The Contra Costa Times has a very interesting story on a California Supreme Court case that will decide whether Contra Costa prosecutors (and by extension all DA’s) should be required to run criminal background checks on police officers so defense attorneys can prepare to challenge their credibility before they are called as witnesses in court.
The article, “Should DA run rap sheets on police witnesses?” is probably mistitled, as we are not talking about police witnesses here, but rather arresting and investigating officers.
It seems like a strange argument for several reasons. First, should the DA’s office not be running criminal background checks on police anyway? Second, why is it burdensome, there are a finite number of officers, simply run checks on all of them periodically. They run checks on defendants, so I fail to see how it could differ from running the rap sheet on any other defendant.
In fact, the article later reports that some Bay Area counties, including San Francisco and Marin, already run shap sheets for law enforcement officers. They report, “Santa Clara County has a database of impeachment material available,” according to deputy public defender Evan Hoppin. “San Francisco, Police Chief George Gascon told media members last year that dozens of officers on his force had either a criminal history or misconduct record that had not been disclosed at trials, which prompted the city’s policy on screening police witnesses.”
These facts would seem to undermine the DA’s case here that these things do not happen and that they lack the resourcs to check.
In terms of the lacking authority argument, well, the California Supreme Court could probably take care of that issue unless there were a constitutional reason not to.
In terms of nonexistent past history, that is less than clear, as we look to the case that brought this entire issue to the California Supreme Court. In that case, the Antioch police officer who arrested two defendants was himself charged with felony domestic violence, and the client faced resisting-arrest charges.
Anytime you have a crime that is charged against the police officer, the police officer’s record comes into play. Under current law, the defense would file a Pitchess Motion. A Pitchess Motion is very limited, as it allows access to the officer’s personnel information only when allegations include excessive force or that the officer lied about events surrounding the defendant’s arrest.
However, the Pitchess Motion does not allow access by the defense to the personnel file. Instead, it allows the court to review to see if there is relevant information, and then it only provides a summary account of the content that is deemed by the judge to be relevant.
The question is, under those circumstances, should not the officer’s criminal history be relevant as well?
“Jurors are entitled to know if a witness has a criminal record — regardless of whether the witness is a civilian or a police officer. It’s simple and fair. But the district attorney has been fighting us every step of the way,” Mr. Hoppin said.
“On its face, I’m not at all concerned about criminal history backgrounds checks. I’m not worried that our members have anything to hide, but I think the motivations behind it are silly and petty,” said sheriffs’ union President Jim Bickert, as reported by the Contra Costa Times. “It’s grasping at straws trying to find any way they can to get their criminal client off.
Seems to me that is the “something” that a judge and jury can decide, the relevance of evidence.
“If there are articulable facts that would cause some level of doubt or suspicion as to the officer’s credibility, then by all means, let’s bring that out, let’s put it on the table,” Sheriff Bickert said. “But to adopt a blanket policy that we are going to run backgrounds on everyone is like panning for gold, just hoping that something turns up as opposed to acting on any credible information.”
The Times goes on to report, “Last summer, Hoppin said he had another resisting-arrest case in which a Contra Costa County judge ordered the prosecutors to run the rap sheet for two Antioch police officer witnesses. The following day, the prosecutor announced that his office refused. The judge instructed the prosecutor to instead ask the officers if they had any prior arrests or convictions.”
According to their report, “One officer said that he had a ‘wet and reckless,’ or a low-level DUI, conviction from 1995. The public defender’s office did its own investigation that showed the officer actually had a regular misdemeanor DUI from 1999 in which he measured a .17 blood alcohol content — more than twice the legal limit, Hoppin said.”
“Determining whether someone is honest by asking them if they’re honest just doesn’t make sense,” Mr. Hoppin said.
The Times reports, “Hoppin raised the issue again in March when another Contra Costa judge ordered criminal background checks for officers in the two cases now under consideration by the state Supreme Court, then reversed the decision upon hearing protests from prosecutors.”
“It takes a minute to run a rap sheet on anyone; it’s so easy,” Mr. Hoppin said. “The only reasonable interpretation is the DA doesn’t want cops’ criminal records to come to light.”
It seems pretty clear that there needs to be a uniform standard here. For one thing, this is a real problem. There appear to be problems with law enforcement, who frankly should not be law enforcement to begin with, given their past conduct.
The DA, as a matter of policy, it would seem, ought to run these checks, regardless of whether there is an issue for a particular criminal matter involving a particular officer.
