Solano County District Attorney unlawfully withholds police shooting records, Open Vallejo alleges

Open Vallejo sent a letter to the Solano County District Attorney’s Office Tuesday requesting the immediate disclosure of surveillance footage from the June 27, 2023 shooting of Jamazea Kittell by Vallejo police, citing a state transparency law mandating their release.

The letter seeks to reverse an “erroneous” court order because prosecutors did not tell the judge about the law — and did not give sufficient notice that the hearing was happening at all.

Open Vallejo established in July that investigators seized multiple surveillance videos from nearby businesses on the day of the shooting and soon confirmed that at least one of the videos recorded a portion of the incident. The newsroom has repeatedly sought the records from the District Attorney’s Office since June 29.

After the District Attorney’s Office denied Open Vallejo’s public records requests for the footage, this newsroom presented Co-Chief Deputy District Attorney Paul Sequeira with a legal analysis arguing that the release of the records was mandatory under California Government Code section 7923.625, which in 2019 made recordings of police shootings available to the public. In a July 26 call, Sequeira said he found the analysis “interesting” but said he would have to “agree to disagree.” He did not respond to a request for comment.

Open Vallejo then contacted the Solano County Counsel’s Office, which agreed that the footage should be disclosed and began preparing for its release. Before that could happen, however, on Aug. 18 Co-Chief Deputy District Attorney Bruce Flynn filed an emergency request with the Solano County Superior Court to block disclosure of the footage. Solano County Deputy Public Defender Nick Filloy agreed to the order, according to Flynn. Judge Robert S. Bowers granted it the same day, preventing disclosure of the footage “until the trial has concluded or a plea is entered or the case dismissed ending the prosecution.”

In its letter sent Tuesday, Open Vallejo alleges that the motion filed by the District Attorney’s Office failed to mention the legal issues raised by the newsroom in its communications around the requests for the shooting records. These include a state statute requiring the prompt disclosure of recordings related to shootings and other critical incidents and case law suggesting that the Vallejo Police Department had already waived all exemptions to disclosure by releasing other videos from the incident.

An ethical rule enforced by California’s State Bar requires that attorneys disclose to a judge law they know to be “directly adverse to the position of the client,” unless it has been raised by opposing counsel. But despite the District Attorney’s Office’s apparent knowledge of the specific transparency law Open Vallejo said applies to the recordings, the agency failed to mention that provision in its motion to the court. The motion did reference the California Public Records Act broadly.

The Tuesday letter, sent by Open Vallejo’s attorneys Rani Gupta and Devon Schulz from the firm Covington & Burling LLP, also alleges that the District Attorney’s Office failed to provide prior notice of the hearing to Open Vallejo or the County Counsel’s Office, as required by state court rules, which prevented this newsroom from opposing the request before the order was issued.

In an email Wednesday, Flynn defended the lack of notice to this newsroom and the Solano County Counsel’s Office. He did not address the applicability of the California transparency law cited by Open Vallejo.

“The only parties in the pending case of People v. Kittell (Docket No. F23-00747) are the defendant represented by Public Defender Nick Filloy and the People represented by the District Attorney who mutually agreed to the order to protect the due process rights of both litigants,” Flynn wrote. He did not respond to subsequent questions about the motion submitted to the court, or whether the District Attorney’s Office will take steps to correct its omissions.

Filloy did not respond to a request for comment. 

In a statement to Open Vallejo, Solano County Public Defender Elena D’Agustino appeared to sidestep questions about state government transparency laws.

“As counsel for Mr. Kittell, our primary obligation is to protect his right to a fair trial, which includes a jury pool that has not prejudged his case based on media coverage or other external sources, but relies only on the evidence presented in the courtroom,” D’Agustino wrote. “We expect that a much more accurate accounting of the facts of this incident, than has been disclosed as of now, will begin to emerge at the preliminary hearing.”

D’Agustino did not respond to follow-up questions regarding state transparency laws or whether attorneys in the case had been sufficiently candid with the court.

Read Open Vallejo’s letter, which seeks to have the court order withdrawn, below.