San Diego In November, superior court judge William Nevitt denied a coalition of seven San Diego County police officers associations -- plus an association of district attorney researchers -- access to a database that they claimed the Public Defender's Office was compiling on individual police officers and sheriff's deputies. The coalition, represented by attorney Everett Bobbitt, a former El Cajon police lieutenant, brought the suit after a period of negotiations following the December 2000 announcement by public defender Steven Carroll that his office was embarking on the project.
Bobbitt begins the story. "[Our concern] started with the public defender's office targeting for complaints a San Diego police officer who was making a lot of arrests of inebriates downtown. They were actually going around to courtrooms to people who were not represented by counsel who were arrested by this officer and getting them to generate complaints against him."
"I think officially the public defender's office will deny it," adds Bill Farrar, president of the San Diego Police Officers Association, "but we have evidence that individual attorneys that work for the public defender are out soliciting complaints against officers. I'm not going to name the officers, but one immediately comes to mind. He's an energetic officer who makes a lot of arrests, and some of the people he arrested became clients of the PDO [public defender's office] . But in the case I'm thinking of, the defendant wasn't even a client of the public defender's office. A deputy public defender was in the courtroom and recognized that an officer they think they have trouble with had made this arrest. So he approached the defendant and asked if he'd be willing to file a complaint against the officer. I mean, he was soliciting complaints! And he did it on more than one occasion with more than one person. That's the kind of thing that troubles us. They're just looking for something they can use."
Carroll does not deny that one of his deputies, Dan Tandon, spoke to a defendant he wasn't representing outside of a courtroom. But he offers a different version of the story. "There was an incident of one of my deputies being in court and overhearing a defendant talking about being... I think it was an allegation that the officer had beaten the defendant. That's been turned into our soliciting somebody to complain."
And Carroll does not believe Tandon's actions were inappropriate "because what he was observing was something that was occurring in a public environment and a public forum. It would be wrong for him to simply ignore what he saw."
The San Diego Police Officers Association was still upset over the incident when, Bobbitt says, "We then learned that the public defender was going to embark on a systematic approach of collecting data, personal data, on officers so that they would have ammunition to attack them in court. They were going to cull divorce records, civil service records, or any other sources that might be out there that might have information."
Bobbitt met with Carroll shortly after the project was announced and explained his concerns about it. "I told him, the collection of this kind of information is quite dangerous for the reason that once it's collected, it starts aging. And we don't know the accuracy of it to begin with. There might be an allegation in a divorce file that says, 'My husband abused me.' The adjudication might have found out that it's not true, but the file doesn't have the complete story. It might only have the allegation."
"I've been involved in a couple of lawsuits that had absolutely nothing to do with my job as a police officer," Farrar adds. "I had to sue my ex-stepfather, when my mother died, over the issue of inheritance. That had nothing to do with being a cop. But there are court records on it. We were angry at each other at the time. If somebody went and interviewed him, he would probably tell them what an SOB I am. What does that have to do with my job as a cop?"
"And the greater concern," Bobbitt continues, "is the collection by a government agency -- and they are a government agency -- of personal data of that nature. If it were the prosecutor or the attorney general collecting information on some group, people would say, 'That's horrible. That's indefensible.' The government collecting data on people is improper. There's been a lot of case law that says unnecessary collection of personal data on citizens by government agencies is unlawful. And the California constitution, Article 1, Section 1, specifically mentions privacy."
Also, Bobbitt and police officers associations were worried about the public defender using the database to circumvent normal legal procedure governing the introduction of police personnel files into trials. "In California," Bobbitt says, "if you want to look into an officer's personnel file, you file what's called a Pitchess motion. It's an appropriate way to find out, with a judge's supervision, whether there's relevant material in a file. Let's say an officer arrests somebody and charges the guy with resisting arrest, but there's a belief that this officer is really the aggressor. The defense can file a Pitchess motion. Then, a judge must first look at the personnel file. He knows what the legal issue is, and he comes out and announces, 'I found the following relevant information, which will be turned over to the defense.' And then they normally issue a protective order that it should only be used for that case, and then it must be returned to the prosecutor. Well, Steve Carroll has taken a much broader approach. What he wants to do is to be able to share any information on an officer in his data bank from one case to the other."