—David M. Greenwald reporting
[quote]n fact, the article later reports that some Bay Area counties, including San Francisco and Marin, already run shap sheets for law enforcement officers. They report, “Santa Clara County has a database of impeachment material available,” according to deputy public defender Evan Hoppin. “San Francisco, Police Chief George Gascon told media members last year that dozens of officers on his force had either a criminal history or misconduct record that had not been disclosed at trials, which prompted the city’s policy on screening police witnesses.”
These facts would seem to undermine the DA’s case here that these things do not happen and that they lack the resourcs to check.[/quote]
Of course Marin and San Francisco Counties have the money to run these types of background checks. Not a good comparison…
[quote]However, the Pitchess Motion does not allow access by the defense to the personnel file. Instead, it allows the court to review to see if there is relevant information, and then it only provides a summary account of the content that is deemed by the judge to be relevant.[/quote]
So why do you feel this is not sufficient? Can you give an example where it would not be?
It will be interesting to see what the CA Supreme Court rules in this case…
“In terms of nonexistent past history, that is less than clear, as we look to the case that brought this entire issue to the California Supreme Court. In that case, the Antioch police officer who arrested two defendants was himself charged with felony domestic violence, and the client faced resisting-arrest charges.”
Sorry, the point remains crystal clear as to nonexistence. You can’t have a person convicted of a felony serve as a California peace officer. The cited Antioch case says the officer was charged, not convicted. If the officer was convicted of a felony, he would have to be terminated. A convicted felon cannot carry a weapon for starters.
Instead of requiring the DA to perform clerical duties at the whim of the Public Defender, give the Public Defender the legal authority to do its own rap sheet checks and have them bear their own costs for such probes. Another alternative, amend the Pitchess Motion to include prior arrest records for relevant officers themselves.
There would be much merit in the contention that this is a unwarranted witch hunt and an attempt to deflect attention away from the actions of the charged defendant. Appellate court history has repeatedly shown, however, that this rationale often trumps concerns over additional costs within our legal system and further delay in the victim’s quest for timely justice. It will probably happen–and if it does–you most assuredly will pay for it.
Elaine:
“Of course Marin and San Francisco Counties have the money to run these types of background checks. Not a good comparison..”
I question that they have more money than other counties.
Moreover, I wonder how much it costs to run a check. Furthermore as they run checks for criminal defendants anyway, I can’t see how a one-time expenditure of running a check for existing law enforcement is going to be that costly.
“So why do you feel this is not sufficient?”
The pichess motion only shows what is in a personnel file, it doesn’t address criminal offenses.
Phil:
It just seems like you are requesting a finite number of rap sheets, you do it once, it has a cost and then you do a background check on each new hire. Seems like minimal intrusions and cost. Moreover other counties are already doing it, so it can’t be that bad. What am I missing here?
DMG,
“It just seems like you are requesting a finite number of rap sheets, you do it once, it has a cost and then you do a background check on each new hire. Seems like minimal intrusions and cost.”
You mean have the DA run a criminal background check for all law enforcement officers in the county once and do the same for new hires? Just once, though? That wouldn’t be sufficient, would it?
I would think the background checks would need to be done periodically, if adopted as a policy of the DA, as they would need to be current.
[quote]Would a non-law enforcement agency even have the capacity to run a rap sheet. [/quote]
From FBI website: “Who May Request a Copy of a Record (or Proof That a Record Does Not Exist)
Only you can request a copy of your own Identification Record.
Individuals typically make this request for personal review, to challenge the information on record, to satisfy a requirement for adopting a child in the U.S. or internationally, or to satisfy a requirement to live, work, or travel in a foreign country (i.e., police certificate, letter of good conduct, criminal history background, etc.).
Background Checks for Employment or Licensing
If you are requesting a background check for employment or licensing within the U.S., you may be required by state statute or federal law to submit your request through your state identification bureau, the requesting federal agency, or another authorized channeling agency. You should contact the agency requiring the background check or the appropriate state identification bureau (or state police) for the correct procedures to follow for obtaining an FBI fingerprint background check for employment or licensing purposes.”
[quote]I question that they [Marin and San Francisco County] have more money than other counties.[/quote]
You’ve got to be kidding?
To Phil Coleman: Excellent observations!
Phil Coleman,
“Instead of requiring the DA to perform clerical duties at the whim of the Public Defender, give the Public Defender the legal authority to do its own rap sheet checks and have them bear their own costs for such probes”.
Great idea Phil! Lets level the playing field by giving the defense the same investigatory authority as the prosecution. And while we are at it, lets [b]give them the same budget[/b]
I am again reminded of a conversation with recently retired Yolo County Public Defender Barry Melton, in which he told me that the only people who lie more on the witness stand more than criminal defendants are cops.
