California Supreme Court Unanimously Holds that Law Enforcement Agencies May Share Brady Alerts to Prosecutors Notwithstanding Pitchess Statutes
On August 26, 2019, the California Supreme Court issued its ruling, holding that the Los Angeles County Sheriff’s Department (“LASD”) could share with prosecutors the names of deputies on its “Brady list” in particular cases without seeking a court order after a Pitchess motion. In particular, Supreme Court held that the LASD would not violate Pitchess statutes “by sharing with prosecutors the fact that an officer, who is a potential witness in a pending criminal prosecution, may have relevant exonerating or impeaching material in that officer’s confidential personnel file.”
In 2015, the California Supreme Court issued an opinion in People v. Superior Court (Johnson) (2015) 61 Cal.4th 696 (“Johnson”). In that case, the Supreme Court analyzed a policy negotiated between the San Francisco Police Department (“SFPD”) and the San Francisco District Attorney (“SFDA”), whereby if SFPD knew or suspected that a San Francisco police officer had Brady material in their personnel file, the SFPD would inform the SFDA, only in summary form, the nature of the Brady information when that officer was a witness in a criminal case. The Supreme Court described that policy in very positive terms; calling it a “laudable” policy. The Supreme Court then held that once disclosure is made to the SFDA all the SFDA had to do to comply with its Brady obligation is to inform defense counsel that the witness/officer may have Brady material in their file. Once informed, it then becomes incumbent on defense counsel to decide whether a Pitchess motion is necessary to obtain the information. Indeed, the Supreme Court held it is defense counsel who is in a better position to determine whether a Pitchess motion is necessary at all, whereas a prosecutor would have to file a Pitchess motion in virtually every case in which Brady material was thought to exist.
In light of Johnson, in October of 2016, LASD sent a letter to roughly 300 deputy sheriffs, informing them that a review of “individual employees’ personnel records” had “identified potential exculpatory or impeachment information in your personnel file.” The letter further advised deputies that, “in order to comply with our constitutional obligations,” LASD is “required to provide the names of employees with potential exculpatory or impeachment material in their personnel file to the District Attorney and other prosecutorial agencies where the employee may be called as a witness.” The letter also stressed that no portion of an investigation or contents of the deputy sheriffs’ files would be turned over to either the prosecution or the defense absent a court order.
The Association for Los Angeles Deputy Sheriffs (“ALADS”) then filed a writ petition seeking a restraining order prohibiting the LASD from disclosing the Brady list to prosecuting agencies. The trial court held that police departments were allowed to prepare an internal Brady list, but were barred from disclosing the identity of a deputy on the Brady list unless the deputy was a potential witness in a pending prosecution.
ALADS filed an appeal of the trial court’s decision. On July 11, 2017, the Second District Court of Appeal issued its opinion, holding that police departments cannot disclose the Brady List or the identity of any deputy on a Brady list, even if a deputy was a potential witness in a pending prosecution.
LASD appealed and the California Supreme Court granted review. While the matter was pending, Senate Bill 1421 (2017-2018 Reg. Sess) (“SB 1421”) was enacted, amending Penal Code 832.7. The Court requested supplemental briefing on the significance of SB 1421.
In its ruling, the Court analyzed and compared prosecutors’ obligations to disclose to the defense evidence that is favorable to the accused and material either to guilt or punishment pursuant to Brady v. Maryland (1963) 373 U.S. 83. The Court further analyzed a law enforcement agencies’ obligations to protect the confidentiality of peace officer personnel records pursuant to the statutes that were enacted to codify Pitchess v. Superior Court (1974) 11 Cal.3d 531 (i.e. Evidence Code sections 1043 et seq., and Penal Code sections 832.7 and 832.8). The Court concluded that police departments may provide prosecutors with the Brady alerts without violating confidentiality. The court noted that there is “tension” between the Brady and Pitchess obligations and opined that allowing Brady alerts “harmonizes” Brady and Pitchess. Brady imposes on prosecutors a duty to learn of any favorable evidence known to the others acting on the government’s behalf in a case, including the police. Prosecutors are deemed constructively aware of Brady material known to anyone on the prosecution team and must share that information with the defense. The court opined that construing the Pitchess statutes to cut off the flow of information from law enforcement personnel to prosecutors would be “anathema to Brady compliance.” The court further opined that when a law enforcement agency seeks to transmit a Brady alert to prosecutors this allows the law enforcement agency to mitigate the risk of a constitutional violation. Thus, the court concluded that a law enforcement agency does not violate Penal Code section 832.7(a) by sharing with prosecutors the fact that an officer, who is a potential witness in a pending criminal prosecution, may have relevant exonerating or impeaching material in that officer’s confidential personnel file.
Association for Los Angeles Deputy Sheriffs v. Superior Court of Los Angeles County, __ P.3d ___ (2019).