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San Diego attorney fights for evidence in minor infraction cases

REGION — A pending decision on nearly two dozen minor infraction cases in the city of San Diego will impact thousands of county residents’ ability to contest traffic offenses and municipal code violations in court.

Coleen Cusack, a defense attorney for Matthew Houser and other pro bono clients, argued for discovery in 17 lower-level cases — with others pending —  and made motions against the constitutionality of practices within the San Diego City Attorney’s Office on July 15 in San Diego Superior Court.   

Cusack is — and has been — trying to extrapolate evidence from the San Diego Police Department and the City Attorney’s Office on all of her pro bono cases. The city has previously argued it has no obligation to turn over evidence to defendants in low-level cases, most of which carry fines but no jail time. 

If the court grants her discovery motion, the city will have to turn over any evidence that qualifies under rights established in the U.S. Supreme Court’s decision of Brady v. Maryland in 1963, a legal standard for minor infractions that would be applied countywide. 

Brady materials include exculpatory and impeachment evidence, including records of police misconduct, public complaints, body camera footage and use-of-force reports.

In August 2021, a Superior Court commissioner ruled the city violated Houser’s constitutional rights after failing to turn over supporting evidence related to a citation for overnight camping.

The commissioner, an attorney selected by judges to make decisions concerning a number of legal matters, said that by not providing discovery, the city violated Houser’s rights by withholding evidence from his defense.

The city appealed the ruling, arguing that it conducted a case search of the Brady list in Houser’s case and found no “impeaching material found regarding” the officer that arrested him.

However, in April, the appellate division of the San Diego Superior Court upheld the commissioner’s ruling that the San Diego City Attorney’s Office violated Houser’s Brady rights, subsequently dismissing the case.

“The Appellate Division’s decision is plainly wrong and misapplies the law with regard to Brady and its progeny,” San Diego City Attorney Mara Elliot wrote in a request for depublication on June 16 to the California Supreme Court. “The decision fails to recognize the need for expeditious and economical treatment of infraction cases.” 

Following the April decision, Leslie Wolf Branscomb, a spokeswoman for Elliott, told the San Diego Union-Tribune, “the Houser decision is binding only to that case and does not require a change in process,” adding that only a ruling from “the California Court of Appeal or California Supreme Court” could force a change in procedure related to evidence in lower-level cases. 

Cusack, however, seeks remedy in all of her minor infraction cases. 

Cusack said she’s been the “monkey in the middle” between law enforcement and prosecutors as she tries to collect client case information — an effort that costs her hundreds of dollars and hours without reimbursement. 

“I never get the [evidence], they just keep throwing” the burden back and forth, Cusack told the court last week. 

Cusack hopes the judge orders the release of all supporting documents, recordings and other evidence that would support her clients’ defense. 

Cusack argues the pushed-through process followed by the city regarding minor infractions puts the burden — and cost — of obtaining proof on the defendant.

According to Cusack, to get discovery, she was required to issue a subpoena and pay about $25 for records when evidence should be turned over without cost. 

The court’s decision on Cusack’s remaining 17 cases is expected within 30 days of the hearing. 

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