1. Training files

2. Records of Other Agencies

3. Performance reviews

4. Levels of Discipline e.g. supervisor notes, informal reprimands up to formal write ups.

5. Worker’s Compensation filings

6. Civil litigation files concerning the named officer

character evidence, evidence of pattern, practice, modus operandi or which may

lead to such evidence.

4. Any evidence relating to training failures as they relate to police procedures,

interviewing techniques, constitutional rights or other matters relevant to Miranda,

coercion or eyewitness identification issues.

5. Impeachment evidence.

6. Evidence of racial bias.

8. At pages 10-11 of the statement Toccara Earl states that there was no prior discussion of robbing someone, that she saw no firearms and gave no one a firearm.

9. The tape indicates that the interview commenced at 1:03 am and ended at 1:48 am.

10. A new tape was started at 3:28 am. In between those times Toccara Earl was allowed to use the bathroom and this was followed by interrogation which was again off tape. The fact that Toccara already was on tape eliminates the anticipated standard OPD explanation that they don’t like to use tapes until the witness is comfortable because they may not speak. In this case, Toccara Earl had already agreed to be taped. There may be other explanations made for the time off tape but the defense is intending to contend that this time off tape involved improper actions by the named officers.

11. The following is from pages 1-2 of our transcription of the second interview. This has been provided to all counsel including the prosecutor.

12. Both Sgts. Galindo and Ferguson appear to have been present during the taped interviews and the off tape interviews.

13. The same off tape procedure was used prior to the interview of co-defendant Frank Williams. The following is from page 2 of the transcription (provided to all counsel) of Frank Williams’ statement:

15. Anisha Poole, also a juvenile was also first interviewed off tape.

16. Anisha Poole’s interview on tape started at 5:29 am on December 30, 2002. There is no indication in that transcript that she was ever advised of her rights. She was interviewed off tape: (From Page 1 of the transcript of her statement which has been provided to all counsel)

17. There was a second interview of Anisha Poole on January 7, 2003 where it appears she signed a Miranda Waiver form but there is no form in our discovery for the first interview (she was not kept in custody after the first interview so custody may be an issue here)

18. The search warrant affidavit seems to indicate that Anisha Poole was brought to OPD at or around 2:30 am. There is no indication that she was Mirandized before the tape ran.

19. My records indicate that the above referenced interviews with Frank Williams and Anisha Poole were conducted by Sgt. Galinda and Ferguson.

20. At page 3 of the interview conducted on December 30, 2002 commencing at 9:52 pm (2^nd Poole interview) no Miranda warnings were given. Sgt. Brock and Galindo were present. This short tape reflects that this witness was shown a photo lineup off tape. The lineup is repeated on tape.

21. The procedure of showing a photo lineup off tape and repeating in on tape is, in my experience, a tactic which has three serious faults. First, it covers up uncertainty and suggestion during the first (off tape) showing. Secondly, it reinforces a so-called correct choice on tape because the witness knows that she picked the so-called correct person which is why they are preserving it on tape. Thirdly, the tape is a showpiece. It is not a true and accurate reflection of the actual selection process. The following is from our transcription of a portion of that tape (at page 1)

22. In support of my assertion that off tape lineup showings may mask suggestion, I cite the following:

23. In People v. Caruso (1969) 68 Cal.2d 183, the California Supreme Court stated, "...we...recognize, as did the United States Supreme Court, that unfairly constituted lineups have in the past too often brought about the conviction of the innocent." Citing United Sates v. Wade, supra, the court observed,

The off tape showing of a lineup to a frightened juvenile is a highly suggestive tactic.

24. Based upon the above, the defense is seeking all information which might reasonably lead to the discovery of evidence relative to the above issues (Pitchess) or which may be exculpatory in this context. (Brady)

I declare the above to be true and correct under penalty of perjury. Executed this March 29, 2003 at Oakland, California.

_______________________________________

Daniel A. Horowitz

This motion includes a request for copying, sealing and preserving all files subject review or potentially subject to review by the trial court so that a meaningful record for appellate review can be maintained.

Counsel notes that governmental agencies still file Pitchess responses which reflect a limited view of what should or should not be produced in response to Pitchess motions. Mooc et al. define a broad scope of production and attorneys for the municipal entities are aware of these cases. However, as this is a capital case, the defense sets forth herein the law defining the full the scope of the obligation of the municipal entities. Should a municipal entity disagree with the scope definitions herein, the defense respectfully submits that the issue should be raised by response to this section and not by the unilateral failure to produce files.

