Garcetti v. Ceballos

Thu Jun 1 17:44:31 PDT 2006

Ceballos was not a "fact" witness.  He knew as much about the affidavit as the judge and defense counsel did.  Nor does Brady offer Ceballos refuge.  A prosecutor's "observations" about a warrant affidavit are not Brady material; only exculpatory evidence must be disclosed to the defense under Brady.  Everything that Ceballos had "observed" about the warrant application had been disclosed to the defense. Ceballos appears to wholly misunderstand his Brady obligations -- that should be enough reason to deprive him of First Amendment protection.  Still, I must concede that this observation does not justify the categorical rule adopted by the Court.  But a prosecutor's opinions about the strength of the evidence in cases that are presented in open court have little First Amendment value -- the public (as well as the trier of fact) can decide for itself whether a prosecutor's office is putting on strong or weak cases -- and therefore the case for inviting litigation under an ad hoc balancing case is quite weak.  The same is true for ad hoc balancing arising from any other public official's expressed opinions about the performance of those whom he is supposed to evaluate as part of his duties -- the public can decide for itself whether those employees are doing a good job as long as the underlying evidence relating to the performance of the employees is not suppressed.  Public employers should be free to terminate those whom it believes do a poor job of evaluating their subordinates' performance without being subject to the considerable burdens imposed by ad hoc balancing, which generates an enormous amount of litigation and litigation risk, and diverts scarce public resources from their intended purposes.

Larry Rosenthal
Chapman University School of Law

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Message: 24
Date: Thu, 01 Jun 2006 13:55:40 -0500
From: Edward Still <still at votelaw.com>
Subject: RE: Garcetti v. Ceballos
To: conlawprof at lists.ucla.edu
Message-ID: <7.0.1.0.0.20060601133522.01cd2510 at votelaw.com>
Content-Type: text/plain; charset="us-ascii"

I think some of this conversation is going off in some strange
directions based on different interpretations of what Ceballos
did.  Let's look at what the opinions said he did re his report and testimony.

Justice Kennedy:  After examining the affidavit and visiting the
location it described, Ceballos determined the affidavit contained
serious misrepresentations. The affidavit called a long driveway what
Ceballos thought should have been referred to as a separate roadway.
Ceballos also questioned the affidavit's statement that tire tracks
led from a stripped-down truck to the premises covered by the
warrant. His doubts arose from his conclusion that the roadway's
composition in some places made it difficult or impossible to leave
visible tire tracks.  ***

Despite Ceballos' concerns, Sundstedt decided to proceed with the
prosecution, pending disposition of the defense motion to traverse.
The trial court held a hearing on the motion. Ceballos was called by
the defense and recounted his observations about the affidavit, but
the trial court rejected the challenge to the warrant.

Justice Souter:  After showing his superior, petitioner Frank
Sunstedt, the disposition memorandum at issue in this case, Ceballos
complied with Sunstedt's direction to tone down some accusatory
rhetoric out of concern that the memorandum would be unnecessarily
incendiary when shown to the Sheriff's Department.After meeting with
members of that department, Ceballos told his immediate supervisor,
petitioner Carol Najera,that he thought Brady v. Maryland, 373 U. S.
83 (1963), obliged him to give the defense his internal memorandum as
exculpatory evidence. He says that Najera responded by ordering him
to write a new memorandum containing nothing but the deputy sheriff's
statements, but that he balked at that. Instead, he proposed to turn
over the existing memorandum with his own conclusions redacted as
work product, and this is what he did. The issue over revealing his
conclusions arose again in preparing for the suppression hearing.
Ceballos maintains that Sunstedt ordered Najera, representing the
prosecution, to give the trial judge a full picture of the
circumstances, but that Najera told Ceballos he would suffer
retaliation if he testified that the affidavit contained intentional
fabrications. In any event, Ceballos's testimony generally stopped
short of his own conclusions. After the hearing,the trial judge
denied the motion to suppress, explaining that he found grounds
independent of the challenged material sufficient to show probable
cause for the warrant.

=-=-=-=

So, we don't have a deputy DA becoming an advocate for the
defense.  He was called as a fact witness and presumably testified to
what he saw -- not his conclusions about the legal adequacy of the
affidavit.  He made a recommendation that the prosecution be dropped,
but did not sabotage the case after his recommendation was overruled.

So why was he fired?  As Justice Souter's note 15 points out, the
county defendants had various reasons they relied on.  But all the
courts hearing this case (or at least the district court and Supreme
Court) don't particularly care WHY he was fired -- his status as a
county employee and the circumstances in which he said whatever he
said seem to be enough to make a decision that the First Amendment
does not apply to him.

Edward Still
attorney & mediator
Suite 201
2112 11th Avenue South
Birmingham AL 35205
   phone 205-320-2882
   fax toll free 1-877-264-5513
   still at votelaw.com
  http://www.EdwardStill.com
  http://www.votelaw.com/blog

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