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Op-Ed: There is a New Sheriff in Town

Kevin (Arie) Gres

Sheriff Jim McDonnell vowed to fundamentally change the corrupt culture of the Los Angeles County Sheriff’s Department (LASD) created under disgraced former sheriff, Lee Baca. He vowed to bring transparency and honesty back to the nation’s largest sheriff’s department. The distrust and friction between civilians and law enforcement seems to be at an all-time high. Recently, one of his moves to garner the public’s trust has been met with surprising scrutiny.

Let me give you some background. McDonnell took over the LASD after Lee Baca resigned due to a pending bombshell FBI investigation. For many years under Baca, there were credible allegations that some deputies were abusing inmates in L.A. County jails. Following years of allegations from watchdog organizations and inmates themselves, the FBI decided to investigate with a planted undercover inmate. This inmate would see for himself and report directly to the FBI about allegations of abuse.

The LASD discovered the inmate plant, and intentionally hid him under fake names so his FBI handlers could not communicate with him about inmate abuse. Baca also allowed deputies to threaten an FBI special agent with arrest, if she continued her investigation into inmate abuse. Baca was recently found guilty of conspiracy, obstruction of justice, and making false statements. He was the one of 21 members of LASD to be convicted.

When Baca resigned, the LASD was in a state of turmoil. Deputy morale was low. Following his election in 2014, Jim McDonnell promised change. We hoped for the best but expected business as usual.

McDonnell proved to be a man of his word. During the first few years of his tenure, he was busy at headquarters compiling a list of over 300 LASD deputies who were labeled as “problem deputies.” We are not talking about chronically late deputies, or deputies who take long lunches, but deputies with track records of tampering with evidence, perjury, violence, making false statements, and using excessive force to just name a few – acts that would land any civilian behind bars. McDonnell wants prosecutors to know the names of these deputies because prosecutors and defense attorneys have a right to know if the officers involved in their cases are liars, cheats, and criminals themselves. However, the Association for Los Angeles Deputy Sheriffs, a union that represents LASD deputies, has successfully filed a lawsuit to block the list from getting to prosecutors and ever seeing the light of day.

McDonnell favors disclosure because under the law, a criminal defendant has a constitutional right to obtain any favorable evidence in the government’s possession. This rule of law derives from the landmark case, Brady vs. Maryland. Brady was accused of murder. He claimed he didn’t do it. He was convicted and sentenced to death. On appeal, it was discovered that the prosecutor had a confession from the person Brady claimed did do it, but the prosecutor never disclosed it. Brady’s attorneys argued that hiding the confession violated Brady’s right to a fair trial. The court ruled that any favorable, material evidence that the prosecutor has must be disclosed to the defense.

Since that Supreme Court ruling, courts have consistently held that law enforcement is an acting arm of the prosecutorial team, and therefore must be trained and responsible for upholding the Brady ruling – meaning they must disclose material, favorable evidence to the defense. This includes personnel records of bad cops.

As of now, defense attorneys must fight tooth and nail to get personnel records of bad cops, a process that law enforcement agencies spend millions of dollars fighting every year. For the defendant, this process is long, arduous, expensive, and should be completely unnecessary.

A recent case of mine serves as a prime example of why McDonnell’s desire to turn over the list of “problem deputies” would make so much sense. An 18-year-old yeshiva bachur is pulled over for bad driving. The boy has never been pulled over before and is very nervous and scared. His hands are trembling in fear, he is stuttering, he is not making eye contact, and his forehead begins to perspire. The deputy becomes nervous because these are classic signs of substance abuse. He asks the boy to exit the vehicle so he can briefly detain him and investigate. The boy is following directions but apparently not quickly enough. The officer grows frustrated, pulls the boy from the car, throws him to the floor and cuffs him. The deputy searches the car for drugs and alcohol and finds nothing. When he releases the boy after about 15 minutes, the boy complains of excruciating elbow pain. The boy claims that he can’t bend his arm because when the deputy threw him to the asphalt, he landed straight on his elbow.

The deputy realizes that he may be in hot water. This boy might sue the department. Maybe the deputy should have been a bit more patient. Maybe he should have called for backup if he was unsure how to proceed. Hindsight is 20/20. But this deputy knows there is one claim he could make that would absolve him from any liability – claim the boy resisted arrest. If the boy resisted, then the deputy was justified in using force. The deputy issues the boy a citation for misdemeanor resisting arrest, a charge that could land the boy in jail, serve 36 months on probation, and pay fines and fees totaling thousands of dollars. When or if the boy wants to go to college or get a job, this crime will remain on his record.

When the deputy’s boss reads the report, he knows that this deputy has a documented track record of using excessive force and lying (i.e. one the bad cops). Should the prosecutor know up front, before he or she presses charges against the boy, that a crooked cop is behind the allegation? Does the yeshiva bachur have a right to know up front that this cop has done this many times before, before potentially accepting a plea deal that could impact the rest of his life?

Sheriff McDonnell believes prosecutors and defense attorneys should know from day one if an investigation is irreparably tainted by a “problem deputy.”  The union disagrees.

To me, the debate does not even get off the ground.

There are a plethora of reasons why the LASD and every other law enforcement agency in the country should disclose to prosecutors and defense attorneys the names of bad cops with criminal convictions, arrests, or named in internal investigations.

I understand why the bad cops on McDonnell’s list are against disclosure, but don’t we owe it to the other 9700 or so good deputies in the LASD to weed out the bad cops? These 300 bad apples make life for the good deputies far more difficult because the public and prosecutors don’t know who is who. That is where the distrust between cops and civilians start. Why are the District Attorney and City Attorney not demanding the names of bad cops who have been embroiled in internal investigations and cover-ups? Why do we allow them to claim willful ignorance? Why does disclosure not act as a healthy system of checks and balances for deputies teetering between the ethical and unethical?

Aside from the philosophic reasons to demand upfront disclosure, practically, prosecutors are overworked. They have more cases than they can handle. One criminal prosecution can take years and tens of thousands of dollars to prosecute. Even low-level crimes take substantial taxpayer resources. If a prosecutor knows a case cannot move forward because of a problem cop on Day 1, not Day 142, law enforcement and prosecutors would have significantly more money to deal with other issues, like mental health, homelessness, and recidivism.

As a former prosecutor and now defense attorney, I have been on both sides of the aisle. The issue is simple. Either you believe in transparency and fairness and treat everyone the same, or you don’t. I applaud Sheriff McDonnell for seeking the truth, fighting for transparency, and doing what is right. It is now up to us to demand that our politicians follow suit.

Kevin (Arie) Gres is a former Los Angeles prosecutor turned criminal defense attorney. He owns and operates his own criminal defense practice, serves on the Project Tikvah Advisory Board, and recently completed a four-year term as Vice President of the South Robertson Neighborhoods Council