The Los Angeles Times recently reported on an ongoing battle between the Los Angeles Sheriff’s Department and the deputies’ union. The Sheriff’s Department is seeking to turn over a list of about 300 “problem deputies”with a history of past misconduct to prosecutors. The prosecution can then add these names to an internal database that tracks these problem deputies in case the information needs to be disclosed to defendants in criminal trials.The deputies’ union is fighting this disclosure on privacy grounds.

Superior Court Judge James Chalfant ruled in January that the Sheriff’s Department could give the prosecutor’s office the names of problem deputies only when there is a pending case in which that officer might testify. However, the deputies’ union appealed the ruling, and several weeks ago, an appeals court granted the union’s request to put a temporary hold on any transmission of names, even in pending cases. The ACLU of Southern California and three other advocacy groups filed an amici curiae brief on March 3^rd in support of the Sheriff’s Department’s attempt to send prosecutors their “problem deputies” list. The Sheriff’s Department lawyer, Geoffrey Sheldon, told The Times that it would not surprise him “if this case eventually winds up in the California Supreme Court.”

The Los Angeles Sheriff’s Department is not the first agency to consider this approach. The Times reported that departments in at least a dozen counties, such as San Francisco and Sacramento, regularly send prosecutors the names of problem deputies.

This case pits the prosecutorial obligation - to turn over exculpatory evidence to the defense - against the privacy rights of the deputies, officers and the organization as a whole. From the defense attorney’s perspective, the examination of a propensity to fabricate, embellish or demonstrate any such conduct of questionable moral turpitude would be directly relevant to the testimony of an officer against the accused.

In the infamous Brady v. Maryland Supreme Court decision of 1963, the Court held that the prosecution is obligated to disclose to the defense material evidence favorable to the defendant. 373 U.S. 83(1963). Further, inPitchess v. Superior Court, the California Supreme Court upheld a defendant’s right to seek discovery from the court of potentially exculpatory information located in otherwise confidential officer personnel records. If a party bringing what is commonly called a Pitchess motion makes a threshold showing, the court must review the records in camera and disclose to that party any information that is material to the underlying case.11 Cal.3d 531 (1974). This has been codified in Evidence Code sections 1043 and 1045.See People v. Superior Court (Johnson), 61 Cal. 4th 696, 705 (2015).

It follows that under Brady and Pitchess,prosecutors could also have a duty to disclose deputy credibility at a defendant’s trial. But how far does that duty extend? An officer who lied about what time he came back from lunch one day probably should not have his credibility questioned during his testimony some 10 years later. However, the fact that an officer lied about or fabricated portions of a police report in the past would certainly be directly relevant to an officer’s trustworthiness at a defendant’s trial. Also, the question should be raised, is the prosecution properly poised to be the gatekeeper of a “problem deputies” list? Given the recent investigations into prosecutorial misconduct, the defense rightfully should be concerned with any such prosecutorial discretion when it comes to disclosing the questionable integrity of an officer. And the holding in Pitchess only extends so far - the defense may request an in camera review of potentially exculpatory information but that information must be“requested with adequate specificity to preclude the possibility that [the defense] is engaging in a ‘fishing expedition.’” 11 Cal.3d at 538.

While law enforcement transparency is a tantamount necessity in today’s society, the development of a system that implements this need while also balancing proper consideration of privacy rights and further interests of justice, is no easy feat. Certainly, there is no clear-cut solution. We will continue to monitor the developments in this case and keep you apprised of further information as it becomes available.

Sources

• Brady v. Maryland, 373 U.S. 83(1963).
• People v. Superior Court (Johnson), 61 Cal. 4th 696(2015).
• Pitchess v. Superior Court, 11 Cal.3d 531 (1974).
• Maya Lau, The Los Angeles Times, “Secret List Puts Sheriff, Officers at Odds,” February 20, 2017.