In 2003, during the course of an assault investigation, LA County Sheriff's Deputy Jose Ovalle decided to pour taco sauce on a shirt to make it appear bloodstained. Ovalle was supposed to collect crime scene evidence and report on it.
The suspect's bloody shirt disappeared prior to being booked into evidence, according to Ovalle. So what did he do? Ovalle took a clean shirt, added some taco sauce, photographed it and entered it as evidence.
He was caught and suspended, but because of California's ludicrous police privacy laws – the most secretive of any state in the nation – no prosecutor, judge or jury ever knew of the incident. Had this information been available, it's a safe bet that Ovalle would not have taken the stand in 31 cases as a witness.
Perhaps the only saving grace was that he did not appear as a witness in the hundreds of other cases he was involved in from 2003 until several years later.
When his conduct was revealed, it left prosecutors scrambling to offer plea deals to some pretty dangerous individuals, or even drop the charges. Adding insult to injury, with overtime Ovalle made close to a quarter million dollars last year in his position as a sergeant in the Sheriff's Department in Lynwood.
The 1974 California Supreme Court case, Pitchess v. Superior Court, gave rise to the Pitchess motion, which is a request a defendant makes in a criminal action for information on the arresting police officer's personnel file.
The defendant is permitted to ask the judge to look at an officer's record for various allegations, including dishonesty and excessive force. When a Pitchess motion is granted, the judge meets privately with a representative from the relevant law enforcement agency, with neither the defense attorney nor the prosecutor present.
The information that a judge may decide to turn over to the defense attorney generally consists only of the complainant's name and contact information.
The LA Times reports that although prosecutors had listed Ovalle as a potential witness against 125 defendants as of 2008, only five actually attempted to gain information about him.
It's an uphill battle for defendants, according to defense attorneys, since few of those in jail can afford to spend the months necessary trying to discover whether a police officer has such a complaint record. Instead, most defendants are concentrating on possible plea deals. With Ovalle, however, there was an exception.
Lamar Dotson, a security guard, was ordered out of his vehicle by Ovalle and his partner. Both officers claimed to smell marijuana, and supposedly found two baggies of weed in the car.
They also found a stolen gun in the trunk, which Dotson said had been confiscated from someone at a club where he was employed. He had been afraid of the consequences if he turned the gun into law enforcement. Dotson, who had no criminal record, said that Ovalle and his partner lied about the marijuana so they could search the car.
His defense attorney filed a Pitchess motion, but the judge denied it. Dotson ended up with a plea deal in which he pleaded no contest to the firearms charge and received three years' probation. Because of the conviction, he found it difficult to find work in his field.
In May 2008, things could have changed, but because of the system, they didn't. That's when Ovalle arrested Sergio Martinez, 18, on suspected possession of methamphetamine charges.
Martinez's lawyer filed a Pitchess motion, and the judge found the taco sauce report. After turning the records over to the prosecutor, the judge recommended putting Ovalle into the database as a “problem” officer. That was not done. However, charges against Martinez were thrown out.
In 2009, Gerald Simmons was convicted of cocaine possession after Ovalle said he was seen dropping a baggie with drugs. Before sentencing, he requested a new trial, based on his attorney and the prosecutor learning about Ovalle's past misconduct. This was a man with a lengthy criminal record, including assault with a deadly weapon and burglary convictions. The judge threw out the cocaine possession conviction based on Ovalle's history of fabricating evidence. Within two years, Simmons was back in jail, convicted of intentionally infecting his girlfriend with HIV.
The Secret List
Ovalle was just one name out of approximately 300 on a secret list kept by the Sheriff's Department of “problem” officers. Besides common misconduct such as making false statements and filing false reports, offenses on the list included child molestation, sexual battery, obstructing an investigation by tipping off a drug dealer, soliciting a prostitute, domestic violence and illegal gambling.
The collection of names was known as the Brady List, after the landmark 1963 U.S. Supreme Court decision in Brady v. Maryland. The decision established that a criminal prosecutor must disclose exculpatory evidence or evidence that could help a defendant's case. Eventually, it was determined that Brady applies to evidence calling into question a police officer's credibility.
LA County Sheriff Jim McDonnell wanted to give the Brady List to prosecutors, but he was stopped in court by the deputies' union. While an appellate court ruled that law enforcement agencies can't let prosecutors know if an officer has a record of misconduct, the California Supreme Court will ultimately decide. Let's hope, for the sake of justice, that secret list becomes less secret.