Opinion
CRIMINAL ACTION NO: 01-0282
April 3, 2003
HEARING ON MOTIONS
GOVERNMENT'S MOTION TO QUASH SUBPOENA DUCES TECUM (Rec. doc. 363)
GRANTED
GOVERNMENT'S MOTION TO QUASH SUBPOENA DUCES TECUM TO PUBLIC INTEGRITY BUREAU FOR THE NEW ORLEANS POLICE DEPARTMENT (Rec. doc. 367)
GRANTED IN PART AND DENIED IN PART
Pursuant to United States District Judge Vance's order of December 21, 2000, all requests for subpoenas issued pursuant to Fed.R.Crim.P. 17(c) returnable prior to trial were directed to the Magistrate Judge. At the request 95 the defendant, Johnny Davis ("Davis"), on February 26, 2003, the undersigned ordered subpoenas served on the Public Integrity Division ("PID") and Personnel Department of the New Orleans Police Department. The proceedings concerning the issuance of the subpoenas were conducted ex-parte and under seal. Records were produced in response to the subpoenas.
The United States of America filed motions to quash both subpoenas. Rec. docs. 363 and 367. The first motion seeks to quash the subpoena for the records sought from the Personnel Department. Rec. doc. 363. The second motion seeks to quash the subpoena for the PID records. Rec. doc. 367. The City of New Orleans joined in the motions. Rec. doc. 367. Davis filed an opposition. Rec. doc. 380. The District Court referred the motions to the undersigned. Rec. docs. 364 and 384.
The subpoena to the Personnel Department seeks the complete personnel files of nine officers, including any "applications, evaluations, correspondence, memorandum, test scores, physical and mental testing and corresponding analysis, reports or other evaluation, case references, raise documentation, promotion documentation. . . ." The subpoena to PID seeks the records of"all disciplinary actions, complaints, informal "write-ups', or other form of reprimand" regarding the nine police officers. Attachments to Rec doc 380.
Davis argues that the records sought from PID and the Personnel Department are public records pursuant to the Louisiana Public Records law, La. Rev. Stat. Ann. § 44:1, et seq. (2001), and that there is no exemption in the public records law for the documents sought in the two subpoenas. This is not contested by the government. However, assuming that the records sought by Davis are subject to the public records law, that does not end the inquiry. Davis and the government agree that the subpoenas must comply with the requirements in United States v. Nixon, 94 S.Ct. 3090 (1974). In that decision the Supreme Court said:
A subpoena for documents may be quashed if their production would be unreasonable or oppressive, but not otherwise. . . . (Bowman Dairy Co. v. United States, 71 S.Ct. 675 (1951)) recognized certain fundamental characteristics of the subpoena duces tecum in criminal cases: (1) it was not intended to provide a means of discovery for criminal cases; (2) its chief innovation was to expedite the trial by providing a time and place before trial for the inspection of subpoenaed materials. As both parties agree, cases decided in the wake of Bowman have generally followed . . . this test, in order to require production prior to trial, the moving party must show: (1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general fishing expedition.94 S.Ct. at 3103.
The first requirement is that the records be evidentiary and relevant. Davis contends there will be testimony at the trial concerning misconduct on the part of federal agents and the nine police officers who investigated the homicides that are the subject of this prosecution. Davis contends that the misconduct includes planting drugs on individuals, paying witnesses for testimony, lying to witnesses and threatening witnesses to procure false testimony against Davis. Davis argues that, in such circumstances, PIP files on the nine officers are relevant in order to prove a pattern of misconduct. With respect to the first requirement, the Supreme Court stated: "the Special Prosecutor, in order to carry his burden, must clear three hurdles: (1) relevancy; (2) admissibility; (3) specificity." Id. at 3103. The Government argues that evidence of the officers' misconduct can only be introduced pursuant to Fed.R.Evid. 608(b), which provides that:
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness. . . .Id. In order to establish whether the documents meet the evidentiary and relevancy requirement of U.S.A. v. Nixon, an in camera examination of the documents was made to determine whether any of the documents are probative of the untruthfulness of the police officers. The NOPD has submitted five types of information:
In making such an inspection the undersigned is mindful that it cannot trespass on the prerogative of the District Court under Fed.R.Evid. 608. In United States v. Morrison, 98 F.3d 619 (D.C. Cir. 1996), the defense attorney asked a prosecution witness if she had ever made false accusations against anyone. When the witness replied not to her knowledge, the defense attorney asked "[i]sn't it a fact that in January of 1991, Simone Davis filed a complaint against in you in court in Maryland?" Id. at 628. The government objected. The district court refused the request for a sidebar conference and said the question was obviously wrong. The court of appeals discussed Fed.R.Evid. 608 and stated:
In this case, the district judge evidently sustained the objection on the ground that the mere filing of a complaint is not probative of truthfulness or untruthfulness, regardless of whether the allegations in the complaint, if true, would seriously undermine the witness' credibility. This ruling was in no way an abuse of discretion.Id. at 628.
