AFF Attorney Wins Brady Appeal and Keeps Officer off the 'Brady List'

BY: Robert Baumann, Esq.    

     In a recent determination by a local Assistant District Attorney (ADA), an
Officer was kept off the 'Brady List' after the ADA requested a response
from the Officer addressing the issue of whether a previous misdemeanor
conviction should be disclosed to the defense attorney pursuant to filing a
Pitchess Motion.  The Office plead guilty to misdemeanor disturbing the
peace approximately ten years prior to the Pitchess Motion in a criminal
case he was to be called as a prosecution witness.  Upon receiving the
motion, the ADA requested the Officer explain why his conviction did not
fall under the requirements under Brady as the ADA is considering
disclosure.  With the help of his counsel at Adams, Ferrone & Ferrone, the
Officer put together a response which ultimately dissuaded the ADA from
disclosing the prior conviction.

     Under Brady v. Maryland, the prosecution has a duty to disclose to the
defense evidence of prior conduct  involving moral turpitude or conduct
showing dishonesty.  This rule includes any misdemeanor, convictions which
may have been expunged or any other charged conduct, whether or not the
charge led to a conviction.  The rule instead focuses on the underlying
conduct and not the final disposition of a particular case.  While this
holds true for charged conduct, this does not hold true for administrative
investigations.  Administrative investigations only fall under this rule if
the underlying conduct violating policy is sustained at the end of the
investigation.  Depending on the facts of the case, evidence of a propensity
to commit violence or use of excessive force may also come within the rule.
The prosecution  has no Brady obligation to communicate preliminary,
challenged, or speculative information.

     The intricacies of this rule were  applied to the above Officer who plead to
Penal Code section  415(3) for using foul language.  Originally the case was
charged under Penal Code section 422 for making criminal threats.  It is
also important to note this misdemeanor conviction occurred well over a
decade prior to a defense Brady request where the officer was named as a
prosecution witness.  The defense claimed this prior conviction was Brady
material since criminal threats are a crime of moral turpitude.  Although
the officer ultimately pled to PC 415(3), which is arguably not a crime of
moral turpitude, the focus of the analysis is on the underlying conduct
which could have lead to a conviction of criminal threats, as argued by the
defense.  Ultimately we argued the evidence taken during the investigation
could not have amounted to a conviction for criminal threats and therefore
the facts relied upon by the defense requesting disclosure under Brady were
challenged and speculative. Specifically the alleged victim in the case
originally told the investigating officer the suspected officer did not
making any threats towards him.  The alleged victim later changed his story
and stated the suspected officer did make threats against him.  Further
there were multiple witnesses on scene who disagreed whether or not they
heard the suspected officer make threats towards the alleged victim.  Since
the necessary underlying facts to support a conviction of criminal threats
were "challenged", "speculative" and in dispute, the District Attorney
ultimately determined there was no requirement to disclose under Brady.