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The California Supreme Court has upheld the right of police departments to bar access to officer misconduct files that are more than 5 years old as well as to routinely destroy those records, despite federal requirements that any exculpatory information be made available to a defendant. In City of Los Angeles v. Superior Court (Brandon), 02 C.D.O.S. 7802, the state’s high court found that California’s so-called Pitchess statute, which sets the five-year time limit on disclosure of police personnel records, does not violate a defendant’s constitutional right to a fair trial. “We are not persuaded that fundamental principles of justice are implicated by section 1045(b)(1), under which there is no statutory right to disclosure of citizen complaints of police misconduct that occurred ‘more than five years before’ the charged crime,” wrote Justice Joyce Kennard in her majority opinion. At the same time, the case gave police departments carte blanche to shred personnel files that are more than 5 years old, which many already do. “The court’s saying there’s no problem with police departments routinely destroying records after five years,” said Gerald Uelmen, a professor at Santa Clara University School of Law and a close observer of the court. “You can have all the constitutional rights in the world and it’s not going to resurrect records that have been reduced to ashes.” The case tested the intersection of federal and state law in an important area of criminal justice. Under Pitchess, which the California Legislature codified from a 1974 state supreme court decision, defendants have the right to see citizen complaints about their arresting officers if they can show that the information is relevant to their defense. While these records can bolster a defense in cases where the arresting officers have a history of misconduct, the statute excludes any complaints that are more than 5 years old. In Brandon, defendant Jeremy Brandon, who was charged with molesting a 7-year-old boy, sought access to the personnel records of the two arresting officers. His lawyer said Brandon might argue that the officers had improperly coached witnesses to lie. One of the officer’s records had a complaint from 10 years earlier that he had failed to report the improper use of mace by a partner officer. Prosecutors argued that this evidence was inadmissible under Pitchess as it was more than 5 years old. But the defense claimed that under the U.S. Supreme Court’s 1963 decision in Brady v. Maryland (1963), 373 U.S. 83 (Brady), the prosecution had a constitutional obligation to disclose any evidence that is “favorable to the accused” and is “material” on the issue of either guilt or punishment. Both the trial court and the 2nd District Court of Appeal agreed with the defense, finding that Pitchess’ time limit was trumped by Brady‘s due process right. In reversing, the California Supreme Court ruled the evidence was not admissible, as it did not pass Brady‘s tougher requirements of materiality. While the court ruled against Brandon, it said that defendants in other cases who satisfied Brady‘s materiality requirement could request police personnel records that are more than 5 years old. “I think over all, it widens the scope of available discovery, which is good,” said Deputy Public Defender Mark Harvis, who argued the case for the defense. “The bottom line is that the [California] Supreme Court has expanded the defense ability to obtain Brady material involving officer misconduct.” But Assistant Attorney General Gary Schons, who argued the case for the attorney general’s office as amicus curiae, said the decision doesn’t give defendants any greater rights to that discovery. “What this does do is provide a mechanism to accomplish that preexisting constitution requirement.” Justice Janice Rogers Brown concurred in the result, but said trial judges should not ever be permitted on a Pitchess motion to search through confidential police personnel records for Brady material that is more than 5 years old. In a dissenting opinion, Justice Carlos Moreno stressed that even though the court expanded the state’s Pitchess process to potentially discover evidence more than 5 years old, the point is moot since it also allowed police departments to destroy material more than 5 years old. “While this holding may be tenable in theory,” wrote Moreno, “the majority ignores the stark reality that, as a practical matter, there will be no document older than five years available for an in-chambers review.”

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