California Supreme Court Says Cops Must Turn Over Info On Misconduct To Prosecutors

from the inching-towards-accountability dept

Another layer of opacity shielding bad cops from accountability has been lifted in California. Accountability and transparency hasn't exactly been welcomed by the state's law enforcement agencies, but recent developments have forced it upon these unwelcoming recipients.

As of the first of this year, police misconduct and use-of-force records are now obtainable via public records requests. For years, these have been locked away by statute, freeing California cops from the unimaginable horror of public accountability. This new law has raised several legal challenges from cops and their representatives, but so far, none of those have found courts willing to grant them their injunction requests.

Now, some of these same cops are going to find themselves even more exposed. The state's top court has just ruled that prosecutors must be informed about officers' past misconduct. The ruling may only discuss a single department, but it will affect every law enforcement agency in the state, as Maura Dolan reports for the L.A. Times.

The California Supreme Court decided unanimously Monday that the Los Angeles County Sheriff’s Department and other law enforcement agencies may alert prosecutors that a deputy who is slated to testify in a criminal case has a history of misconduct.

The decision overturned a Court of Appeal ruling that barred the sheriff from giving prosecutors the names of deputies who had committed misconduct, including lying, taking bribes, tampering with evidence, using unreasonable force or engaging in domestic violence.

The misconduct law enforcement agencies were previously allowed to keep secret is directly tied to exculpatory evidence owed to defendants. Anything that might diminish the credibility of a witness is supposed to be fair game. Unless, of course, it's a long history of abuse and misconduct by the officer on the stand. That's when cops start claiming these are confidential employment records rather than litanies of perpetrated abuse.

These lists of questionable officers are called "Brady lists," after the court decision establishing defendants' right to obtain exculpatory evidence from the government. In many states, these lists are still secret. That is no longer the case in California.

The Los Angeles Sheriff's Department has about 300 deputies on its Brady list. It sought an injunction blocking the disclosure of these names, claiming they were private "personnel records" that shouldn't make their way into open court. The lower court agreed. The state Supreme Court does not [PDF].

First, the new public records law removes some misconduct and use-of-force records from the state's personnel records exception. It doesn't remove everything but it does make it clear that any information the public can obtain with records requests cannot be declared "confidential" simply because it's being used in court.

Second, the ruling doesn't make Brady lists available to the general public. It only makes them available to prosecutors. Judges will view these submissions in private and decide what information is owed to defendants. This is not a blanket lifting of confidentiality, but rather a more limited approach guided by the court. But it does mean more information will make its way to defendants and, obviously, into open court.

The deputies' union makes several arguments as to why these officers should never have their misdeeds discussed in court, but the state's top court isn't buying it. Law enforcement agencies might be separate from prosecutors' offices, but they share some of the same obligations.

The Fourteenth Amendment underlying Brady imposes obligations on states and their agents — not just, derivatively, on prosecutors. Law enforcement personnel are required to share Brady material with the prosecution. (See, e.g., Carrillo v County of Los Angeles (9th Cir. 2015) 798 F.3d 1210, 1219-1223 & fn. 12.) The harder it is for prosecutors to access that material, the greater the need for deputies to volunteer it.

The Association’s contrary view that “Brady relates only to the prosecutor” and that “Brady . . . does not impose obligations on law enforcement” is distressing and wrong. The prosecution may bear ultimate responsibility for ensuring that necessary disclosures are made to the defense (see In re Brown, supra, 17 Cal.4th at p. 881), but that does not mean law enforcement personnel have no role to play.

Unfortunately, the ruling stops short of creating an obligation to share this information with the defense, but it does make it clear law enforcement agencies can no longer withhold it from prosecutors. It does at least establish a review process to handle defense requests for Brady list info so at least some of what's been turned over can be used to challenge the credibility of the prosecution's witnesses. It's not a massive step forward, but it's far better than the opacity California law enforcement agencies have grown accustomed to. Considering the number of deputies in the state with, shall we say, job performance issues, the flow of Brady info should be steady... and perpetual.

