I didn’t realize when I wrote an article about Brady v. Maryland that I was poking a hornet’s nest. It took readers’ comments, emails and phone calls to alert me.
Before we venture into that buzzing swarm, here’s a recap of last month’s article:
Brady and its progeny require prosecutors to seek out and disclose to the defense any material exculpatory evidence, including evidence that could be used to impeach police witnesses. (See the article for what constitutes “material,” “exculpatory” and “impeachment” evidence.)
Because of this duty (the violation of which has numerous consequences), many prosecutors have established Brady lists – names of officers whose credibility could be impeached at trial based on information about their truthfulness, honesty, bias, or an issue central to the particular case such as use of force. Prosecutors then decide whether Brady requires them to provide the information to the defense in any case in which the officer might testify.
The goal of my article last month was to help officers understand what constitutes exculpatory and impeachment evidence, and the implications of both for their careers. The response I received from officers revealed other significant and systemic issues.
WHAT’S AT STAKE?
It shall not go without saying that what’s at stake for a defendant under Brady is a fair trial. But this article is about what’s at stake for officers, their departments and prosecutors – and how those stakes conflict.
For officers, being placed on a Brady list can be career damaging or career ending. Beyond the stigma and damage to their reputation, it can limit their assignments, advancement, other job prospects and possibly result in termination. Prosecutors can decide to avoid having a Brady-listed cop testify or refuse to accept a case in which they’re an essential witness. That could limit the officer from any police activity that might lead to the witness stand. Most departments can’t afford to limit officers to administrative duties indefinitely. The result could be termination with little chance of employment as an officer elsewhere.
THE BATTLE WITHIN
Generally, the decision about whether an officer gets Brady listed is entirely up to the prosecutor. Prosecutors may delegate part of that decision-making by enlisting the officer’s department to maintain a Brady list for prosecutorial review, but they need not.
There are no formal, nationally agreed upon guidelines for what conduct will result in an officer being Brady listed or to what standard the conduct must be proven – if at all (versus a mere allegation or complaint). Indeed, in U.S. v. Olsen, the 9th Circuit held that Brady disclosure requirements applied to ongoing investigations of officers. There are also no formal, required appeals processes for officers.
Some prosecutors’ offices have set up Brady policies, including mechanisms for officers to challenge being listed. But establishing and abiding by such policies is voluntary. Moreover, interpretation and application of the policies can differ even within agencies.
Given the stakes for officers and the lack of any predictable process or appeal, it’s not surprising officers have pushed back, especially when they perceive an abuse of Brady discretionary power by prosecutors or their own brass.
In cases around the country, officers have alleged prosecutors Brady listed them for:
Criticizing the district attorney in the newspaper; Supporting the wrong candidate in the district attorney’s race; Investigating corruption within the prosecutor’s staff; Providing truthful, but unhelpful to the prosecution, testimony; Complaining to city officials about corruption in the police department; Failing to apologize to the prosecutor for some perceived slight.
Officers have also contended their own command have colluded with prosecutors to use Brady listing as a run around the “red tape” necessary to have an officer investigated, progressively disciplined and finally terminated. In some jurisdictions, once an officer is Brady listed, he can be deemed unfit for duty or unable to perform an essential job function (testify) and can be fired without internal disciplinary processes. An officer’s federal civil rights lawsuit making such a claim resulted in reinstatement and a $812,500 settlement.
Officers have turned to legislation to limit Brady job consequences. Some state statutes make police personnel records confidential. Access can be gained only by showing “good cause” and, even if good cause is shown, the files will be reviewed by a court in camera to determine what, if anything, will be disclosed. In other states, only records of severe discipline, like a suspension or termination, are public.
Other legislation would prohibit job action against officers solely because they are on a Brady list. California and Maryland have enacted such statutes.
Officers and their unions can also bring political pressure on elected prosecutors and sheriffs, and politically appointed police chiefs.
WHAT TO DO?
I don’t presume to have a solution for all these conflicts swarming around Brady’s constitutional requirements. I can identify the stakeholders:
Defendants and their attorneys; Prosecutors; Officers and their representatives; Police management; Citizens; Judiciary.
A fair and constitutional process for implementing Brady would incorporate input from all. It would be a great doctoral dissertation or project for a college or university criminal justice department or the U.S. DOJ to bring representative stakeholders together as a task force to come up with a model.
IMHO, the process should allow for an officer to be heard. At a minimum:
Officers should be informed of the basis and evidence for the Brady allegation; Given the opportunity to respond before an impartial judge/arbiter/hearing officer.
A lawyer who represents cops suggests that if an impartial arbiter finds no Brady issue, that ends the matter. That leaves any defendants and their attorneys out of the process. Brady does not preclude due process for officers, but it does not permit elevating such process above a defendant’s constitutional rights. Accordingly, I recommend, if an arbiter finds no Brady issue, that finding and the evidence is provided to a defense attorney in a case in which the officer is to testify. The attorney can then decide whether they can show cause to a trial court for overturning the arbiter’s decision in a particular criminal case.
Lastly, prosecutors and police management need to provide meaningful training that includes realistic scenarios on Brady obligations and disclosure requirements and the ramifications for criminal cases (ensuring they aren’t dismissed) and officers’ careers. In Alaska, we begin with my instruction on it at the DPS Academy. Officer ignorance about Brady can be astounding. When asked about the police department’s Brady policy, the internal affairs commander in one Maryland agency replied, “What’s that? … You mean the gun law?”
The best and simplest solution to the Brady list hornet’s nest is to train officers to protect themselves from getting stung.
RESOURCES REGARDING THE POLICE-PROSECUTION BRADY BATTLE Brady’s Blind Spot: Impeachment Evidence in Police Personnel Files and the Battle Splitting the Prosecution Team, Jonathan Abel, Stanford Law Review Legal system, law enforcement at odds over Brady List, Emily Gillespie Due Process for Officers Placed on Giglio or Brady Lists, John V. Berry New statute protects against “Brady List” excesses, Stone and Busailah Peace Officers’ Bill of Rights, The Marshall Project When cops misbehave who has the right to know? Abbie VanSickle N.H. Attorney General Adds 89 Names to Laurie List, Jordan Cuddemi Court of Appeal Issues New Decision Concerning Brady Discovery Precluding Law Enforcement Agencies from Transmitting “Brady Lists” to Prosecutors, Michael Rains St. Louis prosecutor says she will no longer accept cases from 28 city police officers, Byers and Currier St. Louis prosecutor announces changes in investigations of police shootings and 'exclusion list' officers, Robert Patrick Independent Police Review, Portland Police Bureau Compliance with Brady v. Maryland, Caballero and Severe