from the law-enforcement-again-demonstrating-they-don’t-feel-laws-apply-to-them dept
Prosecutors have an obligation to turn over evidence — exculpatory or otherwise — to criminal defendants. They often don’t. In rare cases, this refusal to play by the rules results in dismissals or sanctions. But, for the most part, they tend to get away with it, allowing the government to stack the prosecutorial deck in its favor to obtain easy, illegitimately obtained wins.
Exculpatory evidence, referred to as Brady evidence, is something law enforcement loves to withhold. It would rather present only the evidence it feels will result in a conviction, rather than allow defendants to fight back with evidence that might indicate they’ve been wrongly accused. It has been this way for years, and this behavior was called out by Judge Alex Kozinski in 2015:
There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.
That’s where the buck is supposed to stop. It rarely does. This is what happens when courts refuse to address Brady violations.
It effectively announces that the prosecution need not produce exculpatory or impeaching evidence so long as it’s possible the defendant would’ve been convicted anyway. This will send a clear signal to prosecutors that, when a case is close, it’s best to hide evidence helpful to the defense, as there will be a fair chance reviewing courts will look the other way…
Every so often a court calls bullshit on this behavior. It happens so rarely it’s newsworthy.
This case, handled by a California court, is a man-bites-dog decision [PDF]. It discusses (and disapproves of) the behavior of San Diego prosecutors. The San Diego City Attorney subpoenas witnesses, gathers evidence, and handles appeals originating from criminal cases. What it does not do is attend trials to present evidence. But it still has access to evidence and the power to compel production in response to requests.
Or, at least it did until 2017. In that year, it unilaterally decided it would no longer be a source of evidence or handling discovery requests from criminal defendants. Instead, it “allocated resources” by outsourcing this job to the San Diego Police Department.
That might have worked if the San Diego PD had shown any interest in being the City Attorney’s proxy. But the PD decided it was no more obligated to turn over evidence than it had been before this “resource allocation” by the City. The end result was neither entity feeling it had any duty to respond to discovery requests by Matthew Houser, who had been cited in January 2019 for illegal “overnight camping” in a city park.
Houser’s lawyer took the steps any good legal rep would do in preparation for a criminal case. On September 26, 2019, he served an informal discovery request on the City Attorney requesting, among other things, body camera footage from the officers, any exculpatory evidence collected, and any complaints against one of the involved officers.
Houser’s counsel received this response from the city:
The San Diego City Attorney’s Office does not appear on nor participate in any infraction cases tried in Kearny Mesa Traffic Court. This citation was directly filed with Kearny Mesa Traffic Court, and we are not in receipt of any discovery on this matter. Any discovery that you are seeking must be obtained from the law enforcement agency that issued the citation.
In response, Houser’s lawyer asked the court to compel the production and appearance of the San Diego PD’s custodian of records. The PD sent a cop, rather than the custodian of records. This officer — one who was involved in the citation — didn’t produce much.
On November 4, 2019, Officer Greenan appeared and provided an envelope containing a 3-page dispatch log, a copy of the citation, and a document providing instructions to request body camera footage. The officer did not provide the body worn camera footage or other discovery requested (e.g., witness list, etc.)
Both the defendant and the court found this unacceptable. The court ordered the City Attorney to produce the body cam footage. It also demanded the City Attorney’s office explain why it shouldn’t be hit with sanctions for offloading its duties to the PD. It also ordered the City Attorney’s office to obtain the footage and hand it over no later than November 21, 2019.
None of this happened. A flurry of filings by the defense lawyer was greeted by continuance requests. Time marched forward, but neither the PD nor the Attorney produced the requested records or body cam footage. The City Attorney argued it was not the prosecuting entity so it had no obligation to relinquish records. The PD continued to withhold the requested information. More attempts to compel production made their way into the court and each was rebuffed by the City Attorney’s office, which noted that while it was instrumental in preparing cases for prosecution, it was somehow no longer obligated to hand over evidence to defendants.
This displeased the court. It took the Deputy City Attorney (Jonathan Lapin) to task for wasting everyone’s time.
“There’s a whole lot of energy being expended in having to remedy the City Attorney not accepting service on behalf of SDPD. And so, what you are representing to this Court today is that if [Ms. Cusack] follows that instruction that you are saying should be followed, and she is still unable to serve that informal discovery request, that then judicial resources should be expended in the form of a court hearing, and perhaps multiple court hearings, simply in order to get that [informal] request delivered.” (Emphasis added by the Court). Further, although the City Attorney is involved in facilitating a “viewing” of body-worn camera footage, Mr. Lapin testified that the City Attorney’s policy requires that a motion be filed and heard before a copy of the footage is released to a defendant — “for that evidence, the police department liaison within the San Diego City Attorney’s office would make an appointment for defendants in order to view body-worn camera evidence. If directed by the Court to provide an actual copy, they would do so if there is a court order. [¶] . . . Absent a court order, they would only allow the viewing of the body-worn camera evidence.”
An order was issued on February 4, 2020 demanding the San Diego PD hand over everything requested by the defendant. This never happened. All the defendant received — more than a year later — was a statement from the PD saying neither officer had been wearing a body camera. This lack of cooperation — one that lasted for months — resulted in the trial court dismissing the case. The City Attorney’s office — despite having jerked around the defendant and the trial court for nearly two years — stupidly (and vindictively) appealed the dismissal.
The superior court is no more impressed by the City Attorney’s actions than the trial court. It makes things simple: for the purposes of Brady obligations, the Attorney’s office is considered the prosecutor. That’s not something it can delegate, no matter how much it desires to “reallocate resources.”
By its own admission, the City Attorney did not fulfill any obligation to learn of Brady discovery relevant to this matter under Kyles, Aguilar, or Kasim. From its letter to defense counsel on September 23, 2019, in which it stated that the City Attorney “does not . . . participate in any infraction cases . . . .”, to its brief alleging that “there is no prosecuting attorney for purposes of discovery under Penal Code section 1054”, to the testimony of Deputy City Attorney Jonathan Lapin that the City Attorney no longer facilitates nor answers infraction defendants’ discovery requests, it is clear that the City Attorney did nothing to discharge its Brady obligations in this case.
That all adds up to constitutional violations.
We find substantial evidence supports an inference that the City Attorney made no efforts to learn and disclose Brady-required materials. Accordingly, Mr. Houser’s federal Constitutional rights under Brady were violated in this case.
For the second time, the citation is dismissed. It may not have seemed like much — a citation for illegal camping (one of many ways governments punish people for not having homes). But it matters because it exposed the San Diego City Attorney’s attempt to serve as a prosecuting force while ignoring all the obligations that come with that position. The city wasted plenty of resources trying to obtain judicial blessing for the “resource allocation” that has turned discovery requests into a Catch-22 for defendants. It’s unlikely it cared whether or not it collected on this citation. What it really wanted was justification for its actions, preferably delivered by a decision it could quote in court the next time it screwed a defendant out of their rights.
Filed Under: brady violations, evidence, jonathan lapin, matthew houser, san diego pd