State high court reverses ruling in 'Brady list' case

In a reversal of a Court of Appeal decision that restores the status quo, the state Supreme Court ruled Monday law enforcement agencies can share with prosecutors 'Brady lists' of officers or deputies who might have information in their personnel files that could impeach their testimony.

Some agencies compile such lists identifying officers who have potentially exculpatory or impeachment information in their personnel files, a practice the state Supreme Court described as "laudable" in a 2015 case. Those names can be disclosed by prosecutors to the defense under Brady v. Maryland, 373 U.S. 83 (1963).

But the Association for Los Angeles Deputy Sheriffs sued the county sheriff's department, arguing such disclosures violated procedures aimed at protecting information in their personnel files. Pitchess v. Superior Court, 11 Cal.3d 531 (Cal. 1974).

California Chief Justice Tani Cantil-Sakauye, writing for a unanimous court, acknowledged in her opinion the "tension" between Brady and Pitchess obligations concerning Brady lists of officers, which not all departments in California maintain.

"But when a department seeks to transmit a Brady alert to prosecutors, allowing the department to do so mitigates the risk of a constitutional violation," Cantil-Sakauye wrote. Association for Los Angeles Deputy Sheriffs v. Superior Court, 2019 DJDAR 8165 (Cal., filed Aug. 18, 2017).

The high court's narrowly-tailored ruling overturns a 2nd District Court of Appeal decision, which concluded law enforcement agencies were barred from disclosing the name of any individual deputy to anyone outside the department, "even if the deputy is a witness in a pending criminal prosecution," unless a judge grants a Pitchess motion.

The result of Monday's ruling is restoration of the law before the appellate court ruling, said Geoffrey S. Sheldon, a partner with Liebert Cassidy Whitmore who represents the sheriff's department and argued the case before the state Supreme Court.

"They just restored things to the way they were," Sheldon said. "The law enforcement agency is now free to make a Brady alert."

The deputies' association said in a statement Monday afternoon, "Despite today's California Supreme Court decision, which allows for limited disclosure of information on a Brady List, [the deputies' association] still stands on the fact the Brady List is a direct product of a flawed disciplinary process.

"Nevertheless, we emphasize that the court's decision that Brady alerts are permissible is limited to pending criminal prosecutions and does not allow the department's wholesale release to the prosecution of its Brady List, as it originally set out to do," the statement added, concluding the association plans to meet with the department to develop a policy to comply with the ruling.

Judith E. Posner, an attorney with Benedon & Serlin LLP in Woodland Hills who represents the deputies' union, could not be reached for comment Monday.

In June, she argued the Pitchess decision requires a court order before any personnel records are disclosed even if list-sharing is more efficient.

Several other law enforcement agencies, including the San Francisco Police Department, have created similar Brady lists.

The California District Attorneys Association, which filed an amicus brief siding with the Los Angeles County Sheriff's Department, applauded the ruling.

Mark L. Zahner, CEO of the prosecutors' group, said it makes sense for law enforcement agencies to compile lists of officers whose identities might need to be disclosed to the defense because it would otherwise be very time-consuming.

"These Brady lists exist for good reason and are constitutionally permissible," he said. "It does not violate Pitchess for law enforcement agencies to share confidential information with the prosecutor, so long as the information is material."

The recent passage of SB 1421 adds to the list of information excluded from confidentiality. That includes officers who discharged a firearm, used force that resulted in death or serious injury, and a law enforcement agency finding of dishonesty, perjury, false statements, false reports, and the destruction, falsifying and concealing of evidence, according to the opinion.