CLIENT ALERT MEMORANDUM
November 14, 2001
To: All Police Chiefs and Sheriffs
From: Martin J. Mayer
BRADY RIFT BETWEEN PROSECUTORS AND LAW ENFORCEMENT AGENCIESTHE CONFLICT
A significant impact has been caused by the United States Supreme Court decision of Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, upon law enforcement agencies and prosecutors offices. In Brady, the Court held that evidence favorable to the accused which was “specifically requested” by the defendant and withheld by the prosecution vio1ated the defendants constitutional due process rights to a fair trial. In 1976, the Supreme Court ruled, in United States v. Agurs, 427 U.S. 97, that “even if no request for Brady material had been made,” the prosecution might have a duty to disclose such evidence to the defendant.
In 1995 the matter became more significant when the Supreme Court stated, in Kyles v. Whitley, 514 U.S. 419, that the prosecution had the duty to affirmatively seek out such material, even if it is not in the prosecutors immediate possession but is possessed by anyone assisting in the prosecution of the case. The Court stated that the prosecutors “…responsibility remains regardless of any failure by the police to bring favorable evidence to the prosecutors attention.” The Court declared that, “the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the governments behalf in this case, including the police.” A substantial number of court decisions, including a recent decision by the California Court of Appeal, People v. Superior Court (Barrett) (2000) 80 Cal.App. 4th 1305, continue to impose upon prosecutors the constitutional duty to seek out such evidence from any member of the “prosecution team.” The “prosecution team” has been defined to include any person or entity utilized by the investigator and/or the prosecutor in the preparation of the case. The Barrett court stated that, “…a prosecutor has a duty to learn of favorable evidence known to…investigative agencies acting on the prosecutions behalf, including police agencies.” Barrett supra. It has been held that “Brady” material includes, among other things, evidence which could be used to attack the credibility of a material witness. One example of such evidence would be findings of misconduct based upon dishonesty, since such findings could be used to attack — whether successfully or not — the credibility of such a witness if his or her veracity is an element in the prosecutions case. In California, Penal Code sec. 832.7 creates confidentiality of peace officer personnel records and information contained therein. Additionally, Evidence Code sec. 1043-1045 (“Pitchess” motions) require that certain formal procedures be followed before such personnel information can be released from the officers file. Other code sections require that information regarding the discipline of a public sector employee be maintained for specified periods of time (e.g. G.C. 34090). Nonetheless, such records could still be subject to disclosure, pursuant to Brady v. Maryland, although state statutory protections must be adhered to before disclosure of a peace officers file could be made. It is this conflict – the prosecutors constitutional duty to seek out and disclose “Brady” material versus law enforcements statutory obligation to protect the confidentiality and privacy of officers personnel files — which appears to have caused a rift between some prosecutors and law enforcement agencies. The primary conflict surrounds the process to be followed for both parties to fulfil their obligations.THE PROSECUTOR’S OBLIGATION
There have been a significant number of cases, both California and United States Supreme Court decisions, as well as California Courts of Appeal decisions, which impose a duty upon the prosecutor to provide “Brady” material to a defendant, even if it is not requested.
As recently as 1999, in Strickler v. Greene, 527 U.S. 263, the Supreme Court reaffirmed that, “…the duty to disclose such evidence is applicable even though there has been no request by the accused (citation omitted), and the duty encompasses impeachment evidence as well as exculpatory evidence (citation omitted).” The California Court of Appeal, just last year, stated that the prosecutors constitutional obligation to seek out and disclose”Brady” material stands by itself.Barrett, supra. Even if a state has a statutory scheme of discovery, it does not and cannot supplant the federal constitutional right addressed under Brady – – that the defendant is entitled to a fair trial and the prosecution cannot withhold evidence, either intentionally or inadvertently, which could assist the defendant in obtaining that fair trial. Citing to the California Supreme Court decision, Izazaga v. Superior Court (1991) 54 Cal.3d 356, the Barrett court stated that, “(t)he prosecutor is obligated to disclose such evidence voluntarily, whether or not the defendant makes a request for discovery.” (Emphasis in original.) As stated above, there is no doubt that our state statute (P.C. 832.7), creating confidentiality of peace officer personnel files, must be acknowledged in order to accomplish that task. The question is whether the requirement that one utilize the “Pitchess motion” process (Evidence Code 1043 – 1045) in order to disclose such material, applies to prosecutors when the officer, whose files are at issue, is to testify as a material witness as a part of the Peoples case. This is the area of the law that remains in dispute and unsettled but requires resolution, for a variety of reasons.
PERSONAL LIABILITY FOR BRADY VIOLATION
It appears that a relatively new concern must be addressed as to whether or not any liability arises if there is a deliberate or intentional withholding of “Brady” material from the prosecutor by law enforcement. The law is abundantly clear that no civil liability lies with the prosecutor in the exercise of his or her discretion as to whether or not evidence is “Brady” material and whether it needs to be disclosed. This is true under both state law, as well as the federal court decisionImbler v. Pachtman (1976) 424 U.S. 409.
