CLIENT ALERT MEMORANDUM
March 25, 2002
To: All Police Chiefs and Sheriffs
From: Martin J. Mayer
Approximately two weeks ago, we sent an e-mail to our clients in response to a question presented to us: is negative information contained in a background investigation, “Brady” material? We responded that it could be and, if it was, the prosecutor would need to know about it, as well as about other “Brady” material in the possession of any member of the “prosecution team.” As a result of our sharing that information, another police legal advisor, Bruce Praet (a man I consider a friend and colleague) sent an e-mail to “All Police Chiefs and Sheriffs” challenging our bringing that information to your attention. His e-mail was entitled, “Please STOP with the Brady stuff!!”
I immediately called Mr. Praet and asked him if he disagreed with the statement that negative background information could be “Brady” material? He informed me that he did not disagree, but that he took exception with my statement that “the prosecutor must be informed.” He said that he believes the prosecutor should not be informed by the department unless the prosecutor files a motion pursuant to Evidence Code section 1043 (a “Pitchess” motion) – that is the ONLY point with which he took exception. It is most important that you all be made aware of that fact, since his memo appears to go far beyond that.
As to that issue, we respectfully disagree and we both recognized that we can “agree to disagree.” We believe the prosecutor can access such information without a “Pitchess” motion, but CANNOT disclose it to the defendant without filing such a motion. As we have always stated, in that way a court will review the material, in camera, and determine if the information is “Brady” material. If the court so rules, we always request a Protective Order, preventing its use in any other case. Apparently the one area of disagreement between Mr. Praet and myself is over procedure – how does a prosecutor access such personnel information? We rely upon case law and an official, published, Opinion from the California Attorney General for our conclusion.
In 1983, the Attorney General issued an Opinion, 66 Ops. Atty. Gen. 128, where he stated that Penal Code section 832.7 creates an exception for the D.A. to the requirement that one utilize a “Pitchess” motion to secure access to peace officer personnel information. “…(A)s long as the investigation of (the officer’s) conduct is part of the (prosecutor’s) duties…a district attorney need not follow the provisions of Evidence Code Section 1043 in obtaining access to the personnel records in question.” A prosecutor is obligated to evaluate the credibility and reliability of all witnesses, including peace officers and, therefore, access to such information is “part of” a prosecutor’s duties. See Roe v. City and County of San Francisco (9th Cir. 1997) 109 F.3d 578.
Furthermore, P.C. 832.7 prohibits “disclosure” of information from the files of peace officers, absent the use of a “Pitchess” motion. However, in Michael v. Gates, (1995) 38 Cal. App. 4th 737, the Court of Appeal stated that to “…require both the prosecuting attorney and the police agency’s attorney to make a motion and obtain court permission prior to reviewing the records sought … would be to construct an absurd result.” The Court also held that review of such material by an attorney representing the department is not “disclosure” as referenced in the statute, nor did it constitute “discovery” of the file.
Case law has held that a law enforcement agency is part of the “prosecution team” and that the prosecutor is the attorney for that team. Giglio v. United States, 405 U.S. 150 (1972); In re Brown, 17 Cal. 4th 873 (1998).
The case cited by Mr. Praet, Garden Grove P.D. v. Superior Court (Reimann) 89 Cal App 4th 430 (2002), is one with which we are in total agreement, but has no relevance to the question of whether a prosecutor needs to use a “Pitchess” motion. The Court of Appeal reinforced that a defendant seeking information from an officer’s personnel file must utilize the “Pitchess” process. “We cannot allow (the defendant) Reimann to make an end run on the Pitchess process by requesting the officers’ personnel records under the guise of a Penal Code section 1054.1 and Brady discovery motion.”
The prosecutor, on the other hand, has a constitutional obligation, pursuant to Brady and its progeny, to notify a criminal defendant of information which is of assistance to the defendant in his/her defense. “In order to comply with Brady, therefore, ‘the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in this case, including the police.” Strickler v. Greene, 527 U.S. 263 (1999). “The prosecution’s affirmative duty to disclose evidence favorable to a defendant…is of course most prominently associated with this Court’s decision in Brady v. Maryland….” Kyles v. Whitley, 514 U.S. 419 (1995).
Once again, the only difference of opinion between Mr. Praet and myself, is how the prosecutor accesses that potential evidence if it’s in the personnel file of a peace officer.
We still urge all of you to secure direction and guidance from your elected District Attorney since the Brady duty is imposed on the prosecutor and cannot be delegated: the California Supreme Court has held that, “(r)esponsibility for Brady compliance lies exclusively with the prosecution…the duty is nondelegable at least to the extent the prosecution remains responsible for any lapse in compliance. (The prosecution) must be charged with any negligence on the part of other agencies acting in its behalf.” In re Brown, supra.
We never have a problem with another attorney, especially one we respect, disagreeing with a position which we have articulated, but we are unsure why this was done in such a vituperative manner. Because of that, however, we felt it necessary to reply. We are not, contrary to the memo, trying “to create Brady issues…,” nor to “…create a duty where there has never been one before.” We believe we have an obligation to our clients to bring information, even unpleasant information, to your attention. If any of our colleagues choose to not do that, that is their choice. Whether or not we bring such information to your attention, rest assured, the “other side” is well aware of it. New cases and issues continue to arise and we commit to continue to bring them to your attention.
As always, we urge that you take no action in the legal arena without first conferring with your department’s legal advisor. As to the material discussed above, please feel free to call Martin J. Mayer at (714) 446-1400 or via E-mail at 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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