by Mike Rains, Rains Lucia Stern, PC
Perhaps one of the most hotly debated issues relating to “Bradydiscovery” concerning peace officers is whether the District Attorney can obtain the dates of birth of peace officer “material witnesses” in order to run “rap sheets” on the officers, the results of which may thereafter be disclosed to the defense.
I had the recent experience of representing five police officers of the Antioch Police Department in two separate criminal cases after Contra Costa County Superior Court Judge Clare Maier initially ruled that the City of Antioch was obligated to supply the Contra Costa County District Attorney’s Office with the officers’ dates of birth, and further ordered the District Attorney’s Office to run “rap sheets” on the officers in order to report the information from those documents to the court and to the defense.
After Judge Clare Maier initially issued that ruling, I was contacted by the president of the Antioch Police Officers’ Association and asked whether the ruling appeared to comport with existing case law. That led to my discussions with Contra Costa County Deputy District Attorneys Brian Feinberg and Hal Jewett. Ultimately, on behalf of the individual Antioch police officers whose dates of birth had been ordered disclosed to the District Attorney’s Office, we filed an objection. The District Attorney’s Office also objected to the order, stating that there were other alternative procedures available whereby the District Attorney could make inquiries concerning whether or not officers who were going to be “material witnesses” in criminal cases had either: (1) pending criminal charges of any nature; (2) previous convictions of moral turpitude; or (3) were currently on probation in any county for any reason.
After receiving objections from our office and from the District Attorney’s Office concerning the court’s initial ruling, a hearing was scheduled for oral argument. Judge Maier, following the receipt and review of objections and oral argument made on behalf of the Antioch police officers, reversed her initial ruling, and held that “… the District Attorney can fulfill its duties under Brady and the discovery statute in this regard without necessarily running rap sheets on each of the named officers.” The court issued a written ruling stating that “it [the court] has no legal authority either statutory or decisional to compel the District Attorney to run the rap sheets of the named officers anymore than it has authority to mandate how the prosecution gathers evidence and prosecutes the case.” The court emphasized that cases discussing the prosecution’s Brady obligation had merely held that the prosecution has an obligation to “inquire of the existence” of information from a material witness whose credibility is likely to be critical to the outcome of the trial. (People v. Little (1997) 59 Cal.App.4th 426, 433).
In this case, the District Attorney made informal inquiries of officers who were going to be material witnesses concerning whether or not they had pending criminal charges of any nature or type; had been convicted of criminal offenses involving moral turpitude; and whether they were currently on probation in any county for any offense. The court held that “the prosecution’s duty [under the Brady case] is fulfilled by investigating, making inquiries and providing such information to the defendant, which the Deputy District Attorney has assured the court and the defense that such a duty shall be honored in this case.”
Judge Maier’s ruling was appealed by the defendants to the Court of Appeal, which summarily denied review. The defendants then petitioned the California Supreme Court, which ordered briefing by the prosecution and the Antioch police officers.
We filed a brief urging the Supreme Court to deny review of the case on the ground that the superior court judge had properly ruled that (1) it was a legal error for a court to order officers’ dates of birth to be provided from the employing agency to the District Attorney’s Office and (2) it was an additional error to require the District Attorney’s Office to run “rap sheets” on police officer material witnesses. The defendants responded to our arguments in very aggressive but well written briefs. On August 10, 2011, the Supreme Court issued a decision denying further review of both cases.
The fact that the Supreme Court denied review of the written decision by Judge Maier on this very important issue is extremely significant. Judge Maier specifically decided in her ruling that a District Attorney’s Brady obligation can be satisfied in a number of ways, including (1) bringing a Pitchess motion to obtain the officers’ dates of birth and then running a rap sheet on the officers; (2) interviewing the officers or their superiors; or (3) having the officers sign a sworn declaration averring under penalty of perjury whether or not he or she has either pending cases or convictions for crimes of moral turpitude.
In other words, Judge Maier concluded, appropriately and consistently with the existing case law, that the Brady obligation of a prosecution’s office can be satisfied without actually running rap sheets of officers after obtaining their dates of birth.
We argued in our brief to the Supreme Court that Judge Maier made the correct decision based upon existing case law, an argument also made in a brief filed by the Attorney General’s Office.
The denial of further review by the California Supreme Court is a very clear signal that the court agrees that a District Attorney’s “Brady obligation” to provide information concerning pending criminal charges, previous convictions of moral turpitude, or the current probation status of a police officer can be satisfied by informal inquiries of the officer and do not have to involve the running rap sheets after obtaining the officers dates of birth.
Although we are elated at this recent ruling by the California Supreme Court, we understand that the defendants can still file an appeal to the United States District Court in San Francisco. Our clients should further be cautioned to understand that the Supreme Court’s refusal to hear the case does not constitute the “ruling” which can be cited as precedent throughout the State of California. In other words, there will still be instances when the defendants in a criminal case seek information from rap sheets relating to an officer’s pending criminal charges, prior convictions of moral turpitude or current probationary status notwithstanding this decision. If that does occur, we urge law enforcement organizations to review this client alert and to contact us and/or the Contra Costa County District Attorney’s Office to obtain research and pleadings which we have been involved in which may be duplicated in those matters.