Brady v. Pitchess: A constitutional crisis 40 years in the making

The road to hell is paved with good intentions. The Los Angeles County Sheriff's Department was just trying to do the right thing. It joined other California law enforcement agencies in compiling a "Brady list" -- a list of officers with founded allegations of misconduct in their personnel files. In October 2016, the LASD notified more than 300 deputies, all of whom had committed misdeeds ranging from accepting bribes to tampering with evidence, that they had been added to the Brady list. The LASD was supposed to provide the list to prosecuting agencies, which in turn would notify affected defendants.

The LASD's commitment to increased transparency was a welcome shift from the shadowy practices of its former leadership. Just months earlier, in February 2016, former Sheriff Leroy Baca had pled guilty to a felony for lying during a federal investigation into civil rights violations occurring in county jails. (Baca later withdrew his plea and was subsequently convicted on all counts by a jury.) Two months later, former Undersheriff Paul Tanaka was convicted by a jury for obstructing the same investigation. On the heels of former LASD figureheads being caught trying to cover up misconduct, the announcement of a Brady list was a signal that the new leadership was different -- the new LASD had nothing to hide.

But instead of increasing transparency, the LASD's Brady list has been used to erect an unconstitutional barrier between prosecutors and law enforcement agencies -- through no fault of the LASD. In ALADS v. Superior Court, a California court of appeal held that the LASD would violate California's officer confidentiality statutes, commonly known as the Pitchess statutes, if it gave the Brady list to prosecutors without a court order. According to ALADS, without a successful Pitchess motion, state law forbids police agencies from revealing even the names of disciplined officers to prosecutors. The result is that the LASD -- an arm of the government -- currently has actual knowledge of Brady material in the personnel files of 300+ deputies and must, practically speaking, suppress it.

ALADS forces prosecutors and law enforcement agencies to risk committing Brady violations on a daily basis. According to Brady v. Maryland and its progeny, the U.S. Constitution requires prosecutors to affirmatively turn over evidence favorable to the defense, including impeachment evidence, even if the defense does not ask for it. It is no excuse that the prosecutor does not know the evidence exists -- any prosecutor who fails to turn over exculpatory evidence known to anyone on the prosecution team, including the police, has committed a Brady violation, regardless of good or bad faith. Kyles v. Whitley, 514 U.S. 419, 437-48 (1995).

Meanwhile, California's Pitchess statutes require parties, even prosecutors, to show good cause to access confidential information in an officer's personnel file. As the dissent in ALADS correctly noted, it is difficult for prosecutors to meet this standard because they must show the evidence sought is relevant to the defense. But if a prosecutor files an unsuccessful Pitchess motion, and an officer's material misconduct remains undisclosed, the prosecution has committed a Brady violation whether it intended to or not.

For defendants facing criminal charges that hinge on the credibility of officers, the problem is not academic. Every day, prosecutors bring criminal cases based on the word of officers. According to an investigation conducted by the Los Angeles Times last year, 24 LASD deputies on an internal Brady list have testified in more than 4,400 cases since the year 2000. Defendants have a constitutional right to know whether the uniformed officer accusing them from the witness stand has a history of lying or other material misconduct.

The irony of the Pitchess statutes is that they were named after a case that did nothing to restrict a prosecutor's access to officer personnel files. Pitchess v. Superior Court created an independent right of discovery for defendants to obtain impeachment evidence directly from law enforcement agencies. Courts were instructed to balance a defendant's right to a fair trial with officer privacy interests in deciding what evidence from a personnel file to disclose. The case did nothing to curtail the duty or ability of prosecutors to look through an officer's personnel file for Brady evidence.

In 1978, the California Legislature passed statutes that were supposed to codify the Pitchess decision. But over the course of 40 years, the Pitchess statutes were interpreted more and more in a manner that infringed upon the constitutional mandate of Brady. Defendants were required to reveal their theory of defense to win a Pitchess motion. Requests made by media about police misconduct led to decisions holding that even the names of disciplined officers were confidential. And the Pitchess statutes were held to apply equally to prosecutors. ALADS is the latest in a series of cases that have slowly eroded away the ability of prosecutors to investigate the credibility of members of their own prosecution team.

The California Supreme Court will hear oral arguments in the ALADS on June 5. The court must fix this constitutional crisis. The Pitchess statutes must allow a prosecutor to affirmatively review an officer's personnel file for Brady material. At minimum, the statutes must allow police agencies to provide Brady lists to prosecutors. If such an interpretation is impossible, the supremacy clause requires the court to strike down the Pitchess statutes as unconstitutional.

In the age of viral videos, public support for law enforcement transparency is at an all-time high. Recognizing this, the Legislature recently modified the Pitchess statutes to remove the "confidentiality" designation from certain categories of egregious officer misconduct -- but the changes do not cover all behavior that should be disclosed under Brady, and it is unclear whether the changes are retroactive. Even so, these changes reflect the Legislature's view that officers' privacy interests are not paramount to all others and support the reversal of ALADS.

ALADS threatens the integrity and finality of California criminal proceedings. The decision unfairly undermines the public's trust in well-meaning prosecutors and officers who just want to do their jobs. Law enforcement agencies want to share with prosecutors their Brady lists, if only the courts would let them. The California Supreme Court should hold that the Pitchess statutes allow -- and the U.S. Constitution requires -- them to do so.