A setback for due process

Prosecutors are constitutionally bound to share with criminal defendants any evidence that undermines the credibility of their witnesses, including police officers. But if that evidence is locked up in confidential police personnel files — for example, in disciplinary or complaint records — how can the district attorney find out about it to turn it over?

In a disappointing decision, the California Supreme Court on Monday denied prosecutors direct access to police personnel files and, in so doing, exacerbated the continuing tug-of-war between state statutes that protect officer confidentiality and the due process rights guaranteed to the accused by the 14th Amendment and fleshed out in the landmark 1963 case of Brady vs. Maryland.

Under the ruling, police officials in many California jurisdictions will continue to be virtual gate-keepers of potentially exculpatory evidence, deciding on their own which records rise to the level of so-called Brady material that they must flag for prosecutors (who, in turn, decide whether to share it with the defense).

But the police should not be expected to be their own watchdogs. Last year, an appeals court ruled that the district attorney should be able to look through their files — without first obtaining a court order — to search for evidence of dishonesty, bias, excessive force or other factors that could undermine officers' credibility. Only after Brady material is found would the prosecutor have to make what is known as a Pitchess motion, seeking court permission to disclose the information.

"Pitchess" refers to a state court ruling laying out procedures for complying with the various statutes protecting the confidentiality of police files.

The lower court ruling seemed a workable balance between Brady and Pitchess and recognized that Brady, after all, interprets a federal constitutional right and should take precedence over state statutory protections.

In rejecting the lower court's position, the Supreme Court noted that if defendants want items in police files, they can make their own Pitchess motions. Prosecutors, the court said, satisfy their Brady duty merely by sharing with the defense whatever material they were given by police.

The problem with the court's approach is that it puts defendants in the position of speculating about what may be in police files. How can they ask for something if they don't know it's there? It gives police brass too much discretion to decide when evidence in their officers' files is or is not material to a defendant. And it strips prosecutors of much of their incentive to find out whether the officers they are putting on the stand are credible.

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