Attorney General Issues Opinion Approving Brady List Procedures

Category: Special Bulletins
Date: Oct 16, 2015 12:34 PM

On October 13, 2015, California Attorney General Kamala D. Harris issued a Published Opinion, No. 12-401, relevant to a law enforcement agency's dual responsibilities to comply with Brady v. Maryland and California's Pitchess statutes in the wake of the California Supreme Court's recent decision in People v. Superior Court (Johnson).  The Attorney General approved, over the objections of the California Highway Patrol, a Brady procedure that is similar to procedures adopted by multiple prosecutors.

Ventura County District Attorney Gregory Totten, prior to the announcement of the Johnson decision, requested the Attorney General's opinion on two questions:

  1. Does Penal Code section 832.7, subdivision (a), authorize a district attorney, for the purpose of complying with the United States Supreme Court's ruling in Brady v. Maryland, to directly review the personnel files of peace officers who will or are expected to be prosecution witnesses?

  2. To facilitate compliance with Brady v. Maryland, may the California Highway Patrol lawfully release to the district attorney's office the names of officers against whom findings of dishonesty, moral turpitude, or bias have been sustained and the dates of the earliest such conduct.

The Attorney General noted that the first question was directly answered by the Johnson decision: Section 827, subdivision (a) does not authorize a district attorney to directly review such files without complying with Pitchess.

Regarding the second question, the Attorney General opined that the CHP may lawfully release to the district attorney's office a list of the names of officers against whom the aforementioned types of findings had been sustained.  The Attorney General noted that while the Johnson opinion did not squarely decide the issue of whether the practice of providing such a list was permissible, it "plainly described, and approved of, a policy substantially similar to the one we consider here."  The opinion further states: "We believe the Supreme Court's approval of the policy was logically necessary to its decision, and we therefore regard the Johnson decision as good authority for the proposition that such a policy is legally valid."

Prior to the Attorney General's Published Opinion, the California District Attorneys Association proposed an "External Brady Policy" to govern the review of CHP officers for Brady purposes.  Under this proposed policy, a qualified representative of the CHP would examine the files of CHP officers who have been the subject of complaints, arrests, or internal investigations for the purpose of identifying (1) offers against who there have been sustained misconduct within the preceding five years that reflect moral turpitude, untruthfulness, or bias on the part of the officer; and (2) officers who have been convicted of a moral turpitude offense, or who are on probation for any offense, or have criminal charges pending against them.  Based on this information, the CHP would be expected to compile a secure database or list of officers who had such sustained findings, although the conduct itself would not be described on the list.  In turn, prosecutors would have access to this Brady list and could search it for the names of officers who had been subpoenaed.  Prosecutors would then have to file a Pitchess/Brady motion to obtain and review the actual records.  Officers who had been placed on the Brady list would be informed, and would have the right to appeal their placement on the list. 

The CHP argued in opposition to the proposed policy that it could not lawfully disclose the information (names/dates) called for by the proposed "External Brady Policy" to a district attorney. 

First, the CHP argued that it was not part of the "prosecution team" and that it instead had a "hybrid status" similar to the California Department of Rehabilitation.  The Attorney General rejected this argument and opined that when CHP officers act on the government's behalf or assist the government's case, both the individual officers and the CHP itself are part of the prosecution team.

Second, the CHP argued that the proposed policy improperly delegated the prosecution's Brady duty to the CHP.  The Attorney General also rejected this argument, stating that Brady imposes obligations "not only on the prosecutor, but on the government as a whole."

The CHP argued that it was not qualified to determine what material in its officers' files is relevant for Brady purposes, because it would lack knowledge of the particular case.  The Attorney General acknowledged that the prosecutor is in a better position to make Brady determinations in a particular case, and can tell a law enforcement agency what types of documents to look for.  However, the Attorney General found, this does not make the kind of initial review in the proposed "External Brady Policy" unworkable, and the Attorney General pointed to two cases in which similar initial screening policies were upheld.

Finally, the CHP argued that the compilation and disclosure of the Brady list information would violate officers' rights under the POBRA.  The attorney General stated, "While POBRA does contain some privacy protections, it expressly contemplates that an officer's name may be placed on a Brady list or otherwise disclosed pursuant to Brady.  We conclude that, so long as CHP complies with POBRA's procedural requirements, a policy that asks the CHP to perform an initial file review and disclose Brady list information does not violate POBRA." 

What does this mean for your agency?

The Attorney General Opinion is advisory and not binding, but it can be considered persuasive authority by courts.  Many prosecutors across the state have been reviewing their Brady policies and procedures in the wake of the Johnson decision.  Some prosecutors have already adopted policies like the one described in the Attorney General's Opinion.  It is likely that this Opinion will encourage even more prosecutors to revise their Brady policies to request law enforcement agencies to affirmatively provide prosecutors with the names of specific peace officers that have potential Brady material in their personnel records without having to disclose the substance.

The Attorney General Opinion provides further reason for employers to carefully consider the level of discipline to be imposed in cases which call an officer's credibility into question or otherwise involve behavior demonstrating moral turpitude.  It is important to remember that the Public Safety Officers Procedural Bill of Rights Act was amended in 2013 to add Government Code section 3305.5, prohibiting an employer from taking punitive action against a peace officer because the officer's name is included on a so-called Brady list or because the officer's name may otherwise be subject to disclosure pursuant to Brady.  Nevertheless, an employer may impose punitive action against a peace officer for the underlying conduct that landed the officer on the Brady list provided that the punitive action is timely imposed within the one year statute of limitations.

As suggested by the Attorney General Opinion, deciding whether to include an officer's name on a Brady list may not always be an easy decision.  Law enforcement employers are encouraged to seek expert advice from their police legal advisors in deciding what information to provide to prosecutors.  Ideally, working together, prosecutors and law enforcement leaders will be able to agree upon procedures that protect the privacy of officers, resolve the concerns of law enforcement employers, and meet the needs of prosecutors.

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