PALMER'S PITCHESS UPDATE

By: Greg P. Palmer

FILING AN AFFIDAVIT IN SUPPORT OF PITCHESS DISCOVERY UNDER SEAL IS ALLOWED, BUT THE AGENCY HAS ACCESS TO IT

For the first time a California Court of Appeal has discussed the practice of some defense counsel who file an affidavit in support of a Pitchess Motion under seal which does not allow the police department's legal counsel to review and test the sufficiency of the affidavit in court.
In City of Los Angeles v. Superior Court (Davenport), 96 C.A. 4th 255 (Feb. 15, 2002) the Court of Appeal held that even though defense counsel may file a Pitchess motion affidavit under seal, the department's counsel may still view it, subject, perhaps to a protective order, so that the sufficiency of the affidavit may be fully tested "by adversarial proceedings."

Clinton Davenport was facing criminal charges. He filed a Pitchess motion pursuant to Evidence Code § 1043 seeking access to information in the personnel files of seven officers. Defense counsel filed an affidavit in support of the motion but he filed it under seal. His stated reason for doing so was to preserve the defendant's right to a fair trial by not being required to reveal the defense's trial strategy to counsel for the People. The trial court allowed the affidavit to be filed under seal for that reason. Of course, this procedure prohibited the city attorney's office, who represented the custodian of the records, from reviewing the affidavit and thereby seriously impaired his ability to argue in opposition to the motion.

At the trial court level, the city attorney argued that he should be allowed to review the affidavit and argue its sufficiency subject to a protective order. The trial court said the idea was a good one but in this case was unnecessary since, in the court's judgment, the contents of the affidavit were so strongly in favor of the granting of the motion that it did not know how the city attorney would overcome it even with access to it.

An in camera hearing was held and some information was ordered to be disclosed. The city sought a writ from the Court of Appeal.

The Court of Appeal issued the writ. It repeated the holding in City of Santa Cruz v. Municipal Court, 49 C. 3d 74 that Evidence Code §§ 1043 and 1045 draw a careful balance between two competing interests; the interest of the police officer in the maintenance of the confidentiality of his/her personnel records and the defendant's right to all information which could assist in his/her defense. The court sanctioned the procedure of filing such an affidavit under seal, if necessary, to preserve the defendant's right to a fair trial but it indicated this did not mean that the agency's counsel on a Pitchess motion should not be able to view it and argue its merits. The court said the question of whether the defendant has shown good cause for the discovery sought should be, whenever possible, "tested by adversarial proceedings." The trial court should have allowed the agency's counsel to view the sealed affidavit and argue its merits subject to a protective order which ensures the defendant's right to a fair trial.

Finally, the Court of Appeal noted that the affidavit is not merely a procedural hoop but is rather a substantive legal hurdle to discovery of police personnel files.

SO WHAT DO WE DO NOW?

This decision will probably result in more affidavits being filed under seal than before, so custodians and agency counsel should familiarize themselves with the court rules regarding the proper manner to file a record under seal. California Court Rule 243.1 and 243.2 govern the procedure. A record is not filed under seal merely upon a request, it must be ordered sealed by the court following a motion. Agencies should first make sure the affidavit was properly filed under seal.

Assuming it was properly filed, agency counsel still have access to it, may review it and can argue the merits of its contents pursuant to this case.

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.