porac symposium 2014 final - berry |...
TRANSCRIPT
1
1
Managing the Brady Bunch
Brady v. Maryland (1963) 373 U.S. 83
PORAC ISSUES SYMPOSIUM April 2014
Alison Berry Wilkinson Berry | Wilkinson | Law Group
Panelists David Angel Assistant District Attorney Santa Clara County
Brady Lists: The Prosecutor’s Perspective
Copyright 2014
Berry | Wilkinson | Law Group 4
Panelists Jeffrey A. Martin Berry | Wilkinson | Law Group
Brady Lists:
Strategies for Officer Removal
Copyright 2014 Berry | Wilkinson | Law Group 5
Panelists
Todd Simonson, Partner jackson | lewis
Brady Lists: A Police Management Perspective
Copyright 2014
Berry | Wilkinson | Law Group 6
Panelists:
Alison Berry Wilkinson Berry | Wilkinson | Law Group
The Enactment of Senate Bill 313: The Changed Impact of Brady Lists
in Police Discipline Cases
Copyright 2014 Berry | Wilkinson | Law Group 7
1
Brady Lists The Prosecutor’s
Perpective David Angel Assistant District Attorney 408/792-2857 2014
Can you skip this lecture? Do you enjoy seeing your name in the paper? Do you want to see your name in a published
opinion? Do you want to come to the attention of a federal
judge? Do you want to see your defendant at trial again? Do you want to experience the defense
perspective in Federal Court?
Reversal Incalculable Cost to Victim and Society Difficulty Re-trying Case Prosecutorial Misconduct
Brady
Wrongful Conviction Prosecutorial Error 3rd Leading Cause
Brady the overwhelming largest category
2
Brady Rule The prosecutor has a due process
affirmative duty to disclose to the defendant all material evidence that is favorable and that is possessed by the prosecution team.
Brady v. Maryland, 373 US 83 (1963) “(T)he suppression by the prosecution of
evidence favorable to the accused upon request violates due process where the evidence is material to either guilt or to punishment, irrespective of the good faith or bad faith of the prosecution”
Brady -- Basics Constitutional – Due Process Duty applies even without a defense
request; Duty applies to all material, favorable
evidence
Non-Delegable Brady solely the responsibility of
prosecutor. Held 100% Responsible Cannot delegate to the police or judge
Professionally liable
3
Strict Liability Whether nondisclosure is intentional or
negligent the result is the same: a due process violation.
United States v. Agurs 427 U.S. 97, 110 (1976) Nor do we believe the constitutional
obligation is measured by the moral culpability, or the willfulness, of the prosecutor.
US Supremes advise: “(T)he prudent prosecutor will resolve
doubtful questions in favor of disclosure.” United States v. Agurs, 427 U.S. 97, 108 (1976)
Sum Brady Leading Cause of Wrongful
Conviction/Reversal/Scandal/Discipline Solely Responsibility of Prosecutor Brady is a Constitutional Duty Strict Liability Disclosure
4
Evidence Not rumor
Sledge v. Suprior Court, 11 Cal.3d 70, (1974) Not speculation Not opinion of Prosecutor or Police
People v. Seaton, 26 Cal.4th 598 (2001) Memo expressing prosecutor’s doubts about case
Three Components 1) Favorableness 2) Material 3) Possession of Prosecutor
Seven Categories of Favorable Evidence
“Evidence is favorable if it hurts the prosecution or helps the defense.” People v. Earp, 20 Cal.4th 826 (1999)
Seven Categories of Favorable Evidence 1. Mitigating Punishment 2. Evidence Directly Opposing Guilt 3. Evidence Indirectly Opposing Guilt 4. Evidence Supporting Defense Testimony 5. Supporting Affirmative Defense 6. Evidence Supporting Defense Motion
5
Seven Categories of Favorable Evidence 7. Evidence Impeaching a Prosecution
Witness moral turpitude
Deceitful conduct Dishonest conduct Conduct intending to corrupt Violent/Menacing conduct Non-Criminal Conduct
Impeachment Evidence Huge Category Conflicting Statements False Reports/Accusations/Testimony Inaccurate Reports/Statements Promises/Offers/Benefits Parole/Probation Status Pending Charges Incompetence Bias
Constructive Possession Everything known by the elected District
Attorney Everything known by the law enforcement
agency Everything known by the “Prosecution
Team”
Prosecution Team Prosecution Team
The DA’s Office; The Investigating Agency Assisting Agencies Agencies Closely Tied to the Prosecution
6
Are the police obligated to disclose? Yes – same as any other witness Constitutional Duty
Youngblood ve. West Virginia (2006) 547 U.S. 867, 870
Civil Liability to Officer Elkins v. Summit County, Ohio (6th Cir. 2010) 615
F.3d 671 Moldowan v. City of Warren (6th Cir. 2009) 578 F.
