Brady v. Md Can Get You Fired

Could this happen to an officer you know?

A new officer has just started working midnights. He's been taking care of a sick kid during the day and fails to answer his radio because he fell asleep. His Lieutenant asks him what happened. He tells her he must have turned his radio off by mistake. She tells him to write a memorandum for the Captain by the end of the shift.

The officer writes the memo with the same story. The matter gets referred to I.A. The officer comes clean in the I.A. interview. (From Plain English for Cops, Nicholas Meier and R.J. Adams (1999).)

Let's say the department negotiates with the union for an agreed upon sanction of 30-days suspension without pay, an extended 6-months probationary period and successful completion of a 2-day Integrity Seminar with the National Institute of Ethics which the officer must pay for himself. The officer takes the experience as a good-lesson-hard-learned and strives thereafter for the highest standard of integrity.

I make no excuse for this officer's dishonesty. Neither am I totally unsympathetic. To error is human, to forgive divine, said English poet Alexander Pope. Most of us have needed, and likely will need in our futures, some forgiveness.

This officer may or may not have considered the ramifications of lying to his Lieutenant and Captain. He clearly considered the consequences of lying to I.A. and made the right decision there. I doubt this officer stopped to consider that his department is required to advise the prosecutor's officer of this matter and that the prosecutor is required to disclose it to the defense in every criminal case in which the officer will testify over the course of his career. I further doubt this officer considered the cross examination and closing argument by the defense attorney,

Ladies and Gentleman of the jury, consider the testimony of Officer _____. The prosecution calls as THEIR witness and asks you to believe a man who will lie to his OWN brother and sister of the shield about a relatively small matter. You have to ask yourselves what such a documented liar might do when the stakes are as high as they are in this case.

Lastly, I doubt the officer weighed the odds of the prosecutor's office advising the Chief they wouldn't take any case in which the officer was a witness because they didn't want the defense cross examination and closing argument tainting the rest of the case. If the officer isn't able to testify in any criminal proceeding, how does he stay employed?

The long arm of Brady v. Maryland

In Brady v. Maryland (1963), the Supreme Court held that prosecutors have an affirmative duty to disclose all exculpatory evidence to the accused. Subsequent case law expanded Brady's obligations to law enforcement officers and defined exculpatory evidence as any evidence that could be favorable to the accused. This may include:

• Evidence relevant to guilt or innocence.
• Evidence relevant to the appropriate punishment.
• Evidence relevant to a witness' credibility, including evidence the defense might use at trial to impeach a witness. Giglio v. U.S., (S. Ct. 1972).

Relevant impeachment evidence might include, but is not limited to:

• A witness who has been offered a deal, e.g., dropped or reduced charges, sentencing consideration.
• A witness who received a reward.
• Other facts bearing on a witness' credibility, e.g., evidence that a police officer who will testify has written or otherwise made false reports or statements; evidence that a witness has made inconsistent statements.

The obligation to turn over exculpatory evidence to the defense is ongoing - it extends beyond conviction and sentencing. Moreover, Brady and its progeny have firmly stated that the good faith or bad faith of a prosecutor (and by extension the police) in failing to disclose exculpatory evidence is irrelevant.

The consequences of a Brady violation can be significant and include:

• Exclusion of a witness' testimony
• Continuance of the case
• Dismissal of the case with prejudice (the case cannot be re-instituted)
• Reversal of a conviction
• Sanctions by the court

Court-imposed sanctions could include:

• Finding of contempt
• Imposition of costs incurred by the defense
• And, as recently decided by the 9th Circuit in Tennison v. City and County of San Francisco (2009), the police may be held civilly liable under 42 U.S.C. 1983. In this case, the liability could possibly encompass 13 years of wrongful incarceration - BIG BUCKS.

According to the court's opinion in Tennison, homicide investigators withheld a taped confession to the murder by an individual that an eye witness had identified as the shooter. The eye witness had also stated that Tennison and Goff (both were convicted and imprisoned) were not present at the scene. The eye witness' statements were buried in the file.

Also, not disclosed was a $2,500 reward requested by the investigators from a Secret Witness Program that the defendants asserted might have encouraged witnesses to identify them as being involved in the crime, including one witness who changed her story twice about whether she had actually witnessed the murder.

The 9th Circuit rejected the investigators' argument that Tennison and Goff had to show they acted in bad faith. Instead, a suing plaintiff can prevail if they show officers,

Acted with deliberate indifference to or reckless disregard for an accused's rights or for the truth in withholding evidence from prosecutors.

It is noteworthy that the Tennison court found the investigators acted with reckless indifference even though they included the eye witness statements that neither Tennison nor Goff were at the scene and identifying someone else as the shooter in the file turned over to the prosecutor. The court reasoned that, in the absence of actively bringing the statements to the prosecutor's attention, including the information in the file only served to bury, not disclose it.

This finding may have been influenced by the investigators' more egregious conduct of withholding the confession by the person identified by the eye witness as the shooter. Regardless, it suggests that specific protocols for alerting prosecutors to exculpatory evidence are in order.

The Brady list and more

Brady poses another minefield for officers. The media has fostered a newly heightened public scrutiny of prosecutors and their Brady duties. Recent high profile cases involving Brady violations have also re-energized the defense bar.

Last year Brady v. Maryland received new public life in the widely covered trial of U.S. Senator Ted Stevens. After obtaining convictions at trial, the government's motion to dismiss the case based on Brady violations by the prosecution made headline news. The prosecutors in that case are still under investigation. The defense bar is re-energized in its Brady motions and litigation. (See web link below to Litigating Brady v. Maryland.)

In response, many prosecution offices have developed, or are developing, Brady Lists of officers with impeachment evidence in their background. Prosecutors then notify defense attorneys whenever a Brady listed officer is to be called as a witness, along with providing the impeachment evidence.

Find yourself Brady-listed and you may just find yourself out of police work. (See web link below to Fired Ceres detective seeks job, back pay.) Even if you hang onto your job, how are you going to feel testifying and being cross examined on lying about falling asleep on the job (or any other impeachment evidence) in every criminal case?

How would you feel about being civilly sued under a standard of reckless indifference regarding your obligation to recognize, preserve, collect and disclose any and all exculpatory evidence? Exculpatory evidence doesn't just include evidence that could be used to impeach you. It also includes evidence that could be used to impeach the witnesses you interview. Can you recognize all such evidence?

Stay tuned

Next month we'll look at what police departments, prosecution offices and individual officers need to do to safely navigate the requirements of Brady v. Maryland and its progeny.