On Tuesday, the ACLU of Southern California, along with a criminal defense law firm and two law professors, announced a major law suit that charges that the LA District Attorney’s policy regarding what exculpatory evidence it chooses to hand over to defense attorneys, violates the law—and may have tainted hundreds—or even thousands—of cases.
At Tuesday’s press conferences, the ACLU also challenged the policy of the Los Angeles Sheriff’s Department having to do with tracking complaints filed against specific deputies by inmates, charging that the LASD’s present policy is illegal in that it makes it impossible for defendants to discover such complaints for trial, when evidence of previous deputy misconduct could have a huge bearing on their defense.
“CLEAR AND CONVINCING EVIDENCE”
First let’s take the DA’s side of the lawsuit: In 1963 the US Supreme Court handed down a landmark decision known as Brady v. Maryland. In plain English, Brady placed an affirmative constitutional duty on a prosecutor to disclose exculpatory evidence to a defendant—-”exculpatory” meaning that it could help clear the defendant from blame.
Put another way, if the prosecution runs across some piece of evidence that favors the defense, even if it torpedos the prosecutor’s case, the DA is legally bound to fork the evidence over. Period. No wiggle room.
A district attorney’s first mission and sacred mandate is to seek justice. The mission is not winning at all costs.
However, according to the ACLU lawyers, the LA District Attorney’s office has a written policy stating that all Brady evidence, before it is turned over to the defense, must be determined to be true “using a standard of clear and convincing evidence which is higher than a preponderance of evidence but less than beyond a reasonable doubt.”
(You can read the rest of the LA DA’s policy on their website.)
In other words, rather than allowing a judge and/or jury to assess whether the exculpatory evidence is true and righteous—the DA’s office gives itself the power to make that call when it comes to any evidence it runs across that might harm one of its cases.
This is something that the cynical among us might see as a little conflict-of-interest-y.
“They’ve usurped power that is not theirs,” is how Peter Eliasberg, the ACLU’s Legal Director, puts it.
THE LA COUNTY JAIL FACTOR
Which brings us to the LASD side of the lawsuit.
First, however, it helps to know the legal underpinnings for the ACLU’s charges against the sheriff’s department:
In 1974, the California Supreme Court ruled on a case known as Pitchess v. Superior Court, which resulted in the legal tool called the Pitchess motion. This is the request made by a defendant in a criminal case for access to information in the personnel file of an arresting police officer to see if he or she has received previous allegations of misconduct.
Since the 1974 decision, a defendant’s right to information about alleged officer misconduct or dishonesty has been established by statute in California Evidence Code.
But, although a defendant’s attorney may successfully file a Pitchess motion to find out about citizen complaints of brutality or misconduct against an LAPD officer or an LASD deputy, if the sheriff’s deputy is working in the LA County jails, all the rules change.
It turns out that jailhouse complaints—reports the ACLU— are not filed in the deputies’ personnel folders, nor are the complaints tracked in the sheriff’s department database created for that purpose, the Personnel Performance Index, or PPI.
In the jails, said the ACLU’s Peter Eliasberg, incredibly, the inmates complaints of deputy abuse are filed under the inmate’s name—not under the deputy’s name.
So if defense attorneys use a Pitchess motion to request the complaints made against a particular deputysaid Eliasberg, “they get nothing.” Since a pattern of such complaints could be vital evidence in cases where an inmate has been beaten by a deputy or deputies—and then charged with assault by that same deputy.
The ACLU’s lawsuit contends that this policy is a glaring violation of state law, and may have had a damaging affect on a huge number of cases.
Interestingly, even the DA’s office appears to agree with the ACLU that the Sheriff’s Department is in the wrong with its policy.
WitnessLA has obtained a copy of a June 22 letter sent by Steve Cooley’s office to the director of LA’s Indigent Criminal Defense Appointment saying that “upon learning about this practice” DA Cooley had contacted Sheriff Lee Baca “to express his disapproval.”
Sheriff’s Department spokesman Steve Whitmore said the department disagreed with what it had heard of the ACLU’s charges. “I don’t know if we’ve had a chance to really study their lawsuit,” Whitmore told me. “But we’ve done nothing illegal, nothing secret, nothing inappropriate. We’re not withholding evidentiary information.”
Both the Office of Independent Review and Special Counsel Merrick Bob have pushed to have inmate complaints put in a deputy’s file, as citizen complaints are for patrol deputies, but as of their June 2012 newsletter, ALADS, the LASD deputies union, vehemently opposed the move.
JONATHAN GOODWIN: A CASE IN POINT
Jonathan Goodman, a 30 year-old who was released from jail two months ago, told how he had been an inmate at Men’s Central Jail when, on December 4, 2010 he was beaten by Sheriff’s Deputies, and that a Deputy Beas, in particular, had started the assault without any provocation.
As has been frequently reported in such cases, although Goodwin was injured in the beat down, it was he who was charged with assault.
From what Goodwin described of what had happened, his attorney thought there might be other inmates who’d also run afoul of Deputy Beas. But she got nothing from a Pitchess motion. However, when she contacted the ACLU she found that that they knew of some inmates who’d had reportedly been beaten up by the same deputy whom Goodwin said had been his attacker.
Two of those inmates testified on Goodwin’s behalf in trial and, in an unusual turn of events, the judge and jury believed the inmates, not the deputies. Goodwin was acquitted two months ago, on May 8, 2012.
But it was just luck and the persistance of his public defender, Goodwin told those assembled for the press conference.
He was to find out later that, although multiple inmate complaints had been filed on Deputy Beas, Goodwin’s antagonist, the LASD still did not produce them in response to a Pitchess motion. “Nor did the DA give [his attorney] sworn statements about Deputy Beas,” he said.
“I stand before you a free man,” Goodwin said at the ACLU press conference, ” But the Sheriff’s Department and the District Attorney’s office tried to deprive me of my right to a free trial. …Had it not been for some good fortune and the hard work of my defense attorney…If the Sheriff’s Department “had succeeded in suppressing evidence that Deputy Beas had assaulted other inmates…I could have done as much as 19 years in prison,” he said.
“I’m sure there are a lot of others out there who weren’t as lucky as I was,” Goodwin said.
ON LARRY MANTLE’S AIR TALK ABOUT SHERIFF’S LATEST REALIGNMENT STRATEGY
On Tuesday morning, I was on Larry Mantle’s Air Talk talking about realignment and jail overcrowding in response to an LA Times article on the topic. (It was just a quickie interview, and was still somewhat flu-ridden but I think I completed at least most of my sentences. Listen for yourself, if you’re in the mood.)
OH, AND THERE’S THIS STORY ABOUT 200 BADGES FOR BOZOS BEING RECALLED BY THE LASD... Yes, yes, I realize that not all of the badges handed out—and now recalled—went to….you know….bozos. But the aliteration was tempting and the photo accompanying the story by the LA Times Robert Faturechi and Jeff Gottlieb suggests severe bozo-oisity.
Photo’s courtesy of the ACLU