In Mooc the Supreme Court defined the scope of production as being "all ‘potentially relevant" documents rather than just the subset of Internal Affairs complaints using produced.

"When a trial court concludes a defendant's Pitchess motion shows good cause for discovery of relevant evidence contained in a law enforcement officer's personnel files, the custodian of the records is obligated to bring to the trial court all "potentially relevant" documents to permit the trial court to examine them for itself. Santa Cruz, supra, 49 Cal.3d at p. 84, 260 Cal.Rptr. 520, 776 P.2d 222.) A law enforcement officer's personnel record will commonly contain many documents that would, in the normal case, be irrelevant to a Pitchess motion, including those describing marital status and identifying family members, employment applications, letters of recommendation, promotion records, and health records. (See Pen.Code, § 832.8.) (Mooc at 1228, emphasis added)

Pre-Mooc custodians traditionally brought only Internal Affairs files and often truncated production by brining only those where complaints where the forms were fully and properly filled out, examined and found to have some rational basis. Complaints were ranked and categorized and only a certain class of complaints were produced. Even the use of the word "complaints" is outdated. Any "potentially relevant" material must be produced. The standard is now the potential for relevancy and not the name of the box where the information is stored.

Generically the following specific files should be produced in this case.

1. Training files

2. Records of Other Agencies

3. Performance reviews

4. Levels of Discipline e.g. supervisor notes, informal reprimands up to formal write ups.

5. Worker’s Compensation filings

6. Civil litigation files concerning the named officer

The requested materials are well within the scope of production under Mooc which limited the exclusion of "[d]ocuments [to those] clearly irrelevant to a defendant's Pitchess request need not be presented to the trial court for in camera review. But if the custodian has any doubt whether a particular document is relevant, he or she should present it to the trial court." (Mooc at 1229). That would include documents however stored or labeled with potential relevancy and not the file drawer name being the basis for production.

B. A list of all files destroyed (to the extent that any record exists).¹

five year limitation cannot apply in a situation where the police agencies have explicit findings by trial courts of constitutional violations by the named officers. All documents must be produced for review. Any files that have been destroyed should be documented as having been destroyed.

In Brandon the Supreme Court eliminated the statutory five-year limitation upon court-ordered disclosure of complaints of police officer misconduct as an absolute rule and substituted a rule of materiality (i.e. Due Process). Brandon noted that Pitchess operates in parallel with Brady. (City of Los Angeles v. Superior Court (Brandon) (2002) 29 Cal.4th 1, 14)

Defendant relies upon Fletcher v. Superior Court (2002) 100 Cal.App.4th 386 in requesting all files responsive to the Pitchess request in the possession of or accessible to the entities named herein. The original source of the files is irrelevant. The contents of the files are the standard of materiality. This is particularly important as agencies share officers and form joint task forces. Any narrow definition of files would subvert the principles underlying Pitchess motions (and Brady).

Mooc contemplates the production of virtually all files.

As this is a capital case any conviction will result in state and federal habeas review. The choice of items produced and the contents of files not produced by the municipality will be an issue in any such habeas proceeding. By preserving all files the unknown will be eliminated. A reviewing court will have the best possible record. Also, if the files are preserved then it is possible that on direct appeal the matter may be reviewed.

THE PROSECUTOR IS OBLIGATED TO

The prosecutor has not responded to the prior Pitchess motion which was filed prior to Mooc and Brandon and traditionally prosecutors have not responded to Pitchess motions. Unfortunately, many prosecutors have deemed Pitchess to be the sole basis by which police files and prior police conduct is reviewed for exculpatory value. It is not. Brady and Pitchess are parallel proceedings.

The prosecutor has an independent and continuing duty to produce Brady material regardless of Pitchess. This motion seeks an order requiring an affirmative inquiry by the prosecutor.

Any and all evidence that can be used to impeach a witness is unquestionably subject to disclosure under Brady. See Strickler, 119 S.Ct. at 1948 (explaining that "the duty [imposed by Brady ] encompasses impeachment evidence"); Bagley, 473 U.S. at 676, 105 S.Ct. 3375 (holding that impeachment evidence "falls within the Brady rule"); Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). The Supreme Court has recognized that "if disclosed and used effectively, [impeachment evidence] may make the difference between conviction and acquittal." Bagley, 473 U.S. at 676, 105 S.Ct. 3375. Therefore any determinations as to the "value" of impeachment evidence must be made by the trial court on a materiality and/or Evidence Code § 352 basis at trial and pretrial the prosecution should review its files and produce all that it knows.

