Justices appear divided on proactive ‘Brady’ list disclosures

An information sharing practice the state Supreme Court once referred to as laudable is now squarely before the justices, this time for a decision on its legality.

A lively and perhaps divided bench challenged three attorneys Wednesday on how law enforcement agencies and prosecutors can fulfill their constitutional mandate to share favorable evidence with criminal defendants while preserving the privacy rights of officers, from whose personnel files such evidence is sometimes culled.

The court must address whether and how two enduring, intersecting legal regimes may continue to coexist. The first flows from Brady v. Maryland, 373 U.S. 83 (1963), a 1963 U.S. Supreme Court decision obligating prosecutors to provide defendants with all exculpatory evidence the prosecution possesses. That includes evidence a defendant could use to discredit law enforcement officers involved in a case.

To ensure compliance with Brady, the Los Angeles County Sheriff's Department compiled a list of deputies whose records included misconduct that could constitute such impeachment evidence.

Specifically, the list comprised deputies with "sustained allegations of misconduct allegedly involving moral turpitude or other bad acts." The department sought to proactively share this list with the Los Angeles County district attorney's office to help prosecutors elicit potential Brady material in their cases.

But a touchstone of California criminal jurisprudence emphasizes the confidentiality of law enforcement officer personnel records, and sharply limits third party access to information they contain. Pitchess v. Superior Court, 11 Cal.3d 531 (Cal. 1974)

Subsequent statutes codified that ruling, and created the now-familiar procedure whereby criminal defendants file Pitchess motions in court to force agencies to submit their officers' files for in camera review.

On Wednesday, Judith E. Posner, an attorney with Benedon & Serlin LLP, representing the Association for Los Angeles Deputy Sheriffs, argued the Pitchess statutes clearly require a granted motion, and resulting court order, to precede any personnel record disclosure, even if proactive list-sharing is more efficient.

"What the Legislature has done here is say, 'It might be more efficient to disclose this information, but peace officers have privacy rights, so we're going to strike a balance between just allowing this information out into the world and having a party who wants this information go through a court process to get it," Posner argued.

Several other California law enforcement agencies have compiled and shared their own Brady lists, including the San Francisco Police Department. In 2015, the state high court commended that agency as having "laudably established procedures to streamline the Pitchess/Brady process." People v. Superior Court (Johnson), 61 Cal.4th 696 (Cal. 2015).

The praise, though, was only dicta -- a passing comment in a case in which the legality of the practice was not addressed. And the court's central holding in Johnson was favorable to officer confidentiality; it required prosecutors, the same as defendants, to file Pitchess motions before viewing full misconduct details contained in personnel records.

The proposed Sheriff's Department's practice is less invasive, involving only the disclosure of deputies' names. Further detail would still require a court order. Deputy Attorney General Aimee Feinberg, arguing in support of the policy, said it's a reasonable and necessary tool to ensure exculpatory evidence is discovered.

"The prosecution has been assigned the [Brady] duty, along with law enforcement agencies, to see to it that the duty is discharged, and the U.S. Supreme Court has directed prosecutors time and again to err on the side of caution," Feinberg argued. "We ask the court to not deny the prosecutors the ability for basic information they need to discharge that duty."

Justice Carol Corrigan, though, queried why the existing process was insufficient.

"Under Pitchess, we have a system," Corrigan said. "The prosecution or defense can go to the court and say, 'These officers are involved; we want to make sure that there is no impeachment information available, so give us an in camera review,"

But Feinberg stressed that guarding Brady lists from prosecutors could be counterproductive, as it would mean more Pitchess motions and potentially less privacy.

"It would necessitate the filing of Pitchess motions in every case in which an officer's ability is at issue, even if there is no indication that there is a concern with a particular officer," Feinberg said. "That will lead to a greater number of officer personnel records being exposed."

Justice Goodwin Liu added that an opaque information barrier between law enforcement and prosecutors conflicts with the law's conception of those entities as effectively unitary.

"There is case law essentially imputing knowledge of the police department to the prosecution, and for very good reason," Liu said. "The whole point of Brady is that prosecutors can't simply take an ostrich-like approach to this very important duty."

"Convictions will be reversed," Liu added. "Valid convictions will be reversed."

Chief Justice Tani Cantil-Sakauye, a former prosecutor who voiced the most skepticism of the list-sharing policy, emphasized that a prosecutor's duty under Brady is not unlimited.

"We've never said that the DA has to do the work of the defense," Cantil-Sakauye said. "Pitchess has been around for 30 years; what makes us think people don't know how to use it."

Cantil-Sakauye also repeatedly pressed a compromise approach, whereby law enforcement agencies could share names with courts, rather than attorneys. She also asked whether the state Legislature, which crafted the original Pitchess process, ought to be the one to alter it.

"I wonder about the wisdom of us creating a judicial exception to this otherwise carefully-struck balance," she said.

Geoffrey S. Sheldon, a partner with Liebert Cassidy Whitmore, who represented the Sheriff's Department, argued the court could take the right approach to ensure the constitutional right at issue.

"We're talking about an individual's right to a fair trial," Sheldon said. "When we have to weigh rights, I think officer privacy needs to give way in very limited situations like this."