3d 351, 381
Prosecutor’s Personal Opinion Of Admissibility or Relevance Irrelevant Prosecutor’s opinion of admissibility or
relevance or trustworthiness of evidence irrelevant to Brady. Role of Court to judge admissibility Role of Jury to judge value
Disclosure ≠ Admissibility Moore v. Marr, 254 F.3d 1235, 1244 (10th
Cir. 2001) “(T)he determination of whether evidence is
material under Brady and thus should have been produced is a different question than whether the same evidence is admissible at trial.”
Brady List Why is an officer put on list?
If there is potential Brady information known by any member of the DA’s Office, OR
Any member of the LEA
7
Brady List What is potential Brady?
Generally, any convictions of moral turpitude. DUI’s – NO but DV – Yes
Generally, any significant prior dishonesty Probation status Persistent Negligence
Brady List When is this disclosed?
If the officer will testify Will it the judge allow it?
Usually not but depends on severity.
Brady List Is the Brady List a mark of shame?
NO Can you get off it?
If there was a mistake or if the condition ends.
Brady List Is it confidential?
Yes
8
Final Thought Part of the Solution Strategies for Appealing
Brady Designations
Jeff Martin Berry | Wilkinson | Law Group
How did the officer get there? Criminal Conviction Officer Pleads no contest to crime (M or F) Case to DA for filing – Rejects but
designates DA alerted to IA investigation
May automatically warn Ds to conduct Pitchess
38
Special Problems
Criminal Investigation is poor and/or incomplete IA investigation is poor, incomplete and/or
abandoned Subjective, vague and/or arbitrary decisions,
e.g., MORAL TURPITUDE* * Not always subjective, vague and/or arbitrary
39
9
What the @($&*#! is Moral Turpitude?
40
Poor/Incomplete/Abandoned Investigations
How will the issue be resolved? Usually involves an implied or articulated
allegation No information from the officer and/or No conclusions from the agency
41
First Step – The Notice Does the DA’s Office have a policy and/or
procedure? How well developed is the policy/
procedure?
42
Second Step – Ask for info
43
10
Standard of Proof? “Substantial information”
Facially credible information that might…undermine confidence in later conviction in which the LE officer is a material witness…”
“Clear and convincing evidence” “…higher than a preponderance…but less than
beyond a reasonable doubt.” C&C evidence that potential impeachment evidence is
reliable and credible.
44
Third Step – Get a response
45
Fourth Step: Present Formal Argument Does this qualify as “…preliminary,
challenged, or speculative information”? (US v. Agurs)
Is there evidence of conduct that involved “an intent to defraud or intentional dishonesty for the purpose of personal gain”? (In re Duggan)
46
Parts of Formal Argument Statement of facts by officer
Why officer didn’t provide a statement? Pitfalls?
Why allegations are unsubstantiated Biased or poor investigation
47
11
Parts of Formal Argument
Discuss lack of evidence of: intent to defraud to be dishonest to act for personal gain, or a willingness to lie
48
Parts of Formal Argument
Point out that the information is “…preliminary, challenged, or speculative…” (US v. Agurs)
49
Parts of Formal Argument Why there is [not] “…facially credible information
that might reasonably be deemed to undermine confidence in a conviction in which the LE employee is a material witness...
…not based upon mere rumor, unverifiable hearsay, or an irresolvable conflict in testimony about an event.”
(CA Commission on the Fair Admin. of Justice p. 16)
50
Are there options if…?
It isn’t practical to appeal the designation?
OR The DA’s Office decides against you?
51
12
DON’T PANIC!
52
Depending upon the circumstances… Possibly recommend that the officer keep
doing as much police work as possible Testify in court as much as possible Obtain transcripts of any/all in camera
hearings regarding disclosure (Attachment)
“Why,” you ask?
