By Maura Dolan
Los Angeles Times
SAN FRANCISCO — The California Supreme Court decided unanimously Monday that the Los Angeles County Sheriff’s Department and other law enforcement agencies may alert prosecutors that a deputy who might testify in a criminal case has a history of misconduct.
The decision was narrow, holding only that state confidentiality laws permit law enforcement agencies to alert prosecutors when an officer who is a potential witness has something in his or her background that might affect the outcome of the case.
Legal analysts said the ruling was likely to benefit the defense and possibly change the outcome of some cases but would not assure that relevant information about errant officers is disclosed.
The case before the court stemmed from a lawsuit filed by the L.A. deputies union to prevent former Sheriff Jim McDonnell from turning over to the district attorney about 300 names of deputies with a history of misconduct.
A divided Los Angeles-based state Court of Appeal ruled in 2017 that the list must be kept secret, even in pending criminal cases in which deputies with past misconduct were expected to testify.
In allowing police agencies to disclose the names of errant officers to prosecutors, the state high court tried to “harmonize” state laws that protect police personnel records with a 1963 U.S. Supreme Court case, Brady vs. Maryland, which said suppression of evidence favorable to the defense violated due process.
Despite strong wording in the ruling reminding police and prosecutors of their duties to disclose, Monday’s decision did not require law enforcement agencies to keep lists of problem officers so they could be readily identified to prosecutors.
Mark Harvis, an appellate lawyer in the L.A. public defender’s office, said some law enforcement agencies would probably continue to withhold relevant information.
“They have to inform the prosecutor of actual Brady stuff in a pending case, but where is the teeth in that if they don’t?” said Harvis, who was not speaking for his office. “Nobody knows about it.”
Even when prosecutors are alerted to problem officers, trial judges with broad discretion ultimately will decide what information in an officer’s personnel files gets disclosed, said Jason Whitehead, a Cal State Long Beach political science professor who has written about the judiciary and the justice system.
“Just like in the federal judiciary, where you have conservative and liberal circuits, the same is true in California,” he said.
The decision overturned the Court of Appeal ruling that barred the sheriff from giving prosecutors the names of deputies who had committed misconduct, including lying, taking bribes, tampering with evidence, using unreasonable force or engaging in domestic violence.
By law, prosecutors are required to disclose to defendants exculpatory evidence, including information that could diminish the credibility of police officers who worked on a case.
But California law has long protected the confidentiality of police personnel records, and law enforcement unions have sought to keep those records private.
Monday’s decision said that merely disclosing to prosecutors that a deputy was on a list of problem officers did not violate California law protecting personnel records.
Indeed, the court said, such an alert might be needed for prosecutors to fulfill their constitutional duty to give the defense evidence that might cast doubt on a defendant’s guilt, reduce a potential sentence or diminish the credibility of prosecution witnesses.
Once alerted that a deputy has a history of misconduct, prosecutors can then file a motion to obtain the deputy’s records. A judge would then review the officer’s records in chambers and determine if anything must be disclosed. If the information is potentially exculpatory, the prosecution must disclose it to the defense.
Interpreting state law to prevent alerts to prosecutors “would pose a substantial threat to Brady compliance,” Chief Justice Tani Cantil-Sakauye wrote for the court.
“There can be no serious doubt that confidential personnel records may contain Brady material,” she said. “An officer may provide important testimony in a criminal prosecution. Confidential personnel records may cast doubt on that officer’s veracity. Such records can constitute material impeachment evidence.”
Prosecutors have a constitutional duty to learn of any evidence favorable to the defense and disclose it, the court noted. But to succeed in a motion to obtain an officer’s personnel files, the prosecution or the defense must show there is good reason to believe the files contain potentially exculpatory evidence. Brady alerts help provide that reason.
Laws to protect police personnel files were largely intended to “shield information from the public’s eyes — not from the eyes of government officials who may need that information to satisfy a constitutional obligation,” the court said.
The decision noted that the L.A. deputies union, which fought disclosure, argued that Brady applied only to prosecutors, not police — a view the court called “distressing and wrong.”
“Law enforcement personnel are required to share Brady material with the prosecution,” wrote Cantil-Sakauye, a former prosecutor who is married to a retired police officer. “The harder it is for prosecutors to access that material, the greater the need for deputies to volunteer it.”
Police departments in at least a dozen counties, including San Francisco, Sacramento and Ventura, have had a regular practice of sending prosecutors the names of so-called Brady list officers.
The L.A. County Sheriff’s Department said it would comply with the decision. In a statement, the department said it would provide all information required to the district attorney’s office on a case-by-case basis.
“Because the Sheriff’s Department understands the needs of the community, we plan on sitting down with the District Attorney to work out an effective, efficient, transparent and open process for turning over the information,” the statement said.
An attorney for the deputies union did not respond to a request for comment.
Geoffrey S. Sheldon, who represented Los Angeles County in the case, said he believed that most law enforcement agencies in the state kept Brady lists and, until the 2017 Court of Appeal ruling, alerted prosecutors when an officer on the list was going to testify.
Monday’s “decision talks about insiders and outsiders,” Sheldon said. “We are talking about limited disclosure between two members of the prosecution team, and it is for a very noble purpose, which is Brady compliance.”
Although the court did not say whether prosecutors could share alerts with defense lawyers, Sheldon said he believed that would be possible. The defense lawyer would then file a motion for an officer’s records. A judge would review them privately, disclosing only what was pertinent to the case.
If an officer’s records showed dishonesty in the past, that information would have to be disclosed to the defense, Sheldon said.
But if an officer was placed on a Brady list for racial profiling, and the case at hand had nothing to do with race, the information probably would not be disclosed, he said.
Whitehead said the scope of Monday’s ruling will likely be clarified in future court cases. He said judges in more liberal counties will likely err on the side of disclosure whereas judges in other counties may be highly protective of police privacy.
“This is certainly a beginning” for transparency, he said. “We will see what the lower courts do with it.”
He noted there has been a national push for more police transparency, which in California led to the passage of two new laws last year that dramatically altered public access to police records.
Senate Bill 1421, which went into effect Jan. 1, allows the public to view investigations of officer shootings and other major uses of force, in addition to confirmed cases of sexual assault and lying while on duty.
But the law does not apply to a broader range of misconduct that can put an officer on a Brady list, including domestic abuse, sexual harassment, racial discrimination and bribery.
Another bill signed into law last year requires law enforcement departments statewide to make public body-worn camera video and audio recordings of officer shootings and serious uses of force within 45 days, unless doing so would compromise an ongoing investigation.
A Times investigation found the Sheriff’s Department kept a secret list of problem deputies for years but that it was never turned over to prosecutors.
Atty. Gen. Xavier Becerra called Monday’s decision “a positive step forward in maintaining a fair and transparent criminal justice system for California.”
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