SAN JOSE — The Santa Clara county district attorney's office may no longer be able to file Brady motions with the county's superior court, according to a preliminary judicial order.

For roughly the past four years, prosecutors have been filing motions asking the court to review "confidential possible Brady material" and issue advisory opinions about whether the DA was required to release the discovery to the defense.

Apparently, several judges are refusing to hear these motions, complaining that the DA alone should make a determination on what constitutes Brady material, which encompasses impeachment evidence as well as exculpatory evidence, according to the U.S. Supreme Court. "Such evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different," the court ruled.

State law requires prosecutors to turn over evidence of police officer misconduct to the defense if the officer is a material witness in a criminal trial. Failure to do so would be a Brady violation.

"They should be opening up their files and giving us all the information — period," said Public Defender Mary Greenwood. "Law enforcement wants their people treated differently. … [That's] not appropriate."

And so James Emerson, the supervising judge of the court's criminal unit, told the DA in May that he is considering issuing a standing order banning prosecutors from filing Brady motions.

"The people's assertion that the superior court must make the Brady determination is a totally unprecedented request," Emerson wrote in his May order, inviting the DA, public defender and San Jose city attorney to weigh in on the issue.

Prosecutors are in the best position to determine whether information is Brady material, Emerson argued.

"There is no authority allowing the prosecutor to abdicate this duty to the court," Emerson wrote.

In response papers filed last week, DA George Kennedy points out that his office rarely turns to the court for a second opinion and asked Emerson not to ban his office from seeking help when deputies feel they need it.

"Generally the district attorney now resolves these legal issues without judicial intervention," Kennedy wrote. "However, when individual rights conflict, litigants appropriately turn to the court for judicial resolution."

The San Jose city attorney's office agrees with Kennedy that the court should hear Brady motions.

"By prohibiting the DA from filing these Brady motions, the court will force the city to take proactive measures to prevent needless embarrassment, harassment and unwarranted invasions of privacy of its officers," City Attorney J. Richard "Rick" Doyle wrote in a brief filed last week. "If the city disagrees with the DA about whether or not documents are Brady material, the city will be forced to seek relief from the court asking the court to prohibit the disclosure of such privileged information and asking the court to determine that the information the DA seeks to release is not Brady material."

Public Defender Greenwood said "criminal judges should not be obligated to be involved in this."

"Our basic position is the district attorney has an obligation to turn over this Brady material about peace officers," Greenwood said.

Until 2001, the law said police personnel records were confidential and couldn't be disclosed in any criminal or civil proceeding, except by discovery. The law still states these records are confidential, but the Penal Code now reads that they will not be disclosed "by the department or agency that employs the peace officer" for any court proceeding except by discovery.

"Now because of that limiting language, if some other source has the information, it can be disclosed," Emerson states in his order.

Karyn Sinunu, a candidate for DA who left her chief assistant DA post last month to concentrate full time on her campaign, acknowledges the DA has struggled with the Brady process for "a long time."

"This is a very difficult and sensitive issue, and I would welcome some direction from the court," Sinunu said in a phone interview Monday. "We have an obligation to give [Brady material, but] it's unsettled how to do it."

Dolores Carr, currently the frontrunner in the DA race, said Monday she hadn't seen Emerson's order and didn't feel comfortable commenting about the Brady issue.

Emerson seems quite skeptical toward the DA's position.

"Part of the problem with the motions filed by the people is that they are not following the logical analytical sequence of first making the Brady determination before trying to assert that other rights and privileges should be balanced against it," Judge Emerson wrote in his May brief.

Emerson doesn't think he will hold a hearing to address the issue, he said in his order, and plans to alert all interested parties when he makes a decision.


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