Should prosecutors get the names of officers who commit misconduct?

The California Supreme Court heard arguments Wednesday in a case that will decide whether law enforcement officials may give to prosecutors the names of deputies and officers who have committed misconduct. Above, L.A. sheriff's deputies stand at their graduation ceremony in 2017.
(Mel Melcon / Los Angeles Times)

The California Supreme Court appeared divided Wednesday over a ruling that barred the Los Angeles County sheriff from giving prosecutors the names of deputies who have committed misconduct.

During a hearing, the state high court weighed an appeal of a decision that prohibited the sheriff from giving the district attorney the names of deputies with a history of bad behavior, including lying, taking bribes, tampering with evidence, using unreasonable force or engaging in domestic violence.

By law, prosecutors are required to disclose to defendants exculpatory evidence, including information that could diminish the credibility of police officers who worked on a case.


Several justices suggested Wednesday that prosecutors need the information to fulfill their constitutional duty to disclose potentially exonerating information.

That position has been endorsed by defense lawyers, prosecutors and the California attorney general.

Justice Goodwin Liu noted that prosecutors ultimately bear liability for failing to disclose favorable evidence.

If the prosecution is unaware that such evidence exists, convictions — even valid convictions — may eventually be overturned because of a failure to disclose, he said.

“The prosecution can’t take an ostrich-like approach to this very important duty,” Liu said.

But Chief Justice Tani Cantil-Sakauye suggested that the Legislature, not the court, might want to take steps to ensure that exonerating information is disclosed to the defense.


She said one possible remedy was to give trial judges sealed lists of law enforcement officers who have a history of misconduct. The judges could review those lists privately in chambers to determine whether the officers’ records were relevant in the case and should be disclosed.

“Doesn’t delivering the list directly to the court under seal … meet the problem without intruding overtly on the officers’ privacy?” she asked.

Justice Ming W. Chin also repeatedly asked whether that path, if carved out by the Legislature or by the court in a future case, could resolve the problem.

The case before the court stems from a lawsuit filed by the L.A. deputies’ union to prevent former Sheriff Jim McDonnell from turning over to the district attorney about 300 names of deputies with a history of misconduct.

A divided, Los Angeles-based court of appeal ruled in 2017 that the list must be kept secret, even in pending criminal cases in which errant deputies were expected to testify.

The state high court’s decision, due in 90 days, would affect law enforcement agencies throughout the state.


The case pits the privacy rights of law enforcement officers against the constitutional duty of prosecutors to give the defense evidence that might cast doubt on a defendant’s guilt, reduce a potential sentence or diminish the credibility of prosecution witnesses.

That duty stems from a landmark 1963 U.S. Supreme Court case, Brady v. Maryland, which said suppression of evidence favorable to the defense violated due process.

At issue is only whether the names can be turned over to prosecutors, not whether they would become public.

But the presence of the names on a list means deputies could be one step closer to having their disciplinary files scrutinized by a judge and their police work called into question during a court proceeding.

Justice Mariano-Florentino Cuéllar noted that the constitutional duty to disclose evidence favorable to the defense trumps state law intended to protect the privacy of law enforcement officers. He suggested the court could “harmonize” the laws.

He called the case “very challenging,” but also noted that “the Brady responsibility is on the state.”


Justice Joshua P. Groban expressed skepticism about the union’s legal arguments.

“You are saying as long as we can bar the door and keep the law enforcement agency from sharing that with the prosecution, then there is no Brady violation?” he asked the lawyer for the union.

Justice Carol A. Corrigan noted that officers whose names were on a list would have less privacy protection than others.

But she also said that a state law intended to protect officer privacy while allowing some disclosures may be hindering the release of information a criminal defendant is entitled to under the Constitution.

Under the system in place for four decades, defense attorneys and prosecutors may ask a trial judge to review an officer’s personnel file to determine whether there is evidence that must be disclosed.

But without knowing an officer’s history, a defense lawyer may not be able to persuade the judge to undertake a review.

“There are cases in which legitimate and material evidence is eluding their review,” Corrigan said.


Justice Leondra R. Kruger asked if there were legal safeguards that could be imposed to protect officer privacy after the names were disclosed to prosecutors.

Aimee Feinberg, representing the state attorney general, said courts could issue protective orders to ensure the officers’ names were shielded from the public.

Geoffrey S. Sheldon, who argued for Los Angeles County, said he felt “good” about how the hearing went.

“I’m cautiously optimistic that we will prevail in the case,” he said.

Judith Posner, representing the union, said she couldn’t predict the outcome.

“There were a lot of interesting and probing questions on both sides,” she said.

Police departments in at least a dozen counties, including San Francisco, Sacramento and Ventura, have had a regular practice of sending prosecutors the names of so-called Brady list officers.

California’s strict laws protecting officer personnel files — which underpinned the appellate court’s ruling for the deputies’ union — were dramatically altered by a new transparency law that opened up records of confirmed cases of lying and sexual misconduct by officers, as well as shootings and serious uses of force.


SB 1421, which went into effect Jan. 1, allows the public to see many of the documents at issue in the L.A. sheriff’s case.

But the new law does not apply to the broader range of misconduct that could put an officer on a Brady list, including domestic abuse, sexual harassment, racial discrimination and bribery.

Sheriff Alex Villanueva, who ousted McDonnell in a stunning upset last fall, has called the Brady list a “fake list” and says it was the result of corrupt investigations designed to retaliate against certain deputies.

“There are people [on the list] that do not belong on there. There are people that should be on there that are not on there,” Villanueva said at a news conference last week.

Villanueva has sought to limit the number of deputies subject to investigations of potential wrongdoing in the first place.

Deputies found to have genuine credibility problems should be removed from roles that could impact the public or involve testifying in court, he has said.


Still, Villanueva said he has not considered ending the department’s involvement in the case.

Twitter: @mauradolan