Suit Filed Against D.A. to Halt Destruction of Old Files

Several lawyers organizations filed a lawsuit Tuesday to prevent the district attorney’s office from destroying thousands of old files, claiming the records could provide critical information for innocent people wrongly convicted of crimes.

“We cannot understand why the district attorney’s office is so insistent on destroying these files, since the records may be essential to full appellate review,” said Robert Berke, past president of California Attorneys for Criminal Justice, one of the plaintiffs. “Public officials should be trying to preserve records which belong to the public, not finding ways to destroy them.”

The lawsuit cites a number of cases where old files were helpful in proving the innocence of wrongly convicted people, including Clarence Chance and Benny Powell, who spent more than 17 years in prison and were freed after their murder conviction was overturned three years ago.

The lawsuit also cites a jailhouse informant scandal in 1988 as an example of the importance of preserving old files. An informant demonstrated that he could easily fake another inmate’s confession and fool police and prosecutors. After the demonstration, the district attorney’s office moved quickly to restrict the use of jailhouse informants, who had traded supposed confessions for favors from law enforcement.

In the wake of that controversy, prosecutors agreed to preserve old files because a number of cases involving informants were being reviewed. But earlier this year, prosecutors contended that they simply did not have room to house old files and the cost was prohibitive.

“The district attorney’s office is primarily concerned with the time and the expense of storing so many files,” said Frederick Bennett, an assistant county counsel. “It’s a big storage problem. There has to be a balance between the cost of keeping these files and the rights of a person who has been convicted of a crime.”

Last month, Superior Court Judge John Reid ruled that he lacked authority to order the district attorney’s office to preserve the files. But, he added, he “does believe that the district attorney’s office has an ethical responsibility to preserve the integrity of any future prosecutions as well as any rights of those previously sentenced prisoners. The court can only suggest that the district attorney’s office reconsider their position.”

California Attorneys for Criminal Justice, the Criminal Courts Bar Assn. of Los Angeles and three other plaintiffs filed a request for a temporary restraining order to halt the destruction of the files. A hearing on the issue will be held today.

“There are more than 200 people on death row who aren’t currently represented,” said Rickard Santwier, a past president of the Criminal Courts Bar Assn. “All the files should be preserved until attorneys can examine their clients’ files. The files of the defendants will be preserved, but those of witnesses and prospective witnesses would not. A defendant’s attorney should be able to determine if a witness got a deal or a benefit to testify.”

Barry Tarlow, the attorney who represented the appeal of Chance, stated in a declaration filed with the lawsuit: “One of the aspects of our investigation involved obtaining records. . . . If these records, approximately 17 years old at the time of the review, had not been available, our claims might not have resulted in review and, ultimately, in relief.”