The defense is preparing (See Declaration of Daniel Horowitz) to file motions to suppress statements of Toccara Earl at the preliminary hearing and to exclude testimony and statements (based upon coercion²) of the other defendants in this case as they might apply to Tocarra Earl. The defense will also seek to exclude any photo identification evidence. The credibility and prior conduct of the named officers is relevant to those motions.

Disclosure, to escape the Brady sanction, must be made at a time when the disclosure would be of value to the accused. See: U.S. v. Davenport, 753 F.2d 1460, 1462 (9th Cir. 1985); United States v. Elmore, 423 F.2d 775, 779 (4th Cir.) cert. denied, 400 U.S. 825, 91 S.Ct. 49, 27 L.Ed.2d 54 (1970)).

Any prior court proceedings involving the named officers must lead the prosecutor to initiate a detailed inquiry.³ Regardless of what should have happened, this motion and the authorities herein put the prosecution on notice of its duty.⁴

See also: In re Brown (1998) 17 Cal.4th 873, 879, quoting Kyles v. Whitley, supra, 514 U.S. at 437; People v. Superior Court of Imperial County (Barrett) (2000) 80 Cal.App.4th 1305, 1314 (holding Brady obligation extends to information held by "prosecution team").

"[T]he government may not convict on the basis of false testimony of one of its officers, even if the prosecution offered the evidence in good faith, United States v. Young, 17 F.3d 1201, 1203-04 (9th Cir.1994)."

(U.S. v. Croft 124 F.3d 1109, 1119 (C.A.9 (Or.) 1997))

This rule of law becomes a mere platitude if the prosecutor abrogates his duty to investigate under Brady in the misbegotten belief that the Pitchess fulfills all obligation.

The Ninth Circuit has recently reversed a conviction when the state prosecutor did not actively investigate perjury.

and

The state cases are completely in accord with the federal standard having developed on both state and federal due process grounds. These cases hold that a prosecution's duty to disclose also applies to evidence relating to the credibility of material witnesses. (People v. Wright (1985) 39 Cal.3d 576, 590; see also People v. Ruthford (1975) 14 Cal.3d 399, 405-406.) " ' "[S]uppression of substantial material evidence bearing on the credibility of a key prosecution witness is a denial of due process...." [Citation.]' [Citation.] Thus, '[w]hen the "reliability of a given witness may well be determinative of guilt or innocence," nondisclosure of evidence affecting credibility' may require a new trial. [Citation.]" (People v. Hayes (1992) 3 Cal.App.4th 1238, 1244-1245, fns. omitted; see also People v. Santos (1994) 30 Cal .App.4th 169, 178.)

In order to comply with this duty the prosecution not only must disclose evidence in its possession, but also accessible evidence possessed by the investigating agencies. (People v. Kasim (1997) 56 Cal.App.4th 1360, 1380.) In addition, as set forth by the United States Supreme Court in Kyles v. Whitley the state cases presume that the prosecutor has knowledge of all of the information assembled by the state's investigation. (In re Brown (1998) 17 Cal.4th 873, 879.)

The defense asks that the prosecution be ordered to make full inquiry and full disclosure into the named officers as relevant to this case.

In making such inquiry the prosecution must heed Kyles v. Whitley, supra, 514 U.S. 419, which requires a review that includes the records of the prosecuting agency. This obligation also extends to the records of related investigating agencies.

The defense has disclosed some trial related material in this brief (which is incorporated in the supporting affidavit by reference) and the defense has provided further information in its brief. The defense need not disclose attorney-client, trial strategy or Fifth Amendment information in order to obtain Pitchess discovery. The showing herein on the record is intended to be sufficient by itself to allow the Pitchess examination. If it is not, the defense seeks leave to make a further showing in camera and under seal pursuant to the following authorities.

The defense has made a showing beyond that required for an in camera review. The defense respectfully requests a review of all potentially relevant files and the copying and sealing of all files to preserve a record for potential appellate/habeas review.

The defense further seeks an order requiring the prosecution to investigate the matters referred to herein with respect to the named officer credibility, prior acts of misconduct and other issues relevant to the Brady issues set forth herein.

Dated:

____________________________________

Daniel Horowitz