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Newsletters
LIMITING THE EFFECTS OF BRADY
By: Dieter C. Dammeier
Lackie, Dammeier & McGill APC The California Supreme Court has recently reaffirmed the definition of exculpatory or impeachment evidence that is "material" in a criminal defendant's case.
City of Los Angeles v. The Superior Court (Brandon) (2002) 29 Cal. 4th
1. The materiality requirement propounded by the Supreme Court in Brandon is assisting to turn the tide in regard to opinions on Brady effects on police officers careers. Some police administrators use Brady as an excuse to impose excessive disciplinary action against officers where they claim that because of Brady, the officers are no longer useful to the Department. The facts in the
Brandon case involve an officer who, ten years earlier, received a sustained complaint that the officer failed to report his partner's excessive use of force. The Supreme Court in the
Brandon, which involved a criminal defendant charged with lewd conduct with a seven year old boy, indicated that it was "not reasonably probable that a ten year old complaint of failing to report another officer's improper use of mace would alter the outcome of the defendant's trial." Id. At p. 16 Another example involves a California Highway Patrol Officer who had "irregularities" involving his time card investigated by his agency. A California Court of Appeals held that "evidence of time card irregularities would not establish a habit or custom or reputation for making false police reports."
California Highway Patrol v. Superior Court (2000) 101 Cal.Rptr.2d 379, 389. While there is no fine line between what is and what is not Brady material, based on recent court decisions, not all police misconduct involving credibility give rise to Brady implications, as some police administrators would suggest.
An example would be an officer who lied to a supervisor about a reason for being late to briefing. Since the officer is not lying on a police report or lying about evidence in a case, such conduct does not rise to the level of "materiality" for Brady purposes. When you think about it, lying to a supervisor and lying to a fellow officer or even to a friend all equally impact on the capacity for honesty. The only difference involves administrative misconduct charges where lying to a supervisor is involved. Looking at the issue in a criminal trial context, unless it is shown that you have a habit or custom of lying, neither rises to the level of being "material" to the defendant's guilt or innocence.
LOS ANGELES COUNTY'S NEW BRADY POLICY
As the firm representing more police associations in Los Angeles County than any other, attorney's from Lackie, Dammeier & McGill have had several meetings with District Attorney Steve Cooley and his staff regarding the drafting and implementation of his Brady Protocol. Mr. Cooley, and likely correctly so, believes that if he does not implement some form of Brady policy, one may be forced on him by the Courts. With that in mind, he has sought input from police labor leaders and attorneys in order to provide the maximum protection to police officers, while still complying with the requirements of Brady.
In developing this policy, safeguards have been put into place which include providing officers a right to appeal any information being placed in the Brady alert system maintained by the D.A.'s office. In every instance where the agency discloses the potential Brady information, the D.A.'s office will seek a protective order from the Court prohibiting disclosure or use of the information for anything other than the pending criminal action. Most importantly, the District Attorney's office will use a "clear and convincing" standard before placing any information into the Brady Alert System. Mr. Cooley has assured us that he will not allow police administrators to use his office to claim "Brady problems" to reassign or fire officers. In the past, under Cooley's predecessors, deputy district attorney's testified in administrative hearings claiming officers would have "Brady problems" if retained by the agency.
One issue is clear, Brady is here to stay. While it is expected the Courts and to some extent the legislature, will limit the impact of Brady on officer's careers, officers as well as police administrators should be watchful and take whatever actions are available to limit exposure in this area. One such avenue involves the destruction of material in officer's personnel files involving misconduct. As most officers know, Penal Code §832.5(b) requires the retention of citizen's complaints for at least a five-year period. Many if not most law enforcement agencies have a policy of routinely destroying citizen complaints after five years. It is highly recommended that POA's, where such destruction does not occur, negotiate such an issue into their next MOU. The California Supreme Court in
Brandon indicated that where an agency does routinely destroy records after five years there is no constitutional violation.
Lackie, Dammeier & McGill has also drafted proposed legislation for next year to address issues involving the retention of Brady material. We will keep you posted.
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