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Court Considers New Rules for "Hide the Ball"

I don’t often read the actual news section of the San Francisco Daily Journal, although I try at least every couple-or-three days to look over the Daily Appellate Report insert that comes with it.

Today I was in a bad mood, so I decided to look at the paper, instead of doing what I was supposed to be doing (reading a lengthy transcript).

I’m filing this under “Ethics & Law” because, for one thing, I don’t have a category for courts – I don’t often write about how courts themselves function, or don’t function, I guess – and for another, to my way of thinking this really boils down to a question of ethics. It’s a question of ethics first for prosecutors. But I think it actually boils down to an issue of judicial ethics, as well.

The article that inspired me to take to pen and paper keyboarding concerns discovery of information that may be important to criminal cases when the information to be discovered lies ensconced in that most sacred of places: a police officer’s personnel file.


A three-way fracas among trial judges, prosecutors and defense lawyers broke out before the state Supreme Court [in San Francisco] over access to police files. They squabbled over how to protect officer privacy, fulfill the duty to disclose pro-defense evidence and avoid overwhelming judges with mounds of paper to evaluate.[1]

The gist of the story is that nobody wants to do the work of ensuring that the dictates of the United States Constitution are followed, as we still pretend they should be in some parts of California.

This is particularly true when it comes to so-called Brady material; i.e., material favorable to the defense but held, and supposedly known, only to the prosecution. The Constitution requires, according to a long-dead cadre of United States Supreme Court Justices, that such material be turned over to the defense.

Because “fair trial,” and all that nonsense. 😉

Normally, I would just guffaw and move on, with years of practice having taught me how this story turns out. But I guffawed even harder when I reached the third paragraph:

Three of the justices with criminal law backgrounds focused much of the argument on the nitty-gritty of prosecutorial procedure and the importance of putting discovery decisions on the record for reviewing courts to consider.[2]

Because apparently the justices are so hell-bent on maintaining the farce that they want you to think reviewing courts actually consider such things as whether a discovery decision was correctly made at the trial court level.

But you do have to laugh – and not just to avoid crying. The three “justices with criminal law backgrounds” are all former prosecutors.[3] And one of those – the Chief Justice – is married to a former police lieutenant.

Which way do you think this story is going to end?

Anyway, their in-depth knowledge of the nitty-gritty of prosecutorial procedure, particularly of the need to make a record stating that they did nothing wrong, or contrary to constitutional law, and were unaware that the police officer witnesses they called were dirty, or that they were hiding the ball, were all that were needed to intone: “[There is an] ad-van-tage of for-mal ju-di-cial re-view of po-lice files.”

But let’s back up for a minute. How did we get here in the first place?

Well, California has some very strict rules which frequently appear to have been intended to override the United States Constitution, including-but-not-limited-to Brady, when it comes to police officer files. In the same way that police officers shy away from cameras, or beat the shit out of those carrying cameras that cannot be avoided, so, too, do police officers hate to have files containing information about their misdeeds turned over to nefarious criminal defense attorneys (as opposed to those with “criminal law backgrounds”). And so it is that if there happens to be any evidence in a police officer’s file that might tend to resolve a disputed issue in favor of the defense, every possible roadblock must be put in place to prevent its being found out.[4]

Because “fair trial,” and all that nonsense. 😉

The first such roadblock is California’s Pitchess motion, so called because the defense files a motion requesting discovery of a police officer’s personnel files, and everyone else just pitches it in the trash.

Okay, not quite. This is not the place to go into a long discourse on exactly how Pitchess motions work (or don’t). Suffice it to say that at virtually every stage, things are structured to make discovery of Pitchess material impossible. It doesn’t always work. Some things are occasionally discovered. But as Scott Greenfield once wrote (aha!) regarding the whole Brady fiasco:

On May 13, 1963, Associate Justice William O. Douglas told us that due process required that the guys with the guns and shields, the ability to investigate that dwarfed anything the defense could imagine, the power to accumulate evidence long before the defendant had a name, tell us that there was material that might be favorable to the accused. But he gave us none of the tools, methods, means, law to make that right happen.

So here we are, 50 years later, incapable of making Brady work. Such a fabulous right, just outside our reach.

And without the means to effectuate the grand disclosure required by Brady in a way and at a time when it matters, it’s just another joke played on the defendant. After 50 years of spectacular failure, there is little chance we will ever see Bill Douglas’ opinion as anything other than a practical joke.

And just to make sure it remains that way, the final roadblock in California’s Pitchess procedure is the judge who is required to go through the files in camera (meaning without input from either the defense, or the courtroom’s official prosecutor) to determine what, if anything, must be turned over to the defense.

But there’s a problem.

The problem is there are volumes of files and binders. […] It’s like looking through a haystack without knowing what the needle looks like.

Let’s ignore the last part of that, about not knowing what the needle looks like. After all, during the pendency of a case – at least prior the airing of whatever evidence may be brought out at trial – the judge knows less about the defense theories than probably even the prosecutor. And not just because prosecutors, or the police, listen in on attorney-client-privileged conversations. Truth is, there’s sometimes a helluva lot of haystack in which to search for those needles.

And apparently at least one judge has balked at the job. The judge complained it made him too much like a paralegal. This is particularly irksome because judges tend to see themselves more as prosecutors than as paralegals.

Justice Corrigan, another former prosecutor, said,

Look. Somebody has to do this. And we really want to maintain the pretense that it’s being done fairly, and properly, without anything more than a pseudo-prosecutorial bias.

Okay. She didn’t really say that.

But she did agree with the Chief Justice that it was better for the judge to do this job than to leave it to the actual prosecutors. After all, they both said, how can you count on a district attorney with only three years of experience and training following three years of training at law school to follow basic constitutional precepts like Brady?

I mean, it’s a really tough concept: if there’s something in the police files that might tend to help the defense attorney defend the defendant, you turn it over to the defense attorney.

But everyone knows that can’t really be the rule.

Because “fair trial,” and all that nonsense. 😉

Interestingly, the California Supreme Court Justice who seems to have gotten things the most right in this pretend debate is Goodwin Hon Liu.Completely lacking any apparent background as a criminal law attorney, oras a criminal defense lawyer, he stated the obvious:

This question has been styled as one of reconciling Bradyand Pitchess, but they are not necessarily in tension. We’d have to say that Brady is the [prosecution’s] ultimate obligation, so Pitchess has to conform to Brady.[5]

That is, if we seriously want to honor constitutional requirements, Bradytrumps Pitchess.

But that only works if you really believe in “fair trial” and all that nonsense. 😉

According to the Daily Journal, the court is expected to rule within 90 days on the question of whether judges are just prosecutors, or whether they are also paralegals.

  1. San Francisco Daily Journal, p.1 (May 29, 2015).
  2. Id.
  3. After Rose Bird, California adopted a rule to never again allow a criminal defense lawyer into a position of power in the courts.
  4. And let’s completely ignore the fact that every effort has already been made to ensure nothing gets into an officer’s file, even if they have to threaten to prosecute those who want to file a complaint.
  5. Id. at p.3, col. 4.