Bobbitt admits that any evidence that the public defender wanted to introduce in a particular case would have to be allowed by the presiding judge. "But if I'm the public defender," he complains, "I just can pull it out of my briefcase and ask the question, the prosecutor objects, and the judge might go to sidebar and say, 'Mr. Bobbitt, I'm going to sustain that objection.' But the question was asked and, even though there was no answer, the jury is wondering what the answer might have been. There's where the damage is. I've seen that tactic used by a lot of attorneys. I frequently ask questions knowing that someone's going to object to it, and the judge might rule against me. But I ask the question anyway. You can't unring the bell, as they say. It hurts the credibility of the witness. And I'm concerned it will harm careers. Police chiefs will say, 'Look, every time that guy goes to court he gets asked embarrassing questions. It would be easier to put him in a desk assignment where he can't be out there.' But you don't get promoted in law enforcement unless you're doing law enforcement."
Bill Pettingill, the senior deputy county counsel who represented the public defender in the case, responds that that situation isn't likely. "That's the way it happens on TV. In practice, it doesn't really work that way, because there's not a public defender out there who would want to incur that wrath of the judge for trying to back-door some inadmissible evidence." Pettingill laughs. "In my 12 years of experience, I've seen lawyers try to back-door evidence in and the judge sanction them and berate them in front of people. In practice, it isn't going to happen. A lawyer doesn't want to jeopardize his or her own case by engaging in nefarious practices. It's not worth it."
Steven Carroll believes the whole issue has been "sensationalized" by Bobbitt, the police officers associations, and by the Union-Tribune, which, in three stories, labeled the public defender's project a "database" and a means by which the defender would "research patterns of conduct -- and allegations of misconduct." "I would respond," Carroll says, "by saying it's not really a database. The word 'database' has the connotation that I've got this huge accumulation of electronic storage files that I'm compiling in some kind of separate format, and it's not true. The idea is basically to have a retrieval system. All we're doing is trying to create a way to refind what we have once discovered as a part of case preparation. If one attorney on one case discovers impeaching evidence about a police officer, it is our goal to not have that stuck in a hard-copy file and put on a shelf and forgotten so that a month later somebody has to reinvent the wheel and go find the same data."
Carroll adds, "When the story first appeared in the San Diego Union-Tribune, it threw out the hint that we were searching divorce records of police officers and digging into their private lives. In truth, we had one case where a private attorney had a record of domestic violence on a police officer. He gave us that information when we had that same officer on another case involving violence. But it becomes sensationalized when it looks like we're running over to the family court and digging through records to see if police officers are getting divorced and if their divorces hold allegations of violence. We're not doing that. We have never gone over to family court to mine their files."
After meetings between the two sides produced no resolution, Bobbitt sent a request to see the "database" under the California Public Records Act. Carroll refused, claiming that, though his office is funded by the county government, his files are privileged information between him and his clients, not government records open to public perusal.
In the meantime, the project was garnering statewide attention. The State Public Defenders Association named it their "Defender Program of the Year for 2001." And in April of last year, state senator Steve Peace of Chula Vista summoned Bobbitt and Carroll to a meeting on the issue in Sacramento.
In July, Bobbitt filed suit on behalf of the eight associations. On October 19, 2001, the two sides presented oral arguments before Judge Nevitt. In a ruling dated November 1, 2001, he denied Bobbitt's motion based largely on a 1981 United States Supreme Court decision, brought to his attention by Pettingill, in which the high court observed that a public defender "is not acting on behalf of the state; he is the state's adversary," and, "[A] public defender does not act under color of state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding."
Bobbitt decided to appeal the decision and waits for the announcement of a trial date from the Fourth Circuit Court of Appeals.