Court Dismisses Case After Prosecutors Make It Impossible For Defendants To Access Evidence

from the law-enforcement-again-demonstrating-they-don't-feel-laws-apply-to-them dept

Prosecutors have an obligation to turn over evidence — exculpatory or otherwise — to criminal defendants. They often don’t. In rare cases, this refusal to play by the rules results in dismissals or sanctions. But, for the most part, they tend to get away with it, allowing the government to stack the prosecutorial deck in its favor to obtain easy, illegitimately obtained wins.

Exculpatory evidence, referred to as Brady evidence, is something law enforcement loves to withhold. It would rather present only the evidence it feels will result in a conviction, rather than allow defendants to fight back with evidence that might indicate they’ve been wrongly accused. It has been this way for years, and this behavior was called out by Judge Alex Kozinski in 2015:

There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.

That’s where the buck is supposed to stop. It rarely does. This is what happens when courts refuse to address Brady violations.

It effectively announces that the prosecution need not produce exculpatory or impeaching evidence so long as it’s possible the defendant would’ve been convicted anyway. This will send a clear signal to prosecutors that, when a case is close, it’s best to hide evidence helpful to the defense, as there will be a fair chance reviewing courts will look the other way

Every so often a court calls bullshit on this behavior. It happens so rarely it’s newsworthy.

This case, handled by a California court, is a man-bites-dog decision [PDF]. It discusses (and disapproves of) the behavior of San Diego prosecutors. The San Diego City Attorney subpoenas witnesses, gathers evidence, and handles appeals originating from criminal cases. What it does not do is attend trials to present evidence. But it still has access to evidence and the power to compel production in response to requests.

Or, at least it did until 2017. In that year, it unilaterally decided it would no longer be a source of evidence or handling discovery requests from criminal defendants. Instead, it “allocated resources” by outsourcing this job to the San Diego Police Department.

That might have worked if the San Diego PD had shown any interest in being the City Attorney’s proxy. But the PD decided it was no more obligated to turn over evidence than it had been before this “resource allocation” by the City. The end result was neither entity feeling it had any duty to respond to discovery requests by Matthew Houser, who had been cited in January 2019 for illegal “overnight camping” in a city park.

Houser’s lawyer took the steps any good legal rep would do in preparation for a criminal case. On September 26, 2019, he served an informal discovery request on the City Attorney requesting, among other things, body camera footage from the officers, any exculpatory evidence collected, and any complaints against one of the involved officers.

Houser’s counsel received this response from the city:

The San Diego City Attorney’s Office does not appear on nor participate in any infraction cases tried in Kearny Mesa Traffic Court. This citation was directly filed with Kearny Mesa Traffic Court, and we are not in receipt of any discovery on this matter. Any discovery that you are seeking must be obtained from the law enforcement agency that issued the citation.

In response, Houser’s lawyer asked the court to compel the production and appearance of the San Diego PD’s custodian of records. The PD sent a cop, rather than the custodian of records. This officer — one who was involved in the citation — didn’t produce much.

On November 4, 2019, Officer Greenan appeared and provided an envelope containing a 3-page dispatch log, a copy of the citation, and a document providing instructions to request body camera footage. The officer did not provide the body worn camera footage or other discovery requested (e.g., witness list, etc.)

Both the defendant and the court found this unacceptable. The court ordered the City Attorney to produce the body cam footage. It also demanded the City Attorney’s office explain why it shouldn’t be hit with sanctions for offloading its duties to the PD. It also ordered the City Attorney’s office to obtain the footage and hand it over no later than November 21, 2019.

None of this happened. A flurry of filings by the defense lawyer was greeted by continuance requests. Time marched forward, but neither the PD nor the Attorney produced the requested records or body cam footage. The City Attorney argued it was not the prosecuting entity so it had no obligation to relinquish records. The PD continued to withhold the requested information. More attempts to compel production made their way into the court and each was rebuffed by the City Attorney’s office, which noted that while it was instrumental in preparing cases for prosecution, it was somehow no longer obligated to hand over evidence to defendants.

