Officer records

The deliberately ignorant prosecutor

People v. Superior Court (Johnson) (2015) 61 Cal.4th 696

Pitchess

What is called a Pitchess motion is really a motion under Evidence Code section 1043 et seq and Penal Code section 832.7 et seq as created by SB1436 in 1978. Those statutes were passed in reaction to the California Supreme Court case of Pitchess v. Superior Court (1974) 11 Cal.3d 531 and to limit the effects of the Pitchess decision. In Pitchess the California Supreme Court case upheld a subpoena duces tecum (SDT) for citizens' complaints of excessive force against Los Angeles County Sheriff's Deputies. Peter J. Pitchess was the Los Angeles County Sheriff at the time.

Pitchess is an express statutory provision within the meaning of 1054(e). (Albritton v. Superior Court (1990) 225 Cal.App.3d 961, 963.)

Cases

• Pitchess v. Superior Court (1974) 11 Cal.3d 531
• People v. Mooc (2001) 26 Cal.4th 1216
• Fletcher v. Superior Court (2002) 100 Cal.App.4th 386
• People v. Memro (1985) 38 Cal.3d 658, 679-680
• County of Los Angeles v. Superior Court (1990) 219 Cal.App.3d 1605
• City of Fresno v. Superior Court (1988) 205 Cal.App.3d 1459
• Alford v. Superior Court (2003) 29 Cal.4th 1033
• New York Times Co. v. Superior COurt (1977) 52 Cal.App.4th 97
• City of Hemet v. Superior Court (1995) 37 Cal.App.4th 1411
• Albritton v. Superior Court (1990) 225 Cal.App.3d 961
• City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1
• People v. Superior Court (Johnson) (2015) 61 Cal.4th 696
• Association for Los Angeles Dpeuty Sheriffs v. Superior Court of Los Angeles County (2019) 8 Cal.4th 28
• City and County of San Francisco v. Superior Court (1981) 125 Cal.App.3d 879.
• Davis v. City of Sacramento (1994) 24 Cal.App.4th 393
• Michael v. Gates (1995) 38 Cal.App.4th 737
• County of Los Angeles v. Superior Court (1990) 219 Cal.App.3d 605
• County of Los Angeles v. SUperior Court (1993) 18 Cal.App.4th 588
• City of Hemet v. Superior Court (1995) 37 Cal.App.4th 1411
• Garcia v. Superior Court (2007) 42 Cal.4th 63
• People v. Gaines (2009) 46 Cal.4th 172
• People v. Navarro (1978) 84 Cal.App.3d 355
• People v. Husted (1999) 74 Cal.App.4th 410

Prosecutor access

People v. Superior Court (Johnson) (2015) 61 Cal.4th 696

"the prosecution does not have unfettered access to c onfidential personnel records of police officers who are potential witnesses in criminal cases. Rather it must follow the same procedures that apply to criminal defendants."

"we also conclude that where the prosecution has been informed by the police department that an officer's personnel records might contain exculpatory information the prosecution fulfills its Brady duty if it informs the defense of what the police department informed it, namely that the specified might contain exculpatory information. That way, defendants may decide for themselves whether to bring a Pitchess motion. The information the police department has provided, together with some explanation of how the officers' credibility might be relevant to the case, would satisfy the threshold showing a defendant must make in order to trigger the Pitchess procedures."

Federal agents

Request for state case

In People v. Salcido (2008) 44 Cal.4th 93, the trial court denied a Pitchess request for a DEA agent because "it did not have jurisdiction to order the United States Attorney into court, could not enter an ex parte order in the absence of counsel, and lacked authority to order production of the records." (Salcido, at p. 145.) The California Supreme Court said the denial of the Pitchess was within the trial court's discretion because of the lack of good cause shown. The California Supreme Court did not address at all the lack of authority of a California court to order discovery from a federal agency.

However, I'm sure the Forest Service would claim an official privilege such as FOIA exemption 6 or the Privacy Act. But 5 USC 552a(b)(11) does allow release of personnel records pursuant to a court order. A SDT may not be considered a court order. (Stiles v. Atlanta Gas Light Co. (N.D. Ga. 1978) 453 F.Supp. 798; see Doe v. DiGenova (D.C. Cir. 1985) 779 F.2d 74 [rejecting a grand jury subpoena as a court order].)

If it's a federal case, ​read United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991) and United States v. Cadet, 727 F.2d 1453 (9th Cir. 1984) in which personnel files are discoverable under Brady, but unfortunately, the government gets to review them for "materiality."

Saulter v. Municipal Court (1977) 75 Cal.App.3d 231, which was a post-Pitchess v. Superior Court (1974) 11 Cal.3d 531, but pre-EC1043 et seq case, that approved of a court ordering ATF to disclose personnel records. That's also this interesting line in the case:

"Unless there is supervening policy under an act of Congress, which precludes such action by an employee of the bureau involved in this matter, sanctions similar to those contemplated by state law against the use of the testimony of the federal officer as a witness might be imposed. In other words, a finding that he had used excessive or unnecessary force on past occasions might be imposed against a federal employee witness, if his refusal to consent to the disclosure of his personal records were the sole ban to the discovery of such records."

Frankly, if I'm defending a case that involves investigation by federal agents and there's going to be discovery non-compliance, I'm going to aim for a dismissal.

"Dismissal is proper as a sanction for refusing to comply with a discovery order when the effect of such refusal is to deny defendant's right to due process." People v. Brophy (1992) 5 Cal.App.4th 932, 937, citing People v. Broome (1998) 201 Cal.App.3d 1479, 1497; Dell M. v. Superior Court (1977) 70 Cal.App.2d 782, 786.)

From the Johnson case: "'[T]he Pitchess scheme does not unconstitutionally trump a defendant's right to exculpatory evidence as delineated in Brady. Instead, the two schemes operate in tandem.' (People v. Gutierrez, supra, 112 Cal.App.4th at p. 1473.)" (People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, 719-720.)