Shedding Light on Officers Who Help Prosecute

With the Rampart police scandal costing taxpayers millions of dollars, Los Angeles County Dist. Atty. Steve Cooley earlier this month implemented a long-awaited policy aimed at ensuring that jurors know the background of officers scheduled to testify in court.

More than 100 cases have been overturned since problems were uncovered in the Los Angeles Police Department’s Rampart Division, where officers in an anti-gang unit were caught lying in court, planting evidence, stealing drugs, beating suspects and covering up unjustified shootings.

Cooley’s policy “may have brought some of the [Rampart] issues to light a lot sooner,” said Lael Rubin, special counsel to Cooley. “I wouldn’t be so bold to say it would have prevented Rampart, but it would have raised some red flags.”

By making it easier for lawyers to obtain disciplinary records of law enforcement witnesses, Cooley hopes his policy will reduce the time and money wasted on cases that were later overturned, as well as leave no doubt in jurors’ minds about officer credibility.

But legal experts differ over whether the plan goes far enough.

Prosecutors are required to give the defense information that could be used to impeach a government witness, such as a police officer or coroner, under federal law. California law, however, protects most police personnel records from being made public. Throughout the years, confusion resulted because neither prosecutors nor defenders understood their roles, attorneys say.

“This is really the first time in this office’s history that there has been a comprehensive, uniform and widespread policy,” Rubin said of Cooley’s office, which is the state’s largest prosecutorial agency. “ ... It’s not an easy task.”

Rubin said the policy explains lawyers’ obligations and rights as well as the procedural methods for obtaining disciplinary records. The D.A.’s office has worked closely with law enforcement agencies in deciding which information -- prior convictions, evidence of racial bias, established patterns of using excessive force -- should be disclosed.

Under the policy, the district attorney’s office established a computer system for lawyers seeking records of police misconduct.

The D.A.’s new computerized “Brady Alert System,” named after the U.S. Supreme Court decision which requires disclosure, is a secure but small database that contains court records on officer convictions, as well as information that a judge deems pertinent after reviewing files from a law enforcement agency.

“The amount of information in there is, frankly, pretty small,” Rubin said.

Many criminal defense lawyers argue that Cooley’s policy is too limited to be effective. “Nothing has changed whatsoever,” said Gigi Gordon, a defense lawyer who served on Cooley’s committee but quit, dissatisfied. “It’s business as usual.”

Cooley acknowledged that the topic can be confounding. “Hardly anyone understands it, even lawyers,” he said with a laugh. “But we think we got it down.... It is a model for the state of California.”

And for the nation. Even if the D.A.’s computer system lacks enough relevant data, the fact that it exists is “quite laudable,” said Lawrence Goldman, a criminal defense lawyer in New York City and president of the Washington, D.C.-based National Assn. of Criminal Defense Lawyers.

For years, prosecutors have claimed ignorance rather than turn over relevant material that the defense was not aware of, Goldman said. “If there’s a database, prosecutors can’t claim ignorance,” he said.

In California, the burden is on the defense to seek information from an officer’s personnel files if lawyers suspect those records contain material that would raise questions about the officer’s credibility. In such cases, police are required to submit the records to the judge, who determines what should be disclosed.

That still occurs under Cooley’s policy. What changes is that prosecutors assume the lead role.

Cooley’s policy requires prosecutors who become suspicious of an officer called to testify in court to request a review of law enforcement personnel files. When an officer with a history of misconduct is summoned to court, a judge then decides what information will be disclosed to the defense.

Authorities have determined that part of the disciplinary record of Rafael Perez, the convicted drug thief at the center of the Rampart scandal, had not been disclosed and was not used to impeach him when he testified in cases before the controversy.

In November, Cooley announced that his office had rejected prosecution in 82 Rampart cases partly because it would require testimony from police witnesses who lack credibility, including Perez and Nino Durden, another main player in the scandal.

Rampart also prompted Cooley’s predecessor, Gil Garcetti, during his last few months in office, to propose a similar data bank. The Police Protective League responded by filing a lawsuit claiming that the action violated police privacy rights.

Cooley killed Garcetti’s data bank soon after he took office in December 2000. He formed a committee of prosecutors, police officers and a representative of defense lawyers to devise a new policy.

Defense lawyers have accused the district attorney’s office of bowing to political pressure from police unions. During the last several years, Los Angeles and Santa Barbara counties have restricted access to police disciplinary records, a move considered necessary to comply with state laws protecting officers’ rights.

“Cooley’s policy provides a good balance,” said Elizabeth Tourgeman, a Santa Monica attorney who represents local police unions and state legal defense fund for peace officers. “At this point, I don’t see any need to litigate.”

The policy was well received when it was presented last summer to prosecutors from the state’s 58 counties, said Larry Brown, executive director of the California District Attorneys Assn.

They’re studying how L.A. County fares before starting their own Brady policies, he said.

They were impressed that Cooley’s office “attempted to grapple, which is by all accounts, a difficult issue,” Brown said.

But L.A. County Deputy Public Defender Mark Harvis said there are too many problems with the system. He cited a requirement that prosecutors ask a judge to issue orders forbidding the defense from sharing any disclosed information with other lawyers, or using it in any other case.

“I think Steve Cooley’s heart is in the right place,” he said. “But [the policy] doesn’t breed fairness or confidence in the system.”