This displeased the court. It took the Deputy City Attorney (Jonathan Lapin) to task for wasting everyone’s time.

“There’s a whole lot of energy being expended in having to remedy the City Attorney not accepting service on behalf of SDPD. And so, what you are representing to this Court today is that if [Ms. Cusack] follows that instruction that you are saying should be followed, and she is still unable to serve that informal discovery request, that then judicial resources should be expended in the form of a court hearing, and perhaps multiple court hearings, simply in order to get that [informal] request delivered.” (Emphasis added by the Court). Further, although the City Attorney is involved in facilitating a “viewing” of body-worn camera footage, Mr. Lapin testified that the City Attorney’s policy requires that a motion be filed and heard before a copy of the footage is released to a defendant — “for that evidence, the police department liaison within the San Diego City Attorney’s office would make an appointment for defendants in order to view body-worn camera evidence. If directed by the Court to provide an actual copy, they would do so if there is a court order. [¶] . . . Absent a court order, they would only allow the viewing of the body-worn camera evidence.”

An order was issued on February 4, 2020 demanding the San Diego PD hand over everything requested by the defendant. This never happened. All the defendant received — more than a year later — was a statement from the PD saying neither officer had been wearing a body camera. This lack of cooperation — one that lasted for months — resulted in the trial court dismissing the case. The City Attorney’s office — despite having jerked around the defendant and the trial court for nearly two years — stupidly (and vindictively) appealed the dismissal.

The superior court is no more impressed by the City Attorney’s actions than the trial court. It makes things simple: for the purposes of Brady obligations, the Attorney’s office is considered the prosecutor. That’s not something it can delegate, no matter how much it desires to “reallocate resources.”

By its own admission, the City Attorney did not fulfill any obligation to learn of Brady discovery relevant to this matter under Kyles, Aguilar, or Kasim. From its letter to defense counsel on September 23, 2019, in which it stated that the City Attorney “does not . . . participate in any infraction cases . . . .”, to its brief alleging that “there is no prosecuting attorney for purposes of discovery under Penal Code section 1054”, to the testimony of Deputy City Attorney Jonathan Lapin that the City Attorney no longer facilitates nor answers infraction defendants’ discovery requests, it is clear that the City Attorney did nothing to discharge its Brady obligations in this case.

That all adds up to constitutional violations.

We find substantial evidence supports an inference that the City Attorney made no efforts to learn and disclose Brady-required materials. Accordingly, Mr. Houser’s federal Constitutional rights under Brady were violated in this case.

For the second time, the citation is dismissed. It may not have seemed like much — a citation for illegal camping (one of many ways governments punish people for not having homes). But it matters because it exposed the San Diego City Attorney’s attempt to serve as a prosecuting force while ignoring all the obligations that come with that position. The city wasted plenty of resources trying to obtain judicial blessing for the “resource allocation” that has turned discovery requests into a Catch-22 for defendants. It’s unlikely it cared whether or not it collected on this citation. What it really wanted was justification for its actions, preferably delivered by a decision it could quote in court the next time it screwed a defendant out of their rights.

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Comments on “Court Dismisses Case After Prosecutors Make It Impossible For Defendants To Access Evidence”

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This comment has been deemed insightful by the community.
That One Guy (profile) says:

'A not-guilty doesn't help our stats, why would we care?'

Yeah, if the city’s attorney’s office is willing and eager to work on prosecuting people, doing the work and handing over the evidence for that but not willing to put any work into handing over exculpatory evidence then it’s pretty clear they tossed the idea of ‘justice’ into the dumpster a good while back and are treating the legal system as a game where they absolutely must ‘win’.

This comment has been deemed insightful by the community.
Upstream (profile) says:


they tossed the idea of ‘justice’ into the dumpster a good while back and are treating the legal system as a game

As That One Guy has done here, we must all strive to make the clear distinction between a “justice system,” which we do not have, and the “legal system,” with which we are cursed.

