By Richard Lisko, Lieutenant and Assistant Precinct Commander, Baltimore County, Maryland, Police Department
oes your law enforcement agency have a policy regarding the disclosure of Brady v. Maryland1 information to prosecutors? That question was recently posed to the commander of a major metropolitan police department’s internal affairs unit. The answer was surprising. “What’s that?” he asked, “You mean the gun law?” After some explanation and discussion of Brady material, his answer was, “No.”
Unfortunately, that conversation could likely be repeated dozens, perhaps hundreds, of times if posed to every law enforcement agency in the country. Even though the Brady decision is nearly 50 years old, law enforcement agencies across the country are reluctant, if not defiant, to disclose potentially damaging information about police officers within their ranks. As a follow-up to the conversation above, the legal director of that police department was asked the same question. “We don’t have one” was the answer. The next question was, “How do you respond to requests for Brady information by the prosecutor’s office? The response was just as surprising: “We require a subpoena, and then we challenge it in court.” Obviously, that police department does not disclose much Brady information to the prosecutor’s office. This is but one example of the failure of law enforcement agencies nationwide to disclose potentially damaging information about police officers to prosecutors. Unfortunately, the problem has reached a critical junction in the successful prosecution of criminal cases.
As a result of the 1963 U.S. Supreme Court decision regarding Brady, prosecutors are required to provide all exculpatory information about their witnesses to defense attorneys prior to trial. Subsequent U.S. Supreme Court decisions in Giglio v. U.S.2 and U.S. v Agurs3 further expanded the duty of prosecutors to provide this information to defense attorneys prior to trial, even if no prior request was made. However, the court’s decision in Kyles v. Whitley4 has had the most significant impact on law enforcement agencies. It requires prosecutors to learn about any favorable information to the defendant that is known to others who are acting on behalf of the government, including information about police officers. This duty also extends to information about police officers contained in internal affairs files. But if prosecutors are unaware of that information or evidence, subsequent disclosures to defense attorneys can never occur. The result can be devastating for prosecutors, victims of crime, and law enforcement agencies.
Take for example, the recent revelation by the San Francisco, California, Police Department in May 2010, in which the names of more than 135 police officers with potential Brady problems were disclosed to the prosecutor’s office. The problem was discovered after the chief of police asked a staff member to evaluate a disciplinary case for potential Brady policy problems. As the staff member stared blankly back at the chief, the only response was, “We don’t have one of those.”5 Recognizing the potential of the problem that he discovered, the chief immediately contacted the prosecutor’s office. To his surprise, he learned that the prosecutor’s office did not have a policy to track or disclose Brady information to attorneys representing criminal defendants. Does this sound familiar?
As a result of its disclosure, the San Francisco Police Department jeopardized hundreds of felony and misdemeanor cases, both waiting trial and those in which defendants have been convicted. “This is huge,” said San Francisco public defender Jeff Adachi, in describing the potential impact of the discovery. “It will make the problems at the crime lab look like small potatoes.”6 Adachi was referring to the recent scandal in the San Francisco Police Department crime lab where a technician admitted to stealing drugs from the laboratory. The technician also had a prior criminal conviction for domestic violence that was never disclosed during numerous court appearances—information that is clearly required to be disclosed under Brady. As a result, more than 600 criminal cases in which the technician was involved were dismissed.
Regrettably, the San Francisco Police Department is not alone in this problem. Law enforcement agencies across the United States have faced similar problems.
- The Tulsa, Oklahoma, Police Department announced in July 2010 a “no-tolerance-for-lying policy” after seven police officers were charged in federal court with perjury and corruption. As a result of those charges, 11 criminal suspects were either released from jail or had their cases dismissed.
- In 2009, Dallas, Texas, prosecutors were faced with the possibility that dozens of criminal convictions dating back 15 years might be reversed after the discovery of a 1994 conviction for lying by the arresting officer. The officer had been fired for lying to internal investigators and causing false information to be placed in an arrest report. He was later reinstated by an administrative law judge but the police department failed to notify the prosecutor’s office.
