by Mark Wilson

An arresting officer’s fabrication or planting of evidence or other misconduct lies at the very heart of the definition of exculpatory evidence that must be disclosed to criminal defendants under the Sixth Amendment since the 1963 landmark decision in Brady v. Maryland, 373 U.S. 83 (1963). Yet, California police privacy laws have trumped that fundamental constitutional right for years. 

California law is so strict, in fact, that prosecutors cannot directly access the personnel files of their own police witnesses. Rather, under the state’s so-called Pitchess laws, a defendant can ask a judge to examine an officer’s personnel records for allegations of excessive force, dishonesty, theft, or other acts of “moral turpitude.” The process is such a pointless sham, however, that few defense attorneys even try. 

The defendant must prove, in the blind, that the officer’s record is relevant. In denying the motions, judges never explain publicly why information in the file would not be relevant. 

If a defendant’s Pitchess motion is granted, a representative from the officer’s law enforcement agency meets privately with the judge to go over relevant complaints. Prosecutors and defense attorneys are not allowed in the room. 

If a judge decides to disclose anything, it is usually only the name and contact information of someone who made a complaint against the officer within the last five years. Defense counsel must then investigate to determine the basis of the complaint. 

Proponents argue that Pitchess laws prevent defendants from fishing for irrelevant information about police witnesses. Defendants do not file Pitchess motions because “in the vast majority of cases, the officer’s credibility is not at issue,” claims David E. Mastagni, a Sacramento attorney who represents police unions. 

He takes the faulty view that an officer’s credibility is only at issue if he has a history of dishonesty. In such a case, Mastagni falsely claims a judge will almost always disclose it through Pitchess. “It’s a pretty perfect balancing,” he said. 

Defense attorneys could not disagree more, noting that the law makes it nearly impossible for defendants to pierce the veil of secrecy. “They are trying to hide misconduct and everyone should be against it,” argues David Kamuth, a former L.A. County deputy public defender and vocal critic of California’s police privacy laws. 

Deputy Jose Ovalle illustrates the tremendous harm those laws have caused. In August 2003, Ovalle was in his third year on the job as a deputy at Los Angeles County’s Pitchess Detention Center. 

When several gang members slashed a prisoner’s neck and head with razor blades, Ovalle was responsible for collecting evidence and writing the incident report. Realizing that one suspect’s bloody shirt was missing, Ovalle took a clean shirt from the jail laundry, poured taco sauce on it, and took a picture, according to court and law enforcement records. 

A custody assistant witnessed the misconduct and warned Ovalle not to do it. He booked the photograph into evidence anyway. 

The custody assistant reported him to a supervisor, according to court records. When confronted by investigators, Ovalle confessed. The Sheriff’s Department originally threatened to fire him but later opted for a 30-day suspension, with 20 days suspended for five years because he accepted responsibility and cooperated with investigators, according to internal documents. 

“I don’t consider myself a liar,” said Ovalle. He minimized the significance of what he did, insisting that he hadn’t actually fabricated evidence since the bloody shirt had previously existed. 

The Sheriff’s Department never referred Ovalle to prosecutors to determine whether he should be charged with a crime, according to law enforcement records. As a result, prosecutors who relied on Ovalle as a witness had no way of knowing of the incident. 

Two years after his suspension, Ovalle transferred to a patrol unit, where he made drug possession, theft, and assault arrests then testified in court. He now works as a sergeant, earning $240,000 in salary, overtime, and more in 2017. 

By the spring of 2008, Ovalle had been a prosecution witness against 125 defendants. Only five attempted to explore his background, according to court records. In several cases, the defense motion expressly requested information about Ovalle’s evidence fabrication, but the judge denied the motions and never publicly explained why it would not have been relevant evidence. 

Word of Ovalle’s misconduct finally spread after Sergio Martinez filed a May 2008 Pitchess motion, accusing Ovalle of fabricating evidence. Superior Court Judge Hector M. Guzman saw the internal report about the taco sauce incident while reviewing Ovalle’s personnel records. In a rare move, he gave a copy of the report to prosecutors and suggested that they add him to a database of problem officers. Of course, that did not happen. 

“I understood the seriousness of the material even though I was a relatively new lawyer,” said William Frank who prosecuted Martinez and dismissed the charges. “I knew what it meant for the case. I felt I had done what I was supposed to do.” 

Frank later claimed that he informed a supervisor of Ovalle’s misconduct soon after the hearing. But Ovalle’s name was not added to the bad cop database due to “a miscommunication among prosecutors,” a district attorney’s spokeswoman claimed. 

By the time prosecutors finally learned about Ovalle’s misconduct, more than 230 of the 312 defendants he was a witness against had been convicted. But Ovalle is far from alone. 

A 2017 Los Angeles Times investigation revealed the Sheriff’s Department’s secret so-called “Brady list”— more appropriately dubbed a “Brady violation list”— of about 300 deputies whose misconduct includes falsely testifying in court, stopping a motorist and receiving oral sex from her while on patrol, tipping off a drug dealer’s girlfriend about a narcotics bust, and, of course, Ovalle’s evidence fabrication. 

None of that misconduct was disclosed as required by Brady. If Ovalle was a witness in over 300 cases, it seems safe to assume that tens of thousands of Los Angeles County cases could have been impacted by the non-disclosure of the misconduct of the 300 named deputies. Add in every other California police agency, and the number becomes even more astronomical. 

Los Angeles County Sheriff Jim McDonnell intended to remedy this blatant systemic Brady violation by disclosing the list to prosecutors. However, the police union successfully sued to prevent him from doing so. An appellate court ruled that McDonnell and other law enforcement agencies cannot tell prosecutors if a police witness has a record of serious discipline. The issue is currently pending before the California Supreme Court. 

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Source: Los Angeles Times

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