A Good Decision from the Court of Appeal on a Writ taken by the Fontana Police Department

            We are pleased to inform you that our office has been successful in overturning a Pitchess Discovery order issued by a Fontana Superior Court judge.
            A Pitchess motion was filed in a felony prosecution in the Fontana Superior Court.  The Pitchess motion articulated good cause for the in-camera review of one officer’s personnel file for any prior instances involving excessive force or dishonesty.  Since the declaration articulated sufficient facts constituting good cause for the in-camera review, our opposition indicated that we conceded on this issue and were prepared to go in-camera with the custodian.
            Once in-camera, and without disclosing too much, the court found three events in the officer’s file that it believed were relevant and material to the subject matter of the litigation.  Two of the events the court reviewed were related to excessive force allegations and were obviously relevant and material to the subject matter of the litigation.  The third event had nothing to do with force, but the complaining party and the officer had different versions of the event that was the subject matter of the investigation.  The trial court noted the discrepancy in the interview statements and concluded that as this matter was related to the dishonesty contention in the Pitchess motion, the court  ordered us to release information from that third event.
            We counseled the custodian to refuse to comply with that order and filed a petition for writ of mandate with the Fourth District Court of Appeal in Riverside challenging the requirement to disclose information from that third event1.  The Fourth District Court of Appeal granted our request for review, issued a stay order on disclosure, which is almost never granted, and considered the merits of our writ petition.  The Court of Appeal invited the public defender to provide a response to the matters raised by our writ petition.  The response was rather benign because, since they were excluded from the in-camera review they really did not know what to say about our writ petition.
            In addition to the petition, we also filed under seal the declaration of the custodian of the records as well as the entirety of the investigation of the third event that was reviewed by the trial court. 
            Last week the Court of Appeal issued its decision on our writ petition.  The Court of Appeal indicated that it had conducted its own review of the material surrounding that third event in the officer’s personnel file, and, “we have concluded that the discrepancy to which petitioner’s custodian of records referred could have no reasonable tendency to impeach the officer’s credibility or in any other way lead to admissible evidence favorable to the defense.  Whatever the scope of access to impeachment material under Brady v. Maryland may be, a discrepancy of recollection or report on a matter not shown to be material, does not suggest a lack of veracity.   Accordingly, the trial court erred in ordering the third incident to be disclosed to [the defense].

SO WHAT DO WE DO NOW?
            This was an extraordinarily good decision by the Court of Appeal.  Our office as well as other city attorneys up and down the state have been wrestling with the current out of control nature of Pitchess motion discovery.  In the last two months our office has taken no less than four writ petitions to the Appellate Court on erroneous trial court orders following a Pitchess motion.  On this one we were successful.
            One of the problems facing lawyers who represent agencies in Pitchess motions has been the tendency of some judges to automatically conclude dishonesty must be afoot when they review an event in an officer’s personnel file that simply has discrepancies or conflicts among the different witnesses interviewed as part of the internal affairs investigation.  We have long said that witness interviews have discrepancies among them, or conflicts among them, does not mean that dishonesty is automatically afoot.  In fact, we told the trial court that there is a jury instruction right on point that is used in every jury trial in the State of California. 
            This Court of Appeal understood that concept and told the trial court in this case that just because there might be a discrepancy or conflict between witness testimony and an internal affairs investigation concerning an event in an officer’s personnel file, does not automatically mean that dishonesty must have been afoot and, therefore, it is relevant and material to the subject matter of a dishonesty based Pitchess motion.
            Keep this in mind when you are in-camera and confronted with this situation in the future.

Be sure to consult competent legal counsel before deciding how to proceed on any matter to which these cases may be applicable.