By Gregory P. Palmer
I remember the first and last time I agreed to submit to an in camera review of an officer’s personnel file following a Pitchess motion with another agency. The situation was this; a police officer from my client’s agency had lateraled to a subsequent agency and while employed there was involved in a situation which generated a Pitchess motion. The public defender knew about the officer’s previous employment with my client’s former agency and filed and served a Pitchess motion on both agencies. The motion was heard jointly and was granted. In the interest of time, I agreed to the judge conducting a simultaneous in camera review of the officer’s personnel files held by both agencies. That was the last time I agreed to such a request. The reason follows:
We went first. My custodian explained the contents of the officer’s personnel file from his former agency. He brought with him the relevant files and allowed the judge to conduct an independent review of them. When it came time for the officer’s current employing agency’s custodian to describe what records he brought to the in camera review, it was very apparent to me that the custodian was not being forthcoming with the judge. It made me feel uncomfortable, but I had no basis of knowledge to actually know if there was withholding going on. So there was not much I could say. A year after the defendant who had brought the Pitchess motion was convicted, it came out that the custodian of the current agency was not truthful about the contents of the officer’s personnel file in that in camera review. The withholding of relevant information from that in camera review adversely affected that individual’s right to a fair trial.
From that day forward I have never agreed to a joint agency in camera review and I have dedicated my Pitchess class to the principle that as a custodian of a police officer’s personnel file on a Pitchess motion, you are no longer part of a fraternity who is rightly dedicated to arresting guilty individuals and turning them over to the court, but you have become a cog in the wheel of the larger judicial system’s goal to see that justice is done, even if that means the guilty go free.
Every Pitchess motion has as its bedrock the defendant’s fair trial right. Every custodian is in possession of police officer personnel file information which may be relevant to a future defendant’s fair trial right. Every custodian should be sworn in to tell the truth about the contents of an arresting officer’s personnel file. Following that truthful testimony, it is the court that must determine if the information described will be helpful to the defense, not the custodian. To the extent a particular custodian is not worthy of the duty to provide information that may affect a fair trial, he or she can affect the constitutional right of the accused.
The CPOA Pitchess motion class not only describes what to look for in a Pitchess motion, how to lawfully defend and challenge them, but it also explores how the role of the custodian and, indeed, the laws pertaining to police file maintenance, dovetail with the fair trial rights of an accused. When one becomes a custodian of records at issue in a Pitchess motion, and/or when a member of a city attorney’s law firm is assigned a Pitchess motion to handle, each must understand their role in (1) defending the Pitchess motion on any and all legal grounds available and also (2) ensuring that potential useful discovery to a defendant’s fair trial is not inappropriately withheld. That is, to be sure, a delicate balance and it is one which is discussed in this class.
Gregory P. Palmer is a Senior Associate with the Law Offices of Jones & Mayer. He is the principal author of the 2006 revision of the CPOA’s’ Pitchess Motion Manual, and in October of 1999 he was named Chair of the CPOA, Police Legal Advisors Committee, Southern Section. Mr. Palmer is the instructor of the CPOA Pitchess Motion Update and Public Records Act Classes.