The California law that keeps police misconduct secret

Sometime next year, the California Supreme Court will decide whether Los Angeles Sheriff Jim McDonnell can hand over to the district attorney the names of about 300 deputies who engaged in misconduct that raises questions about their credibility.

That’s important for District Attorney Jackie Lacey to know. Sheriff’s deputies bring thousands of criminal cases to her office for prosecution every year. If any have lied in the past on police reports or used excessive force, she may want to probe the deputies role in the case.

Lacey is also obligated under a 1963 United States Supreme Court decision known as Brady to notify the opposing defense attorney of any evidence that might point to the defendant’s innocence. That includes identifying officers involved in the case who have lied in the past.

But California also has something called a "Pitchess process" that some say runs counter to what’s known as Brady obligations.

Pitchess is at the heart of the case before the state’s high court, where the Association of Los Angeles County Sheriff’s Deputies (ALADS) is fighting to stop the sheriff from taking the unprecedented move of simply giving the DA the list.

ALADS argues police agencies can almost never release personnel files or any portion of them. Together with police unions around the state, ALADS over the years has successfully lobbied for the most restrictive police records laws in the nation.

The origins of Pitchess

Some quick history: Peter Pitchess was an L.A. County Sheriff himself, starting in 1958 and serving for nearly a quarter century. But unlike McDonnell, he sought to quash a defendant’s effort to reveal misconduct by a group of deputies. The deputies had arrested the defendent on charges he assaulted them.

A judge ordered Pitchess to produce a portion of the deputies' personnel records. The sheriff refused and appealed to the state supreme court. Pitchess lost and was forced to turn over the records.

Through that 1974 court case and rules set up later by the state legislature, the Pitchess process was born. It's designed to balance the rights of defendants to find out if the officer who arrested them has engaged in misconduct in the past with the privacy rights of the officer with regard to their personnel file.

But many criminal defense attorneys say Pitchess has instead become another barrier to transparency, a law enforcement wall beyond which nobody is permitted.

“Finding out when police are lying is probably the most difficult thing about being a defense lawyer,” said Charles Anderson, who was a public defender for eight years before landing at UCLA teaching criminal trial advocacy.

Here’s how Pitchess works:

• First, an attorney needs to get a tip from his client or a police officer or a city attorney or prosecutor that an officer may have a history of misconduct. The attorney must then file a notice that he intends to file a Pitchess motion 16 court days and five extra calendar days in advance of filing it. The attorney must show "good cause" for getting the information.
• The judge reviews the officer’s file and determines if anything in it is relevant to the criminal case. For example, is the defendant charged with assaulting the officer and the officer has a history of excessive force?
• But defense attorneys are not immediately entitled to any discipline or complaint associated with the officer. Instead, the judge will only give them the name, number and address of the person who filed the complaint against the officer. They often are hard to track down and reluctant to testify against the officer in a case they have nothing to do with.

“I can count on one hand – and I don’t need any fingers – the number of times I’ve gotten useful information that made a difference in the outcome,” said Andy Bouvier-Brown, a criminal defense attorney in Los Angeles.  He blames the Pitchess process and wonders if some police departments don’t hide discipline records.

Pitchess produces other barriers. Misconduct more than five years old generally cannot be used against the officer and defense attorneys cannot share information about problem officers.

ALADS declined to comment for this story.

Retired Superior Court Judge Richard Neidorf, a former deputy district attorney and police officer, thinks cops need that kind of protection from frivolous claims of misconduct.

But he also acknowledges that defense attorneys in particular face huge hurdles to raise even legitimate questions about a cops credibility. But he's unsure of how to rectify that without infringing on police officers' privacy.

"That’s the way the system is," Neidorf told KPCC. "The system is not always fair.” 

He notes it doesn't necessarily make sense for prosecutors to have to rely on police departments to identify their own officers who've committed misconduct.

Lacey walks fine line

While the DA’s prosecutors often fight any defense effort to impeach an officer, Lacey this year also broadened the type of conduct that can land a cop on her list of officers with credibility problems.

She won’t say how many are on the list, but says the number runs into the hundreds. The list was started by former DA Steve Cooley about ten years ago.

The DA’s list also now includes a section for police who have been accused of wrongdoing but investigators cleared the officer or decided there wasn’t enough evidence to determine guilt or innocence.

Lacey’s effort to strengthen how she handles “Brady” material in part was motivated by a 2015 law that bolsters a judge’s ability to remove a prosecutor who withholds evidence. The judge could also eject the DA’s office entirely from a case.

When the Los Angeles Times got ahold of an old list of deputies with credibility problems and published an article earlier this month, Lacey said her office didn’t even know about some of the 22 deputies named in it.

“It was good to have that information because we’re trying cases relying on sheriff’s deputies,” she told KPCC.

But she still lacks access to sheriff and police lists of problem cops they employ. In fact, she said she doesn’t know how many police departments even have such lists.

After the publication of the sheriff's names, s0me defense attorneys immediately reviewed old cases to see if any of the deputies were involved in sending their clients to prison. But an appeal arguing the DA failed to disclose the deputy's past misconduct would face an uphill battle, said defense attorney Robert Schwartz.

For one thing, most of the misconduct happened longer than five years ago – the cutoff to introduce it in court proceedings. Plus, judges are always reluctant to revisit cases in which there was a plea deal or trial and the one appeal the state guarantees you by providing a free lawyer.

“I believe there is going to be some institutional resistance to that," said Schwartz.

Does Pitchess work?

Lacey would not answer the most obvious question: does the Pitchess process of identifying lying cops work in California?

“That’s an interesting question, that’s an interesting question,” Lacey said.

It’s worth noting Lacey’s office has to work with cops every day and her own 200 plus investigators are members of the deputy’s union. She’s balancing the demands of a lot of constituencies.

As for the sheriff’s case before the state supreme court – the one that will determine whether she get the secret list of deputies who may have credibility problems – Lacey walks a fine line again. She has refused to file an Amicus brief backing the sheriff but says she certainly supports the effort.

“If the court rules against the sheriff – which it may very well given the state’s laws favoring police officers – the DA should lobby the legislature for changes,” said attorney Peter Eliasberg of the American Civil Liberties Union of Southern California.

“Police and a lot of prosecutors may think Pitchess is working fine, but it’s not,” he said.