- Prosecutors in Seattle, Washington, were forced to establish their own list of officers with Brady problems because the local police departments failed to do so. The problem came to light after a 2007 memo from a senior prosecutor directed attorneys to track officers that had credibility problems. The names of 11 officers were immediately added to the list.
- By 2007, Maricopa County, Arizona, prosecutors had compiled a list of 328 names of police officers that were placed on their Brady list, indicating that they may not be eligible to testify in court. The problem was highlighted during the internal investigation f a Gilbert, Arizona, police officer who was accused of lying about conducting a records check of an arrestee.
- In Boston, Massachusetts, an investigation by the local newspaper in 2005 uncovered 19 cases in which officers were convicted of lying in official investigations, under oath, or in police reports. However, only two officers were fired for their actions. That investigation was sparked by the death of a 21-year-old college student killed by the Boston Police Department while she was celebrating the Boston Red Sox’s victory over the New York Yankees in the 2004 American League Championship Series.
Like the problems in San Francisco, most of these problems were discovered after a single critical incident or court case in which an officer’s past conduct was questioned. Unfortunately, all of them could have been prevented if the law enforcement agency had a policy to routinely disclose Brady information to prosecutors.
One of the most notable incidents of a police department’s failure to disclose Brady material to prosecutors occurred in Los Angeles, California, in the late 1990s. More than 70 officers from the agency’s Rampart Division were investigated for misconduct as part of a widespread corruption scandal. Several officers were arrested for crimes that included bank robbery, theft of drugs from police custody, and brutality. In the wake of that scandal, the Los Angeles Times newspaper conducted its own investigation into the credibility of Los Angeles Police Department officers. Their investigation discovered numerous cases where both the police and prosecutors failed to provide pertinent information about officers’ backgrounds to defense attorneys. As a result of the Rampart investigation, more than 100 criminal cases were overturned due to police corruption. The Times article also suggested that the Rampart scandal had “sparked a legal debate that promises to alter the landscape of the criminal justice system in Los Angeles County for years to come.”7 Ten years later, that debate is still being played out in police departments and prosecutors’ offices across the country.
In addition to the constitutional requirements of Brady and its related U.S. Supreme Court decisions, state courts have taken their own actions to require the disclosure of exculpatory information about witnesses, including police officers. For example, the 1974 California Superior Court decision in Pitchess v. Superior Court8 determined that a defendant was entitled to review personnel records of police officers where a claim of misconduct on the part of the officer was made.
More recently, the Maryland Court of Appeals extended the requirement to disclose exculpatory information about all witnesses in a criminal case. Since July 1, 2008, the state’s attorney’s office has been required to disclose, without the necessity of a formal request, all information, admissible or not, that tends to impeach a state’s witness. The requirement also includes evidence of prior conduct that demonstrates the character of the witness for untruthfulness.9
While state and local law enforcement agencies have been slow to implement policies to ensure full disclosure of Brady material, the federal prosecutor’s office has been much more aggressive. Beginning in 1996, the U.S. Attorney’s office established a policy to ensure that all impeachable information about a witness is properly disclosed to defense attorneys. The policy was established by then–Attorney General Janet Reno and aptly referred to as “the Giglio policy.” It places the burden of ensuring that prosecutors are notified of any potential impeachment information on both the officer testifying in court and the law enforcement agency in which the officer is employed. The policy also requires the disclosure of allegations of misconduct even if they were not sustained, were not credible, or resulted in exoneration.
The failure to disclose Brady information to prosecutors may also create civil liability problems for law enforcement agencies. There are numerous cases in which defendants have been released from jail after the discovery of exculpatory evidence in the possession of police investigators. While the investigators were aware of the evidence, it was never disclosed to prosecutors. In several of those cases, the defendants have filed civil suits against the law enforcement agency and the officers for violation of due process by failing to comply with Brady requirements.