1. Yearly attendance records;
2. Civil Service job counseling and evaluation reports;
3. Commendations;
4. Informal complaints; and
5. Formal complaints.
There is nothing in the first three categories of documents that is probative of the untruthfulness of any of the officers. The first three categories of documents were the only documents produced by the Personnel Department.
As to the informal complaints, PIP produced a listing of each such complaint, including the date and location of the conduct referred to in the complaint and the social security number, name, race and gender of the complainant. There were informal complaints against eight of the nine officers. Inquiry to the PID revealed that as to each of the informal complaints a determination was made that no further investigation was warranted. One of the informal complaints goes to the veracity of an officer in a court proceeding. The file on this complaint (No. 1999-500N) was secured from the PIP. Even though a mere complaint is not probative of the untruthfulness of the officer, the public nature of the complaint and the gravity of the charges against Davis weigh in favor of its production. The remaining information on the informal complaints is not probative of the untruthfulness of the officers.
Unites States v. Morrison, supra at footnote 1.
Listings of the formal complaints against six officers were provided. There were no formal complaints against three officers. The in camera inspection determined that only two files should be produced. In both cases the allegations were that the officers or persons under their supervision stole money from suspects or a family member of a suspect. The PIP determined that there was insufficient evidence to either prove or disprove the allegations made against the officers. While both complaints remain unsubstantiated and thus are not probative of the untruthfulness of the officers, the gravity of the charges against Davis weigh in favor of their production. The two complaints are identified as PID Case No. 00-402C and IAD Case No. 94-148C. The remaining information on the formal complaints is not probative of the untruthfulness of the officers.
Davis contends that the only other means of procuring the documents is through a public records request and that there is not sufficient time for such a request before the April 21, 2003 trial date. Rec. doc. 287. The undersigned agrees that the files are not otherwise procurable reasonably in advance of trial by the exercise of due diligence.
Davis contends he cannot properly prepare for trial without such production and inspection in advance of trial. He argues that if the government's motion is granted he will be denied his rights pursuant to the Sixth Amendment to the United States Constitution, the right to confront adverse witnesses. The government responds that it will comply with its obligations under Brady v. Maryland, 83 S.Ct. 1194 (1963),Giglio v. United States, 92 S.Ct. 763 (1972), the Jencks Act, 18 U.S.C. § 3500, and Fed.R.Crim.P. 26(2). Davis must also demonstrate that the failure to obtain such inspection may tend unreasonably to delay the trial. Nixon 94 S.Ct. at 3103. If the information is to be of any use Davis, it must be produced in advance of trial.
The government contends that the application was not made in good faith and was intended as a general fishing expedition. The undersigned disagrees. The allegations of police misconduct are sufficient to demonstrate that Davis' counsel acted in good faith in seeking the documents.
IT IS ORDERED that as follows:
1. The motion of the Government to quash subpoena duces tecum (Rec. doc. 363) is GRANTED;
2. The motion of the Government to quash subpoena duces tecum to Public Integrity Bureau for the New Orleans Police Department (Rec. docs. 367) is GRANTED in PART and DENIED in PART;
3. The New Orleans Police Department Public Integrity Division files identified as: (a) No. 1999-500N; (b) IAD Case No. 94-148C; and (c) PID Case No. 00-402C shall be made available to Davis within three working days of the entry of this order; and
4. The preceding requirement shall be stayed in the event the Government appeals the order to the District Court.