Judge Denies Pitchess Motion in Bank Blocking Case

Judge David Reed on Friday denied the defense request for a Pitchess motion, citing a lack of evidence linking the officers’ conduct in the November 18 pepper spray case to the current case.  However, defense attorney Alexis Briggs told the judge that she has additional information that she believes will lead the court to see the matter in a different light and may re-raise the issue at that time.

The defense, prosecution, and various other parties sparred over some of the requests for discovery, and there will be motions to quash a subpoena at the next hearing date of September 21.

Ms. Briggs indicated that they had hoped to get to trial by November, but that appears more and more unlikely.

Alexis Briggs, in her arguments for the Pitchess motion, cited errors in the police report and made representations that her clients had been violently assaulted and in some cases sexually harassed by police officers during the U.S. Bank protests.

A Pitchess motion is a request made by the defense in a criminal case which requests access to information in the personnel file of an arresting police officer.

Pitchess refers to a Supreme Court decision from 1974 and is now codified into California’s Evidence Code Sections 1043-47.

In the Pitchess decision, the court ruled: “Allowing an accused the right to discovery is based on the fundamental proposition that he [or she] is entitled to a fair trial and an intelligent defense in light of all relevant and reasonably accessible information.”

The agency that holds the records becomes the defending agency against the Pitchess motion rather than the district attorney.

Attorney Terence J.Cassidy, from the firm Porter-Scott, are representing the UC Davis Police Department in this matter.

Mr. Cassidy claimed that the motion lacks the necessary specificity linking the police to the defendants.  He noted in this case, “Defendants have filed a Pitchess motion seeking personnel records of various UC Davis Police Officers – none of whom arrested them or had any contact with them at all other than, at most, brief conversations.”

Furthermore, he argued, “Defendants do not establish that they had any contact with these officers at all on the day of their arrests by other peace officers, nor do they allege that the officers that are the subject of this motion played any role whatsoever, be it substantive or minor, in the course of events that led to the criminal charges that are now pending against Defendants.”

Despite this, he argues, “Defendants seek evidence ‘establishing the officers’ biases and motives to falsify police reports, present false testimony to the grand jury, engage in illegal and improper police procedure, as well’ as any prior allegations of any misconduct.”

The UC Davis PD therefore, Mr. Cassidy argues, “opposes the Pitchess motion on the grounds that (1) Defendants fail to establish good cause to obtain the various categories of records sought, (2) Defendants fail to establish the factual foundation and the necessary nexus between the allegations that the officers identified in the Pitchess motion fabricated reports with regard to this incident or any prior incident that would support a possible defense against the pending charges, (3) the categories of documents are wholly overbroad and seek information to which Defendants are not entitled, and (4) Defendants improperly seek private information without establishing an interest that overcomes privacy concerns.”

The unusual nature of this case is that there was no arresting officer.  Rather, there were a series of policies laid out by the UC Davis administration in conjunction with the police, but the defendants were not arrested.  Instead, they were notified via mail from the DA’s office.

A number of police officers, however, wrote reports that are catalogued in the motions written by Attorneys Tony Serra and Alexis Briggs, with a substantial amount of the research performed by Attorney Maria Belyi.

The defense argues the November 18, 2011 incident, while not included in this case, to be extremely relevant.

The defense argues that Officer Sheffield falsified his report when he mischaracterized an alleged assault, he also failed to report the battery against one of the protestors by a patron, and he “falsified his reports in his exaggeration of statements and actions by the protesters, and his de-emphasis of insults and physical attacks on the protesters by bank patrons.”

Other officers are alleged to have failed to properly identify themselves as officers as they wore plain clothing, and failed to investigate and pursue battery investigations into conduct by employees of the bank, thus falsifying reports and misclassifying incidents.

A Pitchess motion has a relatively low standard for burden of proof.

The defense notes in their motion, “A showing that the defendant cannot readily obtain the information through his or her own efforts will ordinarily entitle the defendant to pretrial knowledge of any unprivileged evidence or information which might lead to the discovery of evidence “if it appears reasonable that such knowledge will assist him in preparing his defense.””

In other words, the defense does not have to make any showing other than to argue that there is a reasonable possibility that such knowledge will assist him or her in preparing his or her defense.

Mr. Cassidy argued that the argument from the defense attorneys lacks specificity.  He writes in his opposition brief: “A showing of good cause must be based on a discovery request tailored to the specific officer misconduct alleged in the motion.”

In short, he calls this a “fishing expedition.”  He argues that the request is overbroad, as “Defendants seek all complaints made against the officers identified in their motion, as well as the investigative materials, witness statements, and recordings related thereto.”

He adds, “Only requests which reasonably limit discovery to complaints similar to the misconduct in the pending case are relevant.”

Mr. Cassidy also argues, “The Declaration of Counsel fails to set forth sufficient  foundational facts establishing that the information sought regarding any alleged misconduct of the officers who are the subject of the motion will support the anticipated defense of the charges against Defendants. The various factual scenarios laid out by Defendants are hardly sufficient to meet the specific plausible foundational facts that any of the reports prepared by these officers were falsified in any way or that previous false testimony by any of the officers will support Defendants’ anticipated defense.”

Ms. Briggs countered that there was a relationship between events, the reports written by the officers are not determinative, and what is critical is showing the officers’ attitude toward the protesters who were targeted both in this case and the prior event.

However, Judge Reed sided with the defending agency, finding that the motion lacked specificity, it was overly board, and there was not a clear enough link between actions on November 18 and in the present case.

—David M. Greenwald reportings