Kamala Harris is arguing that her office must first review the names and only after going to court for permission would her office alert defense attorneys to the officers’ problems.
This is not a small issue, particularly when we are dealing with a potential attorney general. Kamala Harris believes that the state law protects the officers’ privacy rights even in court decisions. It is extremely difficult, and requires a high degree of burden for defense attorneys to get an officer’s personnel jacket opened in court. That requires a Pitchess Motion, which must be very specific and often only specific portions of an officer’s record becomes accessible to the defense.
According to the Chronicle, “Although the U.S. Supreme Court has mandated that prosecutors turn over damaging information about witnesses to the defense, California courts have held that prosecutors must weigh their duty to disclose such information against the rights of officers to keep their misconduct records out of the public eye.”
The Chronicle reported in May that scores of San Francisco officers have arrest records, convictions or misconduct histories that would have to be disclosed to defense attorneys.
Adachi attacked Harris at the time as “unethical” for not having a policy to disclose those histories regularly, and said her failure had left hundreds of convictions at risk.
Harris, while admitting to not having a written policy, fired back, saying Adachi was “playing politics with public safety” without anyone having firm numbers of problem officers or the cases in which they had testified.
However, according to the Chronicle, the Police Department has identified 135 officers with histories that need to be disclosed, but that information remains in police hands.
Kamala Harris’ spokeswoman, Erica Derryck fired back, “I think it’s pretty clear that Mr. Adachi is trying to circumvent the legal process the court uses to determine the relevance and proper release of this information.”
On the other hand, the public defender has argued that “Harris’ office couldn’t be trusted to perform “due diligence” in light of its failure to act when suspicions arose about a former drug lab technician, Deborah Madden, who testified in cases even as the lead drug prosecutor complained about her work. Madden now is suspected of skimming drugs from the lab.”
“Why do they need a unit to determine how to conduct trials with integrity?” Mr. Adachi asked. “This is something that the district attorney was elected to do and should be doing every day.”
There is a case to be made for broader public disclosure that has been curtailed under the Copley PRess decision that held that records of an administrative appeal of sustained misconduct charges are confidential and may not be disclosed to the public. The decision prevents the public from learning the extent to which police officers have been disciplined as a result of misconduct.
However, even if one wishes to err on the side of police in terms of general disclosure, it would seem reasonable that police records of misconduct and arrests should be made readily available to the defense. After all, often in these case it comes down to the officer’s word versus the defendant’s word, and when that indeed occurs, the defense ought to have a means by which to establish that perhaps this officer is not quite as reputable as their uniform on first glance might make them seem.
It is disturbing that Ms. Harris would take the position that this information needs to be vetted through her office rather than simply turned over to the defense as evidence. This relates heavily to our story a few days ago on the discrepancy of funding and resources available to the defense. Moreover, most counties do not have as independent a Public Defender as San Francisco does in Adachi, who himself is elected. San Francisco is one of the very few counties with an elected public defender.
As Attorney General, Kamala Harris would be in charge to some degree in not just enforcing the laws but interpreting how they should be carried out. In this case, it appears that she is siding with non-disclosure and that is a disturbing position for a public office to take.
Given what we have seen already in this county in the first six months of this year, we would recommend more disclosure, not less into the history of the police officers involved in a particular arrest. And then let the facts dictate what happens. If a police officer has a tarnished or checkered history, that should matter as far as their credibility and if prosecution begins losing cases because of the history of the police officers making the arrest, maybe that will force police departments like San Francisco’s to reduce the number of officers with poor records.
—David M. Greenwald reporting