This comment has been deemed insightful by the community.
Wyrm (profile) says:

Re: Treating the legal system as a game

This is an ongoing issue with the system as a whole.
It is treated as a game and “winning” is more important than “justice” or “truth”. And it is the same as framing people, regardless of their guilt.

Judges need to take Brady violations more seriously, and issue sanctions against every single prosecutor in every single instance this happens. It’s not just about dismissing a case, it’s about punishing the violation of constitutional rights. With increasing penalties as the offense is repeated.

Only this way will the culture of “winning” be abandoned. Eventually. Otherwise, as long as they are allowed to play games with the legal system, they will continue.

AsTheStomachTurns says:

Re: So...NO Penalties

Yeah, the bottom line was that the San Diego Prosecutor and cops suffered absolutely NO personal penalties for outrageously violating the law & abusing the Court and defendant.

And of course that Prosecutor well knew he could get away with it (and will continue doing it, unchecked)

The wimpy judges who failed to hammer that Prosecutor & cops are an integral protector of a corrupt judicial system, extending nationwide.

Notice in this article how the corrupt judges are given a complete pass, and even a little a praise.

Tanner Andrews (profile) says:

Re: Re:

Assuming that the Appeals Court wasn’t in front of multiple judges.

Which it was, of course, as is the normal nature of appeals.

    Unanimously affirmed.

    Presiding Judge, Appellate Division

    Judge, Appellate Division

    Judge, Appellate Division

(previerw still broken)

Mike Masnick (profile) says:

Re: Re: Re:

(previerw still broken)

I’ve asked you before, and you didn’t respond: what is broken. We haven’t seen anyone else complain about preview being broken, and we can’t reproduce it here.

If you could send us an email explaining the actual problem we can look into it. If you just keep writing “preview is broken” in every comment, we don’t even know what to look for.

Tanner Andrews (profile) says:

Re: Re: Re:2 what is broken with preview

There is a button the screen that says ``preview”. Press it, nothing happens.

I suspect that it is some sort of javascript-requiring thing, though requiring javascript for basic functionality would generally be seen as either a moral failing or an intellectual shortcoming.

I remember that preview worked on the old site. So did the flag function, and the mark-as-funny function. All these things no longer work, despite the fact that I am using the same browser (firefox) on the same computer (amd64/linux).

(sending e-mail would work if only I had your e-mail address)

That Anonymous Coward (profile) says:

Well one should hope that the easy 6 digit settlement, because lets me honest if the morons went to court to defend this it would be a 12 digit settlement, will help with his problems obtaining housing.

I mean its pretty clear we’ve been on a path to Constitutional rights not meaning a god damned thing in this theocracy so best get paid before the courts rule that right isn’t a real right either.

This comment has been deemed insightful by the community.
Peter says:

And why does this happen?

Because no-one is fined, held in contempt, disciplened,, demoted, fired, jailed or, in any way whatsoever, held accountable. The worst that happens? The case gets dismissed. That’s it. Basically, who the f***k cares if they don’t do their jobs, even in the face of a court order?

Start jailing a few officials and their bosses and that might produce some results.

This comment has been deemed insightful by the community.
Daydream says:

If a crime has occurred, there must be someone who committed the crime.
If a prosecutor has access to exculpatory evidence, then they have cause to believe that the defendent they are prosecuting is not the one who committed the crime.
If a prosecutor conceals or withholds this exculpatory evidence from the defense, then they are intentionally framing an innocent person for the crime, and at the same time undermining investigation into the identity of the true culprit.
If a prosecutor finds exculpatory evidence, and deliberately attempts to hide it in order to influence the outcome of a court proceeding, they should be charged for obstruction of justice and accessory after the fact.

Upstream (profile) says:


When I do Preview, it doesn’t work like before, but it still works: When you click Preview, the Add Your Comment section turns into the Edit Your Comment section, then you may need to scroll up a bit past the Edit Your Comment section to see the preview. Depending on your browser, window size, font size, or zoom level, this can be a bit counter-intuitive, as the preview may be out of the window (up) and not immediately viewable, but it is there.

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