Law enforcement executives must recognize that an officer’s past conduct can have a significant impact on a criminal prosecution. Not only does a defendant have the right to review personnel files about an officer’s past conduct that may discredit the officer’s credibility, but the prosecutor has a constitutional duty to disclose it. To that end, law enforcement executives must be diligent in gathering that information and communicating it to prosecutors. These actions should be clearly described in a written policy and/or procedural manuals to ensure compliance.
The policy or procedure should
- clearly identify what actions by the officer constitute Brady material;
- require immediate notification to a supervisor and/or prosecutor by any officer who becomes aware of potential Brady information or evidence that jeopardizes testimony in court;
- describe the circumstances under which disclosure will be made to prosecutors to include
- unsubstantiated complaints regarding potential Brady violations,
- current investigations regarding potential Brady violations, and
- past investigations involving sustained Brady violations;
- establish procedures for disseminating Brady material to prosecutors;
- establish procedures for notifying officer(s) involved in any Brady disclosure to prosecutors; and
- establish procedures to respond to third-party requests for Brady material related to any department member by
- members of the media,
- defense attorneys,
- private investigators, or
- Freedom of Information Act requests.
A strong policy that requires disclosure of Brady information may actually reduce the number of requests from defense attorneys in search of that information. For example, the commander of a major metropolitan police department’s internal affairs unit recently reported that several subpoenas obtained by defense attorneys seeking Brady material on specific officers were withdrawn after learning of that agency’s policy to disclose it to prosecutors on a regular basis. Fortunately, the agency recognized the potential impact of withholding such information and took affirmative action to prevent it.
The failure to disclose Brady information about all witnesses in a criminal case to defense attorneys can be used as a basis to overturn a conviction, release a defendant from prison, or establish the basis for a civil lawsuit. At a minimum, the discovery of Brady information after a criminal trial has concluded will result in the review of all other criminal cases, pending or closed, in which the officer was involved. This can be a time-consuming and tedious process, especially if the incident occurred early in an officer’s career.
Last, but certainly not least, all law enforcement agencies should consider the establishment of strict policies to terminate the employment of any officer determined to be untruthful in any official report, testimony, or investigative interview. The success of any law enforcement agency relies upon the integrity of the officers that compose its ranks. This element is necessary to maintain the confidence of the public and the employees of the agency. A dishonest police officer discredits the hard work of all law enforcement officers and jeopardizes the effectiveness of the criminal justice system. ■
1Brady v. Maryland, 373 U.S. 83 (1963).
2Giglio v. United States, 405 U.S. 150 (1972).
3United States v. Agurs, 427 U.S. 97 (1976).
4Kyles v. Whitley, 514 U.S. 419 (1995).
5Jaxon Van Derbeken, “Police with Problems Are a Problem for the D.A.,” San Francisco Chronicle, May 16, 2010, http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/05/15/MNKC1DB57E.DTL (accessed December 29, 2010).
6Jaxon Van Derbeken, “S.F. Cops’ Pasts Could Jeopardize Convictions,” San Francisco Chronicle, May 4, 2010, http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/05/04/MNJ71CTL6A.DTL (accessed December 29, 2010).
7Matt Lait and Scott Glover, “Police Credibility Debate Could Alter Legal System,” Los Angeles Times, October 6, 2000, http://articles.latimes.com/2000/oct/06/news/mn-32481 (accessed December 29, 2010).
8Pitchess v. Superior Court, 11 Cal. 3d 531 (1974).
9Steven D. Silverman, “Changes to the Maryland Criminal Discovery Rules (Rules 4-262, 4-263, and 4-301), Effective 7/1/2008,” Maryland Criminal Attorney Blog, June 24, 2008, http://www.marylandcriminalattorneyblog.com/2008/06/changes_to_the_maryland_crimin.html (accessed December 29, 2010).
Please cite as:
Richard Lisko, "Agency Policies Imperative to Disclose Brady v. Maryland Material to Prosecutors" Chief's Counsel, The Police Chief 78 (February 2011): 12–13.