February 22. 2017 (Fault Lines) — Does anyone in the criminal justice realm have a responsibility to disclose the names and disciplinary records of law enforcement officers with a history of misconduct? If you were asking defense attorneys, the answer would be a foregone conclusion. But in law enforcement circles it gets a bit murky.
LA County Sheriff Jim McDonnell has amassed at his office a list of some 300 deputies with various offenses to their names, including, to name a few, bribery, brutality, domestic violence, theft and tampering with evidence. He wants to send those names to the district attorney so they can decide if the names need to be added to their internal list of “problem” law enforcement officers whose information may need to be disclosed to defendants in criminal trials.
California law on disclosure of law enforcement officer personnel records is quite clear and can be summed up thusly: NO!
The Golden State has some of the toughest police records disclosure laws in the country and while the police unions have actively lobbied and supported it, the credit for these laws goes to California lawmakers all the way back in 1976 with the Public Safety Officers Procedural Bill of Rights Act. They then beefed it up two years later when (Yes, he was Governor then too.) Governor Jerry Brown signed a bill critically limiting a criminal defendant’s access to the personnel records of police officers.
However, there were still a few avenues available for the public to be informed about cops with serious misconduct issues. Police commission hearings in cities like San Francisco, Oakland and Los Angeles, and police review boards, disclosed information in certain high-profile cases. The Christopher Commission report was one of these. Many details of the now infamous Rampart Scandal also saw the light of day, and it’s reasonable to conclude that the public, and especially a defendant on trial, has a right to know if the arresting officer has serious misconduct in his file or that the police department happens to know he’s a full-fledged criminal.
In 2006, the California Supreme Court slammed the door on everything with their decision in Copley Press, Inc v. Superior Court. It killed public access to any information about police officer misconduct, even the identity of officers. All that is available now is a defendant’s limited right to use officer discipline records in defense of their case where they are claiming the police officer is lying, under the 1974 California Supreme Court ruling in Pitchess v. Superior Court.
California may have slammed the door, but the United States Supreme Court opened a couple of windows with decisions such as Giglio v. United States and Brady v. Maryland, requiring the prosecution to disclose known officer misconduct and exculpatory evidence respectively to a defendant.
California has shut the door so tightly that the LA County District Attorney’s office feels they have no obligation to go looking for evidence of any officer’s misconduct. Furthermore. Jason Lustig, LA County’s deputy DA in charge of the discovery compliance unit, stated in a declaration that:
There is not presently in place any procedure or practice by which any local law enforcement agency has or does notify the Discovery Compliance Unit of potential Brady material in the personnel file of any agency’s peace officer employees.
Lustig goes on to declare that his office won’t even accept any information on an officer offered by his employer without express permission from the officer.
So much for seeking justice.
Unless any Brady material is contained in their internal system, which consists only of information from outside sources, they don’t look for it at all: It’s up to the defense to file a Pitchess motion.
The fact that the Sheriff wants to hand this material over can be seen as a sign that pressure from the public over transparency is having an effect. It’s already being done in other California jurisdictions. The DA’s office doesn’t really want all this information hitting their internal database because it obligates them to disclose it. If they don’t have it and are not required to go looking for it, their job is easier. This raises some questions about Lustig’s declaration which was offered in support of a court filing by the Association for Los Angeles Deputy Sheriffs blocking the release of the information.
ALADS is arguing that the disclosures would violate state law and cause unfair scrutiny of officers whose mistakes might have been made long ago. However, recently the State Supreme Court has taken a different position when it commended the San Francisco police department for handing over problem officer records to the DA. The California Attorney General says it’s legal too.
It’s not like the records are going public, and nobody cares about a rookie mistake some cop made ten or 20 years ago. People, especially those facing years in a concrete cage based on the word of a cop with an ongoing history of lying or other misconduct, have a stake in this.
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