PALMER'S PITCHESS UPDATE

By: Greg P. Palmer

Announcement
This fall CPOA will again sponsor my class on how to handle a Pitchess Motion in court. Most classes are being set in October, 2000, at locations throughout the state. Flyers announcing the particular dates and locations will be available soon through CPOA.
Because of the overwhelming response last spring to this class, CPOA has added an hour to the presentation which will allow for more questions and answers as well as the preparation of a practice Opposition to a Pitchess Motion. Please alert those in your department who handle Pitchess Motions. Call CPOA for details (916) 263-0541.

ROUTINE DESTRUCTION OF POLICE PERSONNEL FILES IN GOOD FAITH DOES NOT VIOLATE THE BRADY RULE

Attorney General Bill Lockyear has issued an opinion (Opinion No. 99-1111, May 2, 2000) concluding that the routine destruction of police personnel files after the five year retention rule does not violate the Brady Rule. The District Attorney of Ventura County, Michael Bradbury requested an opinion on the following question: May a California law enforcement agency destroy peace officer internal investigation files after a five-year retention period and peace officer personnel records five years after the officer has terminated employment with the agency when the destruction is solely a matte of administrative routine?

In analyzing the issue surrounding the question, the Attorney General reviewed all of the statutory references bearing on the question including Penal Code § 832.5 which requires citizen complaints and any reports of findings relating thereto be retained for an period of at least five years, § 832.7 establishing the confidentiality of such records and § 832.8 which defines what records constitute police personnel records. After reviewing those statutes, the Attorney General analyzed whether the Brady rule imposed an additional impact on law enforcement agencies to continued retention of such files beyond the five-year period.

The so-called Brady rule provides that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecution. Exculpatory material includes information that may tend to impeach the credibility of a prosecution witness and such information in the opinion of the Attorney General may be present in complaints filed by members of the public against peace officers. The statutory scheme quoted above provides for a minimum retention period of five years and any disclosure of information from these records is consistently limited to those records within five years of the event or transaction which generated the request. (P. C. §832.5(b) and E. C. § 1045(b))

The Attorney General noted that the Brady rule does not directly address the length of a retention period for maintaining any personnel records. If a relevant did exist however, is would be subject to the Brady disclosure requirements. But what to do if it has been destroyed in accordance with an administrative policy after the expiration of five years?
Brady addresses exculpatory evidence which is still in the Government's possession. In the case of Arizona v Youngblood (1988) 488 U. S. 51, the court held that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law. Moreover, the inquiry into whether evidence was destroyed in good faith or bad faith is essentially factual and that the burden of proof is on the defendant to prove the destruction was in bad faith.

Based upon all of the above, the conclusion was that an agency which destroys peace officer internal investigation files after the five-year retention requirement and five years after the officer has terminated employment with the agency when the destruction is solely a matter of administrative routine, without bad faith, does not offend due process. The Attorney General recognized that records may be maintained for a period longer than five years and an agency may conclude as a matter of prudent policy determine that a longer period of retention would promote greater public confidence in its procedures and practices, but he specifically left such a determination to individual agencies.

WHAT SHOULD YOU BRING TO AN IN-CAMERA HEARING?

To answer this question refer to the recently decided case of People v. Mooc (June 30, 2000) 97 C.R. 2d 456. While in custody on an immigration hold a fight broke out between Mooc and Santa Ana Police Officer Frank Garcia. Mooc claimed his actions were in self defense and filed a Pitchess Motion requesting access to Garcia's personnel file for previous complaints of excessive force. The motion was granted and an in camera hearing was held where the trial judge reviewed a file which was represented to be Garcia's personnel file. The judge returned to open court and explained that the file contained a previous incident which the court found irrelevant to the case. Mooc appealed his conviction for battery on a police officer.
On appeal, he requested the Appellate Court conduct a review of the personnel file to ensure the trial court properly exercised its discretion. In the words of the court, when they attempted to do that, they opened "Pandora's Box".

The court ordered the file which was reviewed be sent to the court under seal. The response from the city attorney's office was an application to modify the order. The city attorney's office said the file had not been preserved by the city attorney but was in possession of the police department and they claimed the chain of custody would be broken if the file was sent to the court. They offered to send copies instead. The court denied the request and ordered prompt compliance.

In apparent compliance with that order the city attorney's office submitted a small envelope which contained the police report of the underlying incident and single page form dated the day before the incident. The court knew this was not Garcia's personnel file. Nonetheless, the assistant city attorney declared that these documents were indeed Garcia's personnel file and were the same documents submitted to the trial court for review.

Seeking to get to the bottom of all of this, and despite the fact that both sides waived oral argument, the court set the matter for oral argument and ordered everyone involved to be present. As the court put it, at oral argument an astounding revelation occurred. Santa Ana apparently routinely, systematically and secretly censored all personnel files before bringing them to court for in camera review. They removed materials they deemed superfluous. Again, the court ordered the entire personnel file of Garcia to be produced without exception. Once that entire file was finally reviewed by a court, it found "more than one reference which a court could deem potentially relevant" to the case.

The court found the screening and censoring of information in the file clearly violated the entire purpose of providing the files to a judge to review. It called the action of the city attorney bureaucratic disobedience and voiced its strong disapproval of their conduct. It found the procedures set forth in Evidence Code Section 1043 have been violated and the conviction must be reversed.

SO WHAT DO WE DO NOW?

Bring the entire personnel file to court for in camera review. It is not the job of the custodian to determine which documents the court should review. Some departments with whom I work have a filing system which separates internal investigations from the remainder of the file. It has always been my preference the custodian bring the whole file anyway and not just the IA file. Now this is more than just a preference, it is required. Be prepared for judges to inquire about the files you bring to the in camera hearing.
Also, be prepared for a more in depth review by judges and a more skeptical response to the custodian's information in the future. You should ensure that a court reporter is present for the in camera and if the judge does not do so, you or your attorney should make a record of the description of all the files brought for in camera review. This will resolve all doubt if there is a question raised later about what files were submitted to the court.

As always, before taking any legal actions be certain to seek appropriate legal advice, whether it is from a city attorney, county counsel, or your police legal advisor. As always, if you have any questions, please do not hesitate to call Greg P. Palmer at (714) 446-1400.