PALMER'S PITCHESS UPDATE

By: Greg P. Palmer

A CALIFORNIA APPELLATE COURT FINALLY ADDRESSES THE DISTINCTIONS BETWEEN BRADY VIOLATIONS AND PITCHESS DISCOVERY

In the best analysis yet the Second Appellate District of the Court of Appeal in Los Angeles County has ruled that a prosecutor does not have any duty to seek out and determine if a police officer's personnel file contains Brady material.

In People v. Northup (May 16, 2002) 2002 Cal. App. LEXIS 4118, Jerry Northup was arrested and charged with possession of methamphetamine after he was seen by Los Angeles County Sheriff's deputies discarding methamphetamine and a glass pipe before he was detained and arrested. Having several prior felony convictions in his record, he was sentenced to prison for eight years. On appeal he claimed there was a Brady rule violation by the prosecution and, therefore, his conviction should be reversed.

After being charged, he filed a Pitchess motion seeking the names, addresses and phone numbers of persons who made complaints against two Los Angeles County Sheriff's deputies for false arrest, planting evidence, fabrication of police reports and general dishonesty. He claimed in his Pitchess motion that the deputies falsely stated in their report that Northup possessed and discarded methamphetamine and the pipe, they planted the evidence on him and would commit perjury if they testified against him. The trial court, without expressly granting the Pitchess motion, made a ruling that the Sheriff's Department counsel should review the records and provide Northup with the name, address and phone number of a complaining party in any case where the complainant alleged the deputies lied, planted evidence or made false statements. The Department's counsel could either provide the information or present a declaration that such information did not exist in the files. The court did not conduct an in camera hearing of the files.

Department counsel provided the name, address and phone number from one dishonesty complaint against either or both of the deputies. Northup's counsel attempted to contact the complaining party but was unable to locate the individual. Northup then filed an additional Pitchess motion requesting access to more information than just the name since the information previously provided had been inadequate. Northup also filed an informal discovery demand upon the People asking for any exculpatory evidence and specifically demanded that the prosecutor provide "discovery of Brady material contained in police personnel files." Northup demanded that the prosecutor examine said files of the involved deputies and provide all Brady information contained therein.

The trial court found that Northup had been unable to locate the individual whose name they received from the Sheriff's Department and then conducted an in camera proceeding concerning that complaint. The court, after reviewing the documents, ruled that the contents were not discoverable. The court ruled the information is irrelevant to Northup's case and would not be admissible. The court explained on the record that the complaint had nothing to do with planting evidence on the complaining party and it had nothing to do with the deputy framing him. No further discovery was granted. Northup then filed a motion to compel compliance with the previous demand for Brady material contained in the police personnel files. The court declined to grant any further relief to the defense than that which had already been provided under the Pitchess discovery motion. Northup claimed that was a Brady error.

On appeal the Court of Appeal analyzed the differences between Brady and Pitchess. The court cited the Brady rule as follows: "The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. There are three components of a true Brady violation: the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the state, either willfully or inadvertently; and prejudice must have ensued."

The court distinguished that Brady does not require disclosure of information when that information is not itself admissible and only might lead to admissible evidence. In such circumstances, the information is not itself evidence for purposes of Brady. The mere fact that such information might lead to the discovery of admissible evidence, does not constitute materiality for purposes of Brady. Under Brady, evidence is material if "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. The materiality question is whether "the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict. (Strickler v. Greene (1999) 527 U.S. 263; 144 L. Ed. 2d 286; 119 S. Ct. 1936.

Moreover, and perhaps the most important portion of the court's analysis is that the Brady rule "encompasses evidence known only to police investigators and not to the prosecutor. In order to comply with Brady, therefore, the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in this case, including the police." This phrase, acting on the government's behalf in this case, will turn out to be extremely important to the court's determination of this issue. Put another way, the court held that any favorable evidence known to others acting on the government's behalf may constitute Brady material and, "the individual prosecutor is presumed to have knowledge of all information gathered in connection with the government's investigation." (In re Brown (1998) 17 Cal. 4th 873). Put still another way, in People v. Superior Court (Barrett) (2000) 80 Cal. App. 4th 1305, a prosecutor's duty under Brady to disclose material, exculpatory evidence extends to evidence the prosecutor – or the prosecution team – knowingly possesses or has the right to possess. The prosecution team includes both investigative and prosecutorial agencies and personnel. "A prosecutor has a duty to search for and disclose exculpatory evidence if the evidence is possessed by a person or agency that has been used by the prosecutor or the investigating agency to assist the prosecution or the investigating agency in its work. The important determinant is whether the person or agency has been acting on the government's behalf."

A prosecutor does not have a duty to disclose exculpatory evidence or information to a defendant unless the prosecution team actually or constructively possesses that evidence or information. The court held that information possessed by an agency that has no connection to the investigation or prosecution of the criminal charge against the defendant is not possessed by the prosecution team, and the prosecutor does not have the duty to search for or to disclose such material.

PITCHESS V. SUPERIOR COURT

The Appellate Court then analyzed the discovery requirements under Pitchess. The court noted that the standard governing discovery of personnel records is not whether the information discovered is ultimately admissible at trial. The moving party need only show that the personnel records are material to the subject matter in the pending litigation. Pitchess discovery encompasses information which may lead to relevant evidence.

It also noted that the purpose of internal investigations is to enable the Department to ascertain the existence or nonexistence of misconduct on the part of its deputies. The purpose of this information is not usually to assist the prosecution in convicting criminal defendants. Indeed, in the recent case of People v. Mooc (2001) 26 Cal 4th 1216, the Supreme Court observed that a law enforcement officer's personnel record will commonly contain many documents that would, in a normal case, be irrelevant to a Pitchess motion, including documents describing marital status, family members, employment applications, health records, etc.

