There are about 300 Los Angeles County deputy sheriffs and higher-ranking officials whose personnel files include evidence that they lied, took bribes, used excessive force or committed some other type of misconduct that is sufficiently serious to undermine their credibility as prosecution witnesses in criminal cases. Prosecutors have a constitutional duty to share that kind of evidence about their witnesses with defendants, but they can’t do it if they don’t know about it, and the California Supreme Court has blocked them from poring through law enforcement files themselves to find out who those deputies might be.
The obvious solution is for Sheriff Jim McDonnell to provide Dist. Atty. Jackie Lacey with the names (and only the names, not the files themselves) of those deputies so that she can meet her obligation to inform defendants. Once notified, defendants could ask the court to examine and even disclose the problematic personnel information.
But that effort, too, is being blocked in court at least temporarily, as appeals court justices mull whether McDonnell’s laudable attempt to provide transparent, accountable — and constitutional — policing runs afoul of California’s crippling police privacy laws.
The question is in court because of a lawsuit filed by the Assn. for Los Angeles Deputy Sheriffs, the deputies’ labor union. ALADS argues that it’s unfair to put deputies on a virtual blacklist for conduct that may have occurred years ago. What if a deputy who was once accused of lying, for example, stopped challenging the accusation only because the department agreed there would be no discipline or other recriminations? Wouldn’t it be unfair to now put his or her name on a list?
No, it would not. A list is not in itself new discipline or punishment. It is just information provided to the district attorney that may raise a red flag for her and defense lawyers about a key element of her case. It would remain up to prosecutors to decide whether the information makes the deputy useless as a witness. It would be up to the court to determine whether the information is sufficiently relevant to be disclosed and presented in court. It would be up to McDonnell and his leadership team to decide how to deploy the deputy in question.
To be sure, listing could well bring consequences, especially if prosecutors or defense lawyers follow up with a motion to open the files and discover evidence of moral turpitude. A deputy who loses his or her value as a prosecution witness also may lose value in the field. In an October letter to deputies notifying them of the plan to provide Lacey with the list, the Sheriff’s Department noted that one result could be reassignment to limit department liability.
But the list — referred to as a “Brady list” after the landmark 1963 Supreme Court case of Brady vs. Maryland — is a minimally intrusive way for prosecutors to satisfy their duty to ensure constitutional due process to defendants by notifying them of potential holes in the case against them.
Any system that relies on police to be their own watchdogs is problematic, to say the least, but in several jurisdictions the police chief or sheriff has taken on the task with integrity and thoroughness. McDonnell is seeking to join that group. The California Court of Appeal should let him.