53
BE PROACTIVE Meet with chief/sheriff Meet with DA City attorney/county counsel Establish a protocol per CA Commission
Recommendations Available at: http://www.ccfaj.org/documents/reports/prosecutorial/official/OFFICIAL%20REPORT%20ON%20BRADY%20COMPLIANCE.pdf
54
To our advantage? A command officer takes “the Fifth” during
testimony? IA Investigator willfully destroys evidence ad
admits it during civil service appeal? IA Investigator clearly misconstrues what was
actually stated in report A command officer appears to have lied about
training received during civil service appeal?
55
13
Neri v. County of Stanislaus
District Attorney's Office
" Follow Department policy re Brady (e.g.: Lexipol 1026)
" Integrate any DA policy into Department policy
" Fully and completely investigate actions which could result in placement on Brady list (e.g.: dishonesty and other “moral turpitude” (MT) conduct)
" Consult and work with DA when underlying MT conduct is sustained
" Subdivision (a): A punitive action, or denial of promotion on grounds other than merit, shall not be undertaken by any public agency against any public safety officer solely because that officer’s name has been placed on a Brady list, or that the officer’s name may otherwise be subject to disclosure pursuant to Brady v. Maryland (1963) 373 U.S. 83.
" Subdivision (b):
Still allowed to discipline for underlying conduct that resulted in placement on Brady list.
14
" Subdivision (c): Evidence that a public safety officer’s name has been placed on a Brady list, or may otherwise be subject to disclosure pursuant to Brady v. Maryland (1963) 373 U.S. 83, shall not be introduced for any purpose in any administrative appeal of a punitive action, except as provided in subdivision (d).
" Subdivision (d): o Must first prove underlying conduct and that underlying conduct
will result in some form of punitive action.
o Then may introduce evidence that officer’s name was placed on Brady list as a factor in level of discipline.
" Restructure Notices of Intent o Only reference Brady list placement as an aggravating factor in
in discussing level of penalty
" Bi-furcate Appeals Hearing o Phase 1: Prove misconduct
o Phase 2: Prove level of discipline, including testimony regarding placement on Brady list
" Unprecedented references to “other personnel action” and “adverse personnel action” in new statute’s language.
" Legislative history hypothetical
" State Sheriff’s Association argument in opposition
" Prior to this new statute, transfer without loss of pay or rank, must have been for “purposes of punishment” to warrant an administrative appeal.
" POBR cases which held transfer – without loss of pay or rank – was not for purposes of punishment (punitive):
o OCEA v. County of Orange
o Benach v. County of LA
15
OCEA v. County of Orange, 205 Cal. App.3d 1289 (1988): " Transfer of probation officer to a new post after several years for
performance deficiencies was not for purposes of punishment.
" “Deficiencies in performance are a fact of life. Right hand hitters sit on the bench against certain pitchers, some professors write better than they lecture, some judges are more temperamental with criminal cases than others. The manager, chancellor or presiding jurist must attempt to find the proper role for his personnel. Switching Casey from shortstop to second base because he can’t throw to first as fast as Jones is not in and of itself a punitive transfer.”
Benach v. County of Los Angeles, 149 Cal.App.4th 836 (2007): " Transfer of officer – without loss of pay or rank – who caused
disharmony in Airport Unit, but had not violated any policies, was not a transfer for purposes of punishment.
" Court ruled more practical than transferring out all other Airport Unit employees to new posts.
" Loss of overtime in new position did not constitute loss of pay because employee did not show any entitlement to overtime.
" Under reasoning in these cases: May officer who is unable to act as a material witness due to placement on Brady list be transferred away from position in which he would be most likely to testify as a material witness?
" Not for punitive purposes, but for the plain fact that criminal cases may be jeopardized if the officer is not transferred.
" Baggett v. Gates (1982) 32 Cal. 3d 128 – The “home rule” provision of the state Constitution applies to issues that are “strictly municipal affairs,” but not “matters of statewide concern.” The Cal. Supreme Court concluded charter cities have to comply with POBR because the law only requires procedural protections for employees.
16
" This newest statute in “Public Safety Officers’ Procedural Bill of Rights Act” appears to regulate qualifications for employment and the causes for which an employee may be removed – typically “home rule” provisions reserved to a charter city or county.
" Charter cities and counties may consider “home rule” challenge.
Panel Discussion
PORAC ISSUES SYMPOSIUM April 2014
THE END
Alison Berry Wilkinson
Berry | Wilkinson | Law Group 4040 Civic Center Drive, Suite 200
San Rafael, CA 94903 Telephone:415.259.6638