Filed Under: bad cops, california, police misconduct, prosecutors, transparency


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  • icon
    That One Guy (profile), 30 Aug 2019 @ 2:25pm

    MIght want to hold off on popping that cork...

    While this would seem to be good news, at first glance there seems to be a rather large loophole, roughly the size of an aircraft carrier, that might reduce it's impact.

    The California Supreme Court decided unanimously Monday that the Los Angeles County Sheriff’s Department and other law enforcement agencies may alert prosecutors that a deputy who is slated to testify in a criminal case has a history of misconduct.

    Not 'shall', but 'may', as in 'if you feel like you want to tell the prosecutors that the person about to take the stand has a history of lying or other character flaws which might impact the credibility of their testimony you can tell them'.

    While it's without a doubt better than the previous ruling where they weren't even allowed to do that, putting disclosure of potentially damning information like that in the hands of the same people with a history of trying to buying that sort of thing strikes me as just a tiny bit of conflict of interest, such that it would have been much better for any such records to be requestable on-demand by the defense, where the LEO in question could make their argument that it wasn't relevant but if that was refused they would be required to hand the information over.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 Aug 2019 @ 3:35pm

      Re: MIght want to hold off on popping that cork...

      That was going to be my response as well. If it was must, instead of may, as well as including the defense in the release, it would be celebration time.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 Aug 2019 @ 3:44pm

      Re: MIght want to hold off on popping that cork...

      Seems to me that this opens the door for defense to request it though and then the court would have to weigh the request against this ruling.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 Aug 2019 @ 4:50pm

      Re: MIght want to hold off on popping that cork...

      "The Association’s contrary view that “Brady relates only to the prosecutor” and that “Brady . . . does not impose obligations on law enforcement” is distressing and wrong. The prosecution may bear ultimate responsibility for ensuring that necessary disclosures are made to the defense (see In re Brown, supra, 17 Cal.4th at p. 881), but that does not mean law enforcement personnel have no role to play."

      I read this as saying law enforcement is obligated to inform the prosecution and the prosecution is responsible for informing the defense.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 31 Aug 2019 @ 3:54am

        Re: Re: MIght want to hold off on popping that cork...

        Possibly, the problem is that the wording seems to leave a lot of wiggle room as even there it's phrased in 'may' rather than 'shall' language, with law enforcement's role just vaguely left in the air with the suggestion that they have some sort of responsibility, and as past articles have made crystal clear leaving loopholes like that is practically begging to have them exploited.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Aug 2019 @ 9:56am

    Another layer of opacity shielding bad cops from accountability has been lifted in California.

    So yeah, while another veil has dropped, Salome has another 76 veils to go. Wake me up when it starts getting salacious around veil 63...

    reply to this | link to this | view in chronology ]

  • icon
    mojone (profile), 31 Aug 2019 @ 10:55am

    Blockquote The decision overturned a Court of Appeal ruling that barred the sheriff from giving prosecutors the names of deputies who had committed misconduct, including lying, taking bribes, tampering with evidence, using unreasonable force or engaging in domestic violence.

    and there are still working in the police.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 1 Sep 2019 @ 3:12am

      'You look the other way when I do X, and I return the favor...'

      If you want to be 'generous' you could say that they're still employed because the other cops prioritize protecting their own over anyone else, and as all of those crimes negatively impact people not wearing a badge they get lower priority.

      Less generous and it's because if cop A is doing a particular crime they're much less likely to rat out another cop doing the same thing, so corrupt cops get a pass because it makes it easier for other corrupt cops to get away with similar crimes.

      reply to this | link to this | view in chronology ]

  • icon
    Bodger (profile), 1 Sep 2019 @ 8:39am

    And in other news...

    ...and surely by coincidence and on the same day, all of the state's police agencies have announced new records retention policies requiring immediate destruction of all records related to police conduct "to maintain necessary security of ongoing investigations."

    reply to this | link to this | view in chronology ]


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