Rains Lucia Stern, PC
Rains Lucia Stern solidified its position at the forefront of legal and policy issues affecting peace officers by convening the DemystifyingBrady v. Maryland seminar. The fundamental premise for this examination of Brady was that every stakeholder (prosecutors, police administrators, defense attorneys, etc.) has a common interest in a fair process that enhances the integrity of the criminal justice system. Yet, as advocates for peace officers it has been the experience of our law firm that the specter of being branded a “Brady problem” was being misused in certain instances as a means of leveraging disciplinary actions. The event was truly a summit in the sense that it assembled the best and brightest from a number of different perspectives both in terms of speakers and attendees.
Speakers included Bill Gagen, co-author of California Criminal Discovery, the leading treatise on criminal discovery including Brady discovery in the State of California; Marty Mayer, legal counsel to sheriffs and police chiefs throughout California; Judge Philip J. Pennypacker of the Santa Clara County Superior Court, who had previously lectured to the California District Attorneys Association concerning Brady discovery in the courts; and Greg Totten, the District Attorney of Ventura County, one of the very earliest counties to formulate a written Brady policy more than 10 years ago. Mr. Totten was joined at the podium by Jerry Coleman, an Assistant District Attorney in San Francisco, who overseesBrady compliance issues in the City and County of San Francisco and serves as Head of the Trial Integrity Unity, focusing on law enforcement misconduct and Brady discovery. Mike Rains from RLS concluded the program.
The event was a complete sell-out. The 250 attendees included a number of elected district attorneys and sheriffs, leaders of law enforcement labor associations, city attorneys, county counsel, police chiefs and upper management, prosecutors, and rank and file peace officers. The seminar was an outgrowth of discussions between RLS partners Mike Rains and Harry Stern, Solano County District Attorney Don DuBain, who was formulating a Brady policy for that county, and Vallejo Police Chief Bob Nichelini, who is also an attorney. From the discussions relating to the Solano County Policy and reference to other policies enacted in other jurisdictions, it was clear that there was both confusion and inconsistency in Brady policies and Brady interpretations throughout the state at almost every level – in district attorney offices, in various law enforcement organizations, and in county counsel and city attorney offices.
Those in attendance received copies of various Brady polices in existence, including a recent policy enacted by Contra Costa County District Attorney Mark Peterson which requests officers to complete and sign a questionnaire concerning whether (1) they had been arrested or convicted for criminal conduct that resulted in a computerized record of arrest/conviction, and (2) whether they had any pending criminal cases or were currently on probation for any crime. This policy arose out of a case in which the District Attorney’s Office and Mike Rains from RLS were successful in reversing a superior court ruling which had originally required the District Attorney’s Office to run rap sheets on prospective police officer witnesses in criminal cases.
At the end of the day, when Mike talked about the need to be pragmatic concerningBrady, there was a discussion of abuses by district attorney offices and employers which have caused widespread suspicion if not outright fear of Brady discovery by law enforcement officers and officials everywhere. There was a discussion on how abuses can be avoided and on how Brady discovery is often ruled inadmissible at trial, in the hopes of alleviating some of the suspicion and fear by law enforcement relating to Bradydiscovery.
For those who attended Demystifying Brady v. Maryland, and for those who didn’t attend but read this account, we at RLS hope the message is clear: The obligation imposed upon district attorney’s offices to affirmatively provide defendants information which is exculpatory and which may impeach prosecution witnesses at the time of trial remains a solemn obligation. Yet it is incumbent upon prosecutors, law enforcement managers and their agencies to ensure that there are appropriate mechanisms in place to avoid unnecessary or unwarranted intrusions into police officer personnel files or details of their lives which have no bearing on issues relating to credibility. It is equally important for law enforcement officers and the leaders of their associations to recognize that the dangers of employment extinction from being placed on a “Brady list” are often overstated, if not entirely misplaced. With these thoughts in mind, Brady discovery relating to law enforcement officers can occur in an organized and systematic fashion which simultaneously minimizes the risk of an officer facing unfair and needless stigmatization as a result of placement on a “Brady list” or the possibility of unjustified employment discipline.