The next question which arises (and causes great concern) is what, if any, liability falls upon a law enforcement agency and/or its personnel if “Brady” material is deliberately withheld from the prosecutor by the agency or its officers. Approximately one year ago the Fourth Circuit U.S. Court of Appeal held that an individual peace officer may be liable under 42 U.S.C. §1983 for damages to a defendant who was denied a fair trial as a result of an officers failure to provide “Brady” material to the prosecutor. Jean v. Collins (2000) 221 F.3d 656. In the Jean case the court stated that “(t)he Supreme Court decisions establishing the Brady duty on the part of prosecutors do not address whether a police officer independently violates the Constitution by withholding from the prosecutor evidence acquired during the course of an investigation. (Citations) Recent cases…have pointed toward such a duty. This court has noted that, “[a] police officer who withholds exculpatory information from the prosecutor can be liable under…section 1983″…where ‘the officers failure to disclose the exculpatory information deprived the section 1983 plaintiffs of their right to a fair trial.’ ” The Jean court cites to approximately six other court of appeal decisions, from a variety of circuits throughout the United States, all of which have made similar types of holdings. If this reasoning is adopted by the Ninth Circuit U.S. Court of Appeal it would directly impact upon California law enforcement. Considering the history of the Ninth Circuit, and the fact that at least six other circuits have already adopted this approach, it would not be unlikely that we may see a new and very different impact precipitated by Brady. For those of us who dedicate our practice to representing law enforcement officials, this creates significant concern. Now, for the first time, a chief of police, sheriff or other official who fails to inform the prosecutor of material which is subsequently determined to be Brady material, potentially faces personal liability for money damages. As already stated, this has not yet been ruled upon by the Ninth Circuit and, therefore, is not yet binding in the State of California. It would be naive, however, and perhaps even malpractice on our part, if we did not bring this to your attention for your consideration. Historically, we have always urged that law enforcement executives meet with their elected district attorney to discuss with him or her all the relevant issues arising out ofBrady v. Maryland and obtain direction from the D.A. regarding the Brady process to be followed. Although the responsibility rests upon the shoulders of the prosecutor, it appears now that there is potential liability which may fall on the shoulders of individual members of law enforcement. If a court ultimately determines that Brady material was deliberately withheld, the prosecutors have absolute immunity from civil liability – but law enforcement personnel do not. This is a problem which must be solved in order for the key elements in the criminal justice system, law enforcement and prosecutors, to be able to function in the manner mandated by law.
POSSIBLE SOLUTION
In 1987, the U.S. Supreme Court addressed the issue of such a conflict between the constitutional mandate on the prosecutor to disclose information and a state right of privacy in the case of Pennsylvania v. Ritchie, 480 U.S. 39. In Ritchie, a minors right of privacy regarding mental health treatment, following her alleged sexual molestation by her father, conflicted with the prosecutors obligation under Brady to provide exculpatory evidence to the defendant which might have arisen during the treatment (e.g. if she told the therapist it was not her father who molested her). The Supreme Court ruled that the defendant was entitled to have the file reviewed by the trial court to determine whether it contained information that probably would have changed the outcome of the trial. Defense counsel was not entitled to personally examine the confidential material until, and unless, the court determined it was “Brady” material.
This office has contended for several years that, although we believe the prosecutor can access information in an officers personnel file without filing a “Pitchess” motion, the prosecutor cannotdisclose that information to any third person, including the defendant, without first having the court conduct an in camera review pursuant to Evidence Code 1043 – that procedure would follow the logic of the U.S. Supreme Courts decision in Ritchie, supra. Remember, none of these obligations call for law enforcement to provide any material to the defendant. The issue is whether law enforcement should provide such material to the prosecutor – the person presenting a case brought forth by law enforcement.
“BRADY” LETTERS .
We have also been informed of late, of a practice by prosecutors of sending letters to the heads of law enforcement agencies stating that, in their opinion, a particular officer has a problem which will require the prosecutor to disclose the problem in all future cases involving that officer pursuant to Brady v. Maryland. Some of these letters are based on the D.A.’s belief that an officer has engaged in a relevant form of misconduct, without any formal finding having been made. Such letters could destroy an officers ability to function since it could permanently damage his or her credibility. In many of these cases the letters are written without any prior communication with the chief or sheriff .
It would seem to us that no harm is created if, prior to sending such a letter, the prosecutor met with the chief or sheriff to discuss the matter. It is possible that the prosecutors decision could be altered based upon that discussion. In any event, the opportunity to discuss the problem seems to be reasonable and appropriate since so much is at stake.
CONCLUSION
This issue impacts upon many within the criminal justice system: the arresting officer, the head of the law enforcement agency, the municipality and/or county government, and the accused as well. It would be highly inappropriate to even presume that there is only one approach which can be utilized to solve this problem. Because of that, we urge, as we always do, that you consult with the departments legal advisor to determine what, if any, obligations and responsibilities fall upon your organization, irrespective of the burden imposed upon the prosecutor. And then, as stated above, meet with your elected district attorney and arrive at a process which will protect the statutory as well as constitutional rights of all of those set forth above.
As always, before undertaking any legal action we urge that you confer with your department’s legal advisor to receive advice and guidance.
As always we urge that before you take any legal action you confer with your designated legal advisor. If you wish to discuss the comments set forth above, please feel free to contact Martin Mayer at (714) 446-1400 or MJM@Jones-Mayer.com.
[The Law Offices of Jones & Mayer located in Fullerton, California focus its practice on representing the interests of public entities as its City Attorney, in labor negotiations, in defending tort litigation and civil rights litigation. Martin Mayer focuses his practice in the area of representing cities, counties and the State on matters arising out of their respective law enforcement agencies.]
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