Brown declination investigation

Based on the criminal investigation, review of evidence, and evaluation of the case, we have determined that there is insufficient evidence to support the filing of criminal charges against the suspect in the Banko Brown death investigation.

Because of the extraordinary public interest in this case, the District Attorney’s Office produced a declination report and is making publicly available evidence reviewed and analyzed in rendering this decision.  The scope of the report is limited to determining whether sufficient evidence supports criminal charges being brought against the suspect.

Under Government Code section 7923.600, records contained within our District Attorney investigative case files are exempt from public disclosure under the California Public Records Act (CPRA).  This exemption continues despite the termination or conclusion of an investigation. (Williams v. Superior Court (Freedom Newspapers, Inc.) (1993) 5 Cal.4th 337, 354, 361-362.)  This limited waiver here does not constitute a general waiver of the investigative exemption for any other case or any other time.  

“[A]bsolute protection is afforded to writings that reflect ‘an attorney’s impressions, conclusions, opinions, or legal research or theories.”  (Code of Civ. Proc., § 2018.030.)  Like other privileges, the work product privilege may be waived, and that waiver may be limited. (People v. Superior Court (Jones) 12 Cal.5th 348, 361-362, 366.) To provide the public with a robust analysis of the District Attorney’s decision in this case, this report also includes impressions, conclusions, or legal opinions.  But these disclosures are limited to this case and the opinions and conclusions listed below; they do not serve as a waiver of the work product privilege for any other case or any other time.  

Normally, these privileges and exemptions would not be waived as long as the statute of limitations for prosecution had not passed due to the possibility, however slim, of new evidence changing the analysis of whether a case is prosecutable. In this case, there has been extraordinary public interest and statements calculated to sow distrust in the criminal justice system. The District Attorney’s Office views one of its mandates as preserving public trust in a system designed to ensure fair and ethical prosecutions by protecting the rights of the accused as well as advocating for victims and public safety. Given the maelstrom surrounding this case, the District Attorney will waive the investigative exemption and work product privileges in this case.  This waiver is limited to this case only, not for any other matters at any other time, and is only being done after concluding that disclosure of these facts and this legal analysis would not negatively impact any chance of future prosecution in this case should new facts or circumstances change the legal analysis.