Brady obligations. Thus, this is likely not the last we will hear about this case. As the Court of Appeal noted, the decision in this case impacts every department and prosecutorial agency within the state; had it affirmed the entirety of the Trial Court’s ruling, it would change how each of these agencies throughout the state do business. Given the statewide importance of these issues to both peace officers and criminal defendants, the need for uniformity throughout the state and the strong dissent, it is likely that if petitioned, the California Supreme Court may grant review. Stay tuned.