Pitches Procedures Are Too Restrictive to Meet Brady Rule

By Professor Sean Kennedy
Kaplan & Feldman executive director of the Center for Juvenile Law and Policy

This op-ed originally appeared in the Los Angeles Daily Journal.

There is an ongoing court battle between Los Angeles County Sheriff Jim McDonnell and the Association of Los Angeles Deputy Sheriffs (ALADS), the union that represents line officers, about what to do with findings of misconduct in a police personnel file. The case, which will significantly impact criminal justice in Los Angeles, is set for argument before the California Court of Appeal on May 1.

The dispute relates to how to implement the landmark 1963 case Brady v. Maryland, in which the U. S. Supreme Court held that prosecutors violate due process if they fail to disclose exculpatory evidence to the defense. “Exculpatory” includes information that impeaches the credibility of prosecution witnesses, including witnesses who are sworn law enforcement officers. Later, the court in Kyles v. Whitley held that because the police are part of the “prosecution team,” police suppression of exculpatory evidence also violates Brady, even if the prosecutor was unaware of the evidence.

Sheriff McDonnell compiled a list of 300 deputy sheriffs whose personnel files reflect discipline for serious misconduct, such as accepting bribes, tampering with evidence, lying, falsifying records or obstructing an investigation. He tried to give this “Brady list” to District Attorney Jackie Lacey so that prosecutors who relied on the disciplined officers to make their cases would be aware of the impeachment evidence and disclose the names of the officers to the defense.

Citing police personnel record confidentiality, ALADS moved to enjoin McDonnell from providing the Brady list to Lacey. ALADS argued that statutes protecting the confidentiality of police personnel records — commonly referred to as “Pitchess procedures” — prohibit prosecutors from receiving such records even if they constitute Brady materials. Deputy District Attorney Jason Lustig, the deputy in charge of the Discovery Compliance Unit, submitted a declaration that appears to endorse deliberate ignorance of misconduct in police personnel files. He declared that the “policy and practice” of the district attorney’s office is for prosecutors to refrain from seeking Brady material from police personnel files and, even more startling, that his unit “actively declines to accept information from a police officer personnel file if the information is offered by a law enforcement agency without the express permission of the involved officer.” This approach cedes control over Brady disclosure from the prosecutor to the disciplined officer. Lacey later distanced herself from the Lustig declaration, but she hasn’t commented on ALADS’s extremely limited view of Brady.

The appellate court should squarely reject any attempt by prosecutors to escape Brady disclosure through deliberate ignorance of misconduct in a police personnel file — even if they defend that ignorance as somehow being required by state law. Kyles already held that a prosecutor’s ignorance of police misconduct is not an excuse. A prosecutor is a minister of justice who seeks the truth while complying with all constitutional requirements. Brady requires disclosure of exculpatory evidence precisely because it advances the search for the truth at trial. The infamous Rampart scandal demonstrates the importance of disclosing police misconduct to a fair trial. Incentivizing prosecutors to become ignorant of exculpatory evidence in a police personnel file is a recipe for disaster.

The appellate court should also clarify how a prosecutor’s Brady obligation impacts the statutory confidentiality of police personnel files: When in conflict, the federal constitutional duty supersedes. Federal supremacy is particularly important here because Pitchess procedures are too restrictive to meet the Brady rule. For example, the Pitchess statute bars any discovery of police misconduct that is more than five years old; Brady has no time limits. Elevating protection of police personnel record confidentiality over and above an accused’s constitutional right to notice of exculpatory evidence betrays misguided priorities. The prosecution’s goal should always be first and foremost to render a fair trial.

ALADS frames the issue as balancing competing, equally important interests during routine third-party discovery. But the stakes are much higher than that for the accused, who may not be able to mount a defense without the impeachment evidence in the personnel file. Studies have shown that Brady violations are a leading cause of wrongful convictions. In a 2013 9th U.S. Circuit Court of Appeals opinion, then Chief Judge Alex Kozinski famously remarked: “There is an epidemic of Brady violations in the land.” Many of the recent exonerations in Los Angeles involved trials tainted by Brady violations.

As a public defender, I witnessed firsthand the human toll Brady violations took on a client: Thomas Goldstein, a Vietnam veteran from Long Beach, was imprisoned for 24 years for a murder he didn’t commit. The federal court granted habeas relief because the police had suppressed exculpatory evidence. After his exoneration, Goldstein received an $8 million settlement, but no amount of money could heal his pain or restore the years wasted in prison, and he eventually moved out of state to escape the painful memories of egregious police misconduct and wrongful conviction. Injustices such as this will continue to occur so long as California courts continue to prioritize keeping exculpatory information in police personnel files secret above a defendant’s constitutional right to notice of exculpatory evidence and a fair trial.