Bill to ease access to police misconduct records clears hurdle

A bill aimed at increasing the transparency of peace officer personnel files passed the Assembly Appropriations Committee Thursday. SB 1421 must now go to the Assembly.

"Approps moving the bill gives California the opportunity to lift the secrecy around serious police misconduct," said Sen. Nancy Skinner, D-Berkeley, the author.

Proponents of SB 1421 believe the confidentiality around police personnel records as they pertain to misconduct has led to constitutional violations in criminal and civil cases. Defendants, they say, are denied a fair trial because they learn about evidence that could lead judges and jurors to doubt an officer's truthfulness too late or never at all.

Currently, some information about an officer's personnel file is available during discovery through Pitchess motions. But Peter Bibring, director of police practices for the American Civil Liberties Union of Southern California, said the Pitchess process is broken.

"The Pitchess process too often fails to provide defendants with exculpatory information they are constitutionally entitled to," Bibring said. "That's in part because it's cumbersome and in part because it provides too little information."

Criminal defense attorneys often get as little as a phone number of a witness who can describe the incident in which the officer was involved, Bibring said.

Law enforcement groups and police unions have been satisfied with the bill's narrow focus on specific kinds of serious misconduct, namely sexual assault and dishonest handling of evidence or testimony. Brian Marvel, president of the Peace Officers Research Association of California, the state's largest law enforcement labor organization, said police departments are not interested in retaining officers involved in those kinds of activities. The opposition comes from making sure due process is allotted to both sides, he explained.

"One of the things we'd like to see in the bill is how discipline investigations are done," Marvel said. "When an officer is accused of something that story goes above the fold in the newspaper and then after two weeks when that officer is exonerated, that's in the garden section."

"Before we ruin someone's career with a false allegation, we want to make sure there's a thorough investigation," he added.

The issue of confidentiality in police records is playing out at the state's highest court as well, albeit with a different twist. The state Supreme Court is reviewing the appellate court's decision that California statutes governing the discovery of peace officer personnel records in criminal cases violate due process. Assoc. for Los Angeles Deputy Sheriffs v. Los Angeles County Sheriff's Dept., S243855

The case began when an Los Angeles County sheriff wanted to reveal the names of 300 deputy sheriffs on a Brady list to prosecutors. Brady disclosure includes exculpatory or impeaching information and evidence as it may call into question the credibility of a witnesses in criminal proceedings.

Pitchess provides an avenue for criminal defense attorneys to petition for deeper information about police officers, supporters of the petitioner said. Attorneys should not rely soley on a Brady list, they said.

"Law enforcement and prosecutors usually don't think the defense should take a police officer's discipline and build the defense around that," said Robert Rabe, an attorney at Stone Busailah LLP who represented a number of law enforcement agencies on an amicus brief. "Any flaws in the Pitchess system, it's worse in the Brady list because there's no judicial oversight."