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Can LA's Sheriff Turn Over The Names Of 'Problem' Deputies To The DA? It's Now Up to CA's Supreme Court

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A Los Angeles County Sheriff's deputy sits in a patrol car in a file photo from 2016. (Photo by Maya Sugarman/KPCC)
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The California Supreme Court took up a landmark police transparency case Wednesday, hearing oral arguments over whether the L.A. County Sheriff's Department can share with the District Attorney the names of deputies who might have credibility problems.

Lawyers representing the county argued that prosecutors have a constitutional obligation to share that kind of information with the defense. The attorney for the deputies' union said doing so would violate officers' privacy rights.

Justices peppered both sides with questions, asking the county's lawyers about ensuring protection of officers' privacy, and pressing the deputies union attorney about prosecutors' constitutional duty to share exculpatory information with the defense.

The case started three years ago, when former Sheriff Jim McDonnell tried to provide the DA with the names of 300 deputies found to have engaged in misconduct that might raise questions about their credibility when testifying in court.

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The collection of names is called a Brady list, after the landmark 1963 U.S. Supreme Court case Brady v. Maryland, which established that prosecutors must turn over to the defense any evidence that might point to a defendant's innocence.

The Association of Los Angeles Deputy Sheriffs sued to block McDonnell's move, arguing that turning over the list would violate California's Peace Officer Bill of Rights, which prohibits the release of any officer-related information unless a certain procedure is followed.

The procedure is the "Pitchess" process. It allows a defense attorney in a criminal case to file a motion asking a judge to review an officer's file in private and decide which information, if any, should be released. Pitchess also includes protections for officers' privacy.

A state appeals court ruled in the union's favor in July 2017, ordering that the list remain secret. The county appealed to the state supreme court.

THE ARGUMENTS: PRIVACY VS. THE RIGHT TO A FAIR TRIAL

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On Wednesday, Geoffrey Sheldon, one of the attorneys arguing on behalf of the county, said for the purposes of enforcing the Brady decision, prosecutors and law enforcement are part of the same team, and that team is legally required to seek out information that might point to a defendant's innocence.

Sheldon and his co-counsel, Aimee Feinberg of the state attorney general's office, fielded repeated questions about whether providing prosecutors with the Brady list would violate officers' privacy rights under Pitchess.

"Officer privacy needs to give way [to a defendant's right to a fair trial] in a very limited situation like this," said Sheldon.

Chief Justice Tani Cantil-Sakauye wondered whether keeping an updated list of problem officers would lead to "constant rifling through the personnel records of officers that will be sort of on a loop shared" with prosecutors. "Somehow I find that a little more intrusive" than having a judge privately review an individual officer's file under the Pitchess process, she said.

Feinberg responded that there would be judicial review of far fewer cases if the Brady list is shared. The problem with relying solely on the Pitchess process, she said, is that a defense team can only be aware of an officer's conduct in relation to its client. It can't be aware of any other possible misconduct that occurred during the officer's career, added Feinberg.

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Arguing on behalf of the deputies union, Judith Posner said the legislature had laid the ground rules for protecting officer privacy through the Pitchess process, and that the courts have ruled numerous times that Pitchess works well.

Justice Goodwin Liu pressed Posner on her reasoning. "The whole point of Brady is the prosecution can't simply take an ostrich-like approach to this very important duty," he said.

If the prosecution - which Liu noted for the purposes of enforcing Brady includes law enforcement - fails to take all possible steps to unearth possible bad actors, "convictions will be reversed. Valid convictions will be reversed ,,, Why would we do that?"

Posner insisted that the legislature has struck the proper balance between the obligations of Pitchess and Brady, and that prosecutors can and do maintain their own lists of problem officers.

Typically the state supreme court issues rulings within 90 days of hearing an oral argument.

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WHAT GETS YOU ON THE LIST?

The L.A. Sheriff's Department lists 11 types of misconduct that can land a deputy on the Brady list.

  1. Immoral conduct
  2. Bribes, rewards, loans, gifts, favors
  3. Misappropriation of property
  4. Tampering with evidence
  5. False statements
  6. Failure to make statements and/or making false statements during departmental internal investigations
  7. Obstructing an investigation/influencing a witness
  8. False information in records
  9. Discriminatory harassment
  10. Unreasonable force
  11. Family violence

The union maintains that in some of these cases, being placed on a prosecutor's list could ruin an officer's career for issues unrelated to job performance.
The union also argues that the list as constituted is unfair and inaccurate.

HOW PITCHESS WORKS: IT'S LEFT UP TO THE JUDGE

For years, most district attorneys around the state agreed with the union that officers' privacy must be protected under the Pitchess process.

Criminal defense attorneys say that's left them blind to bad deputies. They also have long argued the Pitchess process makes finding out about bad officers nearly impossible.

Under Pitchess, a judge examines an officer's file in chambers without either side present and decides whether anything is material to the case and could help the defense.

Even then, usually only the names and addresses of people who have filed complaints are handed over - not full internal investigative files of misconduct. It's up to the defense to track those down.

Complicating matters is California's new police transparency law. It requires public disclosure of the names and investigations of any law enforcement officers involved in a major use of force, officers found to have engaged in sexual misconduct on the job, and officers found to have lied in their official capacity.

The high court has asked the two parties to file briefs on how the new law might affect this case.

The transparency law doesn't cover a range of misconduct committed by officers that must be revealed under Brady, including those defined as violations of moral turpitude like domestic violence and DUI's, bias toward defendants and a "reputation of untruthfulness."

THE NEW SHERIFF SIDES WITH THE UNION

McDonnell defended his attempt to turn over the Brady list on the grounds that he was cleaning up a department whose previous sheriff, undersheriff and nearly 20 others were indicted on corruption and other charges.

Last year, the union helped oust McDonnell and elect Sheriff Alex Villanueva, who is sympathetic to its argument that the former sheriff's list is unreliable.

"We had a very flawed process that produced the list to begin with," Villanueva said last week. "There were an astounding number of cases that were created in bad faith."

The new sheriff has halted a larger-than-usual number of internal investigations of deputies, and has promised to review hundreds of discipline cases.

Paul Glickman contributed to this article.

UPDATES:

4:35 p.m. June 5: This article was updated with information from the June 5 oral arguments.