SM: That is true, but the follow ups are all updates over a finite period of time where the locations are better known. I still think it’s fairly simple to keep and update rap sheets for law enforcement and they probably should do it anyway.
“You’ve got to be kidding? “
Do you have evidence that either are not having budget problems like the rest of the state, if so, please cite your evidence below.
Apparently, my wording failed to convey my sentiments with sufficient clarity. My fault. I’m willing to give favorable consideration that the Public Defender be allowed to access arrest history, the same as prosecution and police. I’ll probably be demonized for saying that, but I’m still wondering “why not?”
The vast majority of PD clients have arrest histories. So, too, do many of their witnesses. No discredit to the PD’s, I have exceedingly high respect (and a fair amount of sympathy) for their role in our system. The PD just has to play the cards they are dealt.
If the PD Office had ready and easy access to anybody’s arrest history at the early state of a court action, I have to wonder if that might facilitate the full, fair, and prompt administration of justice. Every competent defense attorney that ever walked this earth will first say to the client, “Always tell me the truth.” And they still lie. I happen to believe that the truth will set you free, and also not, if you deserve it under our code of justice.
The larger issue that nobody has mentioned thus far is the relevancy and fairness of any officer arrest history to the case being challenged. Picture an officer being arrested and convicted for shoplifting and remained in service after appropriate criminal and administrative sanctions.
Does that criminal history necessarily discredit the officer’s actions in any subsequent enforcement act? If the officer continue to provide exemplary service to the public for 20 years after, is it appropriate that the shoplifting prior be presented in court every time the officer testifies in an effort to discredit his/her credibility and integrity?
Phil: I don’t disagree with most of what you say. But to cite a number of judges who have let in evidence in a variety of cases, let the jury and the Judge decide what issue is relevant to a particular trial. When the credibility of the officer is crucial to the case, it seems reasonable to be able to have full facts to impeach that credibility and leave it to the prosecutor to show why that information is irrelevant and to the jury to decide whether or not it is relevant to their decisions.
[quote]Do you have evidence that either are not having budget problems like the rest of the state, if so, please cite your evidence below.[/quote]
Marin County
General Budget – $437,073,323
DA Budget – $13,181,181
Yolo County
General Budget – $57,352,546
DA Budget – $2,801,937
[quote]Every competent defense attorney that ever walked this earth will first say to the client, “Always tell me the truth.”[/quote]
Hmmmmmmmmmmmmmmmmmmmmmmmm… If a defense attorney asks the client directly: “Did you do the crime or didn’t you?”, and the defendant says “Yes I did it.”, that puts the defense attorney in a bit of quandry, doesn’t it? An attorney cannot help his client to lie on the stand… I think what the attorney is more apt to say is “Always tell the truth, and don’t lie to me” – a nuanced but important difference. The defense attorney may never ask his client if he did or didn’t do the crime. Any defense attorneys may feel free to weigh in on this issue…
From legalmatch.com: “A lawyer should represent his client zealously within the bounds of the law:
However, in cases where a client?s conduct could arguably be legal, a lawyer may refuse aid or participate in conduct he believes is illegal.
Furthermore, a lawyer may not assert a position, file a suit, delay trial, or take actions on behalf of his client when he knows that such actions are undertaken merely to harass or maliciously injure another individual. Furthermore, a public prosecutor or other governmental lawyer may not bring charges without probable cause.
A lawyer cannot knowingly use perjured testimony or false evidence.
A lawyer cannot knowingly assert false statements of law or fact.
A lawyer cannot preserve or create evidence which he knows is false.
A lawyer cannot assist his client in conduct he knows to be illegal or fraudulent.
Furthermore, if a lawyer receives information that his client has conducted a fraud on a person or tribunal he/she must ask the client to rectify the fraud. If the client is unable and unwilling, the lawyer must reveal the fraud to the individual or tribunal. A lawyer is prevented from doing this if the information is protected as a privileged communication.”
Elaine: That’s evidence that they have a larger budget than Yolo, not that they don’t have a budget problem. And that’s one county, I was in particular thinking about SF County which has suffered huge numbers of layoffs. Marin may be the county that has escaped.
Generally speaking the defense attorneys look at the evidence and make the best decision they can based on what the evidence suggests will happen. In a case where they think they can prevail at jury trial, they will take it to trial, otherwise they will try to cut a deal. Sometimes they don’t get a good deal and still take it trial.