BRADY AND PITCHESS DISTINGUISHED

The scope of the kind of information accessible under Pitchess is, in some respects, broader than the scope of the kind of information accessible under Brady. Information is not accessible under Brady if the information is itself inadmissible and only might lead to admissible evidence. This is not true under Pitchess. Brady requires the information be favorable to the defendant; Pitchess does not. The court described that the kind of information accessible, Brady evidence is, in some respects, a subset of Pitchess discovery.

On the other hand, the scope of litigable issues accessible under Brady is broader than that information accessible under Pitchess. Brady requires disclosure of favorable evidence which is material to any issue relating to guilt or punishment. Pitchess discovery is limited to only that information relating to a particular issue, the materiality of which has previously been shown to be relevant to the subject matter involved in the pending litigation. Thus, the court held as to the litigable issues from which information is accessible, those under Pitchess are a subset of those under Brady.

The source from which information is accessible under Brady is broader than that information accessible under Pitchess. Unlike Brady, information discoverable under Pitchess is limited to that contained in the police officer's personnel file.

Lastly, Pitchess and Brady clearly differ concerning the nature of the materiality and its role. Pitchess requires a preliminary good faith showing setting forth the materiality thereof to the subject matter of the litigation. Furthermore, this must be determined by a trial court following a hearing. Under Brady, materiality is defined by the requirement that the evidence itself be material. Evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Additionally, the materiality determinant under Pitchess is always pre-conviction by the trial court. Whereas the materiality determination under Brady requires consideration of whether the result of the proceeding would have been different, necessarily embracing a post conviction perspective.

Whether information is favorable and material evidence for purposes of Brady with the result that its disclosure is mandated, is determined without consideration as to whether that information is material to the subject matter of the litigation for purposes of Pitchess. The court noted that in the context of personnel files an overlapping situation might arise in which evidence is both favorable and material for purposes of Brady and might also happen to be information that is relevant and material to the subject matter of the litigation under Pitchess.

POSSESSION

The key issue in this case turned upon whether the prosecution actually possessed information contained in police officer's personnel files. The court held a true Brady violation requires that favorable material evidence must have been suppressed by the People, that is, no Brady violation has occurred unless the People in fact possessed such evidence.

Northup claimed that in order for the prosecution to properly discharge its duty under Brady it had a fervent obligation in every case to investigate the personnel files of all significant police officer witnesses and to disclose to the defense any complaints which might either exculpate the defendant or impeach police officer witnesses. This court disagreed with that claim. The court held that even assuming a prosecutor has such a duty, Northup is "mixing apples and oranges, in that he fails to recognize the analytical independence of Brady and Pitchess." It held that Northup failed to meet his burden to firmly demonstrate those files contained any favorable material evidence for purposes of Brady.

Next, Northup failed to prove that, for purposes of Brady, the prosecutor was in possession of any evidence that was in the files at issue. It noted the Sheriff's department of course investigates crimes, but the Sheriff's Department does more than just that. There was no evidence that the personnel files at issue were being maintained by the Department pursuant to a criminal investigation of Northup. Instead, they were maintained in the discharge of the department's administrative and supervisorial responsibility with respect to its personnel.

It noted that frequently the contents of the personnel files of the deputies will have information that predates the offense with which the defendant is charged. Misconduct investigations of deputies will likely predate the defendant's alleged offense, unless the alleged misconduct occurred during the defendant's alleged offense. For a Brady violation to occur there must be a nexus between an agency from which the disclosure is sought and the criminal prosecution of a defendant. "The individual prosecutor is presumed to have knowledge of all information gathered in connection with the government's investigation." (Brown, supra).

The court held that the Sheriff's Department which gathered the information that it maintained in the personnel files at issue in this case was discharging its administrative tasks and (1) was not acting on the government's behalf in this case, Kyles v. Whitley 514 U.S. 419; 131 L. Ed. 2nd 490; 115 S. Ct. 1555, (2) was not in such administrative capacity, on the prosecution team (Brown, supra), and, (3) had not been used by the prosecutor to assist the prosecution in its work People v. Superior Court (Barrett, supra).

Therefore, the court held the prosecutor in this case did not possess the files at issue for purposes of Brady and had no duty thereunder either to determine whether they contained favorable material evidence or to disclose any such evidence. The judgment was affirmed.

SO WHAT DO WE DO NOW?

If a Pitchess motion is granted always insist upon an in camera review of the files with the court so that the judge can determine relevancy of any material contained in the files before information is released. This case could have been avoided if an in camera review of the files had been insisted upon in the beginning. Once the court ultimately reviewed the information in the file in this case it deemed the information irrelevant. Thus, had this determination been made up front no information would have been disclosed. The department in this matter disclosed information from the deputies' personnel file unnecessarily.

This case does not resolve the still open question as to whether a police department has an affirmative duty to inform a prosecutor about the negative contents of an officer's personnel file. As of the writing of this update there is no federal or state court decision requiring any such disclosure be made by a department in the absence of an order following a Pitchess motion. It seems to us that if future courts follow the explanation given by this court no such duty will be required. After all, if the prosecutor does not have a duty to look for such material, how does it follow that a department has a duty to inform the prosecutor.

Los Angeles District Attorney, Steve Cooley, announced a new protocol last week concerning his deputy district attorneys making inquiries of police departments as to whether a police officer personnel file under their control contains Brady material. Obviously, we do not know if the district attorneys in other counties will follow suit with similar protocols in light of this court's decision that prosecutors have no duty to make such an inquiry.

Finally, this case in no way changes the risk a department takes by retaining a police officer who has lied or has shown a propensity to inflict excessive force. Defense lawyers, even with this case, may still obtain information about officer's dishonesty and propensity for excessive force via a Pitchess motion.

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.