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Officer Prevails In Appeal Of Being Placed In “Brady Alert System”
By: John A. Turner
LACKIE & DAMMEIER LLP
In December of 2002 the
Los Angeles County District Attorney’s office issued special directive
02-07 entitled Possible Brady Material in the Possession of Law
Enforcement and special directive 02-08 entitled Brady Protocol. These
special directives along with the District Attorney’s Brady Compliance
Division Operations Manuel set the Brady Policy and Brady Protocol for the
Los Angeles County District Attorney’s office. During the months prior to
December 2002, Dieter C. Dammeier and John A. Turner of the Law Officers
of Lackie & Dammeier LLP met several times with the District Attorney,
Steve Cooley and members of his senior staff in order to ensure the rights
of police officers were not compromised by the District Attorney’s
proposed polices. The District Attorney on the other hand was attempting
to balance his office’s prosecutorial obligations under the Brady decision
and officer privacy rights in their personnel records.
Special directive 02-08
establishes the procedures for notifying the Brady Compliance Division of
potential Brady information and establishes the Brady Alert System. The
Brady Alert System is a computer-based system, which includes both known
historical and current Brady information on police officers. According to
this directive the only information from an employee’s personnel file to
be included in this automated system is that which is received pursuant to
a Pitchess Motion, where a court has released information without a
protective order prohibiting dissemination of the material or pursuant to
an investigation resulting in a criminal charge filed against the
employee. A decision whether or not to include a police officer into the
Brady Compliance Division Brady Alert System will be made by members of
the Brady Compliance Division after there has been an investigation of the
allegations either by the police officer’s agency, another law enforcement
agency or by the Los Angeles County District Attorney’s Office Justice
System Integrity Division.
Once the decision has
been made by the Brady Compliance Division to place a police officer into
the Brady Alert System the officer has a right to access and appeal
information to be included in the Brady Alert System. A letter will be
sent directly to the police officer from the District Attorneys Office
informing the officer of the rights and procedures to appeal being placed
into the Brady Alert System and the right to access and review materials
upon which the decision was made.
A police officer client,
whose name and agency will remain anonymous for the obvious reasons,
received one such letter. The letter from the District Attorney’s office
informed the officer that a decision had been made by the Brady Compliance
Division to place him in the Brady Alert System for an incident which
occurred many years ago in which there was no administrative allegations
sustained, no discipline imposed and there were no criminal charges
filed. The officer, while off duty, was misidentified as a robbery
suspect and arrested. No prosecution was sought, however his agency
terminated him. The evidence that came out in the civil service hearing
made clear that the officer was the victim of a bad identification by the
robbery victim. The officer was thereafter reinstated. Ufortunatley the
officers problems did not end there and he was faced with being placed in
the “Brady Alert System.” The case was assigned to John A. Turner who
drafted and filed an Opposition Brief opposing the decision to place the
officer into the Brady Alert System.
On November 17, 2003,
Lackie & Dammeier LLP was notified by the Los Angeles County District
Attorney’s office that upon review of the record and our Opposition Brief,
it cannot be concluded that substantial evidence exists to support the
determination by the Brady Compliance Division that our client should be
placed into the Brady Alert System. Accordingly, the decision by the
Brady Compliance Division was vacated and as a result the officer will not
be placed into the Brady Alert System. The officer was pleased to receive
that information, bringing some comfort, peace of mind, and closure to an
incident, which should not have occurred in the first place.
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