9th Circuit: Failure to disclose evidence leaves LA County open to litigation

By L.J. Williamson

Los Angeles County Sheriff’s Department deputies who are facing lawsuits by men who were wrongly imprisoned for decades are not entitled to qualified immunity, the 9th U.S. Circuit Court of Appeals held Wednesday.

Plaintiffs Frank O’Connell and Francisco Carillo Jr. alleged that the deputies failed to disclose evidence that would have cast serious doubt on the testimony of key prosecution witnesses in each of their separate cases.

“The law at the time of the investigations clearly established that police officers had to disclose material, exculpatory evidence under Brady,” wrote Circuit Judge Raymond C. Fisher, referring to the 1963 U.S. Supreme Court decision, Brady v. Maryland 373 U.S. 83 (1963).

“[A]ny reasonable officer would have understood that Brady required the disclosure of the specific evidence allegedly withheld,” he added.

O’Connell was convicted largely based on the testimony of one witness, who later testified at O’Connell’s habeas hearing that he was nearsighted and required contacts or glasses but was not wearing them at the time he made the identification. The witness also later said he felt intimidated by deputies to pick O’Connell out of a photo lineup.

Deputies testified that another witness had readily identified O’Connell in a photo lineup, but failed to disclose that the witness had actually selected two photographs and said that O’Connell “looked like the person who was there, but I’m not positive.”

Carrillo argued that defendant Craig Ditsch, an LASD deputy and member of a gang enforcement unit, failed to disclose the circumstances surrounding a witness’ identification of him as the gunman in a drive-by shooting.

The opinion explains that Carrillo alleged that Ditsch failed to disclose that prior to identifying Carrillo, the witness initially chose several other photos from a “gang book” – each of which Ditsch then said “could not be the suspect shooter.”

When the witness selected Carrillo’s photo, Ditsch affirmed it as the “right choice.” In court, Ditsch denied that the witness selected anyone else before settling on Carrillo.

The witness later recanted his identification of Carrillo, despite threats from Ditsch, who said the witness would face negative consequences.

The opinion also referenced a previous 9th Circuit opinion, which held that police officers and prosecutors alike share an obligation to disclose “pertinent material evidence favorable to the defense.” United States v. Butler, 567 F.2d 885, 891 (9th Cir. 1978).

Fisher said that defense’s attempt to circumvent Butler was unpersuasive, and added, “Because Butler unambiguously held due process is violated where a police officer fails to disclose material, exculpatory evidence, our inquiry is over.” Carrillo v. County of Los Angeles, 2015 DJDAR 9890.

“The opinion is very important because it puts to rest any question about the police’s obligation to disclose exculpatory evidence – if they don’t do it, they’re subject to civil liability as well as whatever happens in the course of the criminal proceedings,” said Barrett S. Litt, partner at Kaye, McLane, Bednarski & Litt, LLP and counsel for the appellees.

” This case really takes it head on and leaves no room for question about that.”

Litt’s colleague and co-counsel for the appellees, Ron Kaye, said that his clients had “stellar” records in custody and have done well out of custody.

“They’re absolutely innocent,” Kaye said. “The tragedy of losing the best years of your life is now ripe to bring to a jury.”

The appellants were represented by attorneys with Lawrence, Beach, Allen & Choi PC, who declined to comment Wednesday.

SOURCE